SECOND AMENDMENT AGREEMENT among QC HOLDINGS, INC., as Borrower and THE LENDERS THAT ARE PARTIES HERETO and SEPTEMBER 30, 2010
Exhibit 10.1
among
QC HOLDINGS, INC., as Borrower
and
THE LENDERS THAT ARE PARTIES HERETO
and
U.S. BANK NATIONAL ASSOCIATION, as Agent and Arranger
SEPTEMBER 30, 2010
This Second Amendment Agreement (this “Agreement”), is made and entered into as of September 30, 2010, by and between QC HOLDINGS, INC., a Kansas corporation (the “Borrower”), the Lenders that are parties hereto (being hereinafter referred to individually as a “Lender” or collectively as the “Lenders”), and U. S. BANK NATIONAL ASSOCIATION, in its capacity as Agent (the “Agent”).
RECITALS
A. On December 7, 2007, the Borrower, the Lenders and the Agent entered into an Amended and Restated Credit Agreement (the “Credit Agreement”) pursuant to which the Lenders agreed to make a revolving credit facility available to the Borrower, and in conjunction therewith, the Borrower executed (i) a Promissory Notes (Revolving Loan) dated December 7, 2007, payable to U.S. Bank as the then sole Revolving Lender, (ii) a Promissory Note (Swingline Loan) dated December 7, 2007, payable to the Swingline Lender and (iii) a Promissory Note (Term Loan) dated December 7, 2007, payable to U.S. Bank as the then sole Term Loan Lender (collectively, the “Notes”).
B. The repayment of the Notes is secured by certain assets of the Borrower and its Subsidiaries referred to as the “Collateral” in the Credit Agreement, which is more particularly described in the Security Agreement, the Pledge Agreement and the Subsidiary Security Agreement (as each term is defined in the Credit Agreement) (collectively, the “Security Instruments”).
C. The Borrower acknowledges (i) the Lenders are presently the holders of the Notes, (ii) the Borrower’s liability to pay the Notes according to their terms, and (iii) the Borrower’s obligation to maintain, perform and comply with the terms and conditions of the Loan Documents (as such term is defined in the Credit Agreement).
D. The Borrower, the Agent and U.S. Bank National Association, as the sole Lender, previously entered into a First Amendment Agreement dated as of March 7, 2008 (the “First Amendment Agreement”) pursuant to which the parties made certain amendments to the Credit Agreement as more specifically detailed in the First Amendment Agreement.
E. The parties enter into this Agreement to amend certain terms and conditions of the Credit Agreement.
NOW THEREFORE, the Agent, the Lenders and the Borrower for good, sufficient and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, agree as follows:
1
1. Amendments to the Credit Agreement. The Credit Agreement is amended as follows:
(a) The schedule contained in the definition of the term “Applicable Margin” contained in Section 1.01 is deleted and the following schedule is inserted in the definition of the term “Applicable Margin” in lieu thereof:
| Tier |
Leverage Ratio |
Applicable Margin | |||||||||
| Base Rate Loans |
LIBOR Rate Loans |
Non-Use Fee Percentage |
|||||||||
| 1 | Less than 1.25 to 1 | 1.00 | % | 3.00 | % | 0.250 | % | ||||
| 2 | Greater than or equal to 1.25 to 1 but less than 1.75 to 1 | 1.50 | % | 3.50 | % | 0.375 | % | ||||
| 3 | Greater than or equal to 1.75 | 2.00 | % | 4.00 | % | 0.375 | % | ||||
(b) The provision contained in Section 7.02(a) is deleted and the following provision is inserted in lieu thereof:
(a) Consolidated EBITDA. Permit or suffer the Consolidated EBITDA, determined for the Borrower and its Subsidiaries as of the end of each fiscal quarter (for the twelve (12) month period then ending) of the Borrower, to be less than $28,000,000.00.
3. Conditions Precedent. It shall be a condition precedent to the effectiveness of this Agreement that (i) all amounts due and payable under the Notes as of the execution date shall have been paid, (ii) no Event of Default shall exist under the Notes, the Credit Agreement, or any other Loan Document, and (iii) the Agent and the Lenders shall have received such other items as they may reasonably request.
4. Representations and Warranties. The Borrower hereby represents and warrants that (i) it has the authority to enter into this Agreement and, upon execution by the Borrower, this Agreement shall be an enforceable obligation of the Borrower, (ii) all representations and warranties made by the Borrower in the Credit Agreement and the other Loan Documents are true and correct as of the date of this Agreement, (iii) there have been no amendments or modifications to the Borrower’s organizational documents since such documents were certified and/or delivered to the Lender in connection with the closing of the Loan, and (iv) no Default or Event of Default currently exists under the Loan Documents.
5. No Other Amendments. Except as expressly set forth herein, or necessary to incorporate the modifications and amendments herein, all the terms and conditions of the Notes, the Credit Agreement, the Security Instruments, and the other Loan Documents shall remain unmodified and in full force and effect, and the Borrower confirms, reaffirms and ratifies all such documents and agrees to perform and comply with the terms and the conditions of the Loan Documents, as amended herein.
2
6. No Impairment. Nothing in this Agreement shall be deemed to or shall in any manner prejudice or impair the Loan Documents, or any security granted or held by the Lenders for the indebtedness evidenced by the Notes.
7. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
8. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Kansas.
