AMENDMENT NUMBER FIVE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.29
AMENDMENT NUMBER FIVE TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NUMBER FIVE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this βAmendmentβ), dated as of July 1, 2019, is entered into by and between JMP HOLDING LLC, formerly known as JMP Group LLC, a Delaware limited liability company (βBorrowerβ), the lenders from time to time party to the below-defined Credit Agreement (together with their respective successors and assigns, each a βLenderβ and collectively, the βLendersβ) and CITY NATIONAL BANK, a national banking association (βCNBβ), as the administrative agent for the Lenders, (in such capacity, together with its successors and assigns in such capacity, the βAgentβ) , and in light of the following:
W I T N E S S E T H
WHEREAS, Borrower, Agent and the Lenders are party to that certain Second Amended and Restated Credit Agreement, dated as of April 30, 2014 (as amended and in effect immediately prior to the effectiveness of this Amendment, the βExisting Credit Agreementβ; the Existing Credit Agreement, as amended by this Amendment, is referred to herein as the βCredit Agreementβ);
WHEREAS, Borrower has requested that Agent and the Lenders make certain amendments to the Existing Credit Agreement; and
WHEREAS, upon the terms and conditions set forth herein, Agent and the Lenders are willing to accommodate Borrowerβs requests.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. |
DEFINITIONS. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement. |
2. |
AMENDMENTS TO EXISTING CREDIT AGREEMENT. On the terms and subject to the conditions of this Amendment: |
(a) The Existing Credit Agreement is amended as set forth in Exhibit A (stricken text shall be deleted from the Existing Amended Credit Agreement (indicated textually in the same manner as the following example: stricken text), and double-underlined text shall be added to the Existing Credit Agreement (indicated textually in the same manner as the following example: double-underlined text or double-underlined text)).
(b) Exhibit C-1 of the Existing Credit Agreement is hereby amended and restated in its entirety with Exhibit C-1 attached hereto.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants to Agent and the Lenders as follows:
a. Borrower has the requisite power and authority to execute and deliver this Amendment and the authority to perform its obligations hereunder and under the Loan Documents to which it is a party. The execution, delivery, and performance of this Amendment and the performance by Borrower of each Loan Document to which it is a party (i) have been duly approved by all necessary action and no other proceedings are necessary to consummate such transactions; and (ii) are not in contravention of (A) any law, rule, or regulation, or any order, judgment, decree, writ, injunction, or award of any arbitrator, court or governmental authority binding on it, (B) the terms of its organizational documents, or (C) any provision of any contract or undertaking to which it is a party or by which any of its properties may be bound or affected;
b. This Amendment has been duly executed and delivered by Borrower. This Amendment will, upon its effectiveness in accordance with the terms hereof, and each Loan Document to which Borrower is a party is the legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance with its terms, and is in full force and effect except as such validity and enforceability is limited by the laws of insolvency and bankruptcy, laws affecting creditorsβ rights and principles of equity applicable hereto;
c. No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein has been issued and remains in force by any Governmental Authority against Borrower;
d. Borrower does not have any actual or potential claim or cause of action against Agent or any Lender for any actions or events occurring on or before the date hereof, and Borrower hereby waives and releases any right to assert same;
e. No Default or Event of Default has occurred and is continuing on the date hereof or as of the date of the effectiveness of this Amendment after giving effect to this Amendment and the Disclosure Statement Update (as defined below); and
f. The representations and warranties in the Credit Agreement and the other Loan Documents are true and correct in all material respects (except to the extent qualified by materiality, then such representations and warranties are true and correct in all respects) on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date) after giving effect to this Amendment and the Disclosure Statement Update.
4. COLLATERAL EXCLUSION. Agent hereby agrees that, notwithstanding anything to the contrary in the Loan Documents, the Collateral shall not include, and Agent hereby releases from the Lien created by any of the Loan Documents, any CLO Preference Shares solely to the extent that (a) the applicable subscription agreement for such CLO Preference Shares prohibits the applicable Loan Party from granting a Lien on such CLO Preference Shares in favor of Agent to secure the Obligations (or the obligations of such Loan Party arising under the Guaranty executed by such Loan Party) and (b) such prohibition is not rendered unenforceable by Section 9-406 or 9-408 of the Uniform Commercial Code as in effect in any applicable jurisdiction or by any other applicable law.
5. CONDITIONS PRECEDENT TO THIS AMENDMENT. The satisfaction of each of the following shall constitute conditions precedent to the effectiveness of this Amendment and each and every provision hereof:
a. Agent shall have received this Amendment, duly executed by Borrower, and the same shall be in full force and effect;
b. Agent shall have received an updated Disclosure Statement prepared by Borrower and dated as of the date hereof (the βDisclosure Statement Updateβ)
c. Agent shall have received a reaffirmation and consent (the βReaffirmation and Consentβ) substantially in the form attached hereto as Exhibit B, duly executed and delivered by each Person that is listed on the signature pages thereof;
d. The representations and warranties in the Credit Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date) after giving effect to this Amendment and the Disclosure Statement Update;
e. No Default or Event of Default shall have occurred and be continuing as of the date of the effectiveness of this Amendment after giving effect to this Amendment and the Disclosure Statement Update;
f. No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein shall have been issued and remain in force by any Governmental Authority against Borrower;
g. Agent shall have received the following documents, duly executed and delivered by such parties, and each in form and substance satisfactory to Agent:
(i) an Officerβs Certificate from the secretary of the Borrower, dated as of the date hereof, (a) attesting to the resolutions of such partyβs board of directors (or other similar body) authorizing its execution, delivery, and performance of this Agreement, (b) authorizing officers of such party to execute the same, (c) attesting to the incumbency and signatures of such specific officers of such party and (d) attesting to copies of such partyβs Governing Documents, as amended, modified or supplemented to the date thereof; and
(ii) resolutions of each Loan Partyβs board of directors (or other similar body) authorizing its execution, delivery, and performance of the Reaffirmation and Consent;
h. All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent.
i. Agent shall have received in immediately available funds the Amendment Fee (as defined below).
6. AMENDMENT FEE. Borrower shall pay to Agent for the ratable benefit of the Lenders an amendment fee (the βAmendment Feeβ) equal to $62,500, which Amendment Fee is fully-earned on the date hereof and is non-refundable when paid.
7. AGREEMENTS. This Amendment has been entered into without force or duress, of the free will of Borrower, and the decision of Borrower to enter into this Amendment is a fully informed decision and Borrower is aware of all legal and other ramifications of each decision. It has read and understands this Amendment, has consulted with and been represented by independent legal counsel of its own choosing in negotiations for and the preparation of this Amendment, has read this Amendment in full and final form, and has been advised by its counsel of its rights and obligations hereunder and thereunder.
8. Payment of Costs and Fees. Borrower shall reimburse Agent on demand for all of its actual out-of-pocket costs, expenses, fees and charges in connection with the preparation, negotiation, execution and delivery of this Amendment and any documents and instruments relating hereto (which costs may include the reasonable fees and expenses of any attorneys retained by Agent).
9. CONSTRUCTION. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF CALIFORNIA.
10. ENTIRE AMENDMENT. This Amendment, and terms and provisions hereof, the Credit Agreement and the other Loan Documents constitute the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior or contemporaneous amendments or understandings with respect to the subject matter hereof, whether express or implied, oral or written.
11. COUNTERPARTS; ELECTRONIC EXECUTION. This Amendment may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument and any of the parties hereto may execute this Amendment by signing any such counterpart. Delivery of an executed counterpart of this Amendment by telefacsimile or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by telefacsimile or electronic mail also shall deliver an original executed counterpart of this Amendment, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.
a. The Existing Credit Agreement, as amended hereby, and each of the other Loan Documents shall be and remain in full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects. Except for the amendments to the Credit Agreement expressly set forth herein, the Credit Agreement and other Loan Documents shall remain unchanged and in full force and effect. The execution, delivery and performance of this Amendment shall not operate, except as expressly set forth herein, as a modification or waiver of any right, power, or remedy of Agent or any Lender under the Credit Agreement or any other Loan Document. The amendments set forth herein are limited to the specifics hereof, and, except as expressly set forth herein, shall neither excuse any future non-compliance with the Credit Agreement, nor operate as a waiver of any Unmatured Event of Default or Event of Default.
b. Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to βthis Agreementβ, βhereunderβ, βhereinβ, βhereofβ or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to βthe Credit Agreementβ, βthereunderβ, βthereinβ, βthereofβ or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified and amended hereby.
c. To the extent any terms or provisions of this Amendment conflict with those of the Credit Agreement or other Loan Documents, the terms and provisions of this Amendment shall control. To the extent that any terms and conditions in any of the Loan Documents shall contradict or be in conflict with any terms or conditions of the Credit Agreement, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit Agreement as modified or amended hereby.
d. This Amendment is a Loan Document.
e. Unless the context of this Amendment clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms βincludesβ and βincludingβ are not limiting, and the term βorβ has, except where otherwise indicated, the inclusive meaning represented by the phrase βand/orβ.
13. Reaffirmation of Obligations. Borrower hereby restates, ratifies and reaffirms each and every term and condition set forth in the Credit Agreement and the other Loan Documents to which it is a party effective as of the date hereof and as amended hereby. Borrower hereby further ratifies and reaffirms the validity and enforceability of all of the liens and security interests in the Collateral heretofore granted, pursuant to and in connection with any Loan Document to Agent as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such liens and security interests, and all Collateral heretofore pledged as security for such obligations, continues to be and remain collateral for such obligations from and after the date hereof, in each case except as otherwise expressly provided in the Loan Documents.
14. Severability. In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and delivered as of the date first written above.
BORROWER: |
JMP HOLDING LLC, formerly known as a Delaware limited liability company
By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Chief Financial Officer |
[Signature Page To Amendment Number FIVE TO
second amended and restated Credit Agreement]
AGENT AND LENDER: |
CITY NATIONAL BANK,
By: /s/ Xxxx Xx Name: Xxxx Xx Title: Senior Vice President |
[SIGNATURE PAGE TO AMENDMENT NUMBER FIVE TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
EXHIBIT A
(attached)
Conformed through Amendment Number FourFive, dated as of August 6, 2016July 1, 2019
ββββββββββββββββββββββββββββββββββββββββββββββββββββ
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of April 30, 2014
by and among
as Borrower,
THE LENDERS THAT ARE SIGNATORIES HERETO
as the Lenders,
and
CITY NATIONAL BANK,
as Administrative Agent and Lead Arranger
ββββββββββββββββββββββββββββββββββββββββββββββββββββ
TABLE OF CONTENTS
Page
ARTICLE I |
DEFINITIONS AND CONSTRUCTION |
1 |
1.1 |
Definitions |
1 |
1.2 |
Construction |
24 |
ARTICLE II |
AMOUNT AND TERMS OF LOANS |
24 |
2.1 |
Revolving Credit Facility |
24 |
2.2 |
Rate Designation |
25 |
2.3 |
Interest Rates; Payment of Principal and Interest |
26 |
2.4 |
Default Rate |
28 |
2.5 |
Computation of Interest and Fees Maximum Interest Rate |
28 |
2.6 |
Request for Borrowing |
28 |
2.7 |
Conversion or Continuation |
31 |
2.8 |
Mandatory Repayment |
32 |
2.9 |
Voluntary Prepayments |
33 |
2.10 |
[Intentionally Omitted] |
33 |
2.11 |
Fees |
33 |
2.12 |
Maintenance of Loan Account; Statements of Obligations |
33 |
2.13 |
Increased Costs |
34 |
2.14 |
Suspension of LIBOR Rate Loans |
34 |
2.15 |
Funding Sources |
34 |
2.16 |
Place of Borrowings |
34 |
2.17 |
Survivability |
34 |
2.18 |
Letters of Credit |
35 |
2.19 |
Accordion |
38 |
ARTICLE III |
CONDITIONS TO LOANS |
40 |
3.1 |
Conditions Precedent to Effectiveness |
40 |
3.2 |
Conditions Precedent to All Extensions of Credit |
41 |
ARTICLE IV |
REPRESENTATIONS AND WARRANTIES OF BORROWER |
42 |
4.1 |
Due Organization |
42 |
4.2 |
Interests in Borrower and its Subsidiaries |
42 |
4.3 |
Requisite Power and Authorization |
42 |
4.4 |
Binding Agreements |
43 |
4.5 |
Other Agreements |
43 |
4.6 |
Litigation: Adverse Facts |
43 |
4.7 |
Government Consents |
43 |
TABLE OF CONTENTS
(continued)
Page
4.8 |
Title to Assets; Liens |
44 |
4.9 |
Payment of Taxes |
44 |
4.10 |
Governmental Regulation |
44 |
4.11 |
Disclosure |
45 |
4.12 |
Debt |
45 |
4.13 |
Existing Defaults |
45 |
4.14 |
No Default |
45 |
4.15 |
Immaterial Subsidiaries |
45 |
4.16 |
Excluded Subsidiaries |
45 |
4.17 |
Patriot Act |
46 |
4.18 |
OFAC |
46 |
ARTICLE V |
AFFIRMATIVE COVENANTS OF BORROWER |
46 |
5.1 |
Accounting Records and Inspection |
46 |
5.2 |
Financial Statements and Other Information |
46 |
5.3 |
Existence |
48 |
5.4 |
Payment of Taxes and Claims |
48 |
5.5 |
Compliance with Laws |
49 |
5.6 |
Further Assurances |
49 |
5.7 |
Formation of Subsidiaries |
49 |
ARTICLE VI |
NEGATIVE COVENANTS OF BORROWER |
50 |
6.1 |
Debt |
50 |
6.2 |
Liens |
50 |
6.3 |
Investments |
50 |
6.4 |
[Intentionally Omitted] |
52 |
6.5 |
Dividends |
52 |
6.6 |
Restriction on Fundamental Changes |
52 |
6.7 |
Sale of Assets |
53 |
6.8 |
Transactions with Shareholders and Affiliates |
54 |
6.9 |
Conduct of Business |
54 |
6.10 |
Amendments or Waivers of Certain Documents; Actions Requiring the Consent of Agent |
54 |
6.11 |
Use of Proceeds |
54 |
6.12 |
Misrepresentations |
55 |
6.13 |
Margin Regulation |
55 |
TABLE OF CONTENTS
(continued)
Page
6.14 |
Financial Covenants |
55 |
ARTICLE VII |
EVENTS OF DEFAULT AND REMEDIES |
55 |
7.1 |
Events of Default |
55 |
7.2 |
Remedies |
58 |
ARTICLE VIII |
EXPENSES AND INDEMNITIES | 58 |
8.1 |
Expenses |
58 |
8.2 |
Indemnity |
58 |
ARTICLE IX |
ASSIGNMENT AND PARTICIPATIONS |
59 |
9.1 |
Assignments and Participations |
59 |
9.2 |
Successors |
61 |
ARTICLE X |
AGENT: THE LENDER GROUP |
62 |
10.1 |
Appointment and Authorization of Agent |
62 |
10.2 |
Delegation of Duties |
62 |
10.3 |
Liability of Agent |
62 |
10.4 |
Reliance by Agent |
63 |
10.5 |
Notice of Unmatured Event of Default or Event of Default |
63 |
10.6 |
Credit Decision |
63 |
10.7 |
Costs and Expenses; Indemnification |
64 |
10.8 |
Agent in Individual Capacity |
64 |
10.9 |
Successor Agent |
65 |
10.10 |
Lender in Individual Capacity |
65 |
10.11 |
Withholding Taxes |
65 |
10.12 |
Collateral Matters |
67 |
10.13 |
Restrictions on Actions by Lenders; Sharing of Payments |
68 |
10.14 |
Agency for Perfection |
68 |
10.15 |
Payments by Agent to the Lenders |
68 |
10.16 |
Concerning the Collateral and Related Loan Documents |
68 |
10.17 |
Field Examinations and Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information |
69 |
10.18 |
Several Obligations; No Liability |
70 |
10.19 |
Legal Representation of Agent |
70 |
10.20 |
Prohibited Event |
70 |
ARTICLE XI |
MISCELLANEOUS |
70 |
11.1 |
No Waivers, Remedies |
70 |
TABLE OF CONTENTS
(continued)
Page
11.2 |
Waivers and Amendments |
71 |
11.3 |
Notices |
72 |
11.4 |
Successors and Assigns |
72 |
11.5 |
Headings |
72 |
11.6 |
Execution in Counterparts; Effectiveness |
72 |
11.7 |
GOVERNING LAW |
73 |
11.8 |
JURISDICTION AND VENUE |
73 |
11.9 |
WAIVER OF TRIAL BY JURY |
73 |
11.10 |
Independence of Covenants |
74 |
11.11 |
Confidentiality |
74 |
11.12 |
Revival and Reinstatement of Obligations |
74 |
11.13 |
Complete Agreement |
74 |
11.14 |
USA PATRIOT Act |
75 |
11.15 | No Novation | 75 |
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 30, 2014, is entered into by and among JMP GROUP LLC, a Delaware limited liability company (βBorrowerβ), the lenders identified on the signature pages hereof (such lenders, together with their respective successors and assigns, are referred to hereinafter each individually as a βLenderβ and collectively as the βLendersβ), and CITY NATIONAL BANK, a national banking association (βCNBβ), as administrative agent for the Lenders and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, βAgentβ) and as lead arranger.
WHEREAS, CNB and Borrower are parties to that certain Amended and Restated Credit Agreement, dated as of October 11, 2012 (as amended, supplemented, or otherwise modified from time to time prior to the date hereof, the βExisting Credit Agreementβ); and
WHEREAS, CNB and Borrower desire to amend and restate the Existing Credit Agreement in its entirety subject to the terms and conditions set forth herein, it being understood that no repayment of the obligations under the Existing Credit Agreement is being effected hereby, but merely an amendment and restatement in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to amend and restate the Existing Credit Agreement in its entirety as follows:
ARTICLE I
βAcquisitionβ means (a) any Stock Acquisition, or (b) any Asset Acquisition.
βAffiliateβ means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For purposes of this definition, βcontrolβ (including, with correlative meanings, the terms βcontrolling,β βcontrolled by,β and βunder common control withβ), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that Person, whether through the ownership of voting securities, by contract, or otherwise.
βAgentβ has the meaning set forth in the preamble to this Agreement.
βAgent-Related Personsβ means Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.
βAgentβs Accountβ means the Deposit Account of Agent identified on Schedule A-1.
βAgentβs Liensβ means the Liens granted by Borrowerany Loan Party or its SubsidiariesUltimate Parent to Agent under this Agreement or the other Loan Documents.
βAgreementβ means this Credit Agreement among Borrower, Lenders, and Agent, together with all exhibits and schedules hereto, including the Disclosure Statement.
βAmended and Restated Guarantyβ means that certain Amended and Restated General Continuing Guaranty, dated as of even date herewith, executed and delivered by Harvest in favor of Agent, for the benefit of the Lender Group and the Bank Product Providers, in respect of the obligations of Borrower owing to the Lender Group and the Bank Product Providers under this Agreement and the other Loan Documents.
βAssetβ means any interest of a Person in any kind of property or asset, whether real, personal, or mixed real and personal, or whether tangible or intangible.
βAsset Acquisitionβ means any purchase or other acquisition by Borrower or a Guarantor of all or a material portionsubstantially all of the assets of any other Person or of a business line of such Person.
βAssigneeβ has the meaning set forth in Section 9.1(a).
βAssignment and Acceptanceβ means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1.
βAuthorized Personβ means any officer or employee of Borrower.
βAvailabilityβ means, as of any date of determination, the amount that Borrower is entitled to borrow as Revolving Loans under Section 2.1 of this Agreement (after giving effect to the then outstanding RevolverRevolving Credit Facility Usage).
βAvailable Increase Amountβ means, as of any date of determination, an amount equal to the result of (a) $25,000,000 minus (b) the aggregate principal amount of Increases to the Revolving Credit Facility Commitment previously made pursuant to Section 2.19 of this Agreement.
"Bank Product" means any one or more of the following financial products or accommodations extended to BorrowerUltimate Parent or any of its Subsidiaries by a Bank Product Provider: (a) Credit Card Services, (b) Cash Management Services, or (c) transactions under Hedge Agreements.
βBank Product Agreementsβ means those agreements entered into from time to time by BorrowerUltimate Parent or any of its Subsidiaries with a Bank Product Provider in connection with the obtaining of any of the Bank Products.
βBank Product Obligationsβ means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by BorrowerUltimate Parent or any of its Subsidiaries to any Bank Product Provider pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that Borrower or its Subsidiaries are obligated to reimburse to Agent or any Lender as a result of Agent or such Lender purchasing participations from, or executing indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to BorrowerUltimate Parent or any of its Subsidiaries.
"Bank Product Provider" means CNB or any of its Affiliates.
βBankruptcy Codeβ means Title 11 of the United States Code, as amended or supplemented from time to time, and any successor statute, and all of the rules and regulations issued or promulgated in connection therewith.
βBase LIBOR Rateβ means the ICE Benchmark Administration definition (or any successor or substitute to such definition) of the London InterBank Offered Rates as made available by Bloomberg LP (or such other successor to or substitute for such definition or such service as may be designated by Agent) for the applicable monthly period upon which the Interest Period is based for the LIBOR Rate Loan selected by Borrower and as quoted by Agent, in the case of an initial LIBOR Rate Loan or a conversion of a Base Rate Loan to a LIBOR Rate Loan, on the Business Day Borrower requests a LIBOR Rate Loan or, in the case of a continuation of an existing LIBOR Rate Loan, on the last Business Day of an expiring Interest Period (and, if any such rate is below zero, the Base LIBOR Rate shall be deemed to be zero).
