EXHIBIT 10.20
SECOND AMENDMENT
TO CREDIT AGREEMENT
THIS SECOND AMENDMENT, dated as of December 13, 1996 (this "Amendment") is
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among The Money Store Inc. (the "Borrower"), the Lenders, First Union National
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Bank of North Carolina, as Documentation Agent, and The First National Bank of
Chicago, as Administrative Agent.
BACKGROUND
1. The Borrower, the Lenders, the Documentation Agent and the
Administrative Agent entered into a Credit Agreement, dated as of August 16,
1996 (as amended by the First Amendment to Credit Agreement dated as of
September 20, 1996, the "Credit Agreement").
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2. The parties desire to amend the Credit Agreement in certain respects as
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 3. Definitions. Capitalized terms used in this Amendment and not
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otherwise defined herein shall have the meanings assigned thereto in the Credit
Agreement.
SECTION 4. Amendments to Credit Agreement. Each of the parties hereto
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agrees that, effective as of the date hereof (or as of August 16, 1996 in the
case of the amendments provided in clauses (a), (b) and (d) below, or as of
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January 1, 1997 in the case of the amendments provided in clauses (c), (e) and
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(f) below), the Credit Agreement is hereby amended as follows:
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a) The definition of "Contingent Obligation" is hereby amended and
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restated in its entirety to read as follows:
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"Contingent Obligation of a Person means any agreement, undertaking
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or arrangement by which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes or is
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contingently liable upon, the obligation or liability of any other
Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures
any creditor of such other Person against loss, including, without
limitation, any comfort letter, operating agreement, take-or-pay
contract or discount with recourse, but excluding (i) endorsements of
negotiable instruments for deposit or collection in the ordinary
course of business of the Borrower and its Subsidiaries and (ii) any
recourse obligation of the Borrower or any of its Subsidiaries with
respect to loans or other receivables sold with recourse to the
Borrower or such Subsidiary or any of the property of either, if such
loans or other receivables are sold to trusts or other special purpose
entities in securitization transactions entered into in the ordinary
course of business of the Borrower and its Subsidiaries, but only to
the extent such recourse obligation (w) is incurred by a Subsidiary of
the Borrower that is a bankruptcy-remote, special purpose entity
formed for the sole purpose of securitizing, or facilitating the
securitizing of, consumer loans and other receivables of the Borrower
and its other Subsidiaries (which Subsidiary does not itself originate
consumer loans, receivables or other financial assets, and, if it
acquires such assets, it acquires such assets from the Borrower and
its other Subsidiaries) and arises out of such Subsidiary being deemed
a general partner of a trust or other special purpose entity which
issues securities in connection with the Borrower's securitization
transactions, so long as such obligation is not in respect of any
payments on such securities, (x) is in respect of a breach of
representation, warranty, covenant or undertaking (other than any
covenant or undertaking to pay the principal or comparable portion of
any loans or receivables transferred, or of any securities or other
obligations issued, in connection with such securitization
transactions), made by the Borrower or any of its Subsidiaries
relating to such sale
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of receivables, (y) is or will be funded from Consolidated Restricted
Cash, or (z) constitutes the repurchase obligations reported in the
Borrower's consolidated financial statements as of December 31, 1995.
Contingent Obligations of a Person shall include without limitation,
the stated amount of each letter of credit, surety bond and other
similar instrument issued by such Person. The amount of any Contingent
Obligation of a Person shall be deemed to be the maximum amount for
which such Person may be liable, whether upon the occurrence of any
contingency or otherwise, under or by virtue of such Contingent
Obligation."
b) The definition of "Indebtedness" is hereby amended by (i) deleting
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the word "and" at the end of clause (viii) therein and (ii) inserting the
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following text immediately prior to the period at the end of such
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definition:
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"and (x) without duplication, any liabilities of such Person in
connection with obligations excluded from the definition of
Contingent Obligation pursuant to clause (ii) of such
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definition".
c) The definition of "Payment Date" is hereby amended and restated in
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its entirety to read as follows:
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" Payment Date means the first Business Day of each calendar
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month."
d) The definition of "Securitization SPV" is hereby amended and
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restated in its entirety to read as follows:
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" Securitization SPV means a Subsidiary of the Borrower which is
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a bankruptcy remote special purpose entity formed for the sole
purpose of securitizing, or facilitating the securitizing of,
consumer loans and other receivables of the Borrower and its
other Subsidiaries, so long as (i) such entity does not itself
originate consumer loans, receivables or other financial assets,
and, if it acquires such assets, it acquires such
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assets from the Borrower and its other Subsidiaries and (ii) such
entity does not make or suffer to exist any Contingent
Obligation."
e) The definition of "Quarterly Payment Date" is hereby deleted from
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Article I in its entirety.
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f) Section 2.5(a) is hereby amended by substituting the term "Payment
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Date" for the term "Quarterly Payment Date" therein.
