EXHIBIT 10.92
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
dated as of July 14, 2005 (this "Amendment"), is among EZCORP, INC., a Delaware
corporation (the "Borrower"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Agent for itself and the other Lenders (the "Agent") and as the Issuing Bank,
and the Lenders.
RECITALS:
A. The Borrower, the Agent, the Lenders and the Issuing Bank have
previously entered into that certain Third Amended and Restated Credit Agreement
dated as of April 8, 2004 (as the same has been amended, restated or modified
from time to time, the "Agreement").
B. A new indirect subsidiary of the Borrower, EZMONEY Colorado,
Inc., a Delaware corporation ("EZMONEY Colorado"), was created on March 21,
2005, and prior to the execution of this Amendment, EZMONEY Colorado has
executed and delivered documents, agreements and instruments required pursuant
to Section 8.10 of the Agreement in order to be a Guarantor under the Loan
Documents.
C. The Borrower has requested amendments to certain provisions of
the Agreement that are impacted by its new credit services organization program
as herein specifically provided.
D. The Agent and the Lenders are willing to make such amendments
on the terms and subject to the conditions and to the extent set forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto hereby agree as
follows:
ARTICLE I
Definitions
Section 1.1 Definitions. All capitalized terms not otherwise
defined herein shall have the same meanings as in the Agreement, as amended
hereby.
ARTICLE II
Amendments
Section 2.1 Amendment to Section 1.1. Effective as of the date
hereof, the following definitions in Section 1.1 of the Agreement are hereby
amended and restated in their entirety to read as follows:
"Senior Leverage Ratio" means, as of any Fiscal Quarter end,
the ratio of (a) Senior Funded Debt, minus CSO LC Liabilities (to the
extent included in Senior Funded Debt) to (b) EBITDA, in each case for
such Fiscal Quarter and the prior three Fiscal Quarters.
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
"Total Leverage Ratio" means, as of any Fiscal Quarter end,
the ratio of (a) Funded Debt, minus CSO LC Liabilities (to the extent
included in Funded Debt) to (b) EBITDA, in each case for such Fiscal
Quarter and the prior three Fiscal Quarters.
Section 2.2 Addition to Section 1.1. Effective as of the date
hereof, the following definitions are hereby added to Section 1.1 of the
Agreement in alphabetical order to read in their entirety as follows:
"CSO LC Issuer" means, with respect to any CSO LC, the
Borrower or a Guarantor that issued such CSO LC.
"CSO LC" means, any letter of credit issued by a CSO LC Issuer
to an unaffiliated third party lender for the account of a borrower of
a consumer loan in connection with the CSO Program.
"CSO LC Disbursement" means a disbursement by a CSO LC Issuer
to an unaffiliated third party lender in connection with a drawing
under a CSO LC.
"CSO LC Liabilities" means, at any time, the sum of that
portion of the aggregate amounts available to be drawn of all
outstanding CSO LCs equal to the principal amounts of the consumer
notes supported by such CSO LCs.
"CSO Program" means the credit services organization program
implemented by the Borrower or any Guarantor in compliance with
applicable provisions of law, including without limitation in those
instances where Texas law is applicable, the Texas Finance Code and
Sections 302 and 393 thereof.
Section 2.3 Amendment to Section 2.1(b). Effective as of the date
hereof, Section 2.1(b) of the Agreement is hereby amended and restated to read
in its entirety as follows:
(b) the sum of the outstanding Swing Loan Advances, the Letter of
Credit Liabilities and the CSO LC Liabilities.
Section 2.4 Amendment to Section 2.7(a). Effective as of the date
hereof, clause (i) of Section 2.7(a) of the Agreement is hereby amended and
restated in its entirety to read as follows:
(i) which when added to the then outstanding Revolving Credit Loan
Advances plus the outstanding Letter of Credit Liabilities plus the
outstanding CSO LC Liabilities plus the outstanding Swing Loan Advances
would exceed the Revolving Credit Commitments, and
Section 2.5 Amendment to Section 2.9. Effective as of the date
hereof, Section 2.9 of the Credit Agreement is amended by adding the phrase "or
any CSO LC Liabilities" to the end of the last sentence therein.
