SIXTH AMENDMENT TO AMENDED AND RESTATED

SIXTH AMENDMENT TO AMENDED AND RESTATED

LOAN AND SECURITY AGREEMENT

 

This Sixth Amendment to Amended and Restated Loan and Security Agreement (“Amendment”) is dated as of June 28, 2017, by and among C&F FINANCE COMPANY and such other Persons joined to the Loan Agreement as Borrowers from time to time (collectively, the “Borrowers” and each a “Borrower”), ▇▇▇▇▇ FARGO BANK, N.A., successor by merger to ▇▇▇▇▇ Fargo Preferred Capital, Inc., as agent for Lenders (in such capacity, “Agent”), and the financial institutions a party hereto as lenders (collectively, the “Lenders” and each is a “Lender”).

BACKGROUND

 

NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby promise and agree as follows:

 

 

“Receivables” means all lien, title retention and security agreements, chattel mortgages, chattel paper, bailment leases, installment sale agreements, instruments, consumer finance paper and/or promissory notes securing and evidencing loans made, and/or time sale transactions acquired, by a Borrower (including Electronic Chattel Paper).

 

“Authoritative Copy” means, with respect to a Record, an electronic or tangible copy of such Record that is unique, identifiable and, except as otherwise provided in Section 9-105(b)(4), (5) and (6) of the UCC, is unalterable, and is marked “original” or has no ▇▇▇▇ or watermark that would indicate that it is a “copy” or “duplicate” or not an original or “authoritative” copy.

“Electronic Chattel Paper”  shall have the meaning given to such term in the UCC.

“Electronic Collateral Control Agreement” means that certain  Acknowledgement of Pledge by and among Electronic Collateral Custodian, Borrowers and Agent, as the same may be amended, modified, restated or extended from time to time, pursuant to which the Electronic Collateral Custodian agrees to act as custodian for Agent with respect to any Collateral created, acquired or converted into electronic form, including but not limited to, Chattel Paper and Electronic Chattel Paper, and hold and control in electronic form, the single Authoritative Copy of such Collateral.

 

“Electronic Collateral Custodian” means RouteOne LLC, a Michigan limited liability company, or such other Person acceptable to Agent.

 

“Order Form” means that certain Order Form by and among Electronic Collateral Custodian and Borrower, as the same may be amended, modified, restated or extended from time to time, under which Borrower is licensed to use Electronic Collateral Custodian’s Repository Services (as defined therein).

 

Section 3.3Documents to be Delivered to Agent.  Concurrently with the execution and delivery of this Agreement and, thereafter, by the 20th day of each month for the prior month and at any other time as Agent may require, Borrowers shall deliver to Agent (for each Borrower and on consolidated basis) an Availability Statement (together with all supporting schedules), a Schedule of Receivables and Assignment, an aging of Receivables, books and records consisting of data tape information and such other documentation as Agent may require; however, the security interest of Agent in the Collateral shall attach immediately upon the creation or acquisition thereof by Borrowers, regardless of whether the same be then or thereafter delivered to Agent.  All Receivables of Borrowers shall be stamped and assigned to Agent as follows to evidence the assignment to Agent:

The within instrument or agreement is pledged as collateral to ▇▇▇▇▇ Fargo Bank, N.A., its successors and assigns.

Borrowers shall: (a) deliver to the custodian under the Custodian Agreement, as the bailee and designee of Agent, or, upon the request of Agent, to Agent, the Collateral and all Documents, General Intangibles and Instruments relating to Collateral and, upon request of Agent, deliver to Agent or its designee any other property in which Borrowers have granted Agent a security interest hereunder, including, but not limited to, all of Borrowers’ Books and Records including all computers, computer related equipment, tapes and software;

(b) execute and deliver to Agent, for the benefit of Lenders, such assignments, endorsements, allonges to promissory notes, mortgages, financing statements, amendments thereto and continuation statements thereof, in form satisfactory to Agent, and such additional agreements, documents or instruments as Agent may, from time to time, require to evidence, perfect and continue to perfect Agent’s liens and security interests granted hereunder and (c) execute an Electronic Collateral Control Agreement with an Electronic Collateral Custodian and, with respect to any Electronic Chattel Paper and other Collateral held or to be held by the Electronic Collateral Custodian, take any and all reasonable steps to ensure delivery and control of Electronic Chattel Paper, including any tangible Chattel Paper converted to Electronic Chattel Paper, to the Electronic Collateral Custodian to hold for the benefit of Agent, by using the Electronic Collateral Custodian’s electronic vaulting system or other electronic system reasonably acceptable to Agent, such that Agent’s security interest in and to such Electronic Chattel Paper and such other Collateral held by the Electronic Collateral Custodian shall, to the extent applicable, and to the reasonable satisfaction of Agent, continuously be perfected by “control,” in accordance with Section 9-105 of the UCC.  For purposes of this Article 3, the parties hereto agree that, until Agent shall otherwise direct or designate, the custodian(s) under the Custodian Agreement or Agreements as from time to time in effect, shall be deemed to be the designee of Agent and Agent shall have the right, at any time and from time to time, to direct or redirect the delivery of all or any of the foregoing items to any other designee.  Agent may in its sole discretion record or file any such document, instrument or agreement, including, without limitation, this Agreement, as it may from time to time deem desirable.

