Exhibit 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "Third Amendment") is
dated to be effective as of August 22, 2006, among FIRST CASH FINANCIAL
SERVICES, INC. (the "Borrower") and JPMORGAN CHASE BANK, N.A. successor by
merger to Bank One, NA (Main Office Chicago) (the "Lender" and the "Agent")
and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, successor by merger to ▇▇▇▇▇
Fargo Bank Texas, National Association (the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lenders are parties to that certain
Credit Agreement dated as of August 9, 2002, and that certain First
Amendment to Loan Agreement dated March 1, 2004, and that certain Second
Amendment to Loan Agreement dated June 30, 2005, by and between the Borrower
and the Lenders (collectively the "Agreement"); and
WHEREAS, the Borrower and the Lenders desire to amend the Agreement by
this Third Amendment to reflect the agreements, modifications and amendments
as set forth below.
NOW, THEREFORE, for and in consideration of the above premises and for
other good and valuable consideration, the parties hereto agree as follows:
1. Definitions. All capitalized terms defined in the Agreement and not
otherwise defined in this Third Amendment shall have the same meanings as
assigned to them in the Agreement when used in this Third Amendment, unless
the context hereof shall otherwise require or provide.
2. Representations and Warranties. In order to induce the Lenders to
enter into this Third Amendment, the Borrower represents and warrants to the
Lenders that:
A. The Borrower has the requisite corporate authority to execute,
deliver and perform the terms and provisions of this Third Amendment, the
Agreement as amended by this Third Amendment, and the Loan Documents and the
Borrower has taken all corporate and other action necessary to authorize
such matters; and
B. Neither the execution and delivery of this Third Amendment, nor
any other documents executed by the Borrower in connection herewith, nor the
consummation of any of the transactions herein or therein contemplated, nor
compliance with the terms and provisions hereof or thereof, will contravene
or conflict with any provision of law, statute or regulation to which the
Borrower is subject or any judgment, license, order or permit applicable to
the Borrower or any indenture, agreement or other instrument to which the
Borrower may be subject; no consent, approval, authorization or order of any
court, governmental authority or third party is required in connection with
the execution and delivery of this Third Amendment or any of the other
documents executed and delivered in connection herewith or to consummate the
transactions contemplated herein or therein;
C. This Third Amendment, the Agreement, as amended hereby, and the
Loan Documents are the legal and binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors' rights;
D. After the execution of this Third Amendment, no event has
occurred and is continuing which constitutes a Default;
E. All of the representations and warranties of the Borrower
contained in Article V of the Agreement are true and correct as of the date
hereof.
3. Amendments to Article I. The following definitions are amended
and/or added to the Agreement and shall read as follows:
"'Aggregate Commitment' means the aggregate of the Commitments
of all Lenders, as reduced from time to time pursuant to the terms
hereof, which as of August 22, 2006 shall be equal to Fifty Million
and no/100 Dollars ($50,000,000.00)."
"'Facility Termination Date' means April 15, 2009, or any
earlier date on which the Aggregate Commitment is reduced to zero
or otherwise terminated pursuant to the terms hereof."
"'Guarantors' means, collectively, Cash & Go, Inc., Famous
Pawn, Inc., First Cash, Inc., First Cash Corp., First Cash, Ltd.,
First Cash Management, L.L.C., One Iron Ventures, Inc., FCFS MO,
Inc., FCFS SC, Inc., FCFS OK, Inc., FCFS MI, Inc., First Cash
Credit, Ltd., First Cash Credit Management, L.L.C., First Cash,
S.A. de C.V., American Loan Employee Services, S.A de C.V., SHAC,
Inc., and Guaranteed Auto Finance, Inc., and their successors and
assigns, and 'Guarantor' means any of the Guarantors."
"'Guaranty' means the identical Unlimited Guaranties dated as
of August 22, 2006, executed by the Guarantors in favor of each
Lender, for the ratable benefit of the Lenders, as such may be
amended or modified and in effect from time to time. The term
'Guaranty' also includes the identical Unlimited Guaranties dated
subsequent to August 22, 2006 and executed by SHAC, Inc. and
Guaranteed Auto Finance, Inc. in favor of each Lender for the
ratable benefit of the Lenders, in the event such Guarantors are
not yet Subsidiaries on August 22, 2006, but subsequently become
Subsidiaries."
