FIRST AMENDMENT TO REVOLVING LOAN AND SECURITY AGREEMENT
Exhibit 10.3
 | FIRST REPUBLIC BANK It’s a privilege to serve you® |
EXECUTION VERSION
FIRST AMENDMENT TO REVOLVING
LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO REVOLVING LOAN AND SECURITY AGREEMENT (“Amendment”) is entered into as of March 24, 2020, by and between FIRST REPUBLIC BANK (“Lender”) and XXXXXXXX XXXX ADVISORS, L.L.C. a Pennsylvania limited liability company (“Borrower”).
RECITALS
A. Borrower and Lender are parties to that certain Revolving Loan and Security Agreement dated August 23, 2017, as amended, restated, supplemented or otherwise modified from time to time (the “Loan Agreement”). The parties desire to amend the Loan Agreement in accordance with the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
1.Capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Loan Agreement.
2. Each of the following definitions set forth in Section 13 of the Loan Agreement are hereby amended and restated in their entirety to read as follows:
“Adjusted EBITDA” means the net income of the Borrower and its consolidated subsidiaries excluding interest expenses, income tax expenses, depreciation and amortization, equity based compensation expense, other non-operating income (loss), and transaction costs and expenses related to an IPO, acquisitions and refinancings, non-cash changes in fund portfolio valuations, and other non-cash expenses.
“Charter Documents” means the LLC Agreement of Borrower and any other organizational, formation, or operational documents of a party.
“Facility I” means the Term Loan and Security Agreement dated as of the Effective Date (as amended, restated, supplemented and/or otherwise modified from time to time), between First Republic Bank, as the lender, and Xxxxxxxx Xxxx Advisors, L.L.C., as the borrower.
“Indebtedness” means (a) indebtedness for borrowed money or the deferred price of property or services, such as reimbursement and other obligations for surety bonds and letters of credit, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease obligations (which, for the avoidance of doubt excludes operating leases, whether or not they should appear on the balance sheet in accordance with GAAP) and (d) Contingent Obligations in respect of the foregoing. Notwithstanding the foregoing, in no event shall “Indebtedness” include any liability of a general partner of a Fund, with respect to the liabilities of such Fund.
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“Lender Expenses” means all reasonable, audit fees and expenses and reasonable and documented costs and out-of-pocket expenses (including attorneys’ fees and expenses) for preparing, negotiating, administering, defending and enforcing the Loan Documents for Facility I, Facility II, and Facility III (including any of the foregoing incurred in connection with any appeals or Insolvency Proceedings).
“Lender Obligations” are any Obligations owing to Lender hereunder and under the other Loan Documents and, as applicable in respect of Facility I or Facility III, including debts, principal, interest, Lender Expenses and other amounts Borrower owes Lender now or later in respect of the Loan Documents and, as applicable Facility I or Facility III, including Contingent Obligations, cash management services, letters of credit and foreign exchange contracts, if any, interest accruing after Insolvency Proceedings begin.
“Tangible Net Worth” means the total member’s equity minus non-controlling interests in general partnerships plus 50% of any year over year non-cash negative adjustment to investment holdings.
3. Each of the following definitions are hereby incorporated in Section 13 of the Loan Agreement in the appropriate alphabetical sequence:
“Extension Fee” means an amount equal to 15 basis points (0.15%) of the Revolving Line being extended in accordance with Section 2.1.1(b).
“Facility II” has the meaning provided in Section 2.1.1.
“Facility III” means the Multi-Draw Term Loan and Security Agreement dated as of March 24, 2020 (as amended, restated, supplemented and/or otherwise modified from time to time) between First Republic Bank, as the lender, and Xxxxxxxx Xxxx Advisors, L.L.C., as the borrower.
“First Amendment Effective Date” means March 24, 2020.
4. The definitions of “Current Index”, “Index Rate”, “Interest Change Date” and “Note Rate” set forth in Section 13 of the Loan Agreement are hereby deleted in their entireties.