(viii)if the Authoritative Copy of any Receivable is evidenced by an electronic record, (A) such electronic record and the execution thereof is in compliance with the applicable provisions of the Uniform Electronic Transactions Act (as, and if, adopted by relevant jurisdiction) and the federal Electronic Signatures in Global and National Commerce Act, (B) if such Receivable is initially Electronic Chattel Paper, each of the parties to such Receivable agreed to conduct the transaction evidenced by such Receivable by electronic means, (C) if such Receivable is initially Electronic Chattel Paper, Borrowers or their electronic service provider utilizes security procedures designed to determine the Person to which such Receivable and the electronic signature thereof are attributable, (D) Borrowers or their electronic service provider provides a mechanism for the prevention or correction of errors in such electronic Records, (E) if not converted to a tangible medium, such Receivable was created

or converted, stored and assigned in such a manner that: (1) a single Authoritative Copy of such Receivable exists that is unique, identifiable and, except as otherwise provided in Section 9-105(b)(4), (5) and (6) of the UCC, unalterable, (2) the Authoritative Copy of such Receivable identifies Agent as the secured party or assignee of such Receivable, (3) the Authoritative Copy of such Receivable has been communicated to the Electronic Collateral Custodian, to hold for the benefit of Agent, (4) copies or revisions that add or change an identified assignee of the Authoritative Copy of such Receivable can be made only with the consent of Agent, (5) each copy of the Authoritative Copy of such Receivable and any copy of a copy of such Receivable is readily identifiable as a copy that is not the Authoritative Copy of such Receivable, (6) any revision of the Authoritative Copy of such Receivable is readily identifiable as an authorized or unauthorized revision, (7) a copy of such Receivable is accessible to Agent, (F) if converted to a tangible medium, the Authoritative Copy of such Receivable has been delivered to Agent or Custodian, to hold for the benefit of Agent and (G) if converted from a tangible medium to an electronic medium, the merchant generating such Receivable has deleted, destroyed or obliterated all paper documents and digital copies of tangible Chattel Paper or has otherwise stamped all such related tangible Chattel Paper indicating it is not an Authoritative Copy (such as indicating it is a “copy”).

Section 7.13Electronic Chattel Paper Documents.  Amend or permit the amendment or termination of an Electronic Collateral Control Agreement or the Order Form without the prior written consent of Agent.

Section 10.1Indemnification and Release Provisions.  Each Borrower hereby agrees to defend Agent, Lenders and their directors, officers, agents, employees and attorneys from, and hold each of them harmless against, any and all losses, liabilities (including without limitation settlement costs and amounts, transfer taxes, documentary taxes, or assessments or charges made by any governmental authority), claims, damages, interests, judgments, costs, or expenses, including without limitation fees and disbursements of attorneys, incurred by any of them arising out of or in connection with or by reason of (a) this Agreement, the making of the Loan or any Collateral, or any other Credit Document, including without limitation, any and all losses, liabilities, claims, damages, interests, judgments, costs or expenses relating to or arising under any Consumer Finance Laws or

Environmental Control Statute or the application of any such statute to Borrower’s properties or assets and (b) the creation, generation, communication or storage of records by electronic means, the utilization by Borrowers of the RouteOne LLC services and its “Paper-In”, “Paper Out” and “Transfer of Control” processes for electronic Records, the negligence, fraudulent or willful misconduct of the Electronic Collateral Custodian in connection with any Collateral which is currently, or was formerly, evidenced by an electronic record.  Each Borrower hereby releases Agent, Lenders and their respective directors, officers, agents, employees and attorneys from any and all claims for loss, damages, costs or expenses caused or alleged to be caused by any act or omission on the part of any of them, other than such loss, damage cost or expense which has been determined by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of Agent and Lenders.  All obligations provided for in this Section 10.1 shall survive any termination of this Agreement or the Commitments and the repayment of the Loan.

 

[SIGNATURES ON FOLLOWING PAGES]

IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective duly authorized officers as of the date first above written.

 

 

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