Section 2.6 Amendment to Section 2.11(a). Effective as of the date
hereof, the references to "outstanding Letter of Credit Liabilities" in Section
2.11(a) of the Agreement are hereby deleted and the references to "outstanding
Letter of Credit Liabilities and CSO LC Liabilities" are inserted in lieu
thereof.
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT - Page 2
Section 2.7 Amendment to Section 2.11(b). Effective as of the date
hereof, the reference to the phrase "plus the Letter of Credit Liabilities" in
Section 2.11(b) of the Agreement is hereby deleted and the reference to the
phrase "plus the Letter of Credit Liabilities plus the CSO LC Liabilities" is
inserted in lieu thereof.
Section 2.8 Amendment to Section 3.1(a)(ii)(B). Effective as of the
date hereof, Section 3.1(a)(ii)(B) of the Agreement is hereby amended and
restated to read in its entirety as follows:
(B) the sum of the outstanding Revolving Credit Loan Advances, CSO LC
Liabilities and Swing Loan Advances
Section 2.9 Amendment to Section 4.3. Effective as of the date
hereof, the references to "the Letter of Credit Liabilities" in Section
4.3(a)(ii) and Section 4.3(b) of the Agreement are hereby deleted and the
reference to "the Letter of Credit Liabilities plus CSO LC Liabilities" is
inserted in each such subsection in lieu thereof.
Section 2.10 Amendment to Section 8.1. Effective as of the date
hereof, subsection (l) of Section 8.1 of the Agreement is hereby relettered
"(m)" and a new Section 8.1(l) is added to the Agreement to read in its entirety
as follows:
Section 8.1(l) CSO Program Agreements. As soon as available and in
any event within 30 days after the execution and delivery thereof, copies of
each agreement between the Borrower or any Guarantor and an unaffiliated, third
- party lender in connection with any CSO Program and the contractual
arrangement between the parties thereto in connection therewith; and
Section 2.11 Amendment to Section 9.1. Effective as of the date
hereof, the word "and" appearing at the end of Section 9.1(e) of the Agreement
is hereby deleted, and the remaining provisions of such Section are hereby
amended and restated to read in their entirety as follows:
(f) Debt consisting of CSO LCs; and
(g) Debt (other than Debt described in clauses (a)
through and including (f) above) in an aggregate amount not to exceed
$500,000.00 at any one time outstanding.
Section 2.12 Amendment to Section 9.5. Effective as of the date
hereof, (a) clause (g) of Section 9.5 of the Agreement is hereby amended by
deleting the word "and" at the end thereof, (b) clause (h) of Section 9.5 of the
Agreement is hereby amended by deleting the period at the end of such clause and
inserting "; and" in lieu thereof and (c) a new clause (i) is hereby added to
Section 9.5 of the Agreement to read in its entirety a follows:
(i) any CSO LC Disbursements made by the CSO LC Issuer in
connection with the CSO Program.
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT - Page 3
Section 2.13 Amendment to Section 10.4. Effective as of the date
hereof, the reference to the dollar amount "$8,000,000" in Section 10.4 of the
Agreement is hereby deleted and the reference to the dollar amount "$10,000,000"
is inserted in lieu thereof.
Section 2.14 Amendment to Schedule 7.14. Effective as of the date
hereof, all references to "Schedule 7.14" in the Agreement shall be deemed to
mean the "Schedule 7.14" attached hereto as Schedule 7.14.
Section 2.15 Amendment to Exhibit C. Effective as of the date
hereof, all references to "Exhibit C" in the Agreement shall be deemed to be
references to the "Exhibit C" attached hereto as Exhibit C.
ARTICLE III
Conditions Precedent
Section 3.1 Conditions. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent:
(a) Amendment. The Agent shall have received this
Amendment executed by the Borrower, the Agent, the Issuing Bank and the
Required Lenders and consented to by the Guarantors.
(b) No Default. No Default shall have occurred and be
continuing.
(c) Representations and Warranties. All of the
representations and warranties contained in Article VII of the
Agreement and in the other Loan Documents shall be true and correct on
and as of the date of this Amendment with the same force and effect as
if such representations and warranties had been made on and as of such
date, except to the extent such representations and warranties speak to
a specific date.
(d) Amendment Fee. The Borrower shall have paid to the
Agent for the account of the Lenders executing this Amendment a
nonrefundable amendment fee in the amount of $15,000 to be shared pro
rata among the Lenders who have executed and delivered this Amendment
on or before August 3, 2005.