5. Section 2.1.1 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“(a) Subject to the terms and conditions of this Agreement, Lender will make Advances to Borrower in an aggregate principal amount of up to the Revolving Line (“Facility II”). Amounts borrowed under this Section may be repaid and reborrowed during the term of this Agreement. To obtain an Advance, Borrower shall notify Lender by delivering to Lender the Payment/Advance Form attached as Exhibit B by facsimile or electronic mail in portable document format (PDF) by 12:00 p.m. Pacific time on the Business Day before the Business Day that the Advance is to be made. Lender will credit Advances to Borrower’s deposit Account with Lender, as defined in Section 2.2(c). Lender may make Advances under this Agreement based on instructions from a Designated Representative or his or her designee or without instructions if the Advances are necessary to meet Obligations that have become due; provided that Borrower may not use the proceeds of any Advances to repay principal repayment required pursuant to Section 6.7. Each request by Borrower for an Advance shall constitute a representation and warranty by Borrower to Lender that, after giving effect to that Advance, the aggregate outstanding Credit Extensions will not exceed $25,000,000 (the “Revolving Line”).
(b) On March 24, 2023 (the “Revolving Maturity Date”), subject to the provision below, Borrower shall repay the entire principal balance of all outstanding Advances, plus accrued but unpaid interest. Borrowers may, on occasion request an extension of the Revolving Maturity Date, for a term
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of 365 days. Such extension will be subject to the following conditions precedent: (a) the consent of Lender, in its sole discretion; (b) such extension request shall be substantially in the form of Exhibit G and shall be submitted no earlier than 60 days before and no later than 30 days before the then current Revolving Maturity Date; (c) payment by Borrowers of the Extension Fee (which fee shall be fully earned on the date paid and be non-refundable); (d) on and as of the date of such extension request and on the date that such extension of the Revolving Maturity Date becomes effective (i) no Event of Default shall have occurred and be continuing; and (e) the representations and warranties in this Agreement shall be true and correct in all material respects on the date of extension (except to the extent that such representation and warranty is qualified as to materiality, with respect to such representation or warranty, the foregoing materiality qualifier shall be disregarded for the purposes of this condition, or such representation and warranty relates to an earlier date, in which case such representation and warranty is true and correct in all material respects as of such earlier date). Upon the satisfaction of the conditions precedent in this Section 2.1.1(b), Lender will confirm the new Revolving Maturity Date to Borrowers by electronic communication and such Revolving Maturity Date will be automatically extended without any further action by the parties.”
6. Section 2.2(a) of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Interest Rate. Advances accrue interest on the outstanding principal balance, as set forth in the applicable Payment/Advance Form, at a floating per annum rate equal to the greater of (i) the Prime Rate minus 1.50% and (ii) 2.25%. The interest rate increases or decreases when the Prime Rate changes. Interest is computed on a 360 day year for the actual number of days elapsed.”
7. Section 2.2(b) of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Default Rate. After maturity or after the occurrence and during the continuance of an Event of Default, upon notice from the Lender (which notice may be retroactive to the date of the Event of Default or maturity), principal Lender Obligations accrue interest at 5% above the rate effective on the maturity date or on the date of the Event of Default, as applicable.”
8. Section 2.2(d) of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Interest Payments. Interest due on the Credit Extensions is payable on the 10th calendar day of each month. After an Event of Default, Lender may debit any of Borrower’s deposit accounts including the Account for principal and interest payments owing or any amounts Borrower owes Lender. Payments received after 12:00 noon Pacific time are considered received at the opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment is due the next Business Day.”
9. Section 2.2(e) of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Principal Payments. Except as provided in Section 6.7, principal balance of all outstanding Advances shall be repaid on the Revolving Maturity Date.”
10. Section 2.3(a) of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Facility II Fee. A fully earned, non-refundable facility fee in the amount agreed upon by the Borrower and the Lender on the First Amendment Effective Date; and”
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11. Section 6.7 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Zero Balance. During each twelve-month period starting on the Effective Date, there shall be not less than one period of at least 30 consecutive Business Days in which the outstanding amount of Advances (exclusive of Letters of Credit) under the Revolving Line shall be Zero Dollars ($0.00).”