βBase Rateβ means the greatest of (a) the Federal Funds Rate plus Β½%, (b) the LIBOR Rate (which rate shall be calculated based upon an Interest Period of 1 month and shall be determined on a daily basis), plus 1 percentage point, and (c) the rate most recently announced by Agent at its principal office in Los Angeles, California as its βPrime Rateβ.
βBase Rate Borrowingβ means any Borrowing designated by Borrower as a Base Rate Borrowing or any Borrowing which, pursuant to Section 2.7(a), is deemed to be converted to a Base Rate Loan.
βBase Rate Loanβ means any Loan bearing interest at the Base Rate.
βBorrowerβ shall have meaning set forth in the introduction to this Agreement.
βBorrowingβ means a borrowing under the Revolving Credit Facility consisting of a Revolving Loan made by the Lenders (or Agent on behalf thereof) to Borrower.
βBroker/Dealer Credit Facilityβ means the credit facility evidenced by the Note Agreement.
βBroker/Dealer Guarantyβ means any guaranty executed and delivered by Borrower or any Guarantor in favor of CNB in respect of the obligations of JMP Securities owing to CNB under the Note Agreement; and βBroker/Dealer Guarantiesβ means all of the foregoing Broker/Dealer Guaranties.
βBusiness Dayβ means a day when major commercial banks are open for business in California, other than Saturdays or Sundays.
βCapital Expendituresβ means, with respect to any Person for any period, the aggregate of all expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed.
βCapitalized Lease Obligationsβ means the aggregate amount which, in accordance with GAAP, is required to be reported as a liability on the balance sheet of Person at such time in respect of such Personβs interest as lessee under a capitalized lease.
βCash Equivalentsβ means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within 1 year from the date of acquisition thereof, (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 1 year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor's Rating Group ("S&P") or Xxxxxβx Investors Service, Inc. ("Moody's"), (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody's, (d) certificates of deposit or bankersβ acceptances maturing within 1 year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000, (e) demand deposit accounts maintained with (i) CNB or (ii) any bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $1,000,000,000, and (f) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (e) above.
βCash Management Servicesβ means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements.
βCash Secured Letter of Creditβ means any letter of credit to the extent that the account party or applicantβs reimbursement obligations with respect thereto are secured solely by a pledge of cash, Cash Equivalents in an amount equal to at least 100% of the undrawn amount of such letter of credit.
βChange of Control Eventβ means the occurrence of any of the following: (a) any Person or two or more Persons acting in concert, shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the 1934 Act, as then in effect), directly or indirectly, of Securities of JMPGUltimate Parent (or other securities convertible into such Securities) representing 35% or more of the combined voting power of all Securities of JMPGUltimate Parent entitled (without regard to the occurrence of any contingency) to vote for the election of members of the Board of Directors of JMPGUltimate Parent; (b) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power, directly or indirectly, to direct or cause the direction of the management or policies of JMPGUltimate Parent, whether through the ownership of voting securities, by contract or otherwise or to exercise control over the Securities of such Person entitled to vote for members of the Board of Directors of JMPGUltimate Parent on a fully-diluted basis (and taking into account of such Securities that such Person or group has the right to acquire pursuant to any option right) representing 35% or more of the combined voting power of such Securities; (c) JMPGUltimate Parent ceases to own, directly or indirectly, and control (i) 100% of the aggregate outstanding Securities of Borrower and each Guarantor (other than the Specified Guarantors) and (ii) 50.1% of the aggregate outstanding Securities of each Specified Guarantor; (d) Borrower ceases to own, directly or indirectly, and control 100% of the aggregate voting power of the outstanding Securities of JMP Securities or any Guarantor; or (e) a Change of Executive Event; provided, however, that the acquisition by Ultimate Parent of the Securities of JMPG (or other securities convertible into such Securities) representing 100% of the combined voting power of all Securities of JMPG entitled (without regard to the occurrence of any contingency) to vote for the election of members of the Board of Directors of JMPG shall not constitute a Change of Control Event, so long as, concurrently therewith, each shareholder of JMPG exchanges its shares in JMPG for an equivalent percentage of shares in Ultimate Parent.
βChange of Executive Eventβ means the failure of three or more of Xxxxxx X. Xxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxxx, and Xxxx LedbetterThomas Xxxxxx to be actively involved on an ongoing basis in the management of BorrowerUltimate Parent or any of its Subsidiaries.
βClosing Dateβ means the first date when all of the conditions precedent set forth in Section 3.1 have been satisfied.
βCLO Entityβ means the entity identified as the βCLO Entityβ on the Disclosure Statement delivered pursuant to Section 3.1(a) formed for the sole purpose of investing in collateralized loan obligation assets and in other activities incident thereto.any CLO Fund Entity or any CLO Warehouse Entity.
βCLO Fund Entityβ means an entity formed by Ultimate Parent or any of its Subsidiaries, or by any CLO Warehouse Entity, for the sole purpose of investing in collateralized loan obligation assets and in other activities incident thereto and either (a) in which Ultimate Parent or any of its Subsidiaries holds any Securities or (b) which is managed by Ultimate Parent, any of its Subsidiaries, Medalist Partners LP or any of its Affiliates, or any other Person approved by Agent in its reasonable discretion.
βCLO Notesβ means any class of notes, certificates or other evidences of Debt issued by any CLO Entity.
βCLO Preference Sharesβ means any preference shares issued by a CLO Entity.
βCLO Securitiesβ means any CLO Notes or CLO Preference Shares.
βCLO Warehouse Entityβ means an an entity formed by Ultimate Parent or any of its Subsidiaries for the sole purpose of acquiring and holding collateralized loan obligation assets in anticipation of contributing such assets to a CLO Fund Entity and in other activities incident thereto and which is managed by Ultimate Parent, any of its Subsidiaries, Medalist Partners LP or any of its Affiliates, or any other Person approved by Agent in its reasonable discretion. As of the Fifth Amendment Effective Date, JMP Credit Advisors Long-Term Warehouse Ltd., an exempted company incorporated with limited liability and existing under the laws of the Cayman Islands, is a CLO Warehouse Entity.
βCNBβ has the meaning set forth in the preamble to this Agreement.
βCollateralβ means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by Borrower or any Guarantor upon which a Lien is granted under any of the Loan Documents.
βCompliance Certificateβ means a certificate substantially in the form of Exhibit C-1 delivered by the chief financial officer of Borrower to Agent.
βContingent Obligationβ means, as to any Person and without duplication of amounts, any written obligation of such Person guaranteeing or intended to guarantee (whether guaranteed, endorsed, co-made, discounted, or sold with recourse to such Person) any Debt, noncancellable lease, dividend, reimbursement obligations relating to letters of credit, or any other obligation that pertains to Debt, a noncancellable lease, a dividend, or a reimbursement obligation related to letters of credit (each, a βprimary obligationβ) of any other Person (βprimary obligorβ) in any manner, whether directly or indirectly, including any written obligation of such Person, irrespective of whether contingent, (a) to purchase any such primary obligation, (b) to advance or supply funds (whether in the form of a loan, advance, stock purchase, capital contribution, or otherwise) (i) for the purchase, repurchase, or payment of any such primary obligation or any Asset constituting direct or indirect security therefor, or (ii) to maintain working capital or equity capital of the primary obligor, or otherwise to maintain the net worth, solvency, or other financial condition of the primary obligor, or (c) to purchase or make payment for any Asset, securities, services, or noncancellable lease if primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation.
βContractual Obligationβ means, as applied to any Person, any provision of any material indenture, mortgage, deed of trust, contract, undertaking, agreement, or other material instrument to which that Person is a party or by which any of its Assets is subject.
βControl Agreementβ means a control agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by Borrower, Agent, and the applicable securities intermediary with respect to a Securities Account or bank with respect to a Deposit Account.
βConverted Term Loanβ has the meaning set forth in Section 2.3(e).
βCredit Card Servicesβ means any credit card services including (a) credit cards (including commercial cards (including so-called βpurchase cardsβ, βprocurement cardsβ or βp-cardsβ)), (b) credit card processing services, (c) debit cards, or (d) stored value cards.
βDaily Balanceβ means, as of any date of determination and with respect to any Obligation, the amount of such Obligation owed at the end of such day.
βDebtβ means, with respect to any Person, (a) all obligations for such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations of such Person in respect of letters of credit, bankers acceptances, interest rate swaps, or other financial products, (c) all obligations of such Person to pay the deferred purchase price of Assets or services, exclusive of trade payables that are due and payable in the ordinary and usual course of such Personβs business, (d) all Capitalized Lease Obligations of such Person, (e) all obligations or liabilities of others secured by a Lien on any Asset owned by such Person, irrespective of whether such obligation or liability is assumed, to the extent of the lesser of such obligation or liability or the fair market value of such Asset, and (f) all Contingent Obligations of such Person.
βDebt Serviceβ means as of any measurement date, the result of the product of (a) the aggregate amount of all scheduled payments (but not mandatory prepayments) of principal and interest required to be paid in respect of any and all Total Funded Debt during the immediately preceding fiscal quarter for which financial statements were most recently required to have been delivered pursuant to Section 5.2 of this Agreement (excluding any payments of principal and interest required to be paid on the maturity date of any Total Funded Debt and any payments of principal and interest that are paid with the proceeds of any Refinancing Debt) multiplied by (b) four.
βDefaulting Lenderβ means any Lender that (a) has failed to fund any amounts required to be funded by it under this Agreement on the date that it is required to do so under this Agreement, (b) notified Borrower, Agent, or any Lender in writing that it does not intend to comply with all or any portion of its funding obligations under this Agreement, (c) has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements generally (as reasonably determined by Agent) under which it has committed to extend credit, (d) failed, within one Business Day after written request by Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund any amounts required to be funded by it under this Agreement, (e) otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by it under this Agreement within one Business Day of the date that it is required to do so under this Agreement, unless the subject of a good faith dispute, or (f) (i) becomes or is insolvent or has a parent company that has become or is insolvent, or (ii) becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.
βDefaulting Lender Rateβ means (a) for the first three days from and after the date the relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to Revolving Loans that are Base Rate Loans.
βDeposit Accountβ means any deposit account (as that term is defined in the Code).
βDesignated Accountβ means account number 000-000-000 of Borrower maintained with CNB, or such other deposit account of Borrower (located within the United States) designated, in writing, and from time to time, by Borrower to Agent.
βDisclosure Statementβ means that certain statement, executed and delivered by a Responsible Officer of Borrower, that sets forth information regarding or exceptions to the representations, warranties, and covenants made by Borrower herein, as amended as of the Fifth Amendment Effective Date and as further amended from time to time to the extent permitted hereby.
βDistributionβ has the meaning ascribed thereto in Section 6.5 hereof.
βDollarsβ and β$β mean United States of America dollars or such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts in the United States of America.
βEarn-Out Arrangementsβ shall mean payments required to be made in connection with a Permitted Acquisition which obligations are subordinated to the Obligations on terms satisfactory to Agent (it being understood that the subordination provisions set forth on Schedule E-1 shall be deemed to be satisfactory to Agent) that are contingent on the performance of the target of such Permitted Acquisition over a period of time following the closing such Permitted Acquisition.
βEBITDAβ means, with respect to JMPG and its Subsidiaries for any period, the result of Net Income, minus extraordinary gains, plus extraordinary losses, interest expense, income taxes, depreciation, amortization, general loan loss reserves established upon the establishment of the applicable CLO Entity in accordance with GAAP, other non-cash expenses, and expenses of Permitted Acquisitions not to exceed $1,500,000 per Permitted Acquisition and $2,500,000 in the aggregate during any fiscal year, in each case determined for such period determinedfor Ultimate Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided however, that (x) any Net Income EBITDA attributable to the CLO EntityEntities or JMP Securities shall only be included for the purposes of calculating EBITDA under this Agreement to the extent of any distributions by the CLO Entity to a Loan PartyEntities or JMP Securities to a Loan Party and (y) any EBITDA attributable to any Subsidiary that is not a Loan Party shall be excluded for the purposes of calculating EBITDA under this Agreement (other than EBITDA attributable to JMP Securities to the extent permitted to be included for purposes of calculating EBITDA under this Agreement by the preceding clause (x)).
"Eurocurrency Reserve Requirement" means the sum (without duplication) of the rates (expressed as a decimal) of reserves (including, without limitation, any basic, marginal, supplemental, or emergency reserves) that are required to be maintained by banks during the Interest Period under any regulations of the Federal Reserve Board, or any other governmental authority having jurisdiction with respect thereto, applicable to funding based on so-called "Eurocurrency Liabilities", including Regulation D (12 C.F.R. Β§224).
βEurodollar Business Dayβ means any Business Day on which major commercial banks are open for international business (including dealings in Dollar deposits) in New York, New York and London, England.
βEvent of Defaultβ shall have the meaning set forth in Article VII of this Agreement.
βExchange Actβ means the Securities Exchange Act of 1934, as amended or supplemented from time to time, and any successor statute, and all of the rules and regulations issued or promulgated in connection therewith.
βExcluded Fundβ means any (a) fund or investment company managed, directly or indirectly, by Borrower orUltimate Parent or any of its Subsidiaries or (b) any CLO Entity.
βExcluded Subsidiaryβ means (a) each Subsidiary of Ultimate Parent identified on the Disclosure Statement and, (b) each Subsidiary of Ultimate Parent whose Securities are not, directly or indirectly, wholly owned by Ultimate Parent and (c) each other Person identified on a Compliance Certificate as an Excluded Subsidiary and that is deemed an Excluded Subsidiary in accordance with the provisions of Section 5.7(b).
βExisting CLO Fund Entitiesβ means the CLO Fund Entities set forth in the Disclosure Statement in which Ultimate Parent or its Subsidiaries holds any CLO Securities as of the Fifth Amendment Effective Date.
βExisting Credit Agreementβ has the meaning ascribed to such term in the recitals to this Agreement.
βExisting Credit Agreement Closing Dateβ means August 3, 2006.
βFederal Reserve Boardβ means the Board of Governors of the Federal Reserve System or any successor thereto.
βFee Letterβ means that certain fee letter between Borrower and Agent, dated as of even date herewith, in form and substance satisfactory to Agent.
βFinal Payment Dateβ means the earlier to occur of (a) June 4, 2022; or (b) the date that is 90 days prior to the earliest maturity date set forth in any of the 2013 Notes or the 2014 Notes.Fifth Amendment Effective Dateβ means July 1, 2019, which is the date on which all conditions to effectiveness of the Amendment Number Five to Second Amended and Restated Credit Agreement, dated as of July 1, 2019, among Borrower, the Lenders and Agent have been satisfied.
βFinal Payment Dateβ means the earlier to occur of (x) December 31, 2023 and (y) such earlier date on which the Revolving Loans shall become due and payable in accordance with the terms of this Agreement and the other Loan Documents; provided, however, that the Final Payment Date for the Revolving Loans and the Converted Term Loans shall be the Springing Maturity Date if, as of the last day of the fiscal quarter most recently ended prior to the Springing Maturity Date that is no less than 90 days earlier than the Springing Maturity Date, the Springing Maturity Savings Condition is not satisfied as of such date.
βFinal Revolving Commitment Termination Dateβ means , subject to the provisions of the proviso to Section 2.1(d) hereof, the earlier to occur of (a) June 4, 2019; orDecember 31, 2020; and (b) such earlier date on which the Revolving Loans shall become due and payable in accordance with the terms of this Agreement and the other Loan Documents.
βFINRAβ means the Financial Industry Regulatory Authority.
βFixed Charge Coverage Ratioβ means, with respect to JMPG and its Subsidiaries for the twelve monthfour-quarter period ending on any date, the ratio of (i) the sum of (A) EBITDA for such period minus (B) Capital Expenditures made by JMPG and its Subsidiariesin cash (to the extent not already incurred in a prior period) or incurredby Ultimate Parent and its Subsidiaries (but excluding any Subsidiary that is not a Loan Party) during such period, to (ii) Fixed Charges for such period; provided however, any amounts attributable to the consolidated CLO EntityEntities shall be excluded for the purposes of determining Fixed Charge Coverage Ratio.
βFixed Chargesβ means, with respect to JMPG and its Subsidiaries for any period, the sum, without duplication, of (a) Interest Expense during such period, (b) principal payments required to be paid in respect of Debt (other than intercompany debt) of JMPG and its Subsidiaries during such period, (c) an amount equal to the total outstanding balance of the Revolving Loans (as at the last day of such period) divided by 5, and (dUltimate Parent and its Subsidiaries (but excluding any Subsidiary that is not a Loan Party) during such period, after giving effect to the elimination of any scheduled principal payments of the Converted Term Loan resulting from voluntary prepayments of the Converted Term Loan during such period that are applied to such scheduled prepayments in accordance with Section 2.9 hereof and (c) all federal, state, and local income taxes (which, for the avoidance of doubt, shall not be negative) of Ultimate Parent and its Subsidiaries (but excluding any Subsidiary that is not a Loan Party) accrued for such period.
βFocus Reportsβ means the Financial Operational Combined Uniform Single reports filed with FINRA.
βForeign Subsidiaryβ means any Subsidiary of BorrowerUltimate Parent that is not organized under the laws of any state of the United States or the District of Columbia.
βFunding Dateβ means the date on which a Loan occurs.
βGAAPβ means generally accepted accounting principles in the United States of America in effect from time to time; provided that whether a lease constitutes a capitalized lease or an operating lease shall be determined (a) based on GAAP as in effect on the Fifth Amendment Effective Date, notwithstanding any modification or interpretative change thereto after the Fifth Amendment Effective Date and (b) without giving effect to any treatment of leases under Accounting Standards Codification 842 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect).
βGoverning Documentsβ means, with respect to any Person, the certificate or articles of incorporation or formation, by-laws or operating agreement, partnership agreement or other organizational or governing documents of such Person.
βGovernmental Authorityβ means any federal, state, local, or other governmental department, commission, board, bureau, agency, central bank, court, tribunal, or other instrumentality, domestic or foreign.
βGuarantorsβ means (a) Harvest and (b) each other Person who from time to time guarantees the Obligations of Borrower under this Agreement, and βGuarantorβ means any one of them.
βGuarantyβ means each guaranty, in form and substance satisfactory to Agent, executed and delivered by any Guarantor in favor of Agent, for the benefit of the Lender Group and the Bank Product Providers, pursuant to Section 5.7 or otherwise, and βGuarantiesβ means all of the foregoing Guaranties.
βHarvestβ means Harvest Capital Strategies LLC, a Delaware limited liability company, formerly known as JMP Asset Management LLC.
βHarvest Broker/Dealer Guarantyβ means that certain General Continuing Guaranty, dated as of even date herewith, executed and delivered by Harvest in favor of CNB in respect of the obligations of JMP Securities owing to CNB under the Note Agreement.
βHighest Lawful Rateβ means the maximum non-usurious interest rate, as in effect from time to time, that may be charged, contracted for, reserved, received, or collected by Agent in connection with this Agreement, or the other Loan Documents.
βIncreaseβ has the meaning specified therefor in Section 2.19.
βIncrease Dateβ has the meaning specified therefor in Section 2.19.
βIncrease Joinderβ has the meaning specified therefor in Section 2.19.
βIndemnified Liabilitiesβ shall have the meaning set forth in Section 8.2 of this Agreement.
βIndemniteeβ shall have the meaning set forth in Section 8.2 of this Agreement.
βImmaterial Subsidiaryβ means a Subsidiary of Ultimate Parent having assets with a book value equal to $25,000 or less.
βInsolvency Proceedingβ means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.
βIntercompany Subordination Agreementβ means a subordination agreement executed and delivered by Borrower, the Guarantors and Agent, the form and substance of which is satisfactory to Agent.
βInterest Expenseβ means, for any period, the aggregate of the interest expense of JMPGUltimate Parent and its Subsidiaries (other than (x) interest expense arising from intercompany loans and (y) interest expense of any Subsidiary that is not a Loan Party) for such period, determined on a consolidated basis in accordance with GAAP.
βInterest Payment Dateβ means, in the case of Base Rate Loans, the first date of each fiscal quarter and, in the case of LIBOR Rate Loans, the last day of the applicable Interest Period.
βInterest Periodβ means the period commencing on the date each LIBOR Rate Loan is made (including the date a Base Rate Loan is converted to a LIBOR Rate Loan, or a LIBOR Rate Loan is renewed as a LIBOR Rate Loan, which, in the latter case, will be the last day of the expiring Interest Period) and ending on the date which is one (1), two (2) or three (3) months thereafter, as selected by Borrower; provided, however, that if such date is not a Eurodollar Business Day, the Interest Period shall be extended to the next Eurodollar Business Day, provided, further, however, that no Interest Period in respect of any Revolving Loan or Converted Term Loan may extend beyond the Final Payment Date.
βInvestmentβ means, as applied to any Person, any direct or indirect purchase or other acquisition by that Person of, or beneficial interest in, stock, instruments, bonds, debentures or other securities of any other Person, or any direct or indirect loan, advance, or capital contribution by such Person to any other Person, including all indebtednessDebt and accounts receivable due from that other Person that did not arise from sales or the rendition of services to that other Person in the ordinary and usual course of such Personβs business, and deposit accounts (including certificates of deposit), and any transfer of cash, Cash Equivalents or any other Assets to any Person.