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g) Section 2.8 is hereby amended by (i) substituting the time "noon
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(Chicago time)" for the time "10:00 a.m. (Chicago time)" each of the two
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times such time appears in the second sentence of such section and (ii)
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amending and restating the third sentence of such section in its entirety
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to read as follows:
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"Not later than (x) noon (Chicago time), in the case of a
Eurodollar Advance or (y) 3:00 p.m. (Chicago time), in the case
of any Advance not described in the immediately preceding clause
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(x), on each Borrowing Date, each Lender (or in the case of a
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Facility B Advance, each Facility B Lender) shall make available
its Loan or Loans, in funds immediately available in Chicago to
the Agent at its address specified pursuant to Article XIII."
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h) Section 2.9 is hereby amended by substituting the time "noon
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(Chicago time)" for the time "10:00 a.m. (Chicago time)" therein.
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SECTION 1. Conditions to Effectiveness. This Amendment shall become
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effective as of the dates set forth in Section 2 above, once the Agent shall
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have received counterparts of this Amendment executed by the Borrower and the
Required Lenders.
SECTION 2. Representations and Warranties. The Borrower hereby
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represents and warrants that no Default or Unmatured Default has occurred which
is continuing and the representations and warranties set forth in Article V of
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the Credit Agreement are true and correct as of the date hereof, in each case
after giving effect to the amendments made hereby.
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SECTION 3. Fees and Expenses. The Borrower hereby agrees, in accordance
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with Section 9.7 of the Credit Agreement, to pay, or reimburse the Agent and the
Documentation Agent, on demand, for any and all legal fees and expenses incurred
by the Agent or the Documentation Agent, as applicable, in connection with this
Amendment.
SECTION 4. Miscellaneous. The Credit Agreement, as amended hereby,
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remains in full force and effect. Any reference to the Credit Agreement from and
after the date of this Amendment shall be deemed to refer to the Credit
Agreement as amended hereby. This Amendment may be executed in any number of
counterparts, and by the parties on separate counterparts, all of which shall
constitute but one and the same agreement. This Amendment shall be governed by
the internal laws of the State of Illinois, but giving effect to Federal laws
applicable to national banks.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date and year first above written.
THE MONEY STORE INC.
By:_______________________________
Name Printed:_____________________
Title:____________________________
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Administrative Agent
By:_______________________________
Name Printed:______________________
Title:_____________________________
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By:_______________________________
Name Printed:______________________
Title:_____________________________
BANCO POPULAR de PUERTO RICO
By:_______________________________
Name Printed:______________________
Title:_____________________________
BANK HAPOALIM B.M.
By:_______________________________
Name Printed:______________________
Title:_____________________________
THE BANK OF NEW YORK
By:_______________________________
Name Printed:______________________
Title:_____________________________
THE BANK OF NOVA SCOTIA
By:_______________________________
Name Printed:______________________
Title:_____________________________
000
XXX XXXXX XXXXXXXXX BANK
By:_______________________________
Name Printed:______________________
Title:_____________________________
CIBC INC.
By:_______________________________
Name Printed:______________________
Title:_____________________________
COMERICA BANK
By:_______________________________
Name Printed:______________________
Title:_____________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:_______________________________
Name Printed:______________________
Title:_____________________________
FIRST BANK NATIONAL ASSOCIATION
By:_______________________________
Name Printed:______________________
Title:_____________________________
THE SUMITOMO BANK OF CALIFORNIA
By:_______________________________
Name Printed:______________________
Title:_____________________________
By:_______________________________
Name Printed:______________________
Title:_____________________________
THE SUMITOMO BANK, LIMITED
By:_______________________________
Name Printed:______________________
Title:_____________________________
By:_______________________________
Name Printed:______________________
Title:_____________________________
UNION BANK OF CALIFORNIA, N.A.
By:_______________________________
Name Printed:______________________
Title:_____________________________
000
XXXXXX XXXXXX XXXXXXXX XXXX
XX XXXXXX
By:_______________________________
Name Printed:______________________
Title:_____________________________
XXXXX FARGO BANK, N.A.
By:_______________________________
Name Printed:______________________
Title:_____________________________
Each of the undersigned hereby consents
to the foregoing Amendment as of the
date and year first above written:
TMS Mortgage Inc., The Money Store/Kentucky Inc., The Money Store Home Equity
Corp., The Money Store/D.C., Inc., The Money Store/Minnesota Inc., The Money
Store Auto Finance Inc., The Money Store Commercial Mortgage Inc., Equity
Insurance Agency, Inc., Major Brokerage Co., Inc., Princeton Escrow, Dyna-Xxxx,
Inc., The Money Store Investment Corporation, The Money Store of New York, Inc.,
The Commerce Group, The Money Store/Service Corp., ClassNotes Inc., The Money
Store Realty, Inc., TMS Venture Holdings Inc.
By:________________________________________
Name Printed:_______________________________
Title:______________________________________
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