12. Section 6.8 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Charter Documents; Management Agreements. (a) Cause the Charter Documents and Management Agreements to remain in full force and effect in the form presented to Lender as of the Effective Date, except for changes that would not reasonably be expected to affect materially and adversely (i) its right or ability to receive Management Fees or Incentive Fees or the amount of Management Fees or Incentive Fees otherwise payable thereunder or (ii) its ability to satisfy its obligations under this Agreement; (b) enforce all of its material rights and obligations under the Management Agreements; and (c) cause the Funds to maintain each Partnership Agreement in full force and effect in the form presented to Lender on the Effective Date, except for amendments that do not adversely affect the right or ability (i) to pay Management Fees or Incentive Fees in the amounts otherwise payable thereunder or make or enforce Capital Calls, (ii) to receive Capital Contributions and other payments from the Partners, or (iii) to satisfy Borrower’s obligations under this Agreement. For the avoidance of doubt, financing arrangements of any Funds that include a pledge of Capital Commitments and actions taken in support of such pledge do not constitute a violation of this Section 6.8 or other provisions of this Agreement. Notwithstanding the above, Borrower may take any action prohibited by this Section 6.8 so long as: (i) no Event of Default has occurred and is continuing or would result from such action, (ii) such action would not reasonably be expected to adversely affect the ability of Borrower to satisfy its obligations hereunder, and (iii) the aggregate Flexibility Actions do not exceed the Flexibility Cap at such time.”
13. Section 7.8 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Management Fees. Permit any provision in any Charter Document or Management Agreement to be amended or waived in a way that reduces or postpones the payment of any Management Fees; direct Management Fees to any other Person; waive or defer payment of any Management Fees permit any Affiliate to take any action with respect to Management Fees that could be reasonably likely to be adverse to Lender; provided, however, notwithstanding the above, Borrower may take any action prohibited by this Section 7.8 so long as: (i) no Event of Default has occurred and is continuing or would result from such action, (ii) such action would not reasonably be expected to adversely affect the ability of Borrower to satisfy its obligations hereunder, and (iii) the aggregate Flexibility Actions do not exceed the Flexibility Cap at such time.”
14. Section 8.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Facility I; Facility III. If an Event of Default occurs under Facility I or Facility III.”
15. Exhibit A to the Loan Agreement is hereby amended and restated in its entirety in the form set forth hereto as Exhibit A.
16. Exhibit B to the Loan Agreement is hereby amended and restated in its entirety in the form set forth hereto as Exhibit B.
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17. Exhibit C to the Loan Agreement is hereby amended and restated in its entirety in the form set forth hereto as Exhibit C.
18. Exhibit D to the Loan Agreement is hereby amended and restated in its entirety in the form set forth hereto as Exhibit D.
19. Exhibit F to the Loan Agreement is hereby amended and restated in its entirety in the form set forth hereto as Exhibit F.
20. Exhibit G hereto is hereby incorporated into the Loan Agreement as Exhibit G to the Loan Agreement in the appropriate alphabetical sequence.
21. Schedule I to the Loan Agreement is hereby amended and restated in its entirety in the form set forth hereto as Schedule I.
22. The Loan Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of any party under the Loan Agreement, as in effect prior to the date hereof. Borrower ratifies and reaffirms the continuing effectiveness of all promissory notes, guaranties, security agreements, mortgages, deeds of trust, environmental agreements, and all other instruments, documents and agreements entered into in connection with the Loan Agreement in each case as amended to date, including any amendments made substantially concurrently with this Amendment.
23. Borrower represents and warrants that the representations and warranties contained in the Loan Agreement are true and correct as of the date of this Amendment and that, upon execution and delivery of this Amendment, no Event of Default has occurred and is continuing.
24. This Amendment may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same agreement. A signed copy of this Amendment transmitted by a party to another party via facsimile or an emailed “pdf” version shall be binding on the signatory thereto. Notwithstanding the delivery of the faxed or emailed copy, the Credit Parties agree to deliver to Lender original executed copies of this Amendment.
25. As a condition to the effectiveness of this Amendment, Lender shall have received, in form and substance satisfactory to Lender, the following:
(a) Formal credit approval by First Republic Bank;
(b) this Amendment duly executed by the Borrower;
(c) Borrower’s payment of (i) an amendment fee in the amount of $37,500.00 (such amount to be debited from account no. on the First Amendment Effective Date) and (ii) all other fees and Lender Expenses through the date hereof; and
(d) such other documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate.
[Signatures on following page.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.