βIssuer Documentβ means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement, or any other document, agreement or instrument entered into (or to be entered into) by Borrower in favor of Issuing Bank relating to such Letter of Credit.
βIssuing Bankβ means CNB in its capacity as the issuing bank with respect to the Letters of Credit.
βJMP Broker/Dealer Guarantyβ means that certain General Continuing Guaranty, dated as of April 8, 2011, executed by Borrower in favor of CNB in respect of the Debt evidenced by the Broker/Dealer Credit Facility, as such guaranty may be amended, restated, supplemented, or otherwise modified from time to time. βJMP Notesβ means, collectively, the 2013 Notes, the 2017 Notes and any Refinancing Debt that refinances the 2013 Notes or 2017 Notes through one or more successive refinancings.
JMP Group, Inc.β means, JMP Group, Inc., a Delaware corporation.
βJMP Securitiesβ means JMP Securities LLC, a Delaware limited liability company.
βJMPCCβ means JMP Credit Corporation, a Delaware corporation.
βJMPGβ means JMP Group, Inc., a Delaware corporation.
βL/C Disbursementβ means a payment made by Issuing Bank to a beneficiary of a Letter of Credit pursuant to such Letter of Credit.
βLawsβ means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
βLenderβ and βLendersβ have the respective meanings set forth in the preamble to this Agreement, shall include Issuing Bank, and shall also include any other Person made a party to this Agreement in accordance with the provisions of Section 9.1.
βLender Groupβ means, individually and collectively, each of the Lenders (including Issuing Bank) and Agent, or any one or more of them.
βLender Group Expensesβ means all (a) costs or expenses (including taxes) required to be paid by Borrower or its Subsidiariesany Loan Party under any of the Loan Documents that are paid, advanced, or incurred by Agent, (b) fees or charges paid or incurred by Agent in connection with the Lender Groupβs transactions with Borrower, including: (i) fees or charges for photocopying, notarization, couriers and messengers, telecommunication, public record searches (including tax lien, litigation, and UCC searches and including searches with the United States Patent and Trademark Office, the United States Copyright Office, or, if required, the department of motor vehicles), filing, recording, publication, and (ii) if an Event of Default has occurred and is continuing, costs of appraisal (including periodic collateral appraisals or business valuations), (c) charges paid or incurred by Agent resulting from the dishonor of checks, (d) costs and expenses paid or incurred by Agent or any Lender to correct any default or enforce any provision of the Loan Documents, or in gaining possession of, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (e) fees and expenses of Agent (including internal allocations of costs) related to collateral or financial examinations of the books of BorrowerUltimate Parent or any of its Subsidiaries, (f) costs and expenses of third party claims or any other suit paid or incurred by Agent or any Lender in enforcing or defending the Loan Documents or in connection with the transactions contemplated by the Loan Documents, (g) Agentβs costs and expenses (including reasonable attorneysβ fees) incurred in advising, structuring, drafting, reviewing, administering, syndicating, or amending the Loan Documents, and (h) Agentβs and each Lenderβs reasonable costs and expenses (including attorneys, accountants, consultants, and other third party advisors fees and expenses) incurred in terminating, enforcing (including attorneys, accountants, consultants, and other third party advisors fees and expenses incurred in connection with a βworkout,β a βrestructuring,β or an Insolvency Proceeding concerning BorrowerUltimate Parent or any of its Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan Documents, irrespective of whether suit is brought.
βLender-Related Personβ means, with respect to any Lender, such Lender, together with such Lenderβs Affiliates, officers, directors, employees, attorneys, and agents.
βLetter of Creditβ has the meaning set forth in Section 2.18(a).
βLetter of Credit Feeβ has the meaning set forth in Section 2.18(d).
βLetter of Credit Usageβ means, as of any date of determination, the undrawn amount of outstanding Letters of Credit.
βLIBOR Prepayment Feeβ has the meaning set forth in Section 2.9 hereof.
"LIBOR Rate" means the rate per year (rounded upward to the next one-sixteenth (1/16th) of one percent (0.0625%), if necessary) determined by Agent to be the quotient of (a) the Base LIBOR Rate divided by (b) one minus the Eurocurrency Reserve Requirement for the Interest Period; which is expressed by the following formula:
Base LIBOR Rate
1 - Eurocurrency Reserve Requirement
βLIBOR Rate Borrowingβ means any Borrowing designated by Borrower as a LIBOR Rate Borrowing.
βLIBOR Rate Loanβ means any Loan bearing interest at the LIBOR Rate.
βLienβ means any lien, mortgage, pledge, assignment (including any assignment of rights to receive payments of money), security interest, charge, or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest).
βLiquidityβ means, as of any date of determination, the sum of (a) Loan Partiesβ and their Subsidiariesβ cash, (b) Cash Equivalents of the Loan Parties and their Subsidiaries, (c) Marketable Securities of the Loan Parties and their Subsidiaries, (d) any investments by a Loan Party in funds that are managed by Borrower orUltimate Parent or any of its Subsidiaries and which invest primarily in cash, Cash Equivalents and Marketable Securities so long as such Person may withdraw such investments in immediately available funds upon 30 days prior notice, (e) the and (e) 10% of the aggregate amount of cash, Cash Equivalents and Marketable Securities of the CLO Entity owned by any Loan Party; provided that (i) such Loan Party Entity shall execute and deliver to Agent a pledge agreement or supplement, together with appropriate financing statements and other documents, all in form and substance reasonably satisfactory to Agent (including being sufficient to grant Agent first priority Lien on such Securities), and any other documentation, including one or more opinions of counsel reasonably satisfactory to Agent, which, in Agentβs opinion, is appropriate with respect to the execution and delivery of the applicable documentation referred to above and (ii) Borrower is able to source an indicative bid on the value of such Securities from an independent third party source acceptable to Agent, and (f) any investments in loans held by any Loan Party, to the extent that quotes for the loans can be obtained from two independent dealers acceptable to Agentowned by JMP Securities, to the extent that such cash, Cash Equivalents and Marketable Securities are permitted to be distributed by JMP Securities to Borrower under applicable law. For purposes of determining the amount of Liquidity for the Loan Parties and their Subsidiaries, the value as described in clauses (a), (b), (c), (d) and (ce) above isshall be deemed to be equal to the fair market value thereof, and the value as described in clause (e) and (f) above is deemed to be the lowest bid or quotation obtained by Borrower with respect to the loans described above. as of the relevant date of determination.
βLiquidity to Debt Service Ratioβ means as of any date, the ratio of (a) all Liquidity on such date to (b) Debt Service for the twelve month period ending on such date.
βLoanβ or βLoansβ means a Revolving Loan or a Converted Term Loan, as applicable.
βLoan Accountβ has the meaning set forth in Section 2.12.
βLoan Documentsβ means this Agreement, the Bank Product Agreements, the Control Agreements (if any), the Guaranties, the JMP Broker/Dealer Guaranty, the Amended and Restated Guaranty, the Harvest Broker/Dealer GuarantyGuaranties, the Intercompany Subordination Agreement, the Letters of Credit, the Security Agreements, the Stock Pledge Agreement, the Trademark Security Agreement, the Reaffirmation Agreement, the Note, the Note Agreement, and any and all other documents, agreements or instructions that have been or are entered into by Borrower, any Guarantor or JMP Securities, and Agent and/or the Lenders in connection with the transactions contemplated by this Agreement or the Note Agreement.
βLoan Partiesβ means Borrower and the Guarantors, and βLoan Partyβ means any one of them.
βMargin Securitiesβ means βmargin stockβ as that term is defined in Regulation U of the Federal Reserve Board.
βMarketable Securitiesβ means any equity securities listed on a securities exchange that has registered with the SEC under Section 6 of the Securities Exchange Act of 1934.
βMaterial Adverse Effectβ means (a) a material adverse change in the business, prospects, operations, results of operations, assets, liabilities or condition (financial or otherwise) of BorrowerUltimate Parent and its Subsidiaries, taken as a whole, (b) a material impairment of Borrowerβs or any Guarantorβs ability to perform its obligations under the Loan Documents or of Lender Groupβs ability to enforce the Obligations or realize upon the Collateral, or (c) a material impairment of the enforceability or priority of Agentβs Liens with respect to the Collateral.
βMaximum Revolver Amountβ means $25,000,000.
βNet Asset Valueβ means, at any time, the sum of (a) Liquidity plus, without duplication, (b) the fair market value of the Collateral of the Loan Parties to the extent constituting Securities issued by any CLO Entity, CLO Securities, Investments in Debt and real estate and other Investments included on the balance sheet of the Loan Parties in accordance GAAP, but excluding Securities issued by JMP Securities and other Subsidiaries (other than any CLO Entity).
βNet Incomeβ means, with respect to any Person for any period, the net income (loss) of such Person for such period, determined in accordance with GAAP.
βNet Worthβ means, as of any date of determination, the result of (a) JMPGβs and its Subsidiariesβ total Assets, minus (b) JMPGβs and such Subsidiariesβ total liabilities (including any contingent liabilities and guaranties), in each case determined in accordance with GAAP; provided, however, that any liability representing the minority interest in any Subsidiary shall be excluded from clause (b) for the purposes of determining βNet Worthβ.
βNon-Defaulting Lenderβ means each Lender other than a Defaulting Lender.
βNoteβ means that certain promissory note issued on April 8, 2011 by JMP Securities in favor of CNB in the original principal amount of $20,000,000.
βNote Agreementβ means that certain Revolving Note and Cash Subordination Agreement, dated as of April 8, 2011, by and between CNB and JMP Securities, as amended, restated, supplemented, or otherwise modified from time to time.
βObligationsβ means (a) all Loans, debts, principal, interest, premiums, LIBOR Prepayment Fees, liabilities (including all amounts charged to Borrowerβs Loan Account pursuant hereto), contingent reimbursement obligations with respect to outstanding Letters of Credit, obligations (including indemnification obligations), fees (including the Letter of Credit Fee), charges, costs, expenses (including Lender Group Expenses) (including any portion of any of the foregoing that accrues after the commencement of an Insolvency Proceeding, whether or not allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, covenants, and duties of any kind and description owing by Borrower or any other Loan Party to the Lender Group pursuant to or evidenced by the Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all expenses that Borrower or any other Loan Party is required to pay or reimburse by the Loan Documents, by law, or otherwise, and (b) all Bank Product Obligations. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
βObligorsβ means Borrower and each Guarantor, and βObligorβ means any one of them.
βOFACβ means The Office of Foreign Assets Control of the U.S. Department of the Treasury.
βOriginal Credit Agreementβ has the meaning set forth in the recitals to this Agreement.
βOriginal Loan Documentsβ means the βLoan Documentsβ as defined in the Original Credit Agreement.
βOriginating Lenderβ has the meaning set forth in Section 9.1(e).
βPost-Increase Revolver Lendersβ has the meaning specified therefor in Section 2.19 of this Agreement.
βPre-Increase Revolver Lendersβ has the meaning specified therefor in Section 2.19 of this Agreement.
βParticipantβ has the meaning set forth in Section 9.1(e).
βPermitted Acquired Indebtednessβ means Debt that is assumed in connection with a Permitted Acquisition so long as (a) such Debt is either unsecured or is secured only by the assets of the Permitted Acquisition and is not secured by the assets of Borrower or any other Guarantor), (b) such Debt is recourse only to the entity that is acquired pursuant to the Permitted Acquisition and it not recourse to, or guaranteed by, Borrower or any otherGuarantor (other than the Person that is acquired, to the extent such Person becomes a Guarantor), (c) such Debt exists at the time the assets are acquired and is not created in anticipation of such Permitted Acquisition, and (d) such Debt does not exceed $10,000,000 in the aggregate at any time.
βPermitted Acquisitionβ means any Acquisition so long as:
(a) the consideration is payable in cash (except for any Earn-Out Arrangements, Seller Notes or Permitted Acquired Indebtedness) or in Securities of JMPG, Ultimate Parent, Borrower or one of its Subsidiaries.
(b) no Default or Event of Default has occurred and is continuing as of the date of consummation of the proposed Acquisition or would result therefrom,
(c) the assets being acquired (or in the case of a Stock Acquisition, the assets of the Person being acquired) (i) are useful in the businesses performed by BorrowerUltimate Parent or any of its Subsidiaries as of the date of this Agreementthe Fifth Amendment Effective Date, and (ii) shall be located within (x) the United States, or (y) any other developed country; provided, however that the aggregate consideration (including Earn-Out Arrangements, Seller Notes and Permitted Acquired Indebtedness) payable in connection with Acquisitions described in this clause (c)(ii)(y) shall not exceed the greater of $5,000,000 in any fiscal year or $10,000,000 in the aggregate since the Existing Credit Agreement ClosingFifth Amendment Effective Date,
(d) (i) if the aggregate amount of all consideration paid in connection with such Acquisition (including the aggregate amount of all Earn-Out Arrangements, Seller Notes and Debt assumed in connection therewith) is equal to or greater than $5,000,000,10,000,000, Borrower has provided Agent with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis, Borrower will be in compliance with each of the financial covenants in Section 6.14 hereof after giving effect to such Acquisition and as of the last day of each quarter during the 12 month period following the date of such Acquisition, and (ii) if the aggregate amount of all consideration paid in connection with such Acquisition (including the aggregate amount of all Earn-Out Arrangements, Seller Notes and Debt assumed in connection therewith) is less than $10,000,000 but equal to or greater than $5,000,000, unless waived by Agent, the chief executive officer or the chief financial officer of Borrower shall have delivered to Agent a certificate stating that on a pro forma basis Borrower will be in compliance with each of the financial covenants in Section 6.14 hereof after giving effect to such Acquisition and as of the last day of each quarter during the 12 month period following the date of such Acquisition,
(e) (i) promptly following a request therefor, Agent has received copies of such information or documents relating to such Acquisition as Agent shall have reasonably requested, including the acquisition agreement, related contracts and instruments and all opinions (to the extent that an opinion is delivered to BorrowerUltimate Parent or any of its Subsidiaries in connection with such Acquisition and Ultimate Parent or such Subsidiary is permitted to disclose a copy of such opinion to Agent), certificates, lien search results and other documents reasonably requested by Agent and, to the extent that the aggregate amount of consideration (including Earn-Out Arrangements, Seller Notes and Permitted Acquired Indebtedness) payable in connection with such Acquisition is greater than or equal to $10,000,000, each such opinion shall also be addressed to the Lender Group or accompanied by a written authorization from the firm or Persons delivering such opinion stating that the Lender Group may rely on such opinion as though it were addressed to them, and (ii) within 30 days after the consummation of such Acquisition, Agent shall have received certified copies of the agreements, instruments and documents in connection with such Acquisition, which shall be substantively identical to the documents provided pursuant to subclause (i) of this clause (e), subject to any applicable provisions of Section 5.7,
(f) in the case of a Stock Acquisition, the Securities are being acquired by BorrowerUltimate Parent or any of its Subsidiaries, and in the case of an Asset Acquisition, the subject assets are being acquired by BorrowerUltimate Parent or any of its Subsidiaries,
(g) any Debt or Liens assumed in connection with the proposed Acquisition are otherwise permitted under Section 6.1 or 6.2, respectively and no additional Debt or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of BorrowerUltimate Parent and its Subsidiaries after giving effect to such Acquisition, except to the extent expressly permitted by the terms of this Agreement,
(h) the proposed Acquisition shall be consensual and shall have been approved by the board of directors (or comparable managers) of the Person whose assets are proposed to be acquired,
(i) the extent that the aggregate amount of consideration (including Earn-Out Arrangements, Seller Notes and Permitted Acquired Indebtedness) payable in connection with such Acquisition is greater than or equal to $5,000,000, Borrower shall provide Agent with prior written notice (which notice shall not be less than 15 days prior to the closing date of the proposed Acquisition and which notice shall include, without limitation, a reasonably detailed description of such Acquisition) of such Acquisition, together with copies of all financial information, financial analysis, documentation and other information relating to such acquisition as the Lender Group shall reasonably request,
(j) at the time of the proposed Acquisition and after giving effect thereto, all representations and warranties contained in Article IV of this Agreement or in the other Loan Documents shall be true and correct in all respects (which in each case shall be deemed to have been made on the date of such Acquisition after giving effect thereto),
(k) the aggregate amount of consideration paid by an Obligor in connection with any Stock Acquisition pursuant to which the applicable Loan Party acquires less than a majority of the voting Securities in the acquired Person (including the proposed Stock Acquisition) is less than $5,000,000, [Intentionally omitted];
(l) prior to the closing of the proposed Acquisition, the chief executive officer or the chief financial officer of BorrowerUltimate Parent shall have delivered to Agent a certificate as to each of the items set for in the foregoing clauses (a), (b), (c), (d), (g), (h), (j) and (kj), and
(m) the purchase consideration payable in respect of all Permitted Acquisitions (including deferred payment obligations) in an aggregate amount not to exceed $10,000,000 in any fiscal year; provided, that up to $15,000,000 in the aggregate of purchase consideration shall be permitted in respect of Permitted Acquisitions that are consummated during the fiscal year ending December 31, 2014.
βPermitted Investmentsβ means (a) Investments in cash and Cash Equivalents, (b) Investments in negotiable instruments for collection, (c) advances made in connection with purchases of goods or services in the ordinary course of business, (d) Investments in funds, corporations, partnerships or other investment vehicles (other than Preferential Investments, CLO Securities and Investments in any other Excluded Fund) that are, after giving effect to such Investments (and were immediately prior to the time of such Investments) managed, directly or indirectly, by BorrowerUltimate Parent or any of its Subsidiaries; provided that, if such entity is a Subsidiary, the applicable ObligorLoan Party shall take such action as is required by Section 5.7 hereof to grant a first priority perfected Lien to Agent in anand to such Investments (except to the extent not required by Agent under Section 5.7), (e) direct Investments in publicly traded securities in the ordinary course of business, so long as the purchase of such Investments is not funded with the proceeds of any Revolving Loan, (f) Permitted Acquisitions, (g) advances to officers, directors and employees in the ordinary course of business for travel, entertainment, relocation and other business purposes in an aggregate amount not to exceed $500,000 in any fiscal year of BorrowerUltimate Parent; (h) Investments resulting from transactions permitted under Sections 6.16.1, 6.5 and 6.7, (i) Investments by Borrower or a Guarantor in the form of advances to an Excluded Fund to address short term cash flow issues, redemptions and reinvestments in Excluded Funds and in investee funds, so long as (i1) such Investments are repaid by the applicable Excluded Fund to Borrower or such Guarantor, as applicable, within 5 Business Days after the making of such Investment, and (ii2) no Event of Default or Unmatured Event of Default shall have occurred and be continuing or result therefrom, (j) so long as no Event of Default or Unmatured Event of Default shall have occurred and be continuing or result therefrom, redemptions, repurchases or other acquisitions by Borrower of its outstanding Securities, to the extent that the aggregate amount paid by Borrower in connection with all such redemptions, repurchases or other acquisitions of its Securities (after giving effect to the proposed redemption, repurchase or other acquisition) would not exceed $5,000,000, (k) so long as no Event of Default or Unmatured Event of Default shall have occurred and be continuing or result therefrom, other Investments in an aggregate amount not to exceed $5,000,00010,000,000 in any fiscal year; (l)(k) without duplication of Investments permitted under clause (l) below, Investments in any CLO Entity in an aggregate amount not to exceed $60,000,000 (or such other amount as may be agreed to by Agent and Borrower in writing); and (m) Investments in Excluded Funds or anythe sum of: (i) the aggregate amount of cash distributions received by the Loan Parties in respect of CLO Securities of any Existing CLO Fund Entities, (ii) the proceeds from the sale CLO Securities of Existing CLO Fund Entities, and (iii) the proceeds received by Ultimate Parent or any Subsidiary from the sale of assets distributed to a Loan Party from Existing CLO Fund Entities; (l) the subscription for and acquisition of CLO Securities; provided that the aggregate amount of cash consideration paid for all CLO Securities under this clause (l) from and after the Fifth Amendment Effective Date, without duplication of Investments permitted under clause (k) above, shall not exceed the sum of (A) $60,000,000 plus (B) the aggregate amount of cash distributions received by the Loan Parties in respect of CLO Securities of CLO Entities (other than CLO Securities of any Existing CLO Fund Entities) from and after the Fifth Amendment Effective Date plus, (C) without duplication of amounts included in subclause (B), the aggregate amount of cash consideration received by the Loan Parties from the sale, repurchase or redemption of CLO Securities of CLO Entities (other than CLO Securities of any Existing CLO Fund Entities) from and after the Fifth Amendment Effective Date, (m) Investments in all other Excluded Funds and all other Preferential InvestmentInvestments not to exceed $10,000,000 for any single Investment or series of related Investments (for the avoidance of doubt, any Investment made pursuant to this clauseclauses (k), (l) or (m) shall not constitute a Permitted Acquisition) and (n) Investments by one Loan Party in another Loan Party (so long as, in the case of any such Investment constituting Intercompany Debt, the Loan Party advancing such Intercompany Debt is a party to the Intercompany Subordination Agreement).
