Exhibit 10.36
Execution Version
LIMITED WAIVER AND FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS LIMITED WAIVER AND FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of May 16, 2023, by and among UNIFUND CCR, LLC, an Ohio limited liability company (the “Borrower”), UNIFUND HOLDINGS, LLC, a Delaware limited liability company (“Holdings”) and acknowledged and agreed to by CREDIT CARD RECEIVABLES FUND INCORPORATED, an Ohio corporation (“CCRF”) and ZB LIMITED PARTNERSHIP, a Delaware limited partnership (“ZB”; ZB, together with CCRF, collectively, the “Parent”), the other Loan Parties party hereto, CCP AGENCY, LLC, a Delaware limited liability company, in its capacity as administrative agent (the “Agent”) for the Lenders, and the Lenders party hereto.
W I T N E S S E T H:
WHEREAS, Borrower, Holdings, Parent, the other Loan Parties party thereto, Agent, and the Lenders from time to time party thereto are parties to that certain Credit Agreement dated as of June 11, 2021 (as the same has been and may hereafter be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, each of the Events of Default specified on Schedule 1 hereto, in each case, have occurred and exist as of the date hereof (collectively, the “Designated Events of Default”);
WHEREAS, the Loan Parties have requested that the Agent and Lenders (a) amend certain provisions of the Credit Agreement and (b) waive the Designated Events of Default, and, subject to the satisfaction of the conditions set forth herein, the Agent and Lenders are willing to do so, on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Credit Agreement.
2. Amendments to Credit Agreement.
a. Upon satisfaction of the conditions precedent set forth in Section 3 hereof, the Credit Agreement, including all Annexes and all Exhibits thereto, is hereby amended as set forth in Exhibit A, with all revisions to the Credit Agreement reflected in Exhibit A in redlined format to this Amendment (i.e. to delete the stricken text (indicated textually in the same manner as the following example:stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text)).
b. Notwithstanding Section 2(a) of this Amendment above, (i) all outstanding Loans that bear interest at the LIBOR Rate immediately prior to Fifth Amendment Effective Date (the “Existing LIBOR Loans”) shall continue at the LIBOR Rate (as such term is defined in the Credit Agreement prior to the Fifth Amendment Effective Date) until the last day of each such Interest Period (if applicable to the outstanding Loans) and thereafter, all Interest Periods for the outstanding Loans shall be selected in accordance with the Credit Agreement as amended hereby and (ii) the terms of the Credit Agreement in respect of the calculation, payment and administration of the Existing LIBOR Loans shall remain in effect from and after the Fifth Amendment Effective Date until the expiration of each such Interest Period (if applicable), in each case, solely for purposes of making, and the administration of, interest payments on the Existing LIBOR Loans.
3. Conditions Precedent. The effectiveness of this Amendment on the Fifth Amendment Effective Date is subject to the satisfaction of the following conditions precedent (the date on which such conditions are satisfied):
a. the execution and delivery of this Amendment by the Loan Parties, Agent and each of the Lender parties hereto;
b. the representations and warranties set forth in Section 4 hereof shall be true and correct as specified therein as of the date hereof;
c. after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing either immediately before or immediately after giving effect to this Amendment;
d. the application of any and all outstanding cash in the Designated Republic Bank Deposit Account towards the unpaid principal balance of the Loans (subject to no Prepayment Premium), to be applied to the Term Loans and Delayed Draw Term Loans on a pro rata basis pursuant to Section 2.01(f)(i) of the Credit Agreement
e. delivery to Agent of duly executed written consents or resolutions of the boards of directors (or other comparable body) of each Loan Party authorizing and directing the execution and delivery of the Amendment and all further agreements, instruments, certificates and other documents pursuant hereto and thereto to which such Loan Party is a party;
f. the delivery of an Irrevocable Proxy in form and substance acceptable to the Agent by each of the Converted Loan Parties; and
g. the execution and delivery of the First Amendment to the Validity Guaranty Agreement by David G. Rosenberg as guarantor thereunder, the Agent and the Borrower.