BORROWER:
XXXXXXXX XXXX ADVISORS, L.L.C.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Chief Financial Officer
LENDER:
FIRST REPUBLIC BANK
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Practice Leader Private Equity Finance
EXHIBIT A
1. Financial Statements. Borrower shall deliver to Lender annual financial statements (including balance sheet and income statements) for Xxxxxxxx Xxxx Incorporated, which financial statements shall be audited by Ernst & Young LLP or other independent certified public accountant reasonably acceptable to Lender and (b) company-prepared annual financial statements (including balance sheet and income statements) for Borrower, in each case within ninety (90) days after the end of each of Borrower’s fiscal years.
2. Financial Statements. Borrower shall deliver to Lender annual financial statements (including balance sheet and income statements) within one hundred eighty (180) days after the end of each Fund’s fiscal years (to the extent the Fund is audited) for such Fund (in each case, to the extent such Fund accounts for 5% or more of Borrower’s aggregate revenue as of the end of the most recently completed fiscal year, and with respect to all other Funds, upon the request of the Lender).
3. Interim Financial Statements. Borrower shall deliver to Lender company-prepared quarterly financial statements (including balance sheet and income statements) within forty-five (45) days after the end of each quarter referenced below certified by Borrower’s chief financial officer or another officer or representative acceptable to Lender. Quarterly financials shall be delivered for the first three (3) fiscal quarters.
4. Compliance Certificate. Within forty-five (45) days after the end of the first three (3) fiscal quarters and ninety (90) days after the end of each of Borrower’s fiscal years, deliver to Lender a Compliance Certificate signed by a Designated Representative in the form of Exhibit D.
5. Other Financial Statements. Upon filing of any financial statements or reporting as required to be publicly filed by Borrower, a copy of such financial statement or reporting.
6. Flexibility Actions. Borrower shall give written notice to Lender of any Flexibility Action promptly after such Flexibility Action is taken. Any Flexibility Action taken by Borrower will be deemed a representation by Borrower that the conditions precedent therefore were satisfied.
7. Minimum Annual Management Fees. Borrower shall, as at each March 31 and September 30 (each a “test date”) have collected for the six month period ending on such test date, on a consolidated basis, Fund Management Fees equal to the greater of (a) $87,500,000 and (b) an amount equal to 80% of the collected sum of contractually based Fund Management Fees, for the immediately preceding six month period, tested semi-annually, commencing on September 30, 2020.
8. Minimum Adjusted EBITDA. Borrower shall, as at each March 31 and September 30 (each a “test date”) maintain at least a minimum trailing six month Adjusted EBITDA minus dividend distributions (other than tax distributions), as at such test date, equal to the greater of (a) $40,000,000 and (b) an amount equal to 80% of the trailing six month Adjusted EBITDA minus dividend distributions (other than tax distributions), for the immediately preceding six month period, tested semi-annually, commencing September 30, 2020.
9. Minimum Tangible Net Worth. Minimum Tangible Net Worth shall be greater than or equal to the amount set forth in the column “Tangible Net Worth” as at the end of the applicable fiscal year.
Fiscal year | Tangible Net Worth |
2019 | $39,700,000 |
2020 | $100,000,000 |
2021 | $110,000,000 |
2022 | $120,000,000 |
2023 | $135,000,000 |
2024 | $145,000,000 |
2025 | $160,000,000 |
2026 | $175,000,000 |
2027 | $195,000,000 |
2028 | $215,000,000 |
2029 | $235,000,000 |
10. No Additional Indebtedness. Without the prior written consent of Lender, Borrower (a) shall not directly or indirectly incur Indebtedness for borrowed money excluding (i) debts as of the date of this Agreement that were previously disclosed in writing to Lender (other than those that are being paid substantially concurrently with the funding of the Loan), (ii) other borrowing from Lender, including for the avoidance of doubt Facility I and Facility III, (iii) unsecured debt incurred in the normal course of business and for the avoidance of doubt, (iv) purchase money debt and capital leases in the ordinary course of business, and (b) shall not directly or indirectly make, create, incur, assume or permit to exist any guaranty of any kind of any Indebtedness of any other person during the term of this Agreement, excluding any guaranties as of the date of this Agreement previously disclosed in writing to Lender.
11. Notification of Transfers. Borrower shall notify Lender within 30 days of any transfer of Partner’s interests in any Funds whose Capital Commitment is greater than $10,000,000.