βPermitted Liensβ means: (a) Liens for taxes, assessments, or governmental charges or claims the payment of which is not, at such time, required by Section 5.4 hereof, (b) any attachment or judgment Lien either in existence less than 45 calendar days after the entry thereof, or with respect to which execution has been stayed, or with respect to which payment in full above any applicable deductible is covered by insurance (so long as no reservation of rights has been made by the insurer in connection with such coverage), and Liens incurred to secure any surety bonds, appeal bonds, supersedeas bonds, or other instruments serving a similar purpose in connection with the appeal of any such judgment, (c) bankerβs Liens in the nature of rights of setoff arising in the ordinary course of business of Borrowerthe Loan Parties, (d) carrierβs warehousemenβs mechanicsβ materialmenβs repairmenβs or other like Liens arising as a matter of law in the ordinary course of business which are not overdue or which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, and an adequate reserve or other appropriate provision, if any, shall have been made as required in order to be in conformity with GAAP; (e) pledges or deposits of cash in the ordinary course of business in connection with any workerβs compensation, unemployment insurance and other similar legislation; (f) deposits of cash to secure the performance of bids, trade contracts and leases, statutory obligations, surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (g) easements, rights of way and zoning restrictions affecting real property which do not materially interfere with or impair the use or operation thereof; (h) Liens described in the definition of βPermitted Acquired Indebtednessβ; (i) Liens granted by Borrower and the Guarantors to Agent in order to secure their respective obligations under this Agreement and the other Loan Documents to which they are a party; and (j) Liens on deposits of cash to secure Debt described in Section 6.1(l); and (k) Permitted Negative Pledges.
βPermitted Negative Pledgesβ means (a) provisions in agreements entered into by JMP Securities, (b) provisions in subscription agreements for CLO Preference Shares that restrict or prohibit the assignment or pledge of such CLO Preference Shares or of any rights arising under such subscription agreements (including the provisions of Sections 5(h), 5(i) and 10 of that certain Preference Share Subscription Agreement, dated as of October 11, 2018, by and between JMP Credit Advisors Long-Term Warehouse Ltd. and JMP Capital LLC), (c) provisions that are binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary pursuant to a Permitted Acquisitions, so long as such provisions were not entered into in contemplation of such Person becoming a Subsidiary and do not extend past such Subsidiary and its subsidiaries; (d) customary restrictions that arise in connection with (x) any Lien described in clause (f), (g) or (h) of βPermitted Liensβ and relate to the property subject to such Lien or (y) any sale or other disposition permitted by Section 6.7 and that relate solely to the Assets or Person subject to such sale or other disposition; (e) customary provisions in joint venture agreements and other similar agreements applicable to joint ventures and non-wholly-owned Subsidiaries that are Permitted Investments and applicable solely to such joint venture or non-wholly-owned Subsidiary and its Securities; (f) restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the property interest, rights or the assets subject thereto; (g) customary provisions restricting subletting, transfer or assignment of any lease governing a leasehold interest; (h) customary provisions restricting assignment or transfer of any agreement entered into in the ordinary course of business; (i) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; (j) restrictions regarding licensing or sublicensing by Ultimate Parent and its Subsidiaries of intellectual property in the ordinary course of business; and (k) restrictions on xxxx xxxxxxx money deposits in favor of sellers in connection with acquisitions not prohibited hereunder.
βPersonβ means and include natural persons, corporations, partnerships, limited liability companies, joint ventures, associations, companies, business trusts, or other organizations, irrespective of whether they are legal entities.
βPreferential Investmentβ means any Investment by BorrowerUltimate Parent or any of its Subsidiaries (a) that is not offered to any other potential investors and is not a type of Investment that could be conducted as part of the ordinary course of a securities brokerage business, (b) the terms upon which such Investment is made by BorrowerUltimate Parent or such Subsidiary are not available to, and are materially more beneficial than the terms that are available to, any other potential investors with respect to a similar Investment, and (c) such terms are offered to BorrowerUltimate Parent or such Subsidiary for strategic purposes consistent with BorrowerβsUltimate Parentβs or any of its Subsidiariesβ general business practices.
βPro Rata Shareβ means, as of any date of determination:
(a) with respect to a Lenderβs obligation to make a Revolving Loan and receive payments of principal, interest, fees, costs, and expenses with respect thereto, (i) prior to the Revolving Credit Facility Commitments being terminated or reduced to zero, the percentage obtained by dividing (A) such Lenderβs Revolving Credit Facility Commitments, by (B) the aggregate Revolving Credit Facility Commitments of all Lenders, and (ii) from and after the time the Revolving Credit Facility Commitments have been terminated or reduced to zero, the percentage obtained by dividing (A) the aggregate outstanding principal amount of such Lenderβs Revolving Loans, by (B) the aggregate outstanding principal amount of all Revolving Loans;
(b) with respect to a Lenderβs obligation to participate in the Letters of Credit, with respect to such Lenderβs obligation to reimburse Issuing Bank, and with respect to such Lenderβs right to receive payments of Letter of Credit Fees, and with respect to all other computations and other matters related to the Letters of Credit, the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender by (ii) the aggregate Revolving Loan Exposure of all Lenders; provided, that if all of the Revolving Loans have been repaid in full and all Revolving Credit Facility Commitment have been terminated, but Letters of Credit remain outstanding, Pro Rata Share under this clause shall be determined as if the Revolving Credit Facility Commitment had not been terminated and based upon the Revolving Credit Facility Commitment as they existed immediately prior to their termination; and
(c) with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under Section 10.7 of this Agreement), the percentage obtained by dividing:
(i) the sum of (A) either (1) prior to the Revolving Credit Facility Commitments being terminated or reduced to zero, the percentage obtained by dividing (1) such Lenderβs Revolving Credit Facility Commitments, by (2) the aggregate amount of Revolving Credit Facility Commitments of all Lenders, and (Bsuch Lenderβs Revolving Credit Facility Commitments or (2) from and after the time the Revolving Credit Facility Commitments have been terminated or reduced to zero, the percentage obtained by dividing (1) the aggregate outstanding principal amount of such Lenderβs Revolving Loans, by (2) the aggregate outstanding principal amount of all Revolving Loans, as the applicable percentage may be adjusted by assignments permitted pursuant to Section 9.1aggregate outstanding principal amount of such Lenderβs Revolving Loans, plus (B) without duplication of the amount in subclause (A), the outstanding principal amount of such Lenderβs Converted Term Loan
by
(ii) the sum of (A) either (1) prior to the Revolving Credit Facility Commitments being terminated or reduced to zero, the aggregate amount of all Revolving Credit Facility Commitments or (2) from and after the time the Revolving Credit Facility Commitments have been terminated or reduced to zero, the aggregate outstanding principal amount of all Revolving Loans, plus (B) without duplication of the amount in subclause (A), the aggregate outstanding principal amount of all Converted Term Loans; provided, that if all of the Loans have been repaid in full, all Revolving Credit Facility Commitments have been terminated, but Letters of Credit remain outstanding, Pro Rata Share under this clause shall be determined as if the Revolving Loan Exposures had not been repaid or terminated and shall be based upon the Revolving Loan Exposures as they existed immediately prior to their repayment or termination.
βReaffirmation Agreementβ means that certain reaffirmation agreement executed and delivered by the Loan Parties and Agent, which shall be in form and substance satisfactory to Agent.
βRecordβ means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
βRefinancing Debtβ means refinancings, renewals, or extensions of Debt so long as: (a) the terms and conditions of such refinancings, renewals, or extensions do not, in Agentβs reasonable judgment, materially impair the prospects of repayment of the Obligations by Borrower or materially impair Borrowerβs creditworthiness, (b) such refinancings, renewals, or extensions do not result in an increase in the principal amount of the Debt so refinanced, renewed, or extended (except by the amount of any accrued interest, premiums, underwriting discounts and any other transaction fees or expenses payable in connection with such refinancing, renewal or extension, plus, with respect to the JMP Notes only, such additional amount as may be necessary to round the face amount of such Debt upward to the nearest increment of $5,000,000), (c) such refinancings, renewals, or extensions do not result in an increase in the interest rate with respect to, the Debt so refinanced, renewed, or extended above the then-prevailing market rate with respect to similar Debt issued under similar circumstances by similarly situated companies, (d) such refinancings, renewals, or extensions do not result in a shortening of the average weighted maturity of the Debt so refinanced, renewed, or extended, nor are they on terms or conditions that, taken as a whole, are materially more burdensome or restrictive to Borrower, (e) if the Debt that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension must include subordination terms and conditions that are at least as favorable to Agent as those that were applicable to the refinanced, renewed, or extended Debt, and (f) the Debt that is refinanced, renewed, or extended is not recourse to any Person that is liable on account of the Obligations other than (x) those Persons which were obligated with respect to the Debt that was refinanced, renewed, or extended and (y) Ultimate Parent.
βRegulatory Changeβ shall have the meaning ascribed thereto in Section 2.13 hereof.
βReplaced Lenderβ has the meaning set forth in Section 11.2(e) hereof.
βReplacement Lenderβ has the meaning set forth in Section 11.2(e) hereof.
βRequest for Borrowingβ means an irrevocable written notice from a Responsible Officer of Borrower to Agent of Borrowerβs request to borrow any Loan, which notice shall be substantially in the form of Exhibit R-1 attached hereto.
βRequest for Conversion/Continuationβ means an irrevocable written notice from a Responsible Officer of Borrower to Agent pursuant to the terms of Section 2.7, substantially in the form of Exhibit R-2 attached hereto.
βRequired Lendersβ means, at any time, (a) when there are three or more Lenders, Lenders whose aggregate Pro Rata Shares (calculated under clause (c) of the definition of Pro Rata Shares) exceed 50%, or (b) when there are two or fewer Lenders, Lenders whose aggregate Pro Rata Shares (calculated under clause (c) of the definition of Pro Rata Shares) exceed 66β %.
βResponsible Officerβ means the president, chief executive officer, chief operating officer, chief financial officer, general counsel, or controller of a Person, or such other officer of such Person designated by a Responsible Officer in a writing delivered to Agent.
βRevolving Credit Facilityβ means the revolving credit facility described in Section 2.1 hereof.
βRevolving Credit Facility Commitmentβ means, with respect to each Lender, its commitment in respect of the Revolving Credit Facility, and, with respect to all Lenders, their commitments in respect of the Revolving Credit Facility, in each case as such Dollar amounts are set forth beside such Lenderβs name under the applicable heading on Schedule C-1 or in the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 9.1.
βRevolving Credit Facility Usageβ means, at the time any determination thereof is to be made, the sum of (a) the aggregate Dollar amount of the outstanding Revolving Loans plus (b) the aggregate Letter of Credit Usage.
βRevolving Loanβ means a loan made by a Lender to Borrower pursuant to Section 2.1 of this Agreement until, if ever, such loan is converted into a term loanConverted Term Loan pursuant to Section 2.3(e) of this Agreement.
βRevolving Loan Exposureβ means, with respect to any Lender as of any date of determination, the aggregate outstanding principal amount of the Revolving Loans of such Lender.
βSanctioned Entityβ means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, (d) a Person resident in or determined to be resident in a country, in each case, that is subject to a country sanctions program administered and enforced by OFAC.
βSanctioned Personβ means a person named on the list of Specially Designated Nationals maintained by OFAC.
βSECβ means the Securities and Exchange Commission of the United States of America or any successor thereto.
βSecuritiesβ means the capital stock, partnership interests, membership interests or other securities of a Person (including CLO Preference Shares), all warrants, options, convertible securities, and other interests which may be exercised in respect of, converted into or otherwise relate to such Personβs capital stock, partnership interests, membership interests or other equity interestsSecurities and any other securities, including debt securities of such Person and CLO Notes.
βSecurities Accountβ means a βsecurities accountβ as that term is defined in the Code.
βSecurity Agreementsβ means one or more security agreements, among Borrower, the Guarantors, and Agent, which Security Agreements shall be in form and substance satisfactory to Agent.
βSeller Notesβ shall mean those promissory notes delivered by Borrower in connection with the closing of a Permitted Acquisition, which are subordinated to the Obligations on terms satisfactory to Lender (it being understood that the subordination provisions set forth on Schedule E-1 shall be deemed to be satisfactory to Lender).
βSixth Amendment Effective Dateβ means August 24, 2011. Senior Funded Debtβ means, as of any date of determination, all Debt for borrowed money or letters of credit of Ultimate Parent and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, excluding in any event (a) any Debt evidenced by the JMP Notes, (b) any Debt of JMP Securities under the Broker/Dealer Facility outstanding for less than 14 days (without giving effect to any repayment of such Debt of JMP Securities with the proceeds of a borrowing under the Broker/Dealer Facility) and (c) Cash Secured Letters of Credit, and including, in any event, but without duplication, with respect to Ultimate Parent and its Subsidiaries, the Loans, the Letters of Credit (other than Cash Secured Letters of Credit), and the amount of their Capitalized Lease Obligations.
βSenior Leverage Ratioβ means as of any date, the ratio of (a) all Senior Funded Debt outstanding on such date to (b) EBITDA for the twelve month period ending on such date.
βSpecified Guarantorβ means any Guarantor designated in writing by Borrower to Agent as a βSpecified Guarantorβ so long as (a) no such βSpecified Guarantorβ individually has, as of the date of such designation (the βDesignation Dateβ) (i) EBITDA allocated to such Specified Guarantor (in a manner reasonably satisfactory to Agent) that is greater than $1,000,000 for the four fiscal quarter period ended most recently prior to such Designation Date for which financial statements were required to have been delivered to Agent, or (ii) assets with a value greater than $5,000,000, measured as of the lower of fair market value and book value (or if fair market value thereof is not reasonably available, book value) as of such Designation Date, and (b) the Specified Guarantors in the aggregate do not have, as of such Designation Date, EBITDA allocated to such Specified Guarantors in the aggregate (in a manner reasonably satisfactory to Agent) that is greater than $3,000,000 for the four fiscal quarter period ended most recently prior to such Designation Date for which financial statements were required to have been delivered to Agent.
βSpringing Maturity Dateβ means, as of any date of determination, the date that is the last day of the fiscal quarter ending most recently (but no less than 60 days) prior to the earliest maturity date set forth in any of the JMP Notes then outstanding.
βSpringing Maturity Savings Conditionβ means, as of any date of determination, that (a) the Liquidity as of such date is equal to or greater than the sum of (i) the aggregate outstanding amount of all Debt or other obligations in respect of the Senior Funded Debt as of such date plus (ii) the aggregate outstanding amount of all Debt or other obligations in respect of the JMP Notes, to the extent that such Debt or other obligations are due and payable on or before the date that is 60 days after such date of determination, and (b) Borrower would be in pro forma compliance with the financial covenants set forth in Section 6.14 hereof as of the fiscal quarter ending immediately prior to such date of determination after giving pro forma effect to the use of such Liquidity to fund the prepayment of such Debt or other obligations described in clause (ii).
βStock Acquisitionβ means the purchase or other acquisition by Borrower or a Guarantor of at least a majority of all of the voting Securities of any other Person (other than a Subsidiary of a CLO Entity).
βStock Pledge Agreementsβ means one or more stock pledge agreements, in form and substance satisfactory to Agent, executed and delivered by Borrower and the Guarantors to Agent.
βSublimitβ means, at any time, the result of (a) the lesser of (i) $48,500,000 and (ii) the sum of (A) the Maximum Revolver Amount plus (B) the Commitment Amount (as such term is defined in the Note Agreement), minus (b) the principal amount of all loans under the Broker/Dealer Facility then outstanding for at least 14 days (including any such Debt that was repaid with the proceeds of a borrowing under the Broker/Dealer Facility).
βSubsidiaryβ means, with respect to any Person (a) any corporation in which such Person, directly or indirectly through its Subsidiaries, owns more than 50% of the stock of any class or classes having by the terms thereof the ordinary voting power to elect a majority of the directors of such corporation, and (b) any partnership, association, joint venture, limited liability company, or other entity in which such Person, directly or indirectly through its Subsidiaries, has more than a 50% equity interest at the time; provided, however, that for the purposes of this Agreement, no Excluded Fund or Subsidiary of an Excluded Fund shall be deemed to be a Subsidiary.
βTaxesβ means any tax based upon or measured by net or gross income, gross receipts, sales, use, ad valorem, transfer, franchise, withholding, payroll, employment, excise, occupation, premium or property taxes, or conduct of business, together with any interest and penalties, additions to tax and additional amounts imposed by any federal, state, local, or foreign taxing authority upon any Person.
βTotal Funded Debtβ means, as of any date of determination, all Debt for borrowed money or letters of credit of Ultimate Parent and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, excluding in any event (a) any Debt of JMP Securities under the Broker/Dealer Facility outstanding for less than 14 days (without giving effect to any repayment of such Debt of JMP Securities with the proceeds of a borrowing under the Broker/Dealer Facility) and (b) Cash Secured Letters of Credit, and including, in any event, but without duplication, with respect to Ultimate Parent and its Subsidiaries, the Loans, the Letters of Credit (other than Cash Secured Letters of Credit), any Debt evidenced by the JMP Notes, and the amount of their Capitalized Lease Obligations.
βTotal Leverage Ratioβ means as of any date, the ratio of (a) all Total Funded Debt outstanding on such date to (b) EBITDA for the twelve month period ending on such date.
βTrademark Security Agreementβ means a trademark security agreement executed and delivered by Borrower and Agent, in form and substance satisfactory to Agent.
βUltimate Parentβ means any entity which in the future might acquire the Securities of JMPG (or other securities convertible into such Securities) representing 100% of the combined voting power of all Securities of JMPG entitled (without regard to the occurrence of any contingency) to vote for the election of members of the Board of Directors of JMPG., as of the Fifth Amendment Effective Date, JMP Group LLC, a Delaware limited liability company (βJMP Parentβ) and, at any time after the Fifth Amendment Effective Date, any Person into which JMP Parent is merged or consolidated or that, directly or indirectly, acquires 100% of the outstanding Securities of JMP Parent so long as such merger, consolidation or acquisition does not constitute a Change of Control Event.
βUnmatured Event of Defaultβ means an event, act, or occurrence which, with the giving of notice or the passage of time, would become an Event of Default.
β2013 Notesβ means the 8.00% senior notes issued by JMP Group Inc. in January of 2013, in an approximate aggregate amount of $46,000,000.
β20142017 Notesβ means the 7.25% senior notes due 2027 issued by JMP Group Inc. in JanuaryNovember of 2014,2017, in an approximatethe aggregate principal amount of $48,300,000.50,000,000.
ARTICLE II
2.1 Revolving Credit Facility.
(a) Subject to the terms and conditions hereof:
(i) Subject to the terms and conditions of this Agreement, each Lender with a Revolving Credit Facility Commitment agrees (severally, not jointly or jointly and severally) to make Revolving Loans to Borrower from the Closing Date to, but not including, the Final Revolving Commitment Termination Date, at such times and in such amounts as Borrower may request in accordance with Section 2.6, in an aggregate amount at any one time outstanding not to exceed the result of (A) such Lenderβs Pro Rata Share of the lesser of Maximum Revolver Amount and the Sublimit minus (B) the Letter of Credit Usage; provided that at no time shall the amount of such Lenderβs aggregate Loans exceed such Lenderβs Revolving Credit Facility Commitment.
(ii) Borrowings under the Revolving Credit Facility may be borrowed, repaid without penalty or premium, and reborrowed.
(b) The foregoing to the contrary notwithstanding, in no event shall any Lender be obligated to make Revolving Loans hereunder if, after giving effect to the requested Revolving Loan, the Revolving Credit Facility Usage would exceed lesser of (i) the Maximum Revolver Amount or (ii) the Sublimit.
(c) In the event that, at any time, the Revolving Credit Facility Usage exceeds the Maximum Revolver Amount, then Borrower immediately shall repay the amount of such excess to Agent to be applied to the outstanding principal balance of the Revolving Loans. In the event that, at any time, the Revolving Credit Facility Usage exceeds the Sublimit for a period of more than 10 Business Days as a result of the extension of loans under the Broker/Dealer Credit Facility, then Borrower immediately shall pay the amount of such excess to Agent to be applied to the outstanding principal balance of the Revolving Loans.
(d) noNo Lender shall have any obligation to make any Revolving Loan under the Revolving Credit Facility on or after the Final Revolving Commitment Termination Date; provided that upon the prior written request of Borrower, Agent may, in its sole and absolute discretion and with prior written notice to Borrower, extend the Final Revolving Commitment Termination Date by a period of up to one hundred twenty (120) days, in which even the Final Revolving Commitment Termination Date shall thereafter mean and refer to such extended date.
(e) Subject to Section 2.1(b) hereof, each Borrowing under the Revolving Credit Facility shall be in a minimum principal amount of $250,000 and, thereafter, in integral multiples of $100,000, unless such Borrowing is being made to pay any interest, fees, or expenses then due hereunder, in which case such Borrowing may be in the amount of such interest, fees, or expenses.
(f) On the Closing Date, βRevolving Loansβ (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement (the βExisting Revolving Loansβ) shall be converted into Revolving Loans hereunder, it being understood that no repayment of the Existing Revolving Loans is being effected hereby, but merely an amendment, restatement, and renewal in accordance with the terms hereof.
2.3 Interest Rates; Payment of Principal and Interest.
(a) Borrower shall make each payment due hereunder by making, or causing to be made, the amount thereof available to Agentβs Account in Los Angeles, California, not later than noon Pacific Time, on the date of payment. In lieu thereof, Borrower hereby authorizes Agent to, and Agent shall, charge such interest, the Letter of Credit Fee, and all other fees and expenses provided for in this Agreement or the other Loan Documents (as and when accrued or incurred), to Borrowerβs Loan Account, which amounts thereafter shall accrue interest at the rate then applicable to Base Rate Loans hereunder.