4. Representations and Warranties. Each Loan Party hereby represents and warrants to Agent and each Lender as follows as of the date hereof:
a. the representations and warranties set forth in Article III of the Credit Agreement (as amended hereby) and in the other Loan Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty is true and correct in all respects) (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty was true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty was true and correct in all respects as of such earlier date);
2
b. such Loan Party (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to own, lease and operate its properties and to carry on its business as now conducted and as proposed hereafter to be conducted, (iii) is qualified to do business as a foreign entity in each jurisdiction in which the failure of such Loan Party to be so qualified could reasonably be expected to have a Material Adverse Effect and (iv) has all requisite right, power and authority to execute and deliver, and perform all of its obligations under, the Amendment and to consummate all of the transactions contemplated by the Amendment;
c. the execution, delivery and performance by such Loan Party of this Amendment and the consummation of each of the transactions contemplated hereby have been duly authorized by all requisite corporate and other action and will not, either prior to or as a result of the consummation of the transactions contemplated by this Amendment: (i) violate (x) any provision of Applicable Law or any order of any court or other agency of government in any material respect, (y) any provision of the Organic Documents of any such Person, or (z) any Contract to which any such Person is a party, or by which any such Person or any assets or properties of any such Person are bound in any material respect, or (ii) (x) be in conflict with, result in a breach of, or constitute (after the giving of notice or lapse of time or both) a default under any such Organic Document in any respect or any other Contract in any material respect or (y) except for any Lien in favor of Agent, for the benefit of Agent and the other Secured Persons, as may be provided in the Loan Documents or Permitted Liens, result in the creation or imposition of any Lien of any nature whatsoever upon any of the property or assets of Borrower or any other Loan Party pursuant to, in each case, any such Organic Document, or any other Contract. This Amendment has been duly executed and delivered by such Loan Party, and constitutes, valid and binding obligations of such Loan Party, enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability;
d. no Loan Party is required to obtain any Government Approval, consent or authorization from, or to file any declaration or statement with, any Governmental Authority in connection with or as a condition to the execution, delivery or performance of the Amendment or any of the transactions contemplated hereby, except (a) as have previously been made or obtained and (b) as are required in connection with any Loan Party’s ordinary course conduct of its business; and
e. after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing either immediately before or immediately after giving effect to this Amendment.
3
5. Acknowledgement of Obligations; Limited Waiver; Post Closing Obligations.
a. Each Loan Party acknowledges and agrees that, as of the Fifth Amendment Effective Date, the aggregate principal balance of the outstanding Obligations under the Credit Agreement (including Default Rate Interest accruing from January 1, 2023 through and including the Fifth Amendment Effective Date, which has been capitalized and added to the principal balance of the Loans) is at least $84,131,096.97. The foregoing amounts do not include interest, fees, expenses and other amounts that are chargeable or otherwise reimbursable under the Credit Agreement and the other Loan Documents.
b. Subject to the terms and conditions set forth in Section 3 hereof, the Agent and Lenders hereby agree to waive the Designated Events of Default (the “Limited Waiver”). The foregoing Limited Waiver is a limited waiver and (a) shall not constitute nor be deemed to constitute a waiver, except as otherwise expressly set forth herein, in each case, of (x) any Default or Event of Default which has occurred or exists under the Credit Agreement or hereafter may occur under the Credit Agreement, as amended, or (y) any term or condition of the Credit Agreement (as amended hereby) and the other Loan Documents; (b) shall not constitute nor be deemed to constitute a consent by the Agent or any Lender to anything other than the specific purpose set forth herein; (c) shall not establish a custom or course of dealing among the Borrower, any other Loan Party, the Agent, the Lenders or any of them; and (d) shall only be relied upon and used for the specific purpose set forth herein. Except as specifically set forth herein, the Agent and the Lenders hereby expressly reserve all of their rights and remedies under the Credit Agreement, as amended, the Techwoods Subordination Agreements, the other Loan Documents and applicable law.