EXHIBIT B
LOAN PAYMENT/ADVANCE REQUEST FORM
Deadline for next business day processing is Noon Pacific Time
Fax To: Date: _____________________
BORROWER:
LOAN PAYMENT:
From Account #________________________________ To Account ______________________________________
(Deposit Account #) (Loan Account #)
Principal $___________________________ and/or Interest $_____________________________________________
Authorized Signature: Phone Number:
Print Name/Title:
LOAN ADVANCE:
From Account #________________________________ To Account ______________________________________
(Loan Account #) (Deposit Account #)
Amount of Advance $___________________________
All Borrower’s representations and warranties in the Agreement are true, correct and complete in all material respects on the date of the request for an Advance.
Authorized Signature: Phone Number:
Print Name/Title:
EXHIBIT C
COLLATERAL DESCRIPTION
The Collateral consists of all of Borrower’s personal property now owned or hereafter acquired, including without limitation all equipment, contract rights, intellectual property, general intangibles, commercial tort claims, accounts, Management Fees, Incentive Fees, inventory, documents, cash, instruments, deposit accounts, securities, securities entitlements, securities accounts, Account, investment property, financial assets, letters of credit, letter of credit rights, certificates of deposit, instruments and chattel paper and electronic chattel paper; all Borrower's Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions and accessions to and proceeds thereof, provided, however, Collateral shall exclude Excluded Assets.
Notwithstanding the foregoing, in no event shall the Collateral include or the security interest granted under this Agreement attach to any of the following (“Excluded Assets”) (a) any lease, license, contract or agreement to which Borrower is a party, and any of its rights or interest thereunder, if and to the extent that a security interest is prohibited by or in violation of (i) any law, rule or regulation applicable to the Borrower or (ii) a term, provision or condition of any such lease, license, contract or agreement (unless such law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, however, that the Collateral shall include (and such security interest shall attach) immediately at such time as the contractual or legal prohibition shall no longer be applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract or agreement not subject to the prohibitions specified in (i) or (ii) above; provided further that the exclusions referred to in clause (a) of this paragraph shall not include any Proceeds of any such lease, license, contract or agreement; (b) in the case of a foreign subsidiary that is treated as a “controlled foreign corporation” for U.S. federal income tax purposes, any of the outstanding capital stock of such foreign subsidiary entitled to vote representing in excess of 65% of the voting power of all classes of capital stock of such foreign subsidiary entitled to vote, so long as a pledge in excess of 65% of the voting power of such foreign subsidiary would result in adverse tax consequences to Borrower or its beneficial owners under Section 956 of the Internal Revenue Code (or any successor provision); provided that immediately upon the amendment of the Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a foreign subsidiary without adverse tax consequences, the Collateral shall include, and the security interest granted by the Borrower shall attach to, such greater percentage of capital stock of each foreign subsidiary; and provided, further, that in no event shall the Collateral include capital stock of a foreign subsidiary or controlled foreign corporation to the extent that the grant of a security interest therein would require the approval of, or consultation with, a local securities regulator or other regulatory or governmental authority, or otherwise result in any burdensome undertaking or obligation by the Borrower, pursuant to local law or otherwise; (c) any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System) ; (d) for avoidance of doubt, equity interests, general partnership interests or assets of Funds, including any assets of a Fund held by Borrower or any assets of Borrower , to the extent the grant of a security interest therein would violate or otherwise result in a default under any organizational or governing document of any Fund or the general partner thereof; (e) any rights or interests in Funds required or deemed necessary to be held by Borrower pursuant to the terms of the applicable Fund organizational documents, any related agreement or applicable law, rule or regulation; (f) equity interests, including general partnership interests, in any joint venture or other non-wholly owned subsidiary to the extent the grant of a security interest therein would violate or otherwise result in a default under any organizational document, governing document or agreement among equity holders of such joint venture or non-wholly owned subsidiary or require the consent of any other equity holder thereof or other third party (unless (x) such document, agreement or requirement of a consent would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity, and (y) no adverse consequence to the Borrower under such organizational document, governing document or agreement among equity holders would result from such grant of security); (g) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (h) those assets as to which the Lender and Borrower reasonably agree in writing that the cost of obtaining such a security interest or perfection thereof is excessive in relation to the benefit to the Lender of the security to be afforded thereby; (i) capital assets subject to capital leases or purchase money liens, in each case to the extent (x) such capital lease or purchase money lien is permitted hereunder and (y) a lien on such capital assets is prohibited by the documents providing for the capital lease or purchase money lien; or (j) payroll accounts and escrow accounts. For avoidance of doubt, Borrower’s economic interests in the equity of general partners of Funds constitute Collateral, but Borrower’s voting and other consensual rights and management and control-related interests in such equity are Excluded Assets.