(e) CSO Program Agreements. The Agent shall have received
copies of the agreements currently in existence as described in and as
required by Section 8.1(l) of the Agreement, as amended by this
Amendment.
(f) Legal Opinions. The Agent shall have received
favorable opinions of legal counsel to the Borrower and each Guarantor,
satisfactory to the Agent, as to such matters as the Agent may
reasonably request.
(g) Additional Documentation. The Agent shall have
received such additional approvals, opinions or documents as the Agent
or its legal counsel may reasonably request.
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT - Page 4
ARTICLE IV
Ratifications, Representations and Warranties
Section 4.1 Ratifications. The terms and provisions set forth in
this Amendment shall modify and supersede all inconsistent terms and provisions
set forth in the Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of the Agreement and the other Loan
Documents are ratified and confirmed and shall continue in full force and
effect. The Borrower, the Lenders, the Issuing Bank and the Agent agree that the
Agreement as amended hereby and the other Loan Documents shall continue to be
legal, valid, binding and enforceable in accordance with their respective terms.
Section 4.2 Representations and Warranties. The Borrower hereby
represents and warrants to the Lenders, the Agent and the Issuing Bank that (a)
the execution, delivery and performance of this Amendment and any and all other
Loan Documents executed and/or delivered in connection herewith have been
authorized by all requisite corporate action on the part of the Borrower and
will not violate the certificate of incorporation or bylaws of the Borrower, (b)
the representations and warranties contained in the Agreement, and any other
Loan Document are true and correct on and as of the date hereof as though made
on and as of the date hereof (except for such representations and warranties as
are limited by their express terms to a specific date), (c) effective upon the
execution of this Amendment and the Loan Documents executed in connection
herewith, no Default has occurred and is continuing, and (d) the Borrower is in
full compliance with all covenants and agreements contained in the Agreement as
amended hereby.
ARTICLE V
Miscellaneous
Section 5.1 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan Document
including any Loan Document furnished in connection with this Amendment shall
survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Lenders, the Agent or the Issuing Bank or
any closing shall affect the representations and warranties or the right of the
Lenders, the Agent or the Issuing Bank or the Agent to rely upon them.
Section 5.2 Reference to Agreement. Each of the Loan Documents,
including the Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Agreement as amended hereby, are hereby amended
so that any reference in such Loan Documents to the Agreement shall mean a
reference to the Agreement as amended hereby.
Section 5.3 Expenses of Agent. As provided in the Agreement,
Borrower agrees to pay on demand all costs and expenses incurred by the Agent in
connection with the preparation, negotiation, and execution of this Amendment
and the other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including without limitation
the reasonable costs and fees of the Agent's legal counsel, and all costs and
expenses incurred by the Agent in connection with the enforcement or
preservation of any rights under the
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT - Page 5
Agreement or any other Loan Document, including without limitation the
reasonable costs and fees of the Agent's legal counsel.
Section 5.4 Severability. Any provision of this Amendment held by
a court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
Section 5.5 Applicable Law. This Amendment and all other Loan
Documents executed pursuant hereto shall be governed by and construed in
accordance with the laws of the State of Texas and the applicable laws of the
United States of America.
Section 5.6 Successors and Assigns. This Amendment is binding upon
and shall inure to the benefit of the Lenders, the Agent, the Issuing Bank and
the Borrower and their respective successors and assigns, except the Borrower
may not assign or transfer any of its rights or obligations hereunder without
the prior written consent of the Lenders and the Agent.
Section 5.7 Counterparts. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the same
instrument. Signatures transmitted by facsimile, email or other electronic
medium shall be effective as originals.
Section 5.8 Headings. The headings, captions, and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 5.9 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH
THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
HERETO.
[Remainder of Page Intentionally Left Blank]
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT - Page 6
Executed as of the date first written above.
