Fourth Amendment to Amended and Restated Loan and Security Agreement, dated as of August 31, 2018, by and between Ivy Funding Nine LLC and CCFI Funding II, LLC
Exhibit 10.8
FOURTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) dated as of DECEMBER 12, 2018 (the “Amendment Effective Date”), is by and between IVY FUNDING NINE, LLC, a Delaware limited liability company (together with its successors and assigns, “Lender”), and CCFI FUNDING II, LLC, an Ohio limited liability company (“Debtor”).
RECITALS
WHEREAS, Lender and Debtor entered into that certain AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT dated as of APRIL 25, 2017 (as amended, modified or restated from time to time, the “Agreement”) pursuant to which Lender agreed to make the Credit Facility available to Debtor on the terms and conditions set forth therein; and
WHEREAS, in connection with the Agreement, Debtor executed and delivered to Lender that certain PROMISSORY NOTE dated as of APRIL 25, 2017 payable to the order of Lender (as amended, modified or restated from time to time, the “Note”) in the notational amount (the “Notational Amount”) of FIFTY-FIVE MILLION AND NO/100 DOLLARS ($55,000,000.00) which Notational Amount was subsequently increased pursuant to that certain THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT AND MODIFICATION OF PROMISSORY NOTE dated as of AUGUST 31, 2018 (the “Amendment Date”), to SIXTY-FIVE MILLION AND NO/100 DOLLARS ($65,000,000.00);
WHEREAS, pursuant to a “Deleveraging Transaction” as defined in a revolving credit facility, to which COMMUNITY CHOICE FINANCIAL INC., an Ohio corporation (“Old Parent”), is a party, the ultimate parent of Debtor will be CCF HOLDINGS LLC, a Delaware limited liability company (“CCF Holdings”), by means of a transfer of 100.00% of the equity of Old Parent of Debtor to CCF Holdings (such transfer being, the “Transfer”);
WHEREAS, certain Events of Default have occurred and are continuing;
WHEREAS, the Lender desires to provide its consent to the Transfer and to waive certain Events of Default, and the parties desire to amend the Agreement and modify the Note pursuant to the terms and conditions set forth herein;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Defined Terms Capitalized terms used in this Amendment, to the extent not otherwise defined herein, shall have the same meanings as in the Agreement, as amended hereby.
(b) Amended Terms. The following defined terms of Section 1 of the Agreement are hereby amended and restated in their entirety to read as follows:
“Parent” means CCF HOLDINGS LLC, a Delaware limited liability company.
“Parent Credit Agreement” means that certain AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of DECEMBER 12, 2018 by and among Parent, as borrower thereunder, COMMUNITY CHOICE FINANCIAL ISSUER, a Delaware limited liability company, and GLAS TRUST COMPANY, a Delaware limited liability company, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Parent Default” means the occurrence and continuance of an event of default under the Parent Credit Agreement.
“Senior Secured Indebtedness” means the indebtedness of Parent under the Parent Credit Agreement.
2. Increase of Credit Facility and Notational Amount; Additional Draws.
(a) Notational Amount of Note and Credit Facilty. The maximum amount of the Credit Facility is hereby increased to SEVENTY MILLION AND NO/100 DOLLARS ($70,000,000.00). All references in the Notes and Agreement to the sum “SIXTY-FIVE MILLION AND NO/100 DOLLARS ($65,000,000.00)” and “65,000,000.00” are hereby replaced with “SEVENTY MILLION AND NO/100 DOLLARS ($70,000,000.00)” and “$70,000,000.00” respectively.
(b) Additional Draws. The parties acknowledge that Credit Facility shall be increased by a total sum of FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00) (the “Facility Increase”), with the first advance of not less than FOUR MILLION SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($4,700,000.00) of such to be funded on DECEMBER 12, 2018 (the “Initial Advance”) and the remaining THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) to be funded at the discretion of Lender (each such funding, being a “Subsequent Advance”).
(c) Fees. The obligations of Lender to lend the additional sums under the Facility Increase shall be subject to the condition precedent that Debtor shall pay to the Lender an origination fee equal to TWO AND NINE-TENTHS OF ONE PERCENT (2.90%) of the amount of the Initial Advance and TWO AND SIX-TENTHS OF ONE PERCENT (2.60%) on any Subsequent Advance, which origination fee shall be due and payable on or before the date such funds are advanced.