(i) Unless Agent receives notice from Borrower prior to the date on which any payment is due to the Lenders that Borrower will not make such payment in full as and when required, Agent may assume that Borrower has made (or will make) such payment in full to Agent on such date in immediately available funds and Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent Borrower does not make such payment in full to Agent on the date when due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender, together with interest thereon at the Defaulting Lender Rate for each day from the date such amount is distributed to such Lender until the date repaid.
(ii) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (in accordance with their respective Pro Rata Shares) and applied thereto and payments of fees and expenses (other than fees or expenses that are for Agentβs separate account, after giving effect to any agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders in accordance with their respective Pro Rata Shares. Subject to Section 2.3(a)(iv) below, all payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any fees and Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any fees and Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, ratably to pay interest due in respect of the Loans until paid in full,
(D) fourth, so long as no Event of Default has occurred and is continuing, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) on the Revolving Loans, until paid in full (and, if any Revolving Loans are converted into a term loanConverted Term Loan pursuant to Section 2.3(e) of this Agreement, to pay the outstanding principal balance of such term loanConverted Term Loan (in the inverse order of the maturity of the installments due thereunder) until such term loanConverted Term Loan is paid in full),
(E) fifth, if an Event of Default has occurred and is continuing, ratably to pay the outstanding principal balance of the Revolving Loans, until paid in full,
(F) sixth, to pay any other Obligations (other than Obligations owing to Defaulting Lenders) (including all amounts then due and payable in respect of the Bank Product Obligations, with any balance to be held by Lender as cash collateral to be applied to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations owed to Lender as and when such amounts first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Lender in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.3(b)(ii)), until paid in full,
(G) seventh, to pay any Obligations owed to Defaulting Lenders until paid in full, and
(H) eighth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive.
(iv) In each instance, so long as no Event of Default has occurred and is continuing, Section 2.3(a)(ii) shall not apply to any payment made by Borrower to Agent and specified by Borrower in a written notice to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(v) For purposes of the foregoing, βpaid in fullβ means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, any LIBOR Prepayment Fee, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(vi) In the event of a direct conflict between the priority provisions of this Section 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.3 shall control and govern.
(b) Subject to Section 2.4, each Base Rate Loan shall bear interest upon the unpaid principal balance thereof, from and including the date advanced or converted to a Base Rate Loan, to but excluding the date of conversion to a LIBOR Rate Loan or repayment thereof, at a fluctuating rate, per annum, equal to the lesser of (i) the Base Rate, or (ii) the Highest Lawful Rate. Any change in the interest rate resulting from a change in the Base Rate will become effective on the day on which each change in the Base Rate is announced by Agent. Interest due with respect to Base Rate Loans shall be due and payable, in arrears, commencing on the first Interest Payment Date following the Closing Date, and continuing on each Interest Payment Date thereafter up to and including the Interest Payment Date immediately preceding the Final Payment Date, and on the Final Payment Date.
(c) Subject to Section 2.4, each LIBOR Rate Loan shall bear interest upon the unpaid principal balance thereof, from the date advanced, converted to a LIBOR Rate Loan, or continued as a LIBOR Rate Loan for a new Interest Period, to but excluding the date of conversion to a Base Rate Loan or repayment thereof, at a rate, per annum, equal to the lesser of (i) the LIBOR Rate plus 2.25 percentage points, and (ii) the Highest Lawful Rate. Interest due with respect to each LIBOR Rate Loan shall be due and payable, in arrears, on each Interest Payment Date applicable to that LIBOR Rate Loan and on the Final Payment Date. Anything to the contrary contained in this Agreement notwithstanding, Borrower may not have more than 10 LIBOR Rate Loans outstanding at any one time.
(d) Unless prepaid in accordance with the terms hereof, the outstanding principal balance of all Revolving Loans, together with accrued and unpaid interest thereon, shall be due and payable in accordance with clause (e) below.
(e) On the Final Revolving Commitment Termination Date, the outstanding principal balance of alleach Revolving LoansLoan shall automatically be deemed converted into a single term loan (each, a βConverted Term Loanβ), which shall be repayable in 12 quarterly principal installments commencing on JulyJanuary 1, 20192021 and continuing on the first dayBusiness Day of each fiscal quarter of Borrower thereafter, (i) the first six of which shall be in an amount equal to the 3.75 percent times the outstanding principal balance of such term loanConverted Term Loan as of the date of conversion and (ii) the second six of which shall be in an amount equal to the 5.00 percent times the outstanding principal balance of such term loanConverted Term Loan as of the date of conversion, with all unpaid amounts due and payable on the Final Payment Date.
2.5 Computation of Interest and Fees Maximum Interest Rate.
(a) All computations of interest with respect to the Loans and computations of the fees (including the Letter of Credit Fee) due hereunder for any period shall be calculated on the basis of a year of 360 days for the actual number of days elapsed in such period, provided that all computations of interest with respect to Base Rate Loans shall be calculated on the basis of a year of 365/366 days for the actual number of days elapsed in such period. Interest shall accrue from the first day of the making of a Loan (or the date on which interest or fees or other payments are due hereunder, if applicable) to (but not including) the date of repayment of such Loan (or the date of the payment of interest or fees or other payments, if applicable) in accordance with the provisions hereof.
(b) Anything to the contrary contained in this Agreement notwithstanding, Borrower shall not be obligated to pay, and Agent shall not be entitled to charge, collect, receive, reserve, or take interest (it being understood that interest shall be calculated as the aggregate of all charges which constitute interest under applicable law that are contracted for, charged, reserved, received, or paid) in excess of the Highest Lawful Rate. During any period of time in which the interest rates specified herein exceed the Highest Lawful Rate, interest shall accrue and be payable at such Highest Lawful Rate; provided, however, that, if the interest rate otherwise applicable hereunder declines below the Highest Lawful Rate, interest shall continue to accrue and be payable at the Highest Lawful Rate (so long as there remains any unpaid principal with respect to the Loans) until the interest that has been paid hereunder equals the amount of interest that would have been paid if interest had at all times accrued and been payable at the applicable interest rates otherwise specified in this Agreement. For purposes of this Section 2.5, the term βapplicable lawβ shall mean that law in effect from time to time and applicable to this loan transaction which lawfully permits the charging and collection of the highest permissible, lawful, non-usurious rate of interest on such loan transaction and this Agreement, including laws of the State of California and, to the extent controlling, laws of the United States of America.
(a) Each Base Rate Borrowing shall be made on a Business Day and each LIBOR Rate Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email address as Agent may designate to Borrower in accordance herewith), or telefacsimile to Agent at the address (or its email address or telefacsimile number) indicated on Exhibit 11.3 attached hereto, as follows:
(i) for a Base Rate Borrowing, Borrower shall give Agent notice not later than noon Pacific Time 1 Business Day prior to the date on which such Borrowing is to be made (which date shall be a Business Day), and such notice shall specify that a Base Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a LIBOR Rate Borrowing, Borrower shall give Agent notice no earlier than two (2) Eurodollar Business Days before and no later than noon Pacific Time on the day the LIBOR Rate Borrowing is to be made, and such notice shall specify (among other things) that a LIBOR Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II); provided, however, that no Borrowing shall be available as a LIBOR Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If Borrower fails to designate a Loan as a LIBOR Rate Borrowing in accordance herewith, the Loan will be a Base Rate Borrowing, and any outstanding LIBOR Rate Loan will be deemed to be a LIBOR Rate Loan with an Interest Period of one (1) month upon expiration of the applicable Interest Period.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Borrowing or a LIBOR Rate Borrowing is received by Agent not later than noon, Pacific Time, on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before noon, Pacific Time, of the next Business Day or Eurodollar Business Day, as applicable.
(d) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan) or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by email, telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lenderβs Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agentβs Account, not later than 10:00 a.m. (Pacific time) on the Funding Date applicable thereto. After Agentβs receipt of the proceeds of such Loans from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrowerβs Designated Account; provided, that Agent shall not request any Lender to make, and no Lender shall have an obligation to make, any Loan if Agent shall have actual knowledge that (i) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (ii) the requested Loan would exceed the Availability on such Funding Date.
(e) Each Request for Borrowing shall (i) specify, if applicable, among other information, the identity of the Excluded Fund(s) that the proceeds of such Borrowing will be used by Borrower to invest in and the amount of each such Investment and (ii) include a description of all Margin Securities (if any) held or to be acquired by any Loan Party in connection with such Borrowing (including the name of the issuer of such Margin Securities, the owner (or proposed owner) thereof and the number of shares of each class of Margin Securities held or to be acquired by such Person), and the market value thereof, together with a description of the other Collateral held by such Loan Party in each case with such detail as may be required to enable Lender to comply with its obligations under Regulation U, and any other related information reasonably requested by Lender, and, upon request of the Lender, Borrower will provide a Borrower-prepared financial report with respect to the Loan Parties (including a Borrower-prepared balance sheet with respect to the Loan Parties) as of the end of the most recent fiscal month then ended.
(f) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 9:00 a.m. (Pacific time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lenderβs Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lenderβs Loan on the date of Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agentβs account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on any Funding Date.
(g) (i) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lenderβs benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to each other Non-Defaulting Lender ratably in accordance with their Revolving Credit Facility Commitments (but only to the extent that such Defaulting Lenderβs Loan was funded by such other Non-Defaulting Lender), (ii) second, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iii) third, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (i) of Section 2.4(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretionreasonable discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), such Defaulting Lender shall be deemed not to be a βLenderβ and such Lenderβs Revolving Credit Facility Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 11.2(a)(i) through (iii). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (x) the Non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lenderβs default in writing, or (y) the Defaulting Lender makes its Pro Rata Share of the applicable Loans and pays to Agent all amounts owing by Defaulting Lender in respect thereof and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Facility Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) without any premium or penalty of any kind whatsoever; provided, however, that any such assumption of the Revolving Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groupsβ or Borrowerβs rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.6(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.6(g) shall control and govern.
(h) Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing the principal amount of the Loans, the portions thereof owing to each Lender, and the interests therein of each Lender, from time to time and such records shall, absent manifest error, conclusively be presumed to be correct and accurate.
(i) All Loans shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Loan (or other extension of credit) hereunder, nor shall any Revolving Credit Facility Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.
2.7 Conversion or Continuation.
(a) Subject to the provisions of clause (d) of this Section 2.7 and the provisions of Section 2.14, Borrower shall have the option to (i) convert all or any portion of the outstanding Base Rate Borrowings equal to $250,000, and integral multiples of $100,000 in excess of such amount, to a LIBOR Rate Borrowing, (ii) convert all or any portion of the outstanding LIBOR Rate Borrowings equal to $250,000 and integral multiples of $100,000 in excess of such amount, to a Base Rate Borrowing, and (iii) upon the expiration of any Interest Period applicable to any of its LIBOR Rate Borrowings, continue all or any portion of such LIBOR Rate Borrowing equal to $250,000, and integral multiples of $100,000 in excess of such amount, as a LIBOR Rate Borrowing, and the succeeding Interest Period of such continued Borrowing shall commence on the expiration date of the Interest Period previously applicable thereto; provided, however, that a LIBOR Rate Borrowing only may be converted or continued, as the case may be, on the expiration date of the Interest Period applicable thereto; provided further, however, that no outstanding Borrowing may be continued as, or be converted into, a LIBOR Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing; provided further, however, that if, before the expiration of an Interest Period of a LIBOR Rate Borrowing, Borrower fails timely to deliver the appropriate Request for Conversion/Continuation, such LIBOR Rate Borrowing automatically shall be converted to a LIBOR Rate Borrowing with an Interest Period of one (1) month.
(b) Borrower shall, by personal delivery or by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email addresses as Agent may designate to Borrower in accordance herewith), or telefacsimile, deliver a Request for Conversion/Continuation to Agent (i) no later than noon, Pacific Time, on the Business Day that is the proposed conversion date (in the case of a conversion to a Base Rate Borrowing), and (ii) no earlier than two (2) Eurodollar Business Days before and no later than noon Pacific Time on the day of the proposed conversion or continuation date (in the case of a conversion to, or a continuation of, a LIBOR Rate Borrowing). A Request for Conversion/Continuation shall specify (x) the proposed conversion or continuation date (which shall be a Business Day or a Eurodollar Business Day, as applicable), (y) the amount and type of the Borrowing to be converted or continued, and (z) the nature of the proposed conversion or continuation.
(c) Any Request for Conversion/Continuation (or telephonic notice in lieu thereof) shall be irrevocable and Borrower shall be obligated to convert or continue in accordance therewith.
(d) No Borrowing (or portion thereof) may be converted into, or continued as, a LIBOR Rate Borrowing with an Interest Period that ends after the Final Payment Date.
(a) The Revolving Credit Facility Commitments shall automatically terminate on the Final Revolving Commitment Termination Date, and the Loans shall convert into a term loan andeach Converted Term Loan shall be repayable as provided in Section 2.3(e) hereof. Notwithstanding the foregoing, at the request of Borrower, any Letters of Credit that are outstanding on the Final Revolving Commitment Termination Date shall be renewed through the Final Payment Date that is applicable to Revolving Loans. On the Final Payment Date all remainingthat is applicable to Revolving Loans, the entire outstanding principal balance of the Converted Term Loans, all interest that has accrued and remains unpaid thereon, all contingent reimbursement obligations of Borrower with respect to outstanding Letters of Credit, all unpaid fees, costs, or expenses that are payable hereunder or under any other Loan Document, and all other Obligations (including any amounts due and payable to any Bank Product Provider in respect of all Bank Products provided by such Bank Product Provider) immediately shall each become due and payable in full, without notice or demand (including (a) either (i) providing cash collateral to be held by Agent, for the benefit of the Lenders, in an amount equal to 105% of the Letter of Credit Usage, or (ii) causing the original Letters of Credit to be returned to Issuing Bank, and (b) providing cash collateral (in an amount determined by Lender as sufficient to satisfy the reasonably estimated credit exposure) to be held by Agent for the benefit of the Bank Product Providers with respect to the Bank Product Obligations).
(b) Borrower shall make repayments in accordance withof Revolving Loans to the extent required by Section 2.1(c).(c) All prepayments of the Loans made pursuant to Section 2.8(b), which repayments shall be applied, first, to the outstanding principal amount of the Revolving Loans, until paid in full, and second, to cash collateralize the Letters of Credit in an amount equal to 105% of the then extant Letter of Credit Usage, until paid in full.
2.10 [Intentionally Omitted].
(a) Subject to the terms and conditions of this Agreement, upon the request of Borrower made in accordance herewith, and prior to the Final Revolving Commitment Termination Date, Issuing Bank agrees to issue letters of credit for the account of Borrower (each, a βLetter of Creditβ). Each request for the issuance of a Letter of Credit, or the amendment, renewal, or extension of any outstanding Letter of Credit, shall be made in writing by an Authorized Person and delivered to Issuing Bank via personal delivery, registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email address as Issuing Bank may designate to Borrower in accordance herewith), or telefacsimile, reasonably in advance of the requested date of issuance, amendment, renewal, or extension. Each such request shall be in form and substance satisfactory to Issuing Bank in its reasonable discretion and shall specify (i) (A) the amount of such Letter of Credit, (B) the date of issuance, amendment, renewal, or extension of such Letter of Credit, (C) the expiration date of such Letter of Credit (which shall not be later than the earlier to occur of (x) one year after the date of issuance thereof, and (y) the Final Revolving Commitment Termination Date), (D) the name and address of the beneficiary thereof, and (E) such other information (including, in the case of an amendment, renewal, or extension, identification of the outstanding Letter of Credit to be so amended, renewed, or extended) as shall be necessary to prepare, amend, renew, or extend such Letter of Credit and (ii) the Revolving Credit Facility Usage would exceed the lesser of (x) Maximum Revolver Amount and (y) the Sublimit. Anything contained herein to the contrary notwithstanding, Issuing Bank may, but shall not be obligated to, issue or cause the issuance of a Letter of Credit that supports the obligations of Borrower orUltimate Parent or any of its Subsidiaries in respect of (A) a lease of real property, or (B) an employment contract. Issuing Bank shall have no obligation to issue a Letter of Credit if any of the following would result, after giving effect to the issuance of such requested Letter of Credit:
(i) the Letter of Credit Usage would exceed $5,000,000, or (ii) (i) the Revolving Credit Facility Usage would exceed the lesser of (x) Maximum Revolver Amount. and (y) the Sublimit, or (ii) the Letter of Credit Usage would exceed $5,000,000.
(b) In the event there is a Defaulting Lender as of the date of any request for the issuance of a Letter of Credit, the Issuing Bank shall not be required to issue or arrange for such Letter of Credit to the extent (i) the Defaulting Lenderβs Letter of Credit Exposure with respect to such Letter of Credit may not be reallocated pursuant to Section 2.3(g)(ii), or (ii) the Issuing Bank has not otherwise entered into arrangements reasonably satisfactory to it and Borrower to eliminate the Issuing Bankβs risk with respect to the participation in such Letter of Credit of the Defaulting Lender, which arrangements may include Borrower cash collateralizing such Defaulting Lenderβs Letter of Credit Exposure in accordance with Section 2.3(g)(ii). Additionally, Issuing Bank shall have no obligation to issue a Letter of Credit if (A) any order, judgment, or decree of any Governmental Authority or arbitrator shall, by its terms, purport to enjoin or restrain Issuing Bank from issuing such Letter of Credit, or any law applicable to Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over Issuing Bank shall prohibit or request that Issuing Bank refrain from the issuance of letters of credit generally or such Letter of Credit in particular, (B) the issuance of such Letter of Credit would violate one or more policies of Issuing Bank applicable to letters of credit generally, or (C) if amounts demanded to be paid under any Letter of Credit will or may not be in United States Dollars.
(c) Borrower and Issuing Bank hereby acknowledge and agree that all Letters of Credit (as defined in the Existing Credit Agreement) (the βExisting Letters of Creditβ) issued under the Existing Credit Agreement as of the Closing Date shall constitute Letters of Credit under this Agreement on and after the Closing Date with the same effect as if such Existing Letters of Credit were issued by Issuing Bank on the Closing Date. Each Letter of Credit shall be in form and substance acceptable to Agent (in the exercise of its reasonable discretion), including the requirement that the amounts payable thereunder must be payable in Dollars. If Agent is obligated to advance funds under a Letter of Credit, Borrower immediately shall reimburse such L/C Disbursement to Agent by paying to Agent an amount equal to such L/C Disbursement not later than 11:00 a.m., Pacific Time, on the date that such L/C Disbursement is made, if Borrower shall have received written or telephonic notice of such L/C Disbursement prior to 10:00 a.m., Pacific Time, on such date, or, if such notice has not been received by Borrower prior to such time on such date, then not later than 11:00 a.m., Pacific Time, on the Business Day that Borrower receives such notice, if such notice is received prior to 10:00 a.m., Pacific Time, on the date of receipt, and, in the absence of such reimbursement, the L/C Disbursement immediately and automatically shall be deemed to be a Base Rate Loan under the Revolving Credit Facility hereunder and, thereafter, shall bear interest at the rate then applicable to Base Rate Loans. To the extent an L/C Disbursement is deemed to be a Base Rate Loan hereunder, Borrowerβs obligation to reimburse such L/C Disbursement shall be discharged and replaced by the resulting Base Rate Loan.
(d) Borrower hereby agrees to indemnify, save, defend, and hold each member of the Lender Group harmless from any loss, cost, expense, or liability, and reasonable attorneys fees incurred by Lender arising out of or in connection with any Letter of Credit; provided, however, that Borrower shall not be obligated hereunder to indemnify for any loss, cost, expense, or liability to the extent that it is caused by the gross negligence or willful misconduct of such member of the Lender Group. Borrower agrees to be bound by Agentβs interpretations of any Letter of Credit issued by Issuing Bank to or for Borrowerβs account, even though this interpretation may be different from Borrowerβs own, and Borrower understands and agrees that no member of the Lender Group shall be liable for any error, negligence, or mistake, whether of omission or commission, in following Borrowerβs instructions or those contained in the Letter of Credit or any modifications, amendments, or supplements thereto. Borrower hereby acknowledges and agrees that no member of the Lender Group shall be responsible for delays, errors, or omissions resulting from the malfunction of equipment in connection with any Letter of Credit.
(e) If by reason of (x) any change after the Closing Date in any applicable law, treaty, rule, or regulation or any change in the interpretation or application thereof by any Governmental Authority, or (y) compliance by Agent with any direction, request, or requirement (irrespective of whether having the force of law) of any Governmental Authority or monetary authority including, Regulation D of the Federal Reserve Board as from time to time in effect (and any successor thereto):
(i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect of any Letter of Credit issued hereunder, or
(ii) there shall be imposed on Agent any other condition regarding any Letter of Credit issued pursuant hereto,
and the result of the foregoing is to increase, directly or indirectly, the cost to Issuing Bank of issuing, making, guaranteeing, or maintaining any Letter of Credit or to reduce the amount receivable in respect thereof by Agent, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Borrower, and Borrower shall pay on demand such amounts as Agent may specify to be necessary to compensate Agent for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to Base Rate Loans hereunder. The determination by Agent of any amount due pursuant to this Section, as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
(f) Borrower shall pay Issuing Bank a Letter of Credit fee (the βLetter of Credit Feeβ) which shall accrue at a rate equal to 1.25% per annum times the Daily Balance of the undrawn amount of all outstanding Letters of Credit, and which shall be payable quarterly in arrears on the first day of each fiscal quarter beginning after the Closing Date.
