CASH AMERICA INTERNATIONAL,
INC.
AMENDMENT NO. 4 TO NOTE
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 $42,500,000 in aggregate principal amount of its 7.20%
Senior Notes due August 12, 2009 (as they may be amended,
restated or otherwise modified from time to time, the “
Notes ”) pursuant to that certain Note Agreement,
dated as of August 12, 2002 (as amended by that certain
Amendment No. 1 to Note Agreement, dated as of
September 7, 2004, that certain Amendment No. 2 to Note
Agreement, dated as of December 31, 2006, and that certain
Amendment No. 3 to Note Agreement, dated as of
December 21, 2007, and 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. 4 to
Note 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 2.01 of the Existing Note Agreement is hereby amended
by adding the definitions of “Cash America of Mexico,”
“Consolidated Net Worth,” “New Mexican
Subsidiary,” “Non-Domestic
Subsidiary” and “Non-Wholly Owned Subsidiary” in
proper alphabetical order and which new definitions shall read in
full as follows:
““
Cash America of Mexico ” means Cash America of
Mexico, Inc., a Delaware corporation and Wholly-Owned
Subsidiary.”
“
Consolidated Net Worth ” means, as of any date,
the total shareholders’ equity which would appear on a
consolidated balance sheet of the Company and the Consolidated
Subsidiaries prepared as of such date in accordance with
GAAP.
““
New Mexican Subsidiary ” means 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 , so long as Cash America
of Mexico owns not less than 80% of its Voting Stock and 80% of the
outstanding shares of all other classes of its
Stock.”
““
Non-Domestic Subsidiary ” means a Subsidiary
which is incorporated in, or conducts a significant portion of its
business activities in, any one or more jurisdictions outside the
United States.”
““
Non-Wholly Owned Subsidiary ” means any
Subsidiary (other than a Wholly-Owned
Subsidiary).”
2.
Section 2.01 of the Existing Note Agreement is hereby amended
by amending and restating the definition of
“Investment” to read in full as follows:
““
Investment ” means, as applied to any Person,
(i) any direct or indirect purchase or other acquisition by
such Person of stocks, bonds, notes, debentures or other securities
of any other Person, (ii) any direct or indirect loan,
advance, extension of credit or capital contribution by such Person
to any other Person (other than a contribution of capital stock of
the Company to any Person in connection with the acquisition of the
New Mexican Subsidiary by Cash America of Mexico), (iii) any
Assurance by such Person of any indebtedness of any other Person,
(iv) the subordination by such Person of any claim against any
other Person to other indebtedness of such other Person and
(v) any other item which would be classified as an
“investment” on a balance sheet of such Person prepared
in accordance with GAAP, including any direct or indirect
contribution by such Person of Property to a joint venture,
partnership or other business entity in which such Person retains
an interest.”
3.
Section 9.11(e) of the Existing Note Agreement is hereby
amended and restated to read in full as follows:
“(e) In the
case of the Company, Investments in Wholly-Owned Subsidiaries
(including Subsidiaries acquired after December 1, 2008 in
accordance with Section 9.20(a)(1)) resulting from its
acquisition or ownership of Stock of, or capital contributions to,
such Subsidiaries but, in each case, only to the extent not
prohibited by Section 9.20, provided that after giving effect
to each such Investment the aggregate book value of all Investments
of the Company and all Subsidiaries in Non-Domestic Subsidiaries
and Non-Wholly Owned Subsidiaries at such time does not exceed 30%
of Consolidated Net Worth;”
2
4.
Section 9.11(g) of the Existing Note Agreement is hereby
amended and restated in full as follows:
“(g) In the
case of any Subsidiary, Investments in Non-Wholly Owned
Subsidiaries (including Subsidiaries acquired after
December 1, 2008 in accordance with Section 9.20(a)(1)),
resulting from the acquisition or ownership of Stock of, or capital
contributions to, such Subsidiaries but, in each case, only to the
extent not prohibited by Section 9.20, provided that after
giving effect to each such Investment the aggregate book value of
all Investments of the Company and all Subsidiaries in Non-Domestic
Subsidiaries and Non-Wholly Owned Subsidiaries at such time does
not exceed 30% of Consolidated Net Worth;”
5.
Section 9.20(a)(1)(A) of the Existing Note Agreement is hereby
amended and restated to read in full as follows:
“(A)
immediately after giving effect to such acquisition, such Person
shall constitute a Wholly-Owned Subsidiary or a Non-Wholly Owned
Subsidiary subject to the limits set forth in Section 9.11(e) and
Section 9.11(g);”
6.
Section 9.20 of the Existing Note Agreement is hereby amended
by adding a new subsection (e) which shall read in full as
follows:
“(e)
Notwithstanding the foregoing in no event shall any Non-Domestic
Subsidiary be required to be or become a Guarantor so long as such
Non-Domestic Subsidiary is not obligated as a guarantor or obligor
for any Indebtedness for Money Borrowed of the Company or any
Subsidiary.”
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 Date 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.
3
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.
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.
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 Guaranty (or an agreement and adoption of the
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:
4
(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 9.20(a)(2)(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 Voting Stock of Creazione Estilo, S.A. de
C.V., SOFOM, E.N.R., a Mexican sociedad
an&oac
|