3. Amendment of Section 2(c) of the Loan Agreement. Section 2(c) of the Loan Agreement is hereby amended in its entirety to read as follows:
(c) Determination of Advance Rate. From the Effective Date through the Maturity Date, subject to the terms and conditions set forth herein, the Advance Rate shall be, with respect to all Eligible Receivables, (i) EIGHTY PERCENT (80.00%) from DECEMBER 12, 2018 through JANUARY 15, 2019, (ii) SEVENTY-FIVE PERCENT (75.00%) from JANUARY 16, 2019 through FEBRUARY 15, 2019, and (iii) SEVENTY-TWO PERCENT (72.00%) thereafter. Notwithstanding anything in this Agreement to the contrary: (i) Lender shall not be required to permit advances from and after MARCH 1, 2019; and (ii) in the event of the occurrence and continuation of a Level 1 Trigger, the Advance Rate then in effect shall be reduced by TEN PERCENT (10.00%).
4. Amendment of Section 2(e) of the Loan Agreement. Section 2(e) of the Loan Agreement is hereby amended in its entirety to read as follows:
(e) Prepayment. If any Indebtedness under the Credit Facility is prepaid, other than as a result of an acceleration, prior to MARCH 30, 2019 (except in connection with Section 4(d)(i), Debtor shall pay a make whole fee to Lender equal to the net present value of interest that would have accrued and been paid with respect to such prepayment (if such prepayment had not been made) from the date of such prepayment up to and including MARCH 30, 2019, using the Rate of interest set forth in the Note, discounted at the one year treasury rate at the time of the prepayment (the “Make Whole Fee”). By way of example, a sample Make Whole Fee calculation which is attached hereto as Exhibit E.
5. Amendment of Section 2(g)(i) of the Loan Agreement. Section 2(g)(i) of the Loan Agreement is hereby amended in its entirety to read as follows:
(i) A monthly administrative fee to Administrative Agent for the period from and including the Effective Date to and including the Maturity Date, at the rate of ONE AND SIX-TENTHS OF ONE PERCENT (1.60%) per annum on the amount of the outstanding principal balance under the Credit Facility based on a THREE HUNDRED SIXTY (360) day year and the actual number of days elapsed. The accrued
administrative fee shall be payable in arrears on each date for regularly scheduled payment of interest under the Note.
6. Amendment of Section 4(e) to the Agreement. Section 4(e) of the Agreement is hereby amended to read as follows:
(e) Minimum Assets. Debtor shall maintain at all times the Minimum Assets. On or before the SECOND (2nd) Business Day of each calendar week (and at such other times as Lender may require), Debtor shall submit to Lender evidence of compliance with the required Minimum Assets satisfactory to Lender in its reasonable discretion for each Business Day of the prior week. “Minimum Assets” means that at all times as required, on a rolling TEN (10) Business Day average, the sum of all non-cash assets of Debtor as of such date, plus Debtor’s cash in the Collateral Deposit Account as of such date (including verified funds in transit to the Collateral Deposit Account) does not equal or exceed ONE HUNDRED THIRTY PERCENT (130.00%) of the then outstanding balance of the Credit Facility; provided that if on any Business Day the Minimum Asset requirement hereunder is not met (a “Minimum Asset Covenant Failure”), the Debtor shall be able to remedy such Minimum Asset Covenant Failure if within FIVE (5) Business Days the sum of all non-cash assets of Debtor as of such date, plus Debtor’s cash in the Collateral Deposit Account as of such date (including verified funds in transit to the Collateral Deposit Account) equals or exceeds ONE HUNDRED THIRTY-FIVE PERCENT (135.00%) of the then outstanding balance of the Credit Facility.
7. Deletion of Section 8(gg). Section 8(gg) of the Agreement is hereby deleted in its entirety.
8. Consent to Special Dividend. Upon Debtor’s receipt of the Initial Advance, Debtor shall be permitted to declare and make a one-time dividend in an amount of up to FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00), which shall not count against the Monthly Dividend Cap for the quarter ending DECEMBER 31, 2018.
9. Conditions Precedent. The obligations of Lender under this Amendment shall be subject to the condition precedent that (a) Debtor shall have executed and delivered to Lender this Amendment and such other documents and instruments incidental and appropriate to the transaction provided for herein as Lender or its counsel may reasonably request, and (b) indebtedness under that certain REVOLVING CREDIT AGREEMENT, dated as of SEPTEMBER 6, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof) by and among: (i)the Old Parent; (ii) each of the subsidiary guarantors party thereto; (iii) COMMUNITY CHOICE FINANCIAL ISSUER, LLC, a Delaware limited liability company, as Lenders; and (iv) GLAS TRUST COMPANY LLC, a Delaware limited liability company, as administrative agent (the “Existing Revolver”) shall have been assigned to New Parent and amended and restated on terms and conditions satisfactory to Lender in its sole discretion.