(g) Issuing Bank and Borrower agree that, in paying any drawing under a Letter of Credit, Issuing Bank shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. Neither Issuing Bank nor any Affiliate of Issuing Bank, shall be liable to any Loan Party for (i) any action taken or omitted in connection herewith at the request or with the approval of Issuing Bank, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; (iii) any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit or any error in interpretation of technical terms; or (iv) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, that this assumption is not intended to, and shall not, preclude Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Issuing Bank or any Affiliate of Issuing Bank shall be liable or responsible for any of the matters described in clauses (i) through (vi) of Section 2.18(f) or for any action, neglect or omission under or in connection with any Letter of Credit or Issuer Document, including in connection with the issuance or any amendment of any Letter of Credit, the failure to issue or amend any Letter of Credit, the honoring or dishonoring of any demand under any Letter of Credit, or the following of Borrowerβs instructions or those contained in the Letter of Credit or any modifications, amendments, or supplements thereto, and such action or neglect or omission will bind Borrower. In furtherance and not in limitation of the foregoing, Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary (or Issuing Bank may refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit and may disregard any requirement in a Letter of Credit that notice of dishonor be given in a particular manner and any requirement that presentation be made at a particular place or by a particular time of day), and Issuing Bank shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. Issuing Bank shall not be responsible for the wording of any Letter of Credit (including any drawing conditions or any terms or conditions that are ineffective, ambiguous, inconsistent, unduly complicated or reasonably impossible to satisfy), notwithstanding any assistance Issuing Bank may provide to Borrower with drafting or recommending text for any letter of credit application or with the structuring of any transaction related to any Letter of Credit, and Borrower hereby acknowledges and agrees that any such assistance will not constitute legal or other advice by Issuing Bank or any representation or warranty by Issuing Bank that any such wording or such Letter of Credit will be effective. Without limiting the foregoing, Issuing Bank may, as it deems appropriate, use in any Letter of Credit any portion of the language prepared by Borrower and contained in the letter of credit application relative to drawings under such Letter of Credit. Borrower hereby acknowledges and agrees that Issuing Bank shall not be responsible for delays, errors, or omissions resulting from the malfunction of equipment in connection with any Letter of Credit.
(h) The obligation of Borrower to reimburse Issuing Bank for each drawing under each Letter of Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) (b) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document,
(ii) (c) the existence of any claim, counterclaim, setoff, defense (other than payment in full) or other right that BorrowerUltimate Parent or any of its Subsidiaries may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), Issuing Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction,
(iii) (d) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit,
(iv) (e) any payment by Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not substantially or strictly comply with the terms of such Letter of Credit (including, without limitation, any requirement that presentation be made at a particular place or by a particular time of day), or any payment made by Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit,
(v) (f) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or discharge of, BorrowerUltimate Parent or any of its Subsidiaries, or
(vi) (g) the fact that any Event of Default or Unmatured Event of Default shall have occurred and be continuing.
(vii) (j) Unless otherwise expressly agreed by Issuing Bank and Borrower when a Letter of Credit is issued, (i) the rules of the ISP and the UCP 600 shall apply to each standby Letter of Credit, and (ii) the rules of the UCP 600 shall apply to each commercial Letter of Credit.
(viii) (h) (i) In the event of a direct conflict between the provisions of this Section 2.18 and any provision contained in any Issuer Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.18 shall control and govern.
(a) At any time during the period from and after the Closing Date through but excluding the date that is the one (1) year anniversary of the ClosingFifth Amendment Effective Date, at the option of Borrower (but subject to the conditions set forth in clause (b) below), the Revolving Credit Facility Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolving Credit Facility Commitment and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an βIncreaseβ). Agent shall invite each Lender to increase its Revolving Credit Facility Commitment (it being understood that no Lender shall be obligated to increase its Revolving Credit Facility Commitment) in connection with a proposed Increase on the terms set forth in this Agreement, and if sufficient Lenders do not agree to increase their Revolving Credit Facility Commitment in connection with such proposed Increase, then Agent or Borrower may invite any prospective lender who is reasonably satisfactory to Agent and Borrower to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolving Credit Facility Commitment and the Maximum Revolver Amount be increased pursuant to this Section 2.19 on more than 2 occasions in the aggregate for all such Increases.
(b) Each of the following shall be conditions precedent to any Increase of the Revolving Credit Facility Commitment and the Maximum Revolver Amount in connection therewith:
(i) Agent or Borrower have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrower to provide the applicable Increase and any such Lenders (or prospective lenders), Borrower, and Agent have signed a joinder agreement to this Agreement (an βIncrease Joinderβ), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrower, and Agent are party,
(ii) each of the conditions precedent set forth in Section 3.2 are satisfied,
(iii) Agent shall have received form FR U-1 for each Lender fully completed and executed by Borrower, and
(iv) Borrower has delivered to Agent updated pro forma calculations (after giving effect to the applicable Increase) for BorrowerUltimate Parent and its Subsidiaries evidencing that: (i) the Fixed Charge Coverage Ratio for JMPG and its Subsidiaries, for the four consecutive fiscal quarter periodperiods ending as of the last day of the fiscal quarter most recently ended prior to the Increase Date as to which financial statements were required to be delivered pursuant to this Agreement, is greater than the ratio required by Section 6.14 for such period by at least 10% of such required ratio, and (ii) the Liquidity and Net Worth of for Loan Parties and their Subsidiaries, as of the Increase Date, is each greater than the respective amount required by Section 6.14 as of such date by at least 10% of such required amount and (iii) the Senior Leverage Ratio and the ratio of Net Asset Value to Total Funded Debt is each less than the ratio required by Section 6.14 as of such date by at least 10% of such required ratio.
(c) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolving Credit Facility Commitment and Maximum Revolver Amount pursuant to this Section 2.19.
(d) Each of the Lenders having a Revolving Credit Facility Commitment prior to the Increase Date (the βPre-Increase Revolver Lendersβ) shall assign to any Lender which is acquiring a new or additional Revolving Credit Facility Commitment on the Increase Date (the βPost-Increase Revolver Lendersβ), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolving Credit Facility Commitments.
(e) The Revolving Loans, Revolving Credit Facility Commitments, and Maximum Revolver Amount established pursuant to this Section 2.19 shall constitute Revolving Loans, Revolving Credit Facility Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrower shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolving Credit Facility Commitments and Maximum Revolver Amount.
ARTICLE III
(a) (i) Borrower shall have executed and delivered to Agent the Disclosure Statement required under this Agreement. The form and content of the Disclosure Statement shall be satisfactory to Agent;
(b) (j) Agent shall have received the Reaffirmation Agreement, duly executed and delivered by each party thereto;
(c) (k) Agent shall have received the Amendment Number Five to Revolving Note and Cash Subordination Agreement & Revolving Note, in form and substance reasonably satisfactory to Agent, executed and delivered by all parties thereto and in full force and effect, together with evidence, satisfactory to Agent, that FINRA approval has been obtained with respect to the amendments to the Broker/Dealer Credit Facility as set forth therein;
(d) (l) Agent shall have received a certificate executed by the Secretary of Borrower to the effect that: (i) Borrower and each of its Subsidiaries has each obtained all orders, consents, approvals, and other authorizations and having made all filings and other notifications (governmental or otherwise) required in connection with the Loan Documents, other than orders, consents, approvals, authorizations, or filings the failure to obtain or file, as applicable, which could not reasonably be expected to have a Material Adverse Effect on Borrower or any of its Subsidiaries, (ii) the Governing Documents of Borrower that were provided to CNB on October 11, 2012 have not been amended since they were last provided to CNB on such date, and are in full force and effect as of the date hereof, (iii) the signature and incumbency certificate of the Responsible Officers of Borrower attached thereto as an exhibit and last provided to CNB on October 11, 2012 is true and correct as of the date hereof, and (iv) attaching a copy of the resolutions of Borrower, certified as of the Closing Date, authorizing (A) the transactions contemplated by the Loan Documents to which Borrower is or will be a party, and (B) the execution, delivery and performance by Borrower of each Loan Document to which Borrower is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith;
(e) (m) Agent shall have received a certificate executed by the Secretary of Harvest to the effect that: (i) the Governing Documents of Harvest that were provided to CNB on October 11, 2012 have not been amended since they were last provided to CNB on such date, and are in full force and effect as of the date hereof, (ii) the signature and incumbency certificate of the Responsible Officers of Harvest attached thereto as an exhibit and last provided to CNB on October 11, 2012 is true and correct as of the date hereof, and (iii) attaching a copy of the resolutions of Harvest, certified as of the Closing Date, authorizing (A) the transactions contemplated by the Loan Documents to which Harvest is or will be a party, and (B) the execution, delivery and performance by Harvest of each Loan Document to which Harvest is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith;
(f) (n) Agent shall have received a certificate executed by the Secretary of JMP Securities to the effect that: (i) the Governing Documents of JMP Securities that were provided to CNB on October 11, 2012 have not been amended since they were last provided to CNB on such date, and are in full force and effect as of the date hereof, (ii) the signature and incumbency certificate of the Responsible Officers of JMP Securities attached thereto as an exhibit and last provided to CNB on October 11, 2012 is true and correct as of the date hereof, and (iii) attaching a copy of the resolutions of JMP Securities, certified as of the Closing Date, authorizing (A) the transactions contemplated by the Loan Documents to which JMP Securities is or will be a party, and (B) the execution, delivery and performance by JMP Securities of each Loan Document to which JMP Securities is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith;
(g) (o) Agent shall have received full payment of all fees set forth in the Fee Letter that are required to be paid on the Closing Date;
(h) (p) Agent shall have received form FR U-1, with Part I fully completed and executed by Borrower;
(i) (q) no litigation, inquiry, other action or proceeding (governmental or otherwise), or injunction or other restraining order shall be pending or overtly threatened that could have, in the reasonable opinion of Agent: (i) a material adverse effect on Borrowerβs or any Guarantorβs ability to repay the Loans or (ii) a Material Adverse Effect on Borrower or any Guarantor; and
(j) (r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Agent and its counsel.
(a) (s) the representations and warranties of Borrower contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of such Loan or such Letter of Credit as though made on and as of such date (except to the extent that such representations and warranties solely relate to an earlier date);
(b) (t) no Event of Default or Unmatured Event of Default shall have occurred and be continuing on the date of such Loan or such Letter of Credit, nor shall either result from the making of such Loan or the issuance of such Letter of Credit; and
(c) (u) Borrower shall have delivered to Agent a Request for Borrowing pursuant to the terms of Section 2.6 hereof; and
(d) Borrower shall be in pro forma compliance with each of the financial covenants set forth in Section 6.14 hereof after giving effect to such Loan or Letter of Credit and the use of proceeds thereof (calculated as if such Loan or Letter of Credit were outstanding as of the last day of the immediately preceding fiscal quarter for which financial statements were most recently required to have been delivered to Agent).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender Group to enter into this Agreement, Borrower makes the following representations and warranties which, except as set forth in the Disclosure Statement with a specific reference to the Section of this Article IV affected thereby, shall be true, correct, and complete in all respects as of the date hereof, and shall be true, correct, and complete in all respects as of the Closing Date, and at and as of the date of each Loan (or other extension of credit) made thereafter, as though made on and as of the date of the making of such Loan (or other extension of credit), and at and as of the date of each issuance of, renewal of, or amendment to any Letter of Credit, as though made on and as of the date of the making of such Loan (or other extension of credit), and at and as of the date of such issuance of, renewal of, or amendment to any Letter of Credit (except to the extent that such representations and warranties relate solely to an earlier date) and such representations and warranties shall survive the execution and delivery of this Agreement and the making of the Loans (or other extension of credit) and the issuance of the Letters of Credit:
4.2 Interests in Borrower and its Subsidiaries.
(a) As of the ClosingFifth Amendment Effective Date, all of the interests in Borrower and its Subsidiaries are owned by the Persons identified in the Disclosure Statement.
(b) Borrower may amend the Disclosure Statement with respect to this Section 4.2 to reflect changes that would not, individually or in the aggregate result in a Change of Control Event.
4.6 Litigation: Adverse Facts.
(a) There is no action, suit, proceeding, or arbitration (irrespective of whether purportedly on behalf of Borrower or any of its Subsidiaries) at law or in equity, or before or by any federal, state, municipal, or other governmental department, commission, board, bureau, agency, or instrumentality, domestic or foreign, pending or, to the knowledge of Borrower, threatened in writing against or affecting Borrower or any of its Subsidiaries, that reasonably could be expected to have a Material Adverse Effect on Borrower or any of its Subsidiaries, or reasonably could be expected to materially and adversely affect the ability of Borrower or the Guarantors to perform their respective obligations under the Loan Documents (including Borrowerβs ability to repay any or all of the Obligations when due);
(b) None of Borrower or any of its Subsidiaries is: (i) in violation of any applicable law in a manner that reasonably could be expected to have a Material Adverse Effect on such Person, or (ii) subject to or in default with respect to any final judgment, writ, injunction, decree, rule, or regulation of any court or of any federal, state, municipal, or other governmental department, commission, board, bureau, agency, or instrumentality, domestic or foreign, in a manner that reasonably could be expected to have a Material Adverse Effect on such Person, or reasonably could be expected to materially and adversely affect the ability of Borrower or the Guarantors to perform their respective obligations under the Loan Documents (including Borrowerβs ability to repay any or all of the Obligations when due); and
(c) (i) there is no action, suit, proceeding or, to the best of Borrowerβs knowledge or belief, investigation pending or, to the best of Borrowerβs knowledge or belief, threatened in writing against or affecting Borrower or any of its Subsidiaries that questions the validity or the enforceability of this Agreement or other the Loan Documents, and (ii) there is no action, suit, or proceeding pending against or affecting Borrower or any of its Subsidiaries pursuant to which, on the date of the making of any Loan hereunder, there is in effect a binding injunction that could materially and adversely affect the validity or enforceability of this Agreement or the other Loan Documents.
(a) Borrower and its Subsidiaries are not, nor immediately after the application by Borrower of the proceeds of the Loans will they be, subject to regulation under the Investment Company Act of 1940, as amended, or an exemption to such regulation is available.
(b) Borrower and each of its Subsidiaries, is, to the extent required thereby, duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the βInvestment Advisers Actβ). Each of Borrower and each of its Subsidiaries is, to the extent that any such Person is required to be registered as an βinvestment companyβ under the Investment Company Act, duly registered as such thereunder or properly exempt.
(c) Borrower is not required to be duly registered as a broker-dealer under applicable law. Each Subsidiary of Borrower that is required to be so registered is so duly registered and is a member of a self-regulatory organization, such as FINRA or is properly registered with any other Governmental Authority under applicable law.
(d) Each Subsidiary of Borrower registered as a broker-dealer has not exceeded the business activities enumerated in any applicable restriction or membership agreement or other limitations imposed in connection with its regulations with any Governmental Authority, including the FINRA, and such registration, membership and membership agreement does not limit its ability to enter into the Loan Documents to which it is a party.
(e) Borrower and each of its Subsidiaries and each of their respective members, partners, officers and directors, as the case may be, is duly registered, licensed or qualified as an investment adviser, broker-dealer representative, or agent in each State of the United States where the conduct of its business requires the registration, licensing, qualification or membership and is in compliance in all material respects with applicable laws requiring such registration, licensing, qualification or membership.
(f) None of Borrower or any Guarantor is subject to regulation under the Federal Power Act, the Interstate Commerce Act, or any federal, state, or local law, rule, or regulation generally limiting its ability to incur Debt.
4.14 No Default. No Event of Default or Unmatured Event of Default has occurred and is continuing.
ARTICLE V
AFFIRMATIVE COVENANTS OF BORROWER
Borrower covenants and agrees that, so long as any portion of the Revolving Credit Facility Commitments under this Agreement shall be in effect and until payment, in full, of the Loans, with interest accrued and unpaid thereon, any other Obligations (including Obligations in respect of Letters of Credit and Bank Product Obligations) and any other amounts due hereunder, and except as set forth in the Disclosure Statement with specific reference to the Section of this Article V affected thereby concerning matters which do not conform to the covenants of this Article V, Borrower will, and will cause each of its Subsidiaries to do each and all of the following:
5.2 Financial Statements and Other Information. Furnish to Agent:
(a) Within 120 days after the end of each fiscal year of BorrowerUltimate Parent, an annual report containing a statementconsolidated statements of assets, liabilities, and capital of JMPG or Ultimate Parent, if applicable, and their respectiveits Subsidiaries as of the end of such fiscal year, and consolidated statements of operations and cash flows of JMPG or Ultimate Parent, if applicable, and their respectiveits Subsidiaries, for the year then ended, all of which shall be accompanied by a report and an unqualified opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by BorrowerUltimate Parent and satisfactory to Agent (which opinion shall be without (i) a βgoing concernβ or like qualification or exception, (ii) any qualification or exception as to the scope of such audit, or (iii) any qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 6.14), together with a written statement of such accountants (1) to the effect that, in making the examination necessary for their audit of such financial statements, they have not obtained any knowledge of the existence of an Event of Default under Section 6.14 and (2) if such accountants shall have obtained any knowledge of the existence of an Event of Default under Section 6.14, describing the nature thereof;
(b) Within 45 days after the end of each of the first three quarters of each fiscal year of Borrower, a BorrowerUltimate Parent, an unaudited, management-prepared financial report containing a consolidated statement (and if requested by Agent, a consolidating statement) of assets, liabilities, and capital, and statementsa consolidated statement (and if requested by Agent, a consolidating statement) of operations and a consolidated statement of cash flows of JMPG or Ultimate Parent, if applicable, and their respectiveits Subsidiaries, in each case for the period then ended;
(c) Within 45 days after the end of each quarter of each fiscal year of Borrower,Concurrently with the delivery of the financial statements required to be delivered pursuant to clauses (a) and (b) of this Section 5.2, a Compliance Certificate duly executed by the chief financial officer of BorrowerUltimate Parent listing any new Subsidiaries formed or acquired by BorrowerUltimate Parent or any of its Subsidiaries from and after the date of the prior Compliance Certificate if Borrower elects to designate such Subsidiaries as Excluded Subsidiaries, and stating that he or she has individually reviewed the provisions of this Agreement and the other Loan Documents, that (i) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of BorrowerUltimate Parent and its Subsidiaries, (ii) JMPG or Ultimate Parent, if applicable, and their respective Subsidiaries areBorrower is in compliance with the financial covenants set forth in Section 6.14 and attaching the calculations of such financial covenants as of the end of such fiscal quarter, (iii) a review of the activities of BorrowerUltimate Parent and its Subsidiaries during such year or quarterly period, as the case may be, has been made by or under such individualβs supervision, with a view to determining whether Borrower and such Subsidiariesthe Loan Parties have fulfilled all of its obligations under this Agreement, and the other Loan Documents, that no Event of Default or Unmatured Event of Default has occurred and is continuing, or if an Event of Default or Unmatured Event of Default has so occurred and is continuing, specifying all such defaults and events of which such individual may have knowledge or belief, and (iv) Borrower hasthe Loan Parties have negotiated all transactions described in Section 6.8, other than transactions in de minimis amounts, in good faith and on an armβs length basis;
(d) if not otherwise provided pursuant to clause (a) or (b), above, as applicable, then, contemporaneously with each quarterly and year-end financial report required by clauses (a) and (b) of this Section 5.2, a certificate of the chief financial officer of BorrowerUltimate Parent separately identifying and describing all Contingent Obligations of BorrowerUltimate Parent and its Subsidiaries that could reasonably be expected to result in payments (individually or in the aggregate) of greater than $5,000,000;
(e) within 60 days after the beginning of each fiscal year of Ultimate Parent, a forecasted consolidated profit and loss statement for Ultimate Parent and its Subsidiaries on a basis consistent with Ultimate Parentβs historical financial statements, together with appropriate supporting details and a statement of underlying assumptions, for such fiscal year, quarter by quarter, certified by the chief financial officer of Ultimate Parent as being such officerβs good faith estimate of the consolidated financial performance of Ultimate Parent and its Subsidiaries during the period covered thereby;
(f) notice, as soon as possible and, in any event, within 5 days after Borrower has knowledge, of the occurrence of any Event of Default or any Unmatured Event of Default. In any such event, Borrower also shall supply Agent with a statement from BorrowerUltimate Parentβs chief financial officer or general counsel setting forth the details thereof and the action that BorrowerUltimate Parent or its applicable Subsidiary proposes to take with respect thereto;
(fg) as soon as practicable, any written report pertaining to material items in respect of BorrowerUltimate Parentβs and its Subsidiariesβ internal control matters submitted to BorrowerUltimate Parent or such Subsidiary by its independent accountants in connection with each annual audit of the financial condition of BorrowerUltimate Parent and its Subsidiaries;
(gh) as soon as practicable, written notice of any condition or event which has resulted or reasonably could be expected to result in: (i) a Material Adverse Effect on Borrower or any of its Subsidiaries; or (ii) a material breach of, or noncompliance with, any material term, condition, or covenant of any Contractual Obligation of Borrower or any of its Subsidiaries, if such breach or noncompliance could reasonably be expected to result in a Material Adverse Effect;
(hi) promptly upon becoming aware of any Personβs seeking to obtain or threatening in writing to seek to obtain a decree or order for relief with respect to Borrower or any of its Subsidiaries in an involuntary case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect, a written notice thereof specifying what action Borrower is taking or proposes to take with respect thereto;
(ij) promptly, copies of all material amendments to the Governing Documents of Borrower or any of its Subsidiariesany Loan Party;
(jk) prompt notice of:
(i) all legal or arbitral proceedings, and all proceedings by or before any governmental or regulatory authority or agency, against or, to the knowledge of Borrower, threatened in writing against or affecting Borrower or any of its Subsidiaries which, if adversely determined, reasonably could be expected to have a Material Adverse Effect on Borrower or any of its Subsidiaries, or on the timely payment of the principal of or interest on the Loans, or the enforceability of this Agreement or the other Loan Documents, or the rights and remedies of the Lender Group hereunder or thereunder, as applicable; and
(ii) the issuance by any United States of America federal or state court or any United States of America federal or state regulatory authority of any injunction, order, or other restraint prohibiting, or having the effect of prohibiting or delaying, the making of the Loans, or the institution of any litigation or similar proceeding seeking any such injunction, order, or other restraint;
(kl) upon request by Agent and, within 5 Business Days after the filing thereof, upon the occurrence and during the continuation of an Event of Default or Unmatured Event of Default, copies of Focus Reports for JMP Securities and each of its Subsidiaries;
(lm) promptly, such other information and data with respect to Borrower or any of its Subsidiaries, as from time to time may be reasonably requested by Agent.