c. �� The Loan Parties shall deliver to Agent:
i. by no later than May 16, 2023, a duly executed certificate of the Secretary or an Assistant Secretary of Borrower, each Loan Party (which shall include each Converted Loan Party) and each other Obligor, certifying (i) the vote of the boards of directors (or other comparable body) of such Person authorizing and directing the execution and delivery of the Amendment to which such Person is a party and all further agreements, instruments, certificates and other documents pursuant hereto and thereto to which such Person is a party; (ii) the names of the officers of each such Person who are authorized to execute and deliver the Amendment to which such Person is a party and all other agreements, instruments, certificates and other documents to be delivered pursuant hereto and thereto to which such Person is a party, together with the true signatures of such officers (it being understood and agreed that the Agent may conclusively rely on such certificate until the Agent shall receive any further such certificate canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate) and (iii) copies of the Organic Documents (certified by the Secretary of State or other appropriate governmental official, as applicable, with respect to each certificate of incorporation or formation, dated reasonably prior to or after the Fifth Amendment Effective Date) of each such Person;
4
ii. by no later than May 16, 2023, a certificate of the Secretary of State or other appropriate governmental official of the jurisdiction of incorporation or formation, as applicable, of Borrower, each Loan Party (including each Converted Loan Party) and each other Obligor of each jurisdiction in which such Person is qualified to do business as a foreign corporation, dated reasonably prior to or after the Fifth Amendment Effective Date, stating that such Person is duly formed or qualified and in good standing in such jurisdiction, except in which the failure of such Person to be so qualified to do business as a foreign corporation could not reasonably be expected to, either individually or in the aggregate, have a Material Adverse Effect and could reasonably be expected to otherwise effect in a materially adverse manner the business operations of such Person;
iii. by no later than May 16, 2023, completed copies of Form W-9 in respect of each of the Converted Loan Parties;
iv. by no later than May 17, 2023, an amended Deposit Account Control Agreement with Republic Bank and Trust Company that is updated to reflect the accounts owned by the Converted Loan Parties;
v. by no later than May 17, 2023, updated certificate or certificates of insurance, with loss payable and additional insured endorsements, evidencing the insurance required by Section 5.01(b) of the Credit Agreement with respect to each of the Converted Loan Parties;
vi. by no later than May 22, 2023, (A) an executed personal guaranty by David G. Rosenberg of the Obligations under the Credit Agreement subject to a $5.0 million cap, (B) an executed security agreement providing for the grant to Agent of a first priority security interest in and to all assets of, and 100% of the equity interests in, Series 86 of Distressed Asset Portfolio IV, LLC, an Ohio limited liability company (the holder of the FNBO February Forward Flow Portfolio), to additionally secure such guaranty obligations of David G. Rosenberg and (C) such other ancillary and other supporting documents and agreements related to the foregoing required by Agent and Required Lenders, in each case, in form and substance reasonably acceptable to Agent and Required Lenders (it being understood and agreed that such personal guaranty and security agreement shall terminate when all of the Loans and Commitments (along with the related rights and interests) of the Pathlight Lenders are assigned (at par plus accrued interest through the date of assignment) to Persons which are permitted under (and otherwise in accordance with the terms of) Section 8.02 pursuant to an Assignment and Acceptance and to a new Lender or Lenders reasonably satisfactory to Agent; and
vii. by no later than May 31, 2023, an executed Control Agreement in respect of the Borrower’s primary operating accounts, in form and substance acceptable to the Agent and Required Lenders, providing for, inter alia, the sole control over such account by Agent. The failure of the Loan Parties to comply with, or the breach by any Loan Party of, any obligation under this Section 5(c) shall be an immediate Event of Default under the Credit Agreement, as amended hereby.
5
6. No Modification. Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with, or an amendment to, any term or condition contained in the Credit Agreement or any of the other Loan Documents or constitute a course of conduct or dealing among the parties. Except as expressly stated herein, the Agent and Lenders reserve all rights, privileges and remedies under the Loan Documents. Except as amended or consented to hereby, the Credit Agreement and other Loan Documents remain unmodified and in full force and effect. All references in the Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended hereby.
7. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by telecopy), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
8. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of each Loan Party, the Agent and the Lenders and their respective successors and permitted assigns, except that the Borrower shall not assign any of its rights or obligations hereunder without the prior written consent of each Lender.
9. Further Assurance. Each Loan Party hereby agrees from time to time, as and when reasonably requested by the Agent, to execute and deliver or cause to be executed and delivered, all such documents, instruments and agreements and to take or cause to be taken such further or other action as the Agent or Lender may reasonably deem necessary or desirable in order to carry out the intent and purposes of this Amendment.