9. Waiver of Claims and Defenses. The Borrower hereby waives and releases any and all claims, defenses or rights of set-off, known or unknown, existing as of the execution date, which in any manner arise out of or relate to any Loan Document.
10. Fees and Expenses. The Borrower agrees to pay and reimburse the Agent for all of its out-of-pocket costs and expenses incurred in connection with the preparation, negotiation, execution, filing, enforcement and administration of this Agreement including, without limitation, the fees and expenses of counsel to the Agent.
11. Counterparts. This Agreement may be executed in counterparts and when combined all such counterparts shall constitute one agreement.
12. Waiver of Jury Trial. Any controversy or claim between or among the parties hereto arising out of or relating to this Agreement shall be controlled by the provisions with respect to waiver of trial by jury contained in the Loan Documents previously delivered by such parties.
13. NO ORAL AGREEMENTS. THIS IS THE FINAL EXPRESSION OF THE CREDIT AGREEMENT BETWEEN THE BORROWER, THE AGENT AND THE LENDERS AND SUCH WRITTEN CREDIT AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL AGREEMENT OR OF A CONTEMPORANEOUS ORAL CREDIT AGREEMENT BETWEEN THE BORROWER, THE AGENT AND LENDERS.
ANY ADDITIONAL NON-STANDARD TERMS OF THE CREDIT AGREEMENT AND THE REDUCTION TO WRITING OF ANY PREVIOUS ORAL CREDIT AGREEMENT BETWEEN THE BORROWER, THE AGENT AND LENDERS IS SET FORTH IN THE SPACE BELOW:
NONE
BORROWER, THE AGENT AND LENDERS AFFIRM THAT NO UNWRITTEN ORAL CREDIT AGREEMENT BETWEEN THEM EXISTS.
3
| Please initial |
|
|
| |||||||
| Borrower | Agent | U.S. Bank | ||||||||
|
|
|
| ||||||||
| Union Bank | PNC | Enterprise | ||||||||
|
|
|
|||||||||
| Citizens | BOKC | |||||||||
[SIGNATURES APPEAR ON FOLLOWING PAGES]
4
IN WITNESS WHEREOF, the Agent, the Borrower and the Lenders have executed this Agreement as of the day and year first above written.
| AGENT: | ||
| U.S. BANK NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxx X. Xxx Xxxx | |
| Xxxx X. Xxx Xxxx | ||
| Senior Vice President | ||
S-1
IN WITNESS WHEREOF, the Agent, the Borrower and the Lenders have executed this Agreement as of the day and year first above written.
| BORROWER: | ||
| QC HOLDINGS, INC., | ||
| a Kansas corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chief Financial Officer | ||
S-2
IN WITNESS WHEREOF, the Agent, the Borrower and the Lenders have executed this Agreement as of the day and year first above written.
| LENDERS: | ||
| U. S. BANK NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxx X. Xxx Xxxx | |
| Xxxx X. Xxx Xxxx | ||
| Senior Vice President | ||
| UNION BANK OF CALIFORNIA, N.A. | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Xxxxxx Xxxxxx | ||
| Vice President | ||
| PNC BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Xxxxx Xxxxxx | ||
| Senior Vice President | ||
| ENTERPRISE BANK AND TRUST | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Xxxxx X. Xxxx | ||
| Senior Vice President | ||
| CITIZENS BANK AND TRUST COMPANY | ||
| By: |
| |
| Name: |
| |
| Title: |
| |
S-3
| BANK OF KANSAS CITY, N.A. | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Xxxxxxx X. Xxxxx | ||
| Vice President | ||
| THE HUNTINGTON NATIONAL BANK | ||
| By: |
| |
| Name: |
| |
| Title: |
| |
S-4
ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS/PLEDGORS
Each of the undersigned guarantors and/or pledgors of collateral with respect to the obligations of the Borrower to the Agent and the Lenders hereby (i) acknowledge and consent to the terms of the foregoing Second Amendment Agreement, (ii) represents and warrants to the Agent and the Lenders that there exists no default or event of default under any document delivered by it to the Agent or the Lenders with respect to the Loan and (iii) reaffirms and ratifies the full force and effect of any guaranty agreement, security instrument or pledge agreement delivered by it in connection with the Loan.
| QC Financial Services, Inc., | ||
| a Missouri corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chief Financial Officer | ||
| QC Properties, LLC, | ||
| a Kansas limited liability company | ||
| By: | /s/ Don Early | |
| Don Early | ||
| Manager | ||
| QC Financial Services of California, Inc., | ||
| a California corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chief Financial Officer | ||
S-1
| QC Financial Services of Texas, Inc., | ||
| a Kansas corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chief Financial Officer | ||
| QC Advance, Inc., | ||
| a Missouri corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chief Financial Officer | ||
| Cash Title Loans, Inc., | ||
| a Missouri corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chief Financial Officer | ||
| Express Check Advance of South Carolina, LLC, a Tennessee limited liability company | ||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
| Xxxxxx X. Xxxxxxxx | ||
| Manager | ||
S-2
| QC Auto Services, Inc., | ||
| a Kansas corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chief Financial Officer | ||
| QC Loan Services, Inc., | ||
| a Kansas corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chief Financial Officer | ||
| QC E-Services, Inc., | ||
| a Kansas corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| Chief Financial Officer | ||
S-3