BORROWER:
EZCORP, INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
AGENT, ISSUING BANK AND LENDERS:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Agent, Issuing Bank and a Lender
By:
------------------------------------
Xxxxxxx Xxx
Vice President
GUARANTY BANK,
as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT - SIGNATURE PAGE
The Guarantors hereby consent and agree to this Amendment and agree
that the Guaranty shall remain in full force and effect and shall continue to
(i) guarantee the Guaranteed Indebtedness (as defined in the Guaranty), and (ii)
be the legal, valid and binding obligation of the Guarantors and enforceable
against the Guarantors in accordance with its terms. In addition, the Guarantors
hereby agree that each Subsidiary Security Agreement, the Contribution and
Indemnification Agreement and each Real Property Security Document shall remain
in full force and effect and shall continue to (i) secure the Obligations (as
defined in the Loan Documents other than the Real Property Security Documents)
and the Debt (as defined in the Real Property Security Documents), and (ii) be
the legal, valid and binding obligation of the Guarantors and enforceable
against the Guarantors and collateral in accordance with their respective terms.
OBLIGATED PARTIES:
-----------------
EZCORP INTERNATIONAL, INC.
EZMONEY COLORADO, INC.
EZMONEY HOLDINGS, INC.
EZMONEY MANAGEMENT, INC.
EZPAWN ALABAMA, INC.
EZPAWN ARKANSAS, INC.
EZPAWN COLORADO, INC.
EZPAWN FLORIDA, INC.
EZPAWN HOLDINGS, INC.
EZPAWN INDIANA, INC.
EZPAWN LOUISIANA, INC.
EZPAWN NEVADA, INC.
EZPAWN OKLAHOMA, INC.
EZPAWN TENNESSEE, INC.
PAYDAY LOAN MANAGEMENT, INC.
TEXAS EZPAWN MANAGEMENT, INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
TEXAS EZPAWN, L.P.
By: Texas EZPAWN Management, Inc.,
its sole general partner
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT - SIGNATURE PAGE
TEXAS PRA MANAGEMENT, L.P.
By: EZMoney Management, Inc.,
its sole general partner
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
TEXAS EZMONEY, L.P.
By: PAYDAY LOAN MANAGEMENT, INC.,
its sole general partner
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT - SIGNATURE PAGE
SCHEDULE 7.14
List of Subsidiaries
Number of
Shares or
Type of Jurisdiction Federal Foreign Percent
Corporate Name Entity of Entity Tax I.D. State I.D. Number Jurisdictions Interest
-------------- ------- ------------ -------- ----------------- ------------- ---------
EZCORP, Inc. Corporation Delaware 00-0000000 2196789 TX
EZCORP INTERNATIONAL, INC. Corporation Delaware 00-0000000 2870970 N/A 1,000
EZPAWN Alabama, Inc. Corporation Delaware 00-0000000 2307445 AL 1,000
EZPAWN Arkansas, Inc. Corporation Delaware 00-0000000 2292291 AR 1,000
EZPAWN Colorado, Inc. Corporation Delaware 00-0000000 CO - 2284741/ CO & TX 1,000
TX - 8700005692
EZPAWN Florida, Inc. Corporation Delaware 00-0000000 2313729 FL 1,000
EZPAWN Indiana, Inc. Corporation Delaware 00-0000000 2317132 IN 1,000
EZMoney Management, Inc. Corporation Delaware 00-0000000 2307447 TX 1,000
EZPAWN Louisiana, Inc. Corporation Delaware 00-0000000 2392318 LA 1,000
EZPAWN Nevada, Inc. Corporation Delaware 00-0000000 NV - 2328220/ NV & CA 1,000
CA - 2010557
EZPAWN Oklahoma, Inc. Corporation Delaware 00-0000000 2284738 OK 1,000
EZMoney Holdings, Inc. Corporation Delaware 00-0000000 2326107 N/A 1,000
EZPAWN Tennessee, Inc. Corporation Delaware 00-0000000 2302767 TN 1,000
EZPAWN Holdings, Inc. Corporation Delaware 00-0000000 2198785 MS 100
Texas EZPAWN Management, Inc. Corporation Delaware 00-0000000 2361958 TX 1,000
Texas EZPAWN L.P. Limited Texas 00-0000000 7127110
Partnership
Texas PRA Management, L.P. Limited Texas 00-0000000 800081488
Partnership
Texas EZMONEY, L.P. Limited Texas 83 - 0360848 800210635
Partnership
Schedule 7.14
Number of
Shares or
Type of Jurisdiction Federal Foreign Percent
Corporate Name Entity of Entity Tax I.D. State I.D. Number Jurisdictions Interest
-------------- ------- ------------ -------- ----------------- ------------- ---------
Payday Loan Management, Inc. Corporation Delaware 83 - 0360843 800220645 TX 1,000
EZMONEY Colorado, Inc. Corporation Delaware 20 - 2531048 20051041748 CO 1,000
Schedule 7.14
EXHIBIT C
ADVANCE REQUEST FORM
TO: Xxxxx Fargo Bank, National Association, as Agent
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxx
Vice President
Gentlemen:
The undersigned is an officer of EZCORP, Inc. (the "Borrower"), and is
authorized to make and deliver this certificate pursuant to that certain Third
Amended and Restated Credit Agreement dated as of April 8, 2004, among the
Borrower, Xxxxx Fargo Bank, National Association, as Agent, as Issuing Bank, as
Lender, and as Swing Lender, and the other Lenders named therein (as the same
has been amended, restated, modified, or supplemented from time to time being
referred to herein as the "Credit Agreement"). All terms defined in the Credit
Agreement shall have the same meaning herein. In accordance with the Credit
Agreement, the Borrower hereby (check whichever is applicable):
___ 1. Requests that the Swing Lender make a Swing Loan
Advance under the Swing Loan in the amount set forth in item (I)(e) below on the
date set forth in item (I)(f) below.