10. Governing Law and Jurisdiction.
a. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW). FURTHER, THE LAW OF THE STATE OF NEW YORK SHALL APPLY TO ALL DISPUTES OR CONTROVERSIES ARISING OUT OF OR CONNECTED TO OR WITH THIS AMENDMENT WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW).
b. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS AMENDMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR BASED ON UPON 28 U.S.C. § 1404, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING AND ADJUDICATION OF ANY SUCH ACTION, SUIT OR PROCEEDING IN THE AFOREMENTIONED COURT AND AGREES TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. EACH PARTY HERETO EACH HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AMENDMENT OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AMENDMENT AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
6
11. Severability. If any provision of this Amendment or any other Loan Document is held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without affecting the legality, validity or enforceability of the remaining provisions hereof or thereof; and the illegality, invalidity or unenforceability of a particular provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
12. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby. Each of the Loan Parties hereby consents to this Amendment and acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and reaffirmed (as amended hereby). The execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations. The Loan Parties hereby agree and confirm that this Amendment constitutes and shall be deemed a “Loan Document” as defined in the Credit Agreement.
13. Costs and Expenses. As provided in Section 9.02(b) of the Credit Agreement (as amended hereby), the Borrower agrees to reimburse the Agent and each Lender for all reasonable and documented, out-of-pocket costs and expenses incurred by the Agent in connection with this Amendment and the transactions contemplated thereby.
7
14. General Release; Indemnity.
a. In consideration of, among other things, Agent’s and the Lenders’ execution and delivery of this Amendment, the Borrower and each other Loan Party (as such parties are designated in the signature pages hereto), on behalf of itself and its agents, representatives, officers, directors, advisors, employees, subsidiaries, affiliates, successors and assigns (collectively, “Releasors”), hereby forever agrees and covenants not to sue or prosecute against any Releasee (as hereinafter defined) and hereby forever waives, releases and discharges, to the fullest extent permitted by law, each Releasee from any and all claims (including, without limitation, crossclaims, counterclaims, rights of set-off and recoupment), actions, causes of action, suits, debts, accounts, interests, liens, promises, warranties, damages and consequential damages, demands, agreements, bonds, bills, specialties, covenants, controversies, variances, trespasses, judgments, executions, costs, expenses or claims whatsoever, that such Releasor now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether now existing or hereafter arising, whether arising at law or in equity (collectively, the “Claims”), against the Agent and any or all of the Lenders in any capacity and their respective affiliates, subsidiaries, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys, advisors and other representatives of each of the foregoing (collectively, the “Releasees”), based in whole or in part on facts, whether or not now known, existing on or before the Fifth Amendment Effective Date, that relate to, arise out of or otherwise are in connection with: (i) any or all of the Loan Documents (including this Amendment) or transactions contemplated thereby or any actions or omissions in connection therewith or (ii) any aspect of the dealings or relationships between or among the Borrower and the other Loan Parties, on the one hand, and any or all of the Agent and the Lenders, on the other hand, relating to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof. The receipt by the Borrower or any other Loan Party of any Loans or other financial accommodations made by any Lender after the date hereof shall constitute a ratification, adoption, and confirmation by the Borrower and the other Loan Parties of the foregoing general release of all Claims against the Releasees that are based in whole or in part on facts, whether or not now known or unknown, existing on or prior to the Fifth Amendment Effective Date relating to clauses (i) and (ii) above. In entering into this Amendment, the Borrower and each other Loan Party consulted with, and has been represented by, legal counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Releasees and hereby agrees and acknowledges that the validity and effectiveness of the releases set forth above do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity thereof. The provisions of this Section shall survive the termination of this Amendment, the Credit Agreement, the other Loan Documents and payment in full of the Obligations.
b. The Borrower and each other Loan Party hereby agrees that the Releasees shall each be an Indemnitee and entitled to the benefits of Section 9.02 of the Credit Agreement (as amended hereby), including, without limitation, with respect to any Claims arising from or in connection with the negotiation, preparation, execution, delivery, performance, administration and enforcement of this Amendment or any other document executed and/or delivered in connection therewith.
8
c. The Borrower and each other Loan Party, on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised and discharged by any Borrower or any other Loan Party pursuant to Section 14(a) hereof. If the Borrower, any other Loan Party or any of its successors, assigns or other legal representatives violates the foregoing covenant, Borrower and the other Loan Parties, each for itself and its successors, assigns and legal representatives, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation, all attorneys’ fees and costs incurred by any Releasee as a result of such violation.