4. Amendments to Article VI.
(a) Section 6.12 is amended to read in its entirety as follows:
"6.12. Indebtedness. The Borrower will not, nor will it
permit any Subsidiary to, create, incur or suffer to exist any
Indebtedness, except for (i) the Loans, (ii) trade debt incurred in
the ordinary course of business, (iii) intercompany Indebtedness,
(iv) endorsements of negotiable instruments in the ordinary course
of business, (v) Indebtedness described in Schedule 2, (vi)
Subordinated Indebtedness permitted by all of the Lenders, (vii)
Indebtedness in the amount of $10,000,000.00, with a term of four
(4) years, owing by Borrower to former shareholders of SHAC, Inc.
and Guaranteed Auto Finance, Inc., (viii) contingent liabilities
and indebtedness to third Persons of up to $2,000,000.00 in the
aggregate during any 12-month period; provided, however, the
Borrower shall notify Agent of any contingent liability which
exceeds $1,000,000.00, (ix) contingent liabilities (in addition to
contingent liabilities covered in Subsection [viii]) incurred in
the ordinary course of business of SHAC, Inc. and Guaranteed Auto
Finance, Inc., including, but not limited to, limited warranty
claims and credit life and disability insurance claims, (x) any
obligation of the Borrower to a Person which is generated by a
permitted Financial Hedge, and (xi) letters of credit (as such
instruments are called in Borrower's credit services product)
issued by Borrower for the benefit of an independent lender."
(b) Section 6.15 is amended to read in its entirety as follows:
"6.15 Investment and Acquisitions. The Borrower will not,
nor will it permit any Subsidiary to, make or suffer to exist any
Investments (including, without limitation, loans and advances to,
and other Investments in, Subsidiaries), or commitments therefore,
or to create any Subsidiary (except SHAC, Inc. and Guaranteed Auto
Finance, Inc.) or to become or remain a partner in any partnership
or joint venture, or to make any Acquisition of any Person, except
for (i) Cash Equivalent Investments, (ii) existing investments in
Subsidiaries and other Investments in existence on August 22, 2006;
provided, however, if the Acquisition has not become effective as
of August 22, 2006, it is anticipated that not later than October
31, 2006, SHAC, Inc. and Guaranteed Auto Finance, Inc. will each
become a Domestic Subsidiary and, in turn, a Guarantor, and (iii)
investment in one additional Subsidiary with its principal place of
business in the country of Mexico (the 'New Mexican Subsidiary') as
long as (A) the New Mexican Subsidiary's primary business is the
same as the Borrower's, and (B) the New Mexican Subsidiary becomes
a Guarantor promptly after it becomes a Subsidiary."
(c) Section 6.17 is amended to read in its entirety as follows:
"6.17 Loans. The Borrower will not, nor will it permit
any Subsidiary to, directly or indirectly, make any loans or
advances to any Person except (i) in the ordinary course of the
Borrower's and Subsidiaries' businesses as they exist on August 22,
2006, and (ii) in an amount up to $10,000,000.00 in the aggregate
outstanding at any one time."
(d) Sections 6.1(vii), 6.22.4, 6.22.5, and 6.22.6 are hereby
deleted and replaced with the verbiage "Intentionally Omitted."
(e) Section 6.24 is amended to read in its entirety as
follows:
"6.24 Stock Repurchases. Borrower shall not permit the
aggregate amount of Stock Repurchases to exceed $40,000,000.00
during any fiscal year or $75,000,000.00 in the aggregate period of
time commencing August 22, 2006, and ending on the Facility
Termination Date; provided, however, no Stock Repurchase is
permitted during any period of time the Borrower's Fixed Charge
Coverage Ratio is less than 1.50 to 1.00."
5. Amendments to Article IX. A new Section 9.14 is added and
shall read in its entirety as follows:
"9.14 USA PATRIOT ACT NOTIFICATION. The following notification
is provided to Borrower pursuant to Section 326 of the USA Patriot
Act of 2001, 31, U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW
ACCOUNT. To help the government fight the funding of terrorism and
money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that
identifies each person or entity that opens an account, including
any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. What
this means for Borrower: When Borrower opens an account, if
Borrower is an individual Bank will ask for Borrower's name,
taxpayer identification number, residential address, date of birth,
and other information that will allow Bank to identify Borrower,
and if Borrower is not an individual Bank will ask for Borrower's
name, taxpayer identification number, business address, and other
information that will allow Bank to identify Borrower. Bank may
also ask, if Borrower is an individual to see Borrower's driver's
license or other identifying documents, and if Borrower is not an
individual to see Borrower's legal organizational documents or
other identifying documents."
6. Amendments to Exhibits, Schedules, and Addendum I.
(a) Schedule 1 to Exhibit B (Compliance Certificate) is amended
as set forth in the attachment to this Third Amendment.
(b) Schedule 3 (Commitments and Pro Rata Shares) is amended as
set forth in the attachment to this Third Amendment.
(c) The cover page to the Agreement is amended as set forth in
Addendum I attached.