5.3 Existence. Preserve and keep in full force and effect, at all times, its existence.
5.7 Formation of Subsidiaries.
(a) At the time that (x) Borrower or any Guarantor forms any Subsidiary or acquires any Subsidiary after the Closing Date (in each case other than an Immaterial Subsidiary or any Excluded Subsidiary, as determined by Section 5.7(b)), or (y) any Subsidiary of Borrower or any Guarantor that is not a Guarantor is no longer an Immaterial Subsidiary or an Excluded Subsidiary, (a) cause such new Subsidiary (or former Immaterial Subsidiary or an Excluded Subsidiary) to provide to Agent a Guaranty and a Security Agreement, a joinder to the Intercompany Subordination Agreement and the Stock Pledge Agreement, together with such other security documents, as well as appropriate UCC-1 financing statements, all in form and substance satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary (or former Immaterial Subsidiary or Excluded Subsidiary)), (b) provide to Agent a pledge agreement or a supplement to an existing Stock Pledge Agreement and appropriate certificates and powers or UCC-1 financing statements, hypothecating all of the direct or beneficial ownership interest of Borrower or a Guarantor in such new Subsidiary (or former Immaterial Subsidiary or Excluded Subsidiary), in form and substance satisfactory to Agent, (c) if such Subsidiary is a limited liability company or limited partnership formed under the laws of Delaware, include in the limited liability company agreement, limited partnership agreement, or other similar Governing Documents language substantively similar to the provisions of Sections 7(e) and 7(f) of the Stock Pledge Agreement, and (d) provide to Agent all other documentation, including one or more opinions of counsel satisfactory to Agent, which in its opinion is appropriate with respect to the execution and delivery of the applicable documentation referred to above. Any document, agreement, or instrument executed or issued pursuant to this Section 5.7 shall be a Loan Document. The foregoing to the contrary notwithstanding, such new Subsidiary shall not be required to execute and deliver a Guaranty or a Security Agreement or a joinder to the Stock Pledge Agreement, and neither Borrower nor any Guarantor, as applicable, shall be required to pledge more than 66% of the voting stock of such Subsidiary to the extent that (x) such Subsidiary is a Foreign Subsidiary, and (y) Borrower would incur material adverse tax consequences therefrom; provided, however, that if such Subsidiary is a Foreign Subsidiary, Borrower or such Guarantor, as applicable, must deliver such documents as required by this Section 5.7 within sixty (60) days of the date such entity was deemed to be a Subsidiary.
(b) Within 30 days after the date when Borrower delivers a Compliance Certificate to Agent in accordance with Section 5.2(c) that lists one or more Subsidiaries that Borrower elects to be designated as an Excluded Subsidiary (βResponse Periodβ), Agent shall have the right to (i) deliver a notice to Borrower indicating that Agent accepts Borrowerβs proposal to designate such Subsidiary as an Excluded Subsidiary or (ii) deliver a notice to Borrower indicating that Agent objects to Borrowerβs proposal to designate such Subsidiary as an Excluded Subsidiary. If Agent accepts such proposal within the Response Period or fails to respond to Borrowerβs proposal within the Response Period, such Subsidiary shall be deemed to constitute an Excluded Subsidiary from and after the date of formation until such time such Subsidiary is no longer an Excluded Subsidiary. If Agent objects to Borrowerβs proposal within the Response Period, such Subsidiary shall be deemed an Exclusive Subsidiary from and after the date of formation until thirty (30) days after the date when Borrower receives a written notice indicating that Agent objects to Borrowerβs proposal and, thereafter, such Subsidiary shall no longer be an Excluded Subsidiary and Borrower and such Subsidiary shall comply with Section 5.7(a) above.
ARTICLE VI
NEGATIVE COVENANTS OF BORROWER
Borrower covenants and agrees that, so long as any portion of the Revolving Credit Facility Commitments under this Agreement shall be in effect and until payment, in full, of the Loans, with interest accrued and unpaid thereon, any other Obligations (including Obligations in respect of Letters of Credit and Bank Product Obligations) and any other amounts due hereunder, and any other amounts due hereunder, and except as set forth in the Disclosure Statement with specific reference to the Section of this Article VI affected thereby concerning matters which do not conform to the covenants of this Article VI, Borrower will not, and will not permit any of its Subsidiaries to do any of the following:
(a) (v) the Obligations and any other Debt evidenced by this Agreement and the other Loan Documents;
(b) (w) Capitalized Lease Obligations incurred in the ordinary course of business, in an aggregate outstanding amount not in excess of $250,000 at any one time;
(c) (x) Contingent Obligations resulting from the endorsement of instruments for collection in the ordinary course of business;
(d) (y) Permitted Acquired Indebtedness;
(e) (z) Debt in respect of EarnoutEarn-Out Arrangements, not to exceed $2,000,000 in the aggregate at any time, and Seller Notes incurred in connection with a Permitted Acquisition;
(f) (aa) Debt consisting of loans or advances from time to time made by BorrowerUltimate Parent or its Subsidiaries to JMP Securities in an aggregate outstanding amount at any one time not to exceed $15,000,000;
(g) (bb) Debt incurred by JMP Securities and owed to Agent consisting of loans or advances from time to time made in connection with underwriting advances or lines of credit that are subject to the applicable FINRA form, that are advanced to JMP Securities to permit it to meet its net capital requirements under applicable FINRA rules or under SEC Rule 15c3-1, so long as (y) no Event of Default or Unmatured Event of Default has occurred and is continuing at the time that such Debt is proposed to be incurred or would result therefrom and (z) no more than $15,000,000 of such loans is funded from the direct or indirect proceeds of a Borrowing under this Agreement;
(h) (cc) Debt of the CLO Entity;[Intentionally omitted];
(i) (dd) Advances by Borrower or any Subsidiary of its Subsidiaries to BorrowerUltimate Parent to Ultimate Parent, any Subsidiary, any or Affiliate of Ultimate Parent or anany Excluded Fund for the purpose of funding overhead and other operating expenses, so long as (x) the aggregate amount of such advances made by a Loan Party during any fiscal year of BorrowerUltimate Parent does not exceed $1,000,000 and (y) no Event of Default or Unmatured Event of Default has occurred and is continuing at the time that such Debt is proposed to be incurred or would result therefrom;
(j) (ee) Intercompany Debt advanced by an Obligora Loan Party to a domestic ObligorLoan Party, so long as such domestic ObligorLoan Party is party to the Intercompany Subordination Agreement;
(k) (ff) Guarantees by Borrowerany Loan Party of any Debt of a Guarantorany other Loan Party otherwise permitted hereunder and guarantees by any Guarantor of any Debt of Borrower or another Guarantor otherwise permitted hereby (in each case, other than Permitted Acquired Indebtedness);
(l) (gg) Reimbursement obligations in respect of letters of credit issued after the Final Revolving Commitment Termination Date, to the extent that CNB elects not to issue such letters of credit under this Agreement (it being understood that if CNB does not notify Borrower that it has elected to issue such letters of credit under this Agreement within four (4) Business Days after the date when CNB receives a written request therefor from Borrower, CNB shall be deemed to have elected not to issue the requested letter of credit);
(m) (hh) any Refinancing Debt in respect of any Debt identified on the Disclosure Statement with respect to this Section 6.1, or Debt described above in clauses (b), (d) or (l); and
(n) (ii) Debt incurred by JMPCC and payable to JMPGother Debt not otherwise permitted under this Section 6.1 in an aggregate principal amount of $10,000,000.not to exceed $2,000,000 at any one time outstanding.
(a) Create, incur, assume, or permit to exist, directly or indirectly, any Lien on or with respect to any of its Assets, of any kind, whether now owned or hereafter acquired, or any income or profits therefrom, except Permitted Liens, or
(b) enter into, assume, or permit to exist any agreement to refrain from granting Liens to or for the benefit of Agent, other than such agreements by JMP SecuritiesPermitted Negative Pledges;
(a) (jj) Borrowerany Loan Party or any of its Subsidiaries may sell Assets in accordance with the provisions of Section 6.7 hereof;
(kk) [Intentionally omitted.]
(ll) Borrower or any of its Subsidiaries may offer or sell its membership interests to its employees so long as the aggregate voting power of the membership interests purchased by such employees does not exceed 49% of the aggregate voting power of the membership interests of each of Borrower or any of its Subsidiaries, as applicable;
(b) (mm) upon 10 days prior written notice to Agent, Borrowerany Loan Party or any its Subsidiaries may change its name;
(c) (nn) Any Subsidiary of BorrowerUltimate Parent may merge into another Subsidiary, of Ultimate Parent; provided that (x) if any Subsidiary may merge withthat is not a Guarantor, as long as the merges with any Guarantor is the surviving entity and Borrower and JMP Holdings, Inc. may merge, so long as (x) a Change of Control Event does not result therefrom and (y) the survivor thereof assumes, then the surviving entity shall either be such Guarantor or shall comply with the requirements of Section 5.7 and (y) if any Subsidiary merges with Borrower, then the surviving entity shall either be Borrower or shall assume Borrowerβs obligations under the Loan Documents and agrees to be bound hereby and thereby; and
(fd) Any Guarantor or JMP Securities may enter into a recapitalization with respect to its membership interests or Securities, so long as Borrowera Loan Party remains the managing member of such Subsidiary and holds a majorityGuarantor or JMP Securities and all of the voting interest in such SubsidiaryGuarantor or JMP Securities.
(a) the sale or other disposition of any of the businesses or Assets of Borrower(other than CLO Preference Shares) of any Loan Party or any of its Subsidiaries in the ordinary course of business, for not less than the fair value thereof, to the extent that the fair market value of the foregoing does not exceed $5,000,000 in the aggregate in any fiscal year (other than sales and dispositions of Investments by JMP Securities in publicly traded securities in the ordinary course of business);
(b) involuntary sales or other involuntary dispositions of any of the businesses or Assets of Borrowerany Loan Party or any of its Subsidiaries;
(c) dispositions of Cash Equivalents for not less than the fair market value thereof; and
(d) dispositions by any Subsidiary of Ultimate Parent (other than a Loan Party) to another Subsidiary of Ultimate Parent, Borrower or a Guarantor, dispositions by Borrower to a Guarantor organized under the laws of a state within the United States and dispositions by a Guarantor to Borrower. or to any other Guarantor;
(e) Permitted Liens, Permitted Investments, Distributions permitted under Section 6.5 and transactions permitted under Section 6.6;
(f) issuance or dispositions of any Securities issued by any Guarantor that, as of the date of such issuance or disposition, is a Specified Guarantor, so long as (i) the proceeds of any such disposition or issuance shall be paid to a Loan Party, (ii) that any such issuance or disposition is for fair market value and (iii) the Specified Guarantors whose Securities were issued or were disposed of in reliance on this clause (f) in any trailing twelve-month period in the aggregate do not have assets with a book value greater than $10,000,000; and
(g) sales and dispositions of Investments by JMP Securities in publicly traded securities in the ordinary course of business.
If the Securities of a Specified Guarantor are issued or disposed of in a transaction permitted under clause (f) above, unless otherwise agreed by Borrower and Agent, such Specified Guarantor shall be automatically released from its obligations under its Guaranty and the other Loan Documents to which it is a party, and Agentβs Lien on the assets of such Specified Guarantor created under any of the Loan Documents shall be automatically released and terminated. Agent shall take such actions as are necessary to effect and evidence each release described in this paragraph.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
(b) Breach of Certain Covenants.
(i) Borrower shall fail to perform or comply fully with any covenant, term, or condition contained in Sections 5.1(b) or 5.8 or Article VI; or
(ii) Borrower shall fail to perform or comply fully with any covenant, term, or condition contained in Sections 5.1(a), 5.2(a), (b), (c), (d), (e), (f), or 5.4 (except with respect to unpaid Taxes in an aggregate amount less than $25,000), of this Agreement and such failure shall not have been remedied or waived within 10 days after the occurrence thereof;
(iii) Borrower shall fail to perform or comply fully with any covenant, term, or condition contained in Sections 5.1(c), 5.6 or 5.7 of this Agreement and such failure shall not have been remedied or waived within 20 days after the occurrence thereof (except with respect to any Foreign Subsidiary in connection with Section 5.7, in which case such cure period shall be 30 days);
(iv) Borrower shall fail to perform or comply fully with any covenant, term, or condition contained in Section 5.4 (with respect to unpaid Taxes in an aggregate amount less than $25,000) of this Agreement and such failure shall not have been remedied or waived within 30 days after the occurrence thereof
(v) Borrower or any Guarantor shall fail to perform or comply fully with any other covenant, term, or condition contained in this Agreement or other Loan Documents (other than any Bank Product Agreement with respect to Credit Card Services), to which it is a party and such failure shall not have been remedied or waived within 45 days after the occurrence thereof; provided, however, that this clause (iv) shall not apply to: (1) the covenants, terms, or conditions referred to in any other subsections of this Section 7.1; or (2) the covenants, terms, or conditions referred to in clauses (i), (ii), (iii) or (iv) above of this subsection (b);
(i) If an Insolvency Proceeding is commenced against Borrower or any of its Subsidiaries under any other applicable law and any of the following events occur: (1) such Person consents to the institution of such Insolvency Proceeding against it; (2) the petition commencing the Insolvency Proceeding is not timely controverted; (3) the petition commencing the Insolvency Proceeding is not dismissed within 45 days of the date of the filing thereof; provided, however, that, during the pendency of such period, the Lender Group shall be relieved of its obligation to make additional Loans; (4) an interim trustee is appointed to take possession of all or a substantial portion of the Assets of Borrower or any of its Subsidiaries; or (5) an order for relief shall have been issued or entered therein;
(ii) A decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, custodian, trustee, or other officer having similar powers over Borrower or any of its Subsidiaries to take possession of all or a substantial portion of its Assets shall have been entered and, within 45 days from the date of entry, is not vacated, discharged, or bonded against, provided, however, that, during the pendency of such period, the Lender Group shall be relieved of its obligation to make additional Loans;
(g) Change of Control. A Change of Control Event shall occur;
(j) If the obligation of any Guarantor under the Guaranty is limited or terminated by operation of law or by any Guarantor thereunder;
(k) [Intentionally Omitted.]
(l) [Intentionally Omitted.]
(m) If Borrower or any of its Subsidiaries makes any payment on account of Debt that has been contractually subordinated in right of payment to the payment of the Obligations and any other Debt evidenced by this Agreement or any other Loan Document, except to the extent such payment is permitted by the terms of the subordination provisions applicable to such Debt;
(n) If this Agreement or any other Loan Document that purports to create a Lien, shall, for any reason, fail or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien on or security interest in the Assets covered hereby or thereby;
(o) Any provision of any Loan Document shall at any time for any reason be declared to be null and void, or the validity or enforceability thereof shall be contested by Borrower or any Guarantor, or a proceeding shall be commenced by Borrower or any Guarantor, or by any Governmental Authority having jurisdiction over Borrower or any Guarantor, seeking to establish the invalidity or unenforceability thereof, or Borrower or any Guarantor shall deny that Borrower or any Guarantor has any liability or obligation purported to be created under any Loan Document; or
(p) If any loan under the Broker/Dealer Credit Facility remains outstanding for more than 30 days.
7.2 Remedies. Upon the occurrence of an Event of Default:
(a) If such Event of Default arises under subsections (d) or (e) of Section 7.1 hereof, then the Revolving Credit Facility Commitment hereunderCommitments immediately shall automatically terminate and the unpaid principal amount of and any accrued and unpaid interest on the Loans and any other amounts owing hereunder or under the other Loan Documents automatically shall become immediately due and payable, without presentment, demand, protest, notice, or other requirements of any kind, all of which are hereby expressly waived by Borrower; and
(b) In the case of any other Event of Default, Agent may, and, at the request of the Required Lenders, shall, by written notice to Borrower, declare the Revolving Credit Facility Commitment hereunderCommitments terminated and the unpaid principal amount of and any accrued and unpaid interest on the Loans and any other amounts owing hereunder or under the Loan Documents to be, and the same immediately shall become due and payable, without presentment, demand, protest, further notice, or other requirements of any kind, all of which are hereby expressly waived by Borrower.
Upon acceleration, Agent (without notice to or demand upon Borrower, which are expressly waived by Borrower to the fullest extent permitted by law), shall be entitled to, and upon request of the Required Lenders shall, proceed to protect, exercise, and enforce the Lender Groupβs rights and remedies hereunder or under the other Loan Documents, or any other rights and remedies as are provided by law or equity. Agent may determine, in its sole discretion, the order and manner in which Lenderβs rights and remedies are to be exercised. All payments received by Agent shall be applied in accordance with Section 2.3(a)(ii).
ARTICLE VIII
ARTICLE IX
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance satisfying clause (a) above and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 8.2 hereof) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lenderβs rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lenderβs obligations under Article 10 and Section 11.1 of this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement as are delegated to Agent, by the terms hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee payment and the fully executed Assignment and Acceptance satisfying clause (a) above, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolving Credit Facility Commitments arising therefrom. The Revolving Credit Facility Commitment allocated to each Assignee shall reduce such Revolving Credit Facility Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a βParticipantβ) approved by Borrower (such approval of Borrower (x) not to be unreasonably withheld, delayed, or conditioned and not to be required in connection with participations to another Lender or its Affiliates, and (y) not to be required after the occurrence and during the continuance of an Event of Default) participating interests in its Obligations, the Revolving Credit Facility Commitment, and the other rights and interests of that Lender (the βOriginating Lenderβ) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a βLenderβ for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolving Credit Facility Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a βLenderβ hereunder or under the other Loan Documents and the Originating Lenderβs obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lenderβs rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, (v) no Lender shall transfer or grant any participating interest to a Direct Competitor without the consent of Borrower (which consent of Borrower shall not be required if an Event of Default has occurred and is continuing), and (vi) all amounts payable by Borrower hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the collections of Borrower or its Subsidiariesfrom the Loan Parties, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may, subject to the provisions of Section 11.11, disclose all documents and information which it now or hereafter may have relating to BorrowerUltimate Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 C.F.R. Β§ 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
ARTICLE X
(a) (d) All payments made by Borrower hereunder or under any note or other Loan Document will be made without setoff, counterclaim, or other defense. In addition, all such payments will be made free and clear of, and without deduction or withholding for, any present or future Taxes, and in the event any deduction or withholding of Taxes is required, Borrower shall comply with the penultimate sentence of this Section 10.11(a). If any Taxes are so levied or imposed, Borrower agrees to pay the full amount of such Taxes and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement, any note, or Loan Document, including any amount paid pursuant to this Section 10.11(a) after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein; provided, that Borrower shall not be required to increase any such amounts if the increase in such amount payable results from Agentβs or such Lenderβs own willful misconduct or gross negligence (as finally determined by a court of competent jurisdiction). Borrower will furnish to Agent as promptly as possible after the date the payment of any Tax is due pursuant to applicable law certified copies of tax receipts evidencing such payment by Borrower.
(b) (e) If a Lender claims an exemption from United States withholding tax, Lender agrees with and in favor of Agent and Borrower, to deliver to Agent:
(i) if such Lender claims an exemption from United States withholding tax pursuant to its portfolio interest exception, (A) a statement of the Lender, signed under penalty of perjury, that it is not a (I) a βbankβ as described in Section 881(c)(3)(A) of the IRC, (II) a 10% shareholder of Borrower (within the meaning of Section 871(h)(3)(B) of the IRC) or (III) a controlled foreign corporation related to Borrower within the meaning of Section 864(d)(4) of the IRC and (B) a properly completed and executed IRS Form W-8BEN, before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower;
(ii) if such Lender claims an exemption from, or a reduction of, withholding tax under a United States tax treaty, properly completed and executed IRS Form W-8BEN before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower;
(iii) if such Lender claims that interest paid under this Agreement is exempt from United States withholding tax because it is effectively connected with a United States trade or business of such Lender, two properly completed and executed copies of IRS Form W-8ECI before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower; or
(iv) such other form or forms, including IRS Form W-9, as may be required under the IRC or other laws of the United States as a condition to exemption from, or reduction of, United States withholding or backup withholding tax before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower.