15. Converted Loan Parties. Each of (i) First Resolution Investment Corporation, LLC, a Nevada limited liability company, (ii) FRIC Acquisition, LLC, an Ohio limited liability company, (iii) Hollyburn Holdings, LLC, a Nevada limited liability company, (iv) Capilano Holdings, LLC, a Nevada limited liability company and (v) FRIC Holding, LLC, an Ohio limited liability company (collectively, the “Converted Loan Parties” and each individually, a “Converted Loan Party”) hereby agree as follows:
a. (i) First Resolution Investment Corporation, LLC converted from First Resolution Investment Corporation, a Nevada corporation, to a Nevada limited liability company pursuant to that certain Plan of Conversion, Articles of Conversion and Articles of Organization filed with the office of the Nevada Secretary of State effective as of December 27, 2022; (ii) FRIC Acquisition, LLC converted from FRIC Acquisition, Inc., an Ohio corporation, to an Ohio limited liability company pursuant to that certain Declaration and Plan of Conversion, Certificate for Conversion and Articles of Organization filed with the office of the Secretary of State of Ohio effective as of December 27, 2022; (iii) Hollyburn Holdings, LLC converted from Hollyburn Holdings Corporation, a Nevada corporation, to a Nevada limited liability company pursuant to that certain Plan of Conversion, Articles of Conversion and Articles of Organization filed with the office of the Nevada Secretary of State effective as of December 27, 2022; (iv) Capilano Holdings, LLC converted from Capilano Holdings Corporation, a Nevada corporation, to a Nevada limited liability company pursuant to that certain Plan of Conversion, Articles of Conversion and Articles of Organization filed with the office of the Nevada Secretary of State effective as of December 27, 2022 and (v) FRIC Holding, LLC converted from FRIC Holding Corporation, an Ohio corporation, to an Ohio limited liability company pursuant to that certain Declaration and Plan of Conversion, Certificate for Conversion and Articles of Organization filed with the office of the Secretary of State of Ohio effective as of December 28, 2022 (First Resolution Investment Corporation, FRIC Acquisition, Inc., Hollyburn Holdings Corporation, Capilano Holdings Corporation and FRIC Holding Corporation are collectively referred to herein as the “Pre-Conversion Loan Parties” and each individually as a “Pre-Conversion Loan Party”).
9
b. Each Converted Loan Party acknowledges and agrees that, as of December 27, 2022 (or December 28, 2022 with respect to FRIC Holding, LLC) that (i) it is a “Loan Party” under the Credit Agreement and successor to all obligations of its respective Pre-Conversion Loan Party under the Credit Agreement and the other Loan Documents, and as of such date, all references in the Credit Agreement and the other Loan Documents to the terms “Loan Party” or “Loan Parties” shall be deemed to include such Converted Loan Party, (ii) it hereby repeats and reaffirms as of the date hereof all covenants, agreements, representations and warranties of the Loan Parties contained in this Amendment, the Credit Agreement (as amended hereby) and the other Loan Documents to the extent applicable to such Converted Loan Party, (iii) it agrees to be bound by all of the terms and provisions of the Credit Agreement, as amended hereby, (iv) it is a successor to all obligations of its respective Pre-Conversion Loan Party under the Collateral Agreement and assumes all the obligations of a “Grantor” under the Collateral Agreement and agrees that it is a Grantor and bound as a Grantor under the terms of the Collateral Agreement, as if it had been an original signatory to the Collateral Agreement, (v) it hereby collaterally assigns, pledges and grants to Agent a security interest in all of its right, title and interest in and to the Collateral owned by it to secure the Obligations, in each case in accordance with the terms of the Collateral Agreement, (vi) it hereby makes to Agent the representations and warranties set forth in the Collateral Agreement applicable to it and the applicable Collateral and confirms that such representations and warranties are true and correct in all material respects as of the date hereof, (vii) it is a successor to all obligations of its respective Pre-Conversion Loan Party under the Loan Party Guaranty and it hereby assumes all the obligations of a “Guarantor” under the Loan Party Guaranty and agrees that such Person is a Guarantor and bound as Guarantor under the terms of the Loan Party Guaranty, as if it had been an original signatory to the Loan Party Guaranty, (viii) it hereby guarantees the prompt and complete payment and performance by Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations, in each case in accordance with the terms of the Loan Party Guaranty; (ix) it is a successor to all obligations of its respective Pre-Conversion Loan Party under the Intercompany Subordination Agreement and hereby becomes a party to the Intercompany Subordination Agreement as a “Junior Lender” thereunder with the same force and effect as if originally named as an Junior Lender therein and hereby agrees to be bound as a Junior Lender for the purposes of the Intercompany Subordination Agreement; and (x) the Agent is authorized to file UCC-1 financing statements naming each Converted Loan Parties as a debtor and Agent as secured Party (each in form and substance acceptable to Agent) and to file UCC-3 financing statement amendments (each in form and substance acceptable to the Agent) providing for new name changes with respect to each of the Pre-Conversion Parties.