7. Conditions Precedent. This Third Amendment and the obligations of
the Lenders hereunder are subject to the conditions precedent that the
Borrower shall have (a) duly executed and delivered to the Lenders this
Third Amendment, and (b) paid to the Agent an amount to reimburse the Agent
for its reasonable attorneys' fees incurred in the preparation of this Third
Amendment and related Loan Documents, and (c) paid to the Agent a closing
fee in the amount of $12,500.00 divided ratably by the Lenders.
8. Scope of Amendments. Any and all other provisions of the Agreement
and any other Loan Documents are hereby amended and modified wherever
necessary and even through not specifically addressed herein, so as to
conform to the amendments and modifications set forth in this Third
Amendment.
9. Limitation on Agreements. The amendments set forth herein are
limited in scope as described herein and shall not be deemed (a) to be a
consent under, or waiver of, any other term or condition of the Agreement or
any of the Loan Documents, or (b) to prejudice any right or rights which the
Lenders now have or may have in the future under, or in connection with the
Agreement as amended by this Third Amendment, the Loan Documents or any of
the documents referred to herein or therein.
10. Multiple Counterparts. This Third Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same agreement, and any of the parties hereto may execute this Third
Amendment by signing any such counterpart.
THE CREDIT AGREEMENT, AS AMENDED BY THIS THIRD AMENDMENT, AND THE LOAN
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DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
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CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
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AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
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THE PARTIES.
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Executed to be effective as of August 22, 2006.
LENDER AND AGENT: JPMORGAN CHASE BANK, N.A., successor by
merger to Bank One, NA (Main Office Chicago)
By:
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Name:
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Title:
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LENDER: ▇▇▇▇▇ FARGO BANK, N. A., successor by
merger to ▇▇▇▇▇ Fargo Bank Texas,
National Association
By:
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Name:
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Title:
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BORROWER: FIRST CASH FINANCIAL SERVICES, INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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GUARANTORS: REVIEWED AND AGREED:
CASH & GO, INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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FAMOUS PAWN, INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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FCFS MO, INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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FCFS OK, INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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FCFS SC, INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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FCFS MI, INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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FIRST CASH, INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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FIRST CASH CORP.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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FIRST CASH, LTD.
By: FIRST CASH MANAGEMENT, L.L.C., its
General Partner
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: Manager
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FIRST CASH MANAGEMENT, L.L.C.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: Manager
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ONE IRON VENTURES, INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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FIRST CASH CREDIT, LTD.
By: FIRST CASH CREDIT MANAGEMENT,
L.L.C., its General Partner
By:
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇
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Title: Manager
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FIRST CASH CREDIT MANAGEMENT, L.L.C.
By:
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇
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Title: Manager
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FIRST CASH, S.A. DE C.V.
By:
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇
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Title: Legal Representative
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AMERICAN LOAN EMPLOYEE SERVICES, S.A. DE C.V.
By:
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇
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Title: Legal Representative
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EXECUTION BY THE FOLLOWING CORPORATIONS
REQUIRED ONLY IF SUCH CORPORATIONS ARE
SUBSIDIARIES AS OF OCTOBER 31, 2006
SHAC, INC.
By:
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇
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Title: Secretary
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GUARANTEED AUTO FINANCE, INC.
By:
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇
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Title: Secretary
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SCHEDULE 1 TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of Sections 6.22 and 6.24
of the Agreement
Description of Covenant Calculation as of _____________, 20__
(i) Fixed Charge Coverage Ratio of _______________ to 1.00 ______________
not less than 1.25 to 1.00
(Section 6.22.2) of Agreement)
(ii) Leverage Ratio of not greater _______________ to 1.00 ______________
than 2.50 to 1.00
(Section 6.22.3 of Agreement)
(iii) Stock Repurchase of not more _________$____________________________
than $40,000,000.00 per fiscal Fiscal year
year and $75,000,000.00 in the
aggregate _________$____________________________
(Section 6.24 of Agreement) Aggregate
FIRST CASH FINANCIAL SERVICES, INC.
By:
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇
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Title: Chief Financial Officer
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SCHEDULE 3
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Lender Commitments Share
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JPMorgan Chase Bank, N.A. $33,500,000.00 67%
▇▇▇▇▇ Fargo Bank, N.A. $16,500,000.00 33%
______________ _____________
Total $50,000,000.00 100.00%
ADDENDUM I
COVER PAGE
AMENDED AND RESTATED
CREDIT AGREEMENT
among
FIRST CASH FINANCIAL SERVICES, INC.
as Borrower,
JPMORGAN CHASE BANK, N.A.
as Agent and Lender,
and
THE OTHER LENDERS PARTY HERETO
JPMORGAN CHASE BANK, NA.
as Lead Arranger and Sole Bookrunner