___ 2. Requests that the Lenders with a Revolving Credit
Commitment make a Base Rate Advance under the Revolving Credit Loan in the
amount set forth in item (I)(e) below on the date set forth in item (I)(f)
below.
___ 3. Requests that the Lenders with a Revolving Credit
Commitment make a Eurodollar Advance under the Revolving Credit Loan in the
amount set forth in item (I)(e) below on the date set forth in item (I)(f) below
with an Interest Period of:
one month
------------------
two months
------------------
three months
------------------
six months
------------------
In connection with the foregoing and pursuant to the terms and
provisions of the Credit Agreement, the undersigned hereby certifies to Agent
and the Lenders that the following statements are true and correct:
(i) The representations and warranties contained in Article VII of
the Credit Agreement and in each of the other Loan Documents are true and
correct in all material respects on and as of the date hereof with the same
force and effect as if made on and as of such date except to the extent such
representations and warranties speak to a specific date.
(ii) No Default has occurred and is continuing or would result from
the Advance requested hereunder.
(iii) No Material Adverse Effect has occurred since the date of the
most recent financial statements delivered to the Agent and the Lenders pursuant
to Section 8.1 of the Credit Agreement.
1
(iv) The amount of the Revolving Credit Loan Advance requested
hereunder, if any, when added to all outstanding Revolving Credit Loan Advances,
Swing Loan Advances, Letter of Credit Liabilities and CSO LC Liabilities, will
not exceed the Revolving Credit Commitments.
(v) The amount of the Swing Loan Advance requested hereunder, if
any, when added to all outstanding Swing Loan Advances, will not exceed the
lesser of (x) the Swing Commitment, and (y) the Revolving Credit Commitments
minus the sum of the outstanding Revolving Credit Loan Advances, the Letter of
Credit Liabilities and the CSO LC Liabilities.
(vii) All information supplied below is true, correct, and complete
as of the date hereof.
I. Advance Request Information for Revolving Credit Loans or
Swing Loans
(a) (1) Aggregate amount of Revolving Credit Commitments $____________
(2) Amount of Swing Commitment $____________
(b) (1) Outstanding principal amount of (A) Revolving Credit Loan Advances
and (B) Swing Loan Advances $____________
(2) Outstanding Letter of Credit Liabilities $____________
(3) Outstanding CSO LC Liabilities $____________
(4) Line (b)(1)(A) and (B) plus Line (b)(2) plus Line (b)(3) $____________
(c) Net availability of credit under the Revolving Credit Commitment:
(Line (a)(1) minus Line (b)(4)) $____________
(d) Net availability of credit under Swing Commitment (lesser of (1) Line
(a)(2) minus Line (b)(1)(B), and (ii) Line (a)(1) minus Line (b)(4) $____________
(e) Amount of requested Revolving Credit Loan Advance or Swing Loan Advance $____________
(f) Date of requested Revolving Credit Loan Advance or Swing Loan Advance _______, 200___
BORROWER:
EZCORP, INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Dated as of:
--------------------------------------------
[insert date of requested Advance]
2