[The remainder of this page is intentionally blank]
10
IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.
| UNIFUND CCR, LLC, as the Borrower | ||
| By: | /s/ David Rosenberg | |
| Name: David Rosenberg | ||
| Title: President | ||
| CREDIT CARD RECEIVABLES FUND INCORPORATED, and as the Parent | ||
| By: | /s/ David Rosenberg | |
| Name: David Rosenberg | ||
| Title: President | ||
| ZB LIMITED PARTNERSHIP, and as the Parent | ||
| By: | /s/ Jay Zises | |
| Name: Jay Zises | ||
| Title: President | ||
Limited Waiver and Fifth Amendment to Credit Agreement
IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.
| UNIFUND HOLDINGS, LLC, as Holdings | ||
| By: | /s/David Rosenberg | |
| Name: David Rosenberg | ||
| Title: President | ||
| Other Members of the Operating Group, and as Loan Parties: | ||
| UNIFUND CCR PARTNERS, | ||
| VINTAGE RECEIVABLES LLC, | ||
| UNIFUND PORTFOLIO A, LLC, | ||
| UNIFUND PORTFOLIO B, LLC, | ||
| UNIFUND PORTFOLIO GER, LLC, | ||
| RECOVERY DECISION SCIENCE, LLC, | ||
| UNIPAC V, LLC, | ||
| UNIPAC IX, LLC, | ||
| UNIPAC VI HOLDINGS, LLC, | ||
| UNIPAC VI, LLC, | ||
| PILOT RECEIVABLES MANAGEMENT, LLC, | ||
| DISTRESSED ASSET PORTFOLIO II, LLC, | ||
| DISTRESSED ASSET PORTFOLIO III, LLC, | ||
| FRIC HOLDING, LLC (as successor by conversion of FRIC Holding Corporation), | ||
| FRIC ACQUISITION, LLC (as successor by conversion of FRIC Acquisition Inc.) | ||
| CAPILANO HOLDINGS, LLC (as successor by conversion of Capilano Holdings Corporation), | ||
| HOLLYBURN HOLDINGS, LLC (as successor by conversion of Hollyburn Holdings Corporation), | ||
| FIRST RESOLUTION INVESTMENT CORPORATION, LLC (as successor by conversion of First Resolution Investment Corporation) | ||
| TECHWOODS HOLDINGS, LLC | ||
| USV LLC | ||
| By: | /s/ David Rosenberg | |
| Name: David Rosenberg | ||
| Title: President | ||
Limited Waiver and Fifth Amendment to Credit Agreement
IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.
