CASH AMERICA INTERNATIONAL,
INC.
AMENDMENT NO. 1 TO NOTE PURCHASE
AGREEMENT
To the Persons
Named on
Annex 1 Hereto
Cash America
International, Inc., a Texas corporation (hereinafter, the “
Company ”), together with its successors and assigns,
agrees with you as follows:
1.
PRELIMINARY STATEMENTS.
The Company issued
and sold $35,000,000 in aggregate principal amount of its 6.09%
Series A Senior Notes due December 19, 2016 (as they may
be amended, restated or otherwise modified from time to time, the
“ Series A Notes ”) and $25,000,000 in
aggregate principal amount of its 6.21% Series B Senior Notes
due December 19, 2021 (as they may be amended, restated or
otherwise modified from time to time, the “ Series B
Notes ” and, together with the Series A Notes,
collectively, the “ Notes ”) pursuant to that
certain Note Purchase Agreement, dated as of December 19, 2006
(as in effect immediately prior to giving effect to the Amendments
(as defined below) provided for hereby, the “ Existing
Note Agreement ”, and as amended as contemplated hereby,
the “ Note Agreement ”). The register for the
registration and transfer of the Notes indicates that the parties
named in Annex 1 (the “ Current Holders ”) to
this Amendment No. 1 to Note Purchase Agreement (this “
Amendment Agreement ”) are currently the holders of
the entire outstanding principal amount of the Notes. The
amendments to the Existing Note Agreement as provided for by this
Amendment Agreement are referred to herein, collectively, as the
“ Amendments ”.
Capitalized terms
used herein and not otherwise defined herein have the meanings
ascribed to them in the Note Agreement.
3.
AMENDMENTS TO THE EXISTING NOTE AGREEMENT.
Subject to
Section 5, the Existing Note Agreement is amended as provided
for by this Amendment Agreement as follows:
1. Section 10.9(c)
of the Existing Note Agreement is hereby amended and restated to
read in full as follows:
“(c) Nothing
in this Section 10.9 shall operate to prevent (i) any
transaction permitted by Section 10.2(a) or (ii) any
investment in a Non-Wholly-Owned Subsidiary so long as after giving
effect to such investment the aggregate book value of all
investments in Non-Wholly-Owned Subsidiaries does not exceed 30% of
Consolidated Net Worth, in each case determined as of the date of
such investment.”
4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce you to
enter into this Amendment Agreement and to consent to the
Amendments, the Company represents and warrants to you as
follows:
Neither the
financial statements and other certificates previously provided to
each of the Current Holders pursuant to the provisions of the
Existing Note Agreement nor the statements made in this Amendment
Agreement nor any other written statements furnished to each of the
Current Holders by or on behalf of the Company in connection with
the proposal and negotiation of the transactions contemplated
hereby, taken as a whole, contained any untrue statement of a
material fact or omitted a material fact necessary to make the
statements contained therein and herein not misleading, in each
case as of the time such financial statements or certificates were
provided or such statements were made or furnished. There is no
fact known to the Company relating to any event or circumstance
that has occurred or arisen since the Closing that the Company has
not disclosed to each of the Current Holders in writing that has
had or, so far as the Company can now reasonably foresee, could
reasonably be expected to have, a Material Adverse
Effect.
4.2. Power
and Authority.
The Company has
all requisite corporate power and authority to enter into and
perform its obligations under this Amendment Agreement.
This Amendment
Agreement has been duly authorized by all necessary action on the
part of the Company, has been executed and delivered by a duly
authorized officer of the Company, and constitutes a legal, valid
and binding obligation of the Company, enforceable in accordance
with its terms, except that enforceability may be limited by
applicable bankruptcy, reorganization, arrangement, insolvency,
moratorium, or other similar laws affecting the enforceability of
creditors’ rights generally and subject to the availability
of equitable remedies.
No event has
occurred and no condition exists that, upon the execution and
delivery of this Amendment Agreement, would constitute a Default or
an Event of Default.