10. Consent and Waiver. Lender hereby (a) consents to the Transfer; and (b) waives any Event of Default relating to, or resulting from (including any acceleration in connection therewith, so long as immediately after the effectiveness of this Amendment, such acceleration has been rescinded or is otherwise no longer in effect): (i) the failure of Old Parent to make any payment required under (1) that certain Indenture dated April 29, 2011 relating to 10.75% Notes due 2019, and (2) that certain Indenture dated July 6, 2012 relating to 12.75% Notes due 2020; (ii) any default or event of default under the Existing Revolver in existence immediately prior to the assignment described in Section 9 of this Amendment; (iii) any default or event of default under that certain Indenture dated September 6, 2018 relating to 9.00% Notes due 2020; and (iv) any Material Adverse Effect resulting from any of the circumstances described in clauses (b)(i), (ii) and (iii).
11. Payment of Fees and Expenses. Debtor further agrees to pay all reasonable attorneys’ fees of Lender in connection with the drafting and execution of this Amendment.
12. Ratifications. Except as expressly modified and superseded by this or prior Amendments, the Loan Documents are ratified and confirmed and continue in full force and effect. The Loan Documents, as modified by this Amendment, continue to be legal, valid, binding and enforceable in accordance with their respective terms. Without limiting the generality of the foregoing, Debtor hereby ratifies and confirms that all liens heretofore granted to Lender
were intended to, do and continue to secure the full payment and performance of the Indebtedness. Debtor agrees to perform such acts and duly authorize, execute, acknowledge, deliver, file and record such additional assignments, security agreements, modifications or agreements to any of the foregoing, and such other agreements, documents and instruments as Lender may reasonably request in order to perfect and protect those liens and preserve and protect the rights of Lender in respect of all present and future Collateral. The terms, conditions and provisions of the Loan Documents (as the same may have been amended, modified or restated from time to time) are incorporated herein by reference, the same as if stated verbatim herein.
13. Representations, Warranties and Confirmations. Debtor hereby represents and warrants to Lender that (a) this Amendment and any other Loan Documents to be delivered under this Amendment (if any) have been duly executed and delivered by Debtor, are valid and binding upon Debtor and are enforceable against Debtor in accordance with their terms, except as limited by any applicable bankruptcy, insolvency or similar laws of general application relating to the enforcement of creditors’ rights and except to the extent specific remedies may generally be limited by equitable principles, (b) no action of, or filing with, any governmental authority is required to authorize, or is otherwise required in connection with, the execution, delivery and performance by Debtor of this Amendment or any other Loan Document to be delivered under this Amendment, and (c) the execution, delivery and performance by Debtor of this Amendment and any other Loan Documents to be delivered under this Amendment do not require the consent of any other person and do not and will not constitute a violation of any laws, agreements or understandings to which Debtor is a party or by which Debtor is bound.
14. Additional Documents. TO SECURE FULL AND COMPLETE PAYMENT AND PERFORMANCE OF THE INDEBTEDNESS, DEBTOR SHALL EXECUTE AND DELIVER OR CAUSE TO BE EXECUTED AND DELIVERED ALL OF THE LOAN DOCUMENTS REASONABLY REQUIRED TO CARRY OUT THE PROVISIONS AND PURPOSES OF THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS AND TO CREATE, PRESERVE, AND PERFECT THE LIENS OF LENDER IN THE COLLATERAL. IN THE EVENT ANY OF THE LOAN DOCUMENTS EVIDENCING OR SECURING THE INDEBTEDNESS MISREPRESENTS OR INACCURATELY REFLECTS THE CORRECT TERMS AND/OR PROVISIONS OF THE INDEBTEDNESS, DEBTOR SHALL UPON REQUEST BY LENDER AND IN ORDER TO CORRECT SUCH MISTAKE, EXECUTE SUCH NEW DOCUMENTS OR INITIAL CORRECTED, ORIGINAL DOCUMENTS AS LENDER MAY DEEM REASONABLY NECESSARY TO REMEDY SAID ERRORS OR MISTAKES. DEBTOR SHALL EXECUTE SUCH OTHER DOCUMENTS AS LENDER SHALL DEEM REASONABLY NECESSARY TO CORRECT ANY DEFECTS OR DEFICIENCIES IN THE LOAN DOCUMENTS. DEBTOR’S FAILURE TO EXECUTE SUCH DOCUMENTS AS REQUESTED SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THE AGREEMENT.