| AGENT AND LENDERS: | ||
| CCP AGENCY, LLC, as Agent | ||
| By: | Comvest Capital Advisors LLC, its sole Member | |
| By: | /s/Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
| COMVEST CAPITAL IV, L.P., as a Lender | ||
| By: | Comvest Capital IV Partners, L.P., Its General Partner | |
| By: | Comvest Capital IV Partners UGP, LLC, Its General Partner | |
| By: | /s/ Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
| COMVEST CAPITAL IV INTERNATIONAL, L.P., as a Lender | ||
| By: | Comvest Capital IV Partners, L.P., Its General Partner | |
| By: | Comvest Capital IV Partners UGP, LLC, Its General Partner | |
| By: | /s/Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
Limited Waiver and Fifth Amendment to Credit Agreement
| COMVEST CAPITAL IV DB SPV, LLC, as a Lender | ||
| By: | Comvest Capital IV, L.P., Its Sole Member | |
| By: | Comvest Capital IV Partners, L.P., Its General Partner | |
| By: | Comvest Capital IV Partners UGP, LLC, Its General Partner | |
| By: | /s/Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
| COMVEST CAPITAL IV DB OFFSHORE SPV, LLC, as a Lender | ||
| By: | Comvest Capital IV International, L.P., Its Sole Member | |
| By: | Comvest Capital IV Partners, L.P., Its General Partner | |
| By: | Comvest Capital IV Partners UGP, LLC, Its General Partner | |
| By: | /s/Jason Gelberd | |
| Name: Jason Gelber | ||
| Title: Partner | ||
| COMVEST CREDIT PARTNERS V INTERNATIONAL, L.P., as a Lender | ||
| By: | Comvest Credit V GP, L.P., Its General Partner | |
| By: | Comvest Credit V UGP, LLC, Its General Partner | |
| By: | /s/Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
Limited Waiver and Fifth Amendment to Credit Agreement
| COMVEST CREDIT PARTNERS V DB SPV, LLC, as a Lender | ||
| By: | Comvest Credit Partners V, L.P., Its Sole Member | |
| By: | Comvest Credit V GP, L.P., Its General Partner | |
| By: | Comvest Credit V UGP, LLC, Its General Partner | |
| By: | /s/ Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
| COMVEST CREDIT PARTNERS V DB OFFSHORE SPV, LLC, as a Lender | ||
| By: | Comvest Credit Partners V, L.P., Its Sole Member | |
| By: | Comvest Credit V GP, L.P., Its General Partner | |
| By: | Comvest Credit V UGP, LLC, Its General Partner | |
| By: | /s/ Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
Limited Waiver and Fifth Amendment to Credit Agreement
IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.
| COMVEST CAPITAL IV (LUXEMBOURG) MASTER FUND, SCSP, as a Lender | ||
| By: | Comvest Capital Advisors LLC, as Investment Manager | |
| By: | /s/ Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
| COMVEST CREDIT PARTNERS V, L.P., as a Lender | ||
| By: | Comvest Credit V GP, L.P., Its: General Partner | |
| By: | Comvest Credit V UGP, LLC, Its General Partner | |
| By: | /s/ Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
| COMVEST CREDIT PARTNERS V (LUXEMBOURG) MASTER FUND, SCSP, as a Lender | ||
| By: | Comvest Capital Advisors LLC, as Investment Manager | |
| By: | /s/Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
Limited Waiver and Fifth Amendment to Credit Agreement
IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.
| COMVEST CREDIT PARTNERS V (DELAWARE) MASTER FUND, L.P., as a Lender | ||
| By: | Comvest Credit V GP, L.P., Its General Partner | |
| By: | Comvest Credit V UGP, LLC, Its General Partner | |
| By: | /s/ Jason Gelberd | |
| Name: Jason Gelberd | ||
| Title: Partner | ||
Limited Waiver and Fifth Amendment to Credit Agreement
| PATHLIGHT CAPITAL FUND II LP, as a Lender | ||
| By: | Pathlight Partners II GP, LLC, Its General Partner | |
| By: | /s/ Matthew N. Williams | |
| Name: Matthew N. Williams | ||
| Title: Managing Director | ||
| PATHLIGHT CAPITAL FUND I LP, as a Lender | ||
| By: | Pathlight Partners GP LLC, Its General Partner | |
| By: | /s/ Matthew N. Williams | |
| Name: Matthew N. Williams | ||
| Title: Managing Director | ||
| PATHLIGHT CAPITAL MASTER FUND II, LP, as a Lender | ||
| By: | Pathlight Partners II GP, LLC, Its General Partner | |
| By: | /s/ Matthew N. Williams | |
| Name: Matthew N. Williams | ||
| Title: Managing Director | ||
| PATHLIGHT CAPITAL MASTER FUND I, LP, as a Lender | ||
| By: | Pathlight Partners GP LLC, Its General Partner | |
| By: | /s/ Matthew N. Williams | |
| Name: Matthew N. Williams | ||
| Title: Managing Director | ||
Limited Waiver and Fifth Amendment to Credit Agreement