Lender agrees promptly to notify Agent and Borrower of any change in circumstances which would modify or render invalid any claimed exemption or reduction.
(c) (f) If a Lender claims an exemption from withholding tax in a jurisdiction other than the United States, Lender agrees with and in favor of Agent and Borrower, to deliver to Agent any such form or forms, as may be required under the laws of such jurisdiction as a condition to exemption from, or reduction of, foreign withholding or backup withholding tax before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower.
Lender agrees promptly to notify Agent and Borrower of any change in circumstances which would modify or render invalid any claimed exemption or reduction.
(d) (g) If any Lender claims exemption from, or reduction of, withholding tax and such Lender sells, assigns, grants a participation in, or otherwise transfers all or part of the Obligations of Borrower to such Lender, such Lender agrees to notify Agent and Borrower of the percentage amount in which it is no longer the beneficial owner of Obligations of Borrower to such Lender. To the extent of such percentage amount, Agent and Borrower will treat such Lenderβs documentation provided pursuant to Sections 10.11(b) or 10.11(c) as no longer valid. With respect to such percentage amount, Lender may provide new documentation, pursuant to Sections 10.11(b) or 10.11(c), if applicable.
(e) (h) If any Lender is entitled to a reduction in the applicable withholding tax, Agent may withhold from any interest payment to such Lender an amount equivalent to the applicable withholding tax after taking into account such reduction. If the forms or other documentation required by subsection (b) or (c) of this Section 10.11 are not delivered to Agent, then Agent may withhold from any interest payment to such Lender not providing such forms or other documentation an amount equivalent to the applicable withholding tax.
(f) (i) If the IRS or any other Governmental Authority of the United States or other jurisdiction asserts a claim that Agent did not properly withhold tax from amounts paid to or for the account of any Lender due to a failure on the part of the Lender (because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless for all amounts paid, directly or indirectly, by Agent, as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable to Agent under this Section 10.11, together with all costs and expenses (including attorneys fees and expenses). The obligation of the Lenders under this subsection shall survive the payment of all Obligations and the resignation or replacement of Agent.
(g) The provisions of this Section 10.11 to the contrary notwithstanding, Borrower shall not be required to indemnify any Lender, or pay any additional amounts to any Lender, in respect of United States Federal withholding tax pursuant to this Section 10.11 to the extent that (i) the obligation to withhold amounts with respect to United States Federal withholding tax existed on the date such Lender became a party to this Agreement (or, in the case of a Participant, on the date such Participant became a holder of a participation interest with respect to the Obligations or the Revolving Credit Facility Commitment) or (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Lender to comply with the provisions of clause (b) above.
(a) (j) The Lenders hereby irrevocably authorize Agent, at its option and in its sole discretion, to release any Lien on any Collateral (i) upon the termination of the Revolving Credit Facility Commitments and payment and satisfaction in full by Borrower of all Obligations, (ii) constituting property being sold or disposed of if a release is required or requested in connection therewith and if Borrower certifies to Agent that the sale or disposition is permitted under this Agreement or the other Loan Documents (and Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which neither Borrower nor any Subsidiary of Borrowerno Loan Party owned any interest at the time the Agentβs Lien was granted nor at any time thereafter, or (iv) constituting property leased to Borrower or its Subsidiariesa Loan Party under a lease that has expired or is terminated in a transaction permitted under this Agreement. or (v) constituting property of a Specified Guarantor to the extent required by the last paragraph of Section 6.7. Except as provided above, Agent will not contractually subordinate any of Agentβs Liens, without the prior written authorization of (A) if, with respect to the Collateral, the release or contractual subordination is with respect to all or substantially all of the Collateral, all of the Lenders, or (B) otherwise, the Required Lenders. Upon request by Agent or Borrower at any time, the Lenders will confirm in writing Agentβs authority to release any such Liens on particular types or items of Collateral pursuant to this Section 10.12; provided, that (1) Agent shall not be required to execute any document necessary to evidence such release on terms that, in Agentβs opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (2) such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Borrower in respect of) all interests retained by Borrower, including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Borrower or is cared for, protected, or insured or has been encumbered, or that Agentβs Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agentβs own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
10.13 Restrictions on Actions by Lenders; Sharing of Payments.
(a) (k) Each of the Lenders agrees that it shall not, until an Event of Default has occurred and is continuing, without the express written consent of Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the written request of Agent, set off against the Obligations, any amounts owing by such Lender to Borrower or any deposit accounts of Borrower now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by Agent (which request shall not be made by Agent unless an Event of Default has occurred and is continuing), take or cause to be taken any action, including, the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral.
(b) If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or otherwise, any proceeds of Collateral or any payments with respect to the Obligations, except for any such proceeds or payments received by such Lender from Agent pursuant to the terms of this Agreement, or (ii) payments from Agent in excess of such Lenderβs Pro Rata Share of all such distributions by Agent, such Lender promptly shall (1) turn the same over to Agent, in kind, and with such endorsements as may be required to negotiate the same to Agent, or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement, or (2) purchase, without recourse or warranty, an undivided interest and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Pro Rata Shares; provided, that to the extent that such excess payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment.
10.14 Agency for Perfection. Agent hereby appoints each other Lender as its agent (and each Lender hereby accepts such appointment) for the purpose of perfecting Agentβs Liens in assets which, in accordance with Article 8 or Article 9, as applicable, of the California Uniform Commercial Code, as in effect from time to time, can be perfected only by possession or control. Should any Lender obtain possession or control of any such Collateral, such Lender shall notify Agent thereof, and, promptly upon Agentβs request therefor shall deliver possession or control of such Collateral to Agent or in accordance with Agentβs instructions.
(a) (l) is deemed to have requested that Agent furnish such Lender, promptly after it becomes available, a copy of each field examination or examination report (each a βReportβ and collectively, βReportsβ) prepared by Agent, and Agent shall so furnish each Lender with such Reports,
(b) (m) expressly agrees and acknowledges that Agent does not (i) make any representation or warranty as to the accuracy of any Report, and (ii) shall not be liable for any information contained in any Report,
(c) (n) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that Agent or other party performing any examination will inspect only specific information regarding Borrower and will rely significantly upon the Books, as well as on representations of Borrowerβs personnel,
(d) (o) agrees to keep all Reports and other material, non-public information regarding BorrowerUltimate Parent and its Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential manner in accordance with Section 11.11, and
(e) (p) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold Agent and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to Borrower, or the indemnifying Lenderβs participation in, or the indemnifying Lenderβs purchase of, a loan or loans of Borrower, and (ii) to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys fees and costs) incurred by Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.
In addition to the foregoing: (x) any Lender may from time to time request of Agent in writing that Agent provide to such Lender a copy of any report or document provided by Borrower to Agent that has not been contemporaneously provided by Borrower to such Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same to such Lender, (y) to the extent that Agent is entitled, under any provision of the Loan Documents, to request additional reports or information from Borrower, any Lender may, from time to time, reasonably request Agent to exercise such right as specified in such Lenderβs notice to Agent, whereupon Agent promptly shall request of Borrower the additional reports or information reasonably specified by such Lender, and, upon receipt thereof from Borrower, Agent promptly shall provide a copy of same to such Lender, and (z) any time that Agent renders to Borrower a statement regarding the Loan Account, Agent shall send a copy of such statement to each Lender.
ARTICLE XI
(a) (q) No amendment, modification, restatement, supplement, termination, or waiver of or to, or consent to any departure from, any provision of this Agreement or the other Loan Documents (other than the Fee Letter), shall be effective unless the same shall be in writing and signed by or on behalf of the Required Lenders (or by Agent at the written request of the Required Lenders) and Borrower and then any such waiver or consent shall be effective, but only in the specific instance and for the specific purpose for which given; provided, that no such waiver, amendment, or consent shall, unless in writing and signed by all of the Lenders affected thereby and Borrower, do any of the following:
(i) increase or extend any Commitment of any Lender; provided, that no amendment, modification or waiver of any condition precedent, covenant, Event of Default or Unmatured Event of Default shall constitute an increase in any Commitment of any Lender,
(ii) postpone or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees, or other amounts due hereunder or under any other Loan Document,
(iii) reduce the principal of, or the rate of interest on, any loan or other extension of credit hereunder, or reduce any fees or other amounts payable hereunder or under any other Loan Document (except in connection with the waiver of applicability of Section 2.5 (which waiver shall be effective with the written consent of Required Lenders),
(iv) change the Pro Rata Share that is required to take any action hereunder,
(v) amend or modify this Section or any provision of this Agreement providing for consent or other action by all Lenders,
(vi) other than as permitted by Section 10.12, release the Agentβs Lien in and to any of the Collateral,
(vii) amend Section 9.1(a) to permit Borrower, any Guarantor, or any of their respective Affiliates to be permitted to become an Assignee,
(viii) change the definition of βRequired Lendersβ or βPro Rata Shareβ, or
(ix) other than as permitted by Section 10.12, release Borrower from any obligation for the payment of money.
(b) (r) No amendment, waiver, modification, or consent shall amend, modify, or waive (i) the definition of, or any of the terms or provisions of, the Fee Letter, without the written consent of Agent and Borrower (and shall not require the written consent of any of the Lenders), and (ii) any provision of Section 10 pertaining to Agent, or any other rights or duties of Agent under this Agreement or the other Loan Documents, without the written consent of Agent, Borrower, and the Required Lenders.
(c) (s) No amendment, waiver or consent shall, unless in writing and signed by Agent, affect the rights or duties of Agent under this Agreement or any other Loan Document. The foregoing notwithstanding, any amendment, modification, waiver, consent, termination, or release of, or with respect to, any provision of this Agreement or any other Loan Document that relates only to the relationship of the Lender Group among themselves, and that does not affect the rights or obligations of Borrower, shall not require consent by or the agreement of Borrower.
(d) (t) [Intentionally Omitted].
(e) (u) If (i) any action to be taken by the Lender Group or Agent hereunder requires the consent, authorization, or agreement of all Lenders or all Lenders affected thereby and if such action has received the consent, authorization, or agreement of the Required Lenders but not of one or more other Lenders, (ii) any Lender becomes a Defaulting Lender, (iii) any Lender is unable to make, maintain or fund LIBOR Rate Loans, or (iv) Borrower is required to make additional payments to a Lender or Governmental Authority under Section 10.11 (any such Lender replaced pursuant to this subsection (e) shall be referred to as a βReplaced Lenderβ); then Agent, upon at least five Business Days prior irrevocable notice to the Replaced Lender, may permanently replace the Replaced Lender with one or more substitute Lenders (each, a βReplacement Lenderβ), and the Replaced Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Replaced Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Replaced Lender and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Replaced Lender being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever. If the Replaced Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Replaced Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Replaced Lender shall be made in accordance with the terms of Section 9.1. Until such time as the Replacement Lenders shall have acquired all of the Obligations, the Commitment, and the other rights and obligations of the Replaced Lender hereunder and under the other Loan Documents, the Replaced Lender shall remain obligated to make the Replaced Lenderβs Pro Rata Share of Loans.
11.7 GOVERNING LAW. EXCEPT AS SPECIFICALLY SET FORTH IN ANY OTHER LOAN DOCUMENT: (A) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF CALIFORNIA; AND (B) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
11.8 JURISDICTION AND VENUE. TO THE EXTENT THEY MAY LEGALLY DO SO, THE PARTIES HERETO AGREE THAT ALL ACTIONS, SUITS, OR PROCEEDINGS ARISING BETWEEN ANY MEMBER OF THE LENDER GROUP, OR BORROWER IN CONNECTION WITH THIS AGREEMENT, THE REVOLVING CREDIT FACILITY NOTE, OR THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA. BORROWER AND EACH MEMBER OF THE LENDER GROUP, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY WAIVE ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11.8 AND STIPULATE THAT THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF CALIFORNIA SHALL HAVE IN PERSONAM JURISDICTION AND VENUE OVER SUCH PARTY FOR THE PURPOSE OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE REVOLVING CREDIT FACILITY NOTE, OR THE OTHER LOAN DOCUMENTS. TO THE EXTENT PERMITTED BY LAW, SERVICE OF PROCESS SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST BORROWER MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS ADDRESS INDICATED ON EXHIBIT 11.3 ATTACHED HERETO.
11.9 WAIVER OF TRIAL BY JURY. BORROWER AND EACH MEMBER OF THE LENDER GROUP, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.9 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
[Signature pages follow.]
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a Delaware limited liability company |
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Xxxxxxx Xxxxxxx |
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Chief Financial Officer |
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[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
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CITY NATIONAL BANK, a national banking association, as Agent and as a Lender |
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By: |
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Xxxx Xx |
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Vice President |
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[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
EXHIBITS AND SCHEDULES
Exhibit A-1 |
Form of Assignment and Acceptance Agreement |
Exhibit C-1 |
Form of Compliance Certificate |
Exhibit R-1 |
Form of Request for Borrowing |
Exhibit R-2 |
Form of Request for Conversion/Continuation |
Exhibit 11.3 |
Addresses and Information for Notices |
Schedule A-1 |
Agentβs Account |
Schedule C-1 |
Lendersβ Commitments |
EXHIBIT B
All capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in (a) that certain Second Amended and Restated Credit Agreement entered into between JMP HOLDING LLC, formerly known as JMP Group LLC, a Delaware limited liability company (βBorrowerβ), the lenders from time to time party to the below-defined Credit Agreement (together with their respective successors and assigns, each a βLenderβ and collectively, the βLendersβ), and CITY NATIONAL BANK, a national banking association (βCNBβ), as the administrative agent for the Lenders, (in such capacity, together with its successors and assigns in such capacity, the βAgentβ), dated as of April 30, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ), (b) that certain Amendment Number One to Second Amended and Restated Credit Agreement, dated as of April 25, 2016 (the βFirst Amendmentβ) by and among Borrower, Agent and the Lenders, (c) that certain Amendment Number Two to Second Amended and Restated Credit Agreement, dated as of August 24, 2016 (the βSecond Amendmentβ) by and among Borrower, Agent and the Lenders, (d) that certain Amendment Number Three to Second Amended and Restated Credit Agreement, dated as of May 12, 2017 (βThird Amendmentβ) by and among Borrower, Agent and the Lenders, (e) that certain Amendment Number Four to Second Amended and Restated Credit Agreement, dated as of August 6, 2018 (the βFourth Amendmentβ) by and among Borrower, Agent and Lenders, and (f) that certain Amendment Number Five to Second Amended and Restated Credit Agreement, dated as of July 1, 2019 (the βAmendmentβ) by and among Borrower, Agent and Lenders. The undersigned hereby (a) represents and warrants to Agent and the Lenders that the execution, delivery, and performance of this Reaffirmation and Consent are within its powers, have been duly authorized by all necessary action, and are not in contravention of any law, rule, or regulation, or any order, judgment, decree, writ, injunction, or award of any arbitrator, court, or governmental authority, or of the terms of its charter or bylaws, or of any contract or undertaking to which it is a party or by which any of its properties may be bound or affected; (b) consents to the transactions contemplated by the Amendment and by each amendment to any Loan Document executed on or before the date hereof; (c) acknowledges and reaffirms its obligations owing to Agent and the Lenders under any Loan Documents to which it is a party; and (d) agrees that each of the Loan Documents to which it is a party is and shall remain in full force and effect. Although each of the undersigned has been informed of the matters set forth herein and has acknowledged and agreed to same, each understands that Agent and the Lenders have no obligation to inform it of such matters in the future or to seek its acknowledgment or agreement to future amendments, and nothing herein shall create such a duty. Delivery of an executed counterpart of this Reaffirmation and Consent by telefacsimile or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Reaffirmation and Consent. Any party delivering an executed counterpart of this Reaffirmation and Consent by telefacsimile or electronic mail also shall deliver an original executed counterpart of this Reaffirmation and Consent but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Reaffirmation and Consent. This Reaffirmation and Consent shall be governed by the laws of the State of California.
[Signature pages to follow.]
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HARVEST CAPITAL STRATEGIES LLC, |
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JMP ASSET MANAGEMENT INC., |
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JMP CREDIT ADVISORS LLC, | |||
a Delaware limited liability company | |||
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JMP INVESTMENT HOLDINGS LLC, | |||
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JMP ASSET MANAGEMENT LLC, | |||
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[SIGNATURE PAGE TO REAFFIRMATION AND CONSENT]
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JMP CAPITAL LLC, |
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JMP CAPITAL I MANAGING MEMBER LLC, | |||
a Delaware limited liability company | |||
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HARVEST CAPITAL STRATEGIES HOLDINGS LLC, | |||
a Delaware limited liability company | |||
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JMP REALTY I LLC, | |||
a Delaware limited liability company | |||
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JMP REALTY II LLC, | |||
a Delaware limited liability company | |||
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JMP GROUP INC., | |||
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[SIGNATURE PAGE TO REAFFIRMATION AND CONSENT]
EXHIBIT C-1
(attached)
EXHIBIT C-1
FORM OF COMPLIANCE CERTIFICATE
[on JMP Group letterhead]
To: City National Bank, as Agent
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xx
Re: Compliance Certificate dated
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of April 30, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ) by and among JMP HOLDING LLC, formerly known as JMP Group LLC, a Delaware limited liability company (βBorrowerβ), the lenders identified on the signature pages thereof (such lenders, together with their respective successors and assigns, are referred to hereinafter each individually as a βLenderβ and collectively as the βLendersβ), and CITY NATIONAL BANK, a national banking association, as administrative agent for the Lenders and the Bank Product Providers (in such capacity, together with its successors and assigns, if any, in such capacity, βAgentβ) and as lead arranger. Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein.
The undersigned officer of Ultimate Parent, not in his/her individual capacity but solely in his/her capacity as an officer of Ultimate Parent, hereby certifies that:
1. The financial statements of Ultimate Parent and its Subsidiaries furnished in Schedule 1 attached hereto (the βFinancial Statementsβ), have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Ultimate Parent and its Subsidiaries as of the dates and for the periods covered by such financial statements.
2. Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review of the activities of Ultimate Parent and its Subsidiaries during the accounting period covered by the Financial Statements, with a view to determining whether the Loan Parties have fulfilled all of their respective obligations under the Loan Documents.
3. Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes an Unmatured Event of Default or Event of Default, except for such conditions or events listed on Schedule 2 attached hereto, specifying the nature and period of existence thereof and the actions Ultimate Parent and its Subsidiaries have taken, are taking, or propose to take with respect thereto.
4. Without limiting the generality of the foregoing, except for such conditions or events listed on Schedule 2 attached hereto, Borrower is in compliance with the covenants contained in Section 6.14 of the Credit Agreement as demonstrated on Schedule 3 hereof as of the end of the period specified in Schedule 3 hereof and as supported by reasonably detailed calculations set forth on Schedule 3A hereof.
5. Attached hereto on Schedule 4 is a description of all material Contingent Obligations of Ultimate Parent and its Subsidiaries that could reasonably be expected to result in payments (individually or in the aggregate) of greater than $5,000,000.
6. Except as set forth on Schedule 5 hereto, the Loan Parties have negotiated all transactions described in Section 6.8, other than transactions in de minimis amounts, in good faith and on an armβs length basis.
7. Attached hereto on Schedule 6 is a list of each Subsidiary formed or acquired by Ultimate Parent or its Subsidiaries that Borrower elects to designate as an Excluded Subsidiary.
[Signature page follows.]
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JMP HOLDING LLC, formerly known as JMP Group LLC, |
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a Delaware limited liability company, as Ultimate Parent | |||
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SCHEDULE 1
Financial Statements
SCHEDULE 2
Unmatured Event of Default or Event of Default
SCHEDULE 3
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Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, measured as of the last day of the Ultimate Parentβs fiscal quarter ending _________ __, ____ is _____:1:00, which Fixed Charge Coverage Ratio [is/is not] greater than or equal to the Fixed Charge Coverage Ratio required by Section 6.14(a) of the Credit Agreement. |
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Maximum Senior Leverage Ratio. The Senior Leverage Ratio, measured as of the last day of the Ultimate Parentβs fiscal quarter ending _________ __, ____ is ____:1.00, which Senior Leverage Ratio [is/is not] less than or equal to the Senior Leverage Ratio permitted by Section 6.14(b) of the Credit Agreement. |
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Minimum Liquidity to Debt Service Ratio. The Liquidity to Debt Service Ratio, measured as of the last day of the Ultimate Parentβs fiscal quarter ending _________ __, ____ is ____:1.00, which ratio [is/is not] greater than or equal to the Liquidity to Debt Service Ratio required by Section 6.14(c) of the Credit Agreement. |
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Minimum Net Asset Value. Net Asset Value measured as of the last day of the fiscal quarter ending _________ __, ____ is $_____________. Total Funded Debt measured as of the last day of the fiscal quarter ending _________ __, ____ is $_______. The ratio of Net Asset Value to Total Funded Debt is ____:1.00, which ratio [is/is not] greater than or equal to the ratio required by Section 6.14(d) of the Credit Agreement. |
SCHEDULE 3A
Financial Covenant Calculations
SCHEDULE 4
Contingent Obligations
SCHEDULE 5
Non-Armβs Length Transactions
SCHEDULE 6
New Subsidiary Designated as βExcluded Subsidiaryβ
[Insert Name, if any]
Agent hereby [accepts/objects to] Borrowerβs election to designate [Insert name of Subsidiary] as an Excluded Subsidiary.
Date: ____________ |
CITY NATIONAL BANK, |
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a national banking association, as Agent | ||
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