Expense Advance Agreement, dated August 26, 2020, by and between the Company and the Sponsor
THIS EXPENSE ADVANCEMENT AGREEMENT (this “Agreement”), dated as of August 26, 2020, is made and entered into by and among CF Finance Acquisition Corp. II, a Delaware corporation (the “Company”), and CF Finance Holdings II, LLC (the “Sponsor”).
WHEREAS, the Company is engaged in an initial public offering (the “Offering”) pursuant to which the Company will issue and deliver up to 57,500,000 units (the “Units”) (including up to 7,500,000 Units subject to an over-allotment option granted to the underwriters of the Offering), with each Unit comprised of one share of common stock, par value $0.0001 per share (the “Common Stock”), of the Company and one-third of one warrant, each whole warrant exercisable to purchase one share of Common Stock at $11.50 per share, subject to certain adjustments (each, a “Warrant,” and collectively, the “Warrants”);
WHEREAS, the Company has filed with the Securities and Exchange Commission a registration statement on Form S-1, No. 333-241727 (the “Registration Statement”) for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Units and the Warrants and the Common Stock underlying the Units, including a prospectus (the “Prospectus”);
WHEREAS, the proceeds of the Offering, together with certain additional amounts from a concurrency private placement, will be deposited in a trust account (the “Trust Account”) at J.P. Morgan Chase Bank, N.A. and managed by Continental Stock Transfer & Trust Company, as trustee, as described in the Registration Statement and the Prospectus; and
WHEREAS, the Sponsor desires to enter into this Agreement in order to facilitate the Offering and the other transactions contemplated in the Registration Statement and the Prospectus, including any merger, capital stock exchange, asset acquisition, stock purchase, reorganization or other similar business combination by the Company with one or more businesses (a “Business Combination”).
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. (a) From time to time, as may be requested by the Company, the Sponsor agrees to advance to the Company up to $750,000.00 in the aggregate, in each instance pursuant to the terms of the form of promissory note attached as Exhibit A hereto (the “Note”), as may be necessary to fund the Company’s expenses relating to investigating and selecting a target business and other working capital requirements following the Offering and prior to any potential Business Combination.
(b) The Sponsor represents to the Company that the Sponsor is capable of making such advances to satisfy its obligations under Section 1(a).
(c) Notwithstanding anything to the contrary herein or in the Note, the Sponsor hereby waives any and all right, title, interest or claim of any kind ("Claim") in or to any distribution of the Trust Account in which the proceeds of the Offering, together with certain additional amounts, as described in greater detail in the Registration Statement and the Prospectus, will be deposited, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever; provided, however, that if the Company completes its Business Combination, the Company may repay such loaned amounts out of the proceeds released to the Company from the Trust Account.
2. This Agreement, together with the Note, constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
3. No party may assign either this Agreement or any of his, her or its rights, interests, or obligations hereunder without the prior written consent of the other party; provided, however, that, subject to all applicable securities laws, the Note shall be freely assignable by the Sponsor to any assignee; provided, further, that Sponsor’s obligations hereunder shall remain in full force and effect in the event that an assignee fails to timely perform any of Sponsor’s obligations hereunder. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on the undersigned and each of his or its heirs, personal representatives, successors and assigns.
4. Any notice, statement or demand authorized by this Agreement shall be sufficiently given (i) when so delivered if by hand or overnight delivery, (ii) the date and time shown on a facsimile transmission confirmation, or (iii) if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid. Such notice, statement or demand shall be addressed as follows:
If to the Company or the Sponsor:
110 East 59th Street
New York, NY 10022
Attn: Chief Executive Officer
Facsimile: (212) 829-4708
with a copy in each case (which shall not constitute notice) to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, New York 10105
Attn: Stuart Neuhauser, Esq.
Facsimile: (212) 370-7889
5. This Agreement may be executed in any number of original or facsimile or other electronic counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
6. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
7. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parties hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Agreement shall be brought and enforced in the state or federal courts located in the Borough of Manhattan in the State of New York, and irrevocably submits to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
|CF FINANCE ACQUISITION CORP. II|
|By:||/s/ Howard W. Lutnick|
|Name: Howard W. Lutnick|
|Title: Chairman and Chief Executive Officer|
|CF FINANCE HOLDINGS II, LLC|
|By:||/s/ Howard W. Lutnick|
|Name: Howard W. Lutnick|
|Title: Chief Executive Officer|
[Signature Page to the Expense Advance Agreement between CF Finance Acquisition Corp. II and CF Finance
Holdings, LLC for up to $750,000]