15. Release. Debtor hereby acknowledges and agrees that there are no defenses, counterclaims, offsets, cross-complaints, claims or demands of any kind or nature whatsoever to or against Lender or the terms and provisions of or the obligations of Debtor under the Loan Documents and the other agreements, instruments and documents evidencing, securing, governing, guaranteeing or pertaining thereto, and that Debtor has no right to seek affirmative relief or damages of any kind or nature from Lender. To the extent any such defenses, counterclaims, offsets, cross-complaints, claims, demands or rights exist, Debtor hereby waives, and hereby knowingly and voluntarily releases and forever discharges Lender and its predecessors, officers, directors, agents, attorneys, employees, successors and assigns, from all possible claims, demands, actions, causes of action, defenses, counterclaims, offsets, cross-complaints, damages, costs, expenses and liabilities whatsoever, whether known or unknown, such waiver and release being with full knowledge and understanding of the circumstances and effects of such waiver and release and after having consulted legal counsel with respect thereto.
16. Multiple Counterparts. This Amendment may be executed in a number of identical separate counterparts, each of which for all purposes is to be deemed an original, but all of which shall constitute, collectively, one agreement. Signature pages to this Amendment may be detached from multiple separate counterparts and attached to the same document and a telecopy or other facsimile of any such executed signature page shall be valid as an original.
17. 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 containing a reference to the Agreement shall mean and refer to the Agreement as amended hereby.
18. 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.
19. Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.
20. Regulation B—Notice of Joint Intent. If Debtor is more than one Person, Federal Regulation B (Equal Credit Opportunity Act) requires Lender to obtain evidence of Debtor’s intention to apply for joint credit. Debtor’s signature below shall evidence such intent. Debtor’s intent shall apply to future related extensions of joint credit and joint guaranty.
NOTICE OF FINAL AGREEMENT
THE AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED BY THIS AMENDMENT REPRESENT THE FINAL AGREEMENT BETWEEN AND AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN AND AMONG THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the Amendment Effective Date.
| LENDER: |
| ADDRESS: | |
|
|
|
| |
| IVY FUNDING NINE, LLC |
| 22 W. Bryan Street, Suite 208 | |
|
|
| Savannah, GA 31401 | |
|
|
|
|
|
| By: | /s/ John C. Hooff III |
|
|
| Name: | John C. Hooff III |
|
|
| Title: | Managing Member |
|
|
|
|
|
| |
| With copies of notices to: |
| Lender’s Counsel: | |
|
|
|
| |
|
|
| HUSCH BLACKWELL LLP | |
|
|
| 2001 Ross Avenue, Suite 2000 | |
|
|
| Dallas, TX 75201 | |
|
|
| Attention: Steven S. Camp | |
|
|
|
| |
| DEBTOR: |
| ADDRESS: | |
|
|
|
| |
| CCFI FUNDING II, LLC |
| 6785 Bobcat Way, Suite 200 | |
|
|
| Dublin, OH 43016 | |
|
|
|
| |
|
|
|
|
|
| By: | /s/ Michael Durbin |
|
|
| Name: | Michael Durbin |
|
|
| Title: | Executive Vice President, Chief |
|
|
CONSENT TO AND CONFIRMATION OF COLLATERAL AGENCY AGREEMENT
To induce Lender to execute the foregoing Amendment, each Seller below (a) agrees and consents to the execution and delivery of the Amendment and the terms thereof; (b) ratifies and confirms that all agreements and assurances granted, conveyed or otherwise provided to Lender under the Loan Documents; including, the COLLATERAL AGENCY AGREEMENT, are not released, diminished, impaired, reduced, or otherwise adversely affected by the Amendment; (c) agrees to perform such acts and duly authorize, execute, acknowledge and deliver such additional assurances and other documents, instruments and agreements as Lender may reasonably deem necessary or appropriate in order to create, perfect, preserve and protect those assurances; and (d) waives notice of acceptance of this consent and confirmation, which consent and confirmation binds each Seller and each Seller’s successors and assigns and inures to Lender and its successors and assigns. The terms, conditions and provisions of the COLLATERAL AGENCY AGREEMENT (as the same may have been amended, modified or restated from time to time) are incorporated herein by reference, as if stated verbatim herein.