2
The Company has
delivered to special counsel to the Current Holders true and
correct copies of the primary documents pursuant to which the
Company or any of its Subsidiaries has invested in and acquired the
business operated by the New Mexican Subsidiary (as defined
below).
5.
EFFECTIVENESS OF AMENDMENTS.
The Amendments
shall become effective as of the first date written above (the
“ Effective Date ”) upon the satisfaction of all
of the following conditions precedent:
5.1.
Execution and Delivery of this Amendment Agreement
.
The Company and
the Required Holders shall have executed and delivered this
Amendment Agreement.
Each Guarantor
which delivered the Joint and Several Guaranty (or an agreement and
adoption of the Joint and Several Guaranty) shall have executed and
delivered to you the Consent and Reaffirmation attached hereto as
Exhibit A .
5.3. Cash
America of Mexico, Inc.
The Company shall
have formed Cash America of Mexico, Inc., a Delaware corporation
and Wholly-Owned Subsidiary (herein referred to as “ Cash
America of Mexico ”). Cash America of Mexico shall have
caused to be executed and delivered to you:
(a) an instrument
in writing pursuant to which it agrees to become a Guarantor, and
to be bound as a Guarantor by the terms of the Guaranty and the
Subrogation and Contribution Agreement; such instrument shall be in
the form of Exhibit B hereto; and
(b) an
Officer’s Certificate in the form of Exhibit C
hereto and as contemplated by Section 10.9(a)(ii)(D) of the
Existing Note Agreement.
5.4. Prenda
Facil Acquisition.
On the Effective
Date, (a) Cash America of Mexico shall have acquired at least
80% of the shares of capital stock of Creazione Estilo, S.A. de
C.V., SOFOM, E.N.R., a Mexican sociedad anónima de
capital variable, sociedad financiera de objeto múltiple,
entidad no regulada (“ Creazione ”), having
general voting power under ordinary circumstances to elect a
majority of the board of directors (or other governing body) of
Creazione (so long as Cash America of Mexico owns not less than 80%
of such voting stock of Creazione and 80% of the outstanding shares
of all other classes of capital stock of Creazione, the “
New Mexican Subsidiary ”) and (b) the Company
shall have advanced funds to enable the New Mexican Subsidiary to
repay all of its existing material Indebtedness for Money
Borrowed.
3
The Company shall
have obtained any and all necessary consents, waivers and
amendments with respect to the Existing Bank Loan Agreement, as
amended from time to time, to permit the formation of Cash America
of Mexico and the acquisition of the shares of capital stock of
Creazione having general voting power under ordinary circumstances
to elect a majority of the board of directors (or other governing
body) of Creazione as contemplated by Sections 5.3 and 5.4 of
this Amendment Agreement.
Each of the
Current Holders shall have received a fee in an amount equal to
0.15% of the outstanding principal amount of Notes owned by such
Current Holder.
Whether or not the
Amendments become effective, the Company will promptly (and in any
event within thirty Business Days of receiving any statement or
invoice therefor) pay all reasonable fees, expenses and costs
relating to this Amendment Agreement, including, but not limited
to, the reasonable fees of your special counsel, Bingham McCutchen
LLP, incurred in connection with the preparation, negotiation and
delivery of this Amendment Agreement and any other documents
related hereto. Nothing in this Section shall limit the
Company’s obligations pursuant to Section 15.1 of the
Note Agreement.
6.1. Part
of Existing Note Agreement; Future References,
etc.
This Amendment
Agreement shall be construed in connection with and as a part of
the Existing Note Agreement and, except as expressly amended by
this Amendment Agreement, all terms, conditions and covenants
contained in the Existing Note Agreement are hereby ratified and
shall be and remain in full force and effect. Any and all notices,
requests, certificates and other instruments executed and delivered
after the execution and delivery of this Amendment Agreement may
refer to the Existing Note Agreement without making specific
reference to this Amendment Agreement, but nevertheless all such
references shall include this Amendment Agreement unless the
context otherwise requires.
This Amendment
Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number
of copies hereof, each signed by less than all, but together signed
by all, of the parties hereto. A facsimile of an executed
c
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