Each Seller acknowledges and agrees that (a) notwithstanding the conditions to effectiveness set forth in this Amendment, Seller is not required by the terms of the Agreement or any other Loan Document to consent to the Amendment, and (b) nothing in the Amendment, or any other Loan Document shall be deemed to require the consent of the Sellers to any future waivers, amendments or modifications to the Loan Documents.
EXECUTED as of Amendment Date.
SELLER:
BUCKEYE CHECK CASHING II, INC.
BUCKEYE CHECK CASHING OF ALABAMA, LLC
BUCKEYE CHECK CASHING OF ARIZONA, INC.
BUCKEYE CHECK CASHING OF CALIFORNIA, LLC
BUCKEYE CHECK CASHING OF FLORIDA, INC.
BUCKEYE CHECK CASHING OF KENTUCKY, INC.
BUCKEYE CHECK CASHING OF MICHIGAN, INC.
BUCKEYE CHECK CASHING OF TENNESSEE, LLC
BUCKEYE CHECK CASHING OF TEXAS, LLC
BUCKEYE CHECK CASHING OF VIRGINIA, INC.
BUCKEYE CHECK CASHING, INC.
BUCKEYE COMMERCIAL CHECK CASHING OF FLORIDA, LLC
BUCKEYE CREDIT SOLUTIONS, LLC
BUCKEYE LENDING SOLUTIONS OF ARIZONA, LLC
BUCKEYE LENDING SOLUTIONS, LLC
BUCKEYE LENDING SOLUTIONS OF TENNESSEE, LLC
BUCKEYE TITLE LOANS OF CALIFORNIA, LLC
BUCKEYE TITLE LOANS OF TENNESSEE, LLC
BUCKEYE TITLE LOANS OF VIRGINIA, LLC
BUCKEYE TITLE LOANS, INC.
CALIFORNIA CHECK CASHING STORES, LLC
CASH CENTRAL OF ALABAMA, LLC
CASH CENTRAL OF ALASKA, LLC
CASH CENTRAL OF CALIFORNIA, LLC
CASH CENTRAL OF DELAWARE, LLC
CASH CENTRAL OF FLORIDA, LLC
CASH CENTRAL OF HAWAII, LLC
CASH CENTRAL OF IDAHO, LLC
CASH CENTRAL OF KANSAS, LLC
CASH CENTRAL OF LOUISIANA, LLC
CASH CENTRAL OF MISSISSIPPI, LLC
CASH CENTRAL OF MISSOURI LLC
CASH CENTRAL OF NEVADA, LLC
CASH CENTRAL OF NEW MEXICO LLC
CASH CENTRAL OF NORTH DAKOTA, LLC
CASH CENTRAL OF OHIO, LLC
CASH CENTRAL OF OKLAHOMA, LLC
CASH CENTRAL OF SOUTH CAROLINA, LLC
CASH CENTRAL OF SOUTH DAKOTA, LLC
CASH CENTRAL OF TENNESSEE, LLC
CASH CENTRAL OF UTAH, LLC
CASH CENTRAL OF VIRGINIA LLC
CASH CENTRAL OF WASHINGTON, LLC
CASH CENTRAL OF WISCONSIN, LLC
CASH CENTRAL OF WYOMING, LLC
CCF OF ALASKA, LLC
CCF OF DELAWARE, LLC
CCF OF HAWAII, LLC
CCF OF MISSISSIPPI, LLC
CCF OF NEVADA, LLC
CCF OF NEW MEXICO LLC
CCF OF MINNESOTA, LLC
CCF OF NORTH DAKOTA, LLC
CCF OF OKLAHOMA, LLC
CCF OF WASHINGTON, LLC
CCF OF WISCONSIN, LLC
CCF OF WYOMING, LLC
HOOSIER CHECK CASHING OF OHIO, LTD
INSIGHT CAPITAL, LLC
BENEFICIAL LENDING SOLUTIONS OF UTAH LLC
QC FINANCIAL SERVICES OF CALIFORNIA, INC.
FIRST VIRGINIA FINANCIAL SERVICES, LLC
| By: | /s/ Michael Durbin |
|
| Name: | Michael Durbin |
|
| Title: | Executive Vice President, Chief Financial Officer and Treasurer |
|