EXHIBIT D
COMPLIANCE CERTIFICATE
TO: First Republic Bank Date:
FROM: Xxxxxxxx Xxxx Advisors, L.L.C.
The undersigned authorized officer certifies on behalf of all Borrower that under the terms and conditions of the Revolving Loan and Security Agreement between Borrower and Lender (the “Agreement”), (1) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no Credit Extensions may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement.
Please indicate compliance status by circling Yes/No under “Complies” column. | ||
Reporting Covenant | Required | Complies |
Internally prepared financial statement | Quarterly within 45 days (other than Q4) | Yes No |
Annual financial statement (Borrower) | FYE within 90 days | Yes No |
Annual financial statement (Funds) | FYE within 180 days | Yes No |
Partnership interest transfer (>$10,000,000) | Within 30 days from transfer | Yes No |
List of Capital Contributions delinquent for more than 30 days (>$1,000,000) | Immediately | Yes No |
Compliance certificate | [Annually][Quarterly] within [90][45] days | Yes No |
Flexibility Action taken? Yes No | If Yes, provide amount:: $[__________] | Under Flexibility Cap? Yes No |
Financial Covenant | Required | Actual | Complies |
Minimum Annual Management Fees | Greater of (a) $87,500,000 and (b) an amount equal to 80% of the collected sum of contractually based Fund Management Fees, for the immediately preceding six month period (semiannual) | $_____ | Yes No |
No Additional Debt | None | $_____ | Yes No |
Minimum Adjusted EBITDA less dividends (other than tax dividends) | Greater of (a) $40,000,000 and (b) an amount equal to 80% of the trailing six month Adjusted EBITDA minus dividend distributions (other than tax distributions), for the immediately preceding six month period (semiannual) | $_____ | Yes No |
Minimum Tangible Net Worth | $_____ | $_____ | Yes No |
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XXXXXXXX XXXX ADVISORS, L.L.C.
By: __________________________________
Name:________________________________
Title: ________________________________
EXHIBIT F
LIST OF FUNDS
[Attached]
EXHIBIT G
FORM OF EXTENSION REQUEST
FORM OF EXTENSION REQUEST
[DATE]
First Republic Bank
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Commercial Loan Operations
Telephone: 000-000-0000
Email: xxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Commercial Loan Operations
Telephone: 000-000-0000
Email: xxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
RE: | That certain Revolving Loan and Security Agreement dated August 23, 2017 (the “Effective Date”), between FIRST REPUBLIC BANK (“Lender”) and XXXXXXXX XXXX ADVISORS, L.L.C., a Pennsylvania limited liability company (“Borrower”) (as amended, restated, supplemented or otherwise modified from time to time, (the “Loan and Security Agreement”). Capitalized terms not defined herein shall have the meanings assigned to such terms in the Loan and Security Agreement. |
Ladies and Gentlemen:
This facility extension request (this “Request”) is executed and delivered by the Borrower to the Lender pursuant to Section 2.1.1(b) of the Loan and Security Agreement.
1.The Borrower hereby requests an extension of the Revolving Maturity Date to [DATE] (the “Facility Extension”).
2.In connection with this Request, the Borrower hereby represents, warrants and certifies to the Lender that:
(a) As of the effective date of such extension and immediately after giving effect thereto, the representations and warranties set forth in the Loan and Security Agreement and the other Loan Documents are true and correct in all material respects with the same force and effect as if made on and as of such date (except to the extent that such representation and warranty is qualified as to materiality, with respect to such representation or warranty, the foregoing materiality qualifier shall be disregarded for the purposes of this condition, or such representation and warranty relates to an earlier date, in which case such representation and warranty is true and correct in all material respects as of such earlier date);
(b) On and as of the date hereof or will exist on the date any request herein becomes effective no Default or Event of Default shall have occurred and be continuing; and
(c) After any request herein becomes effective the aggregate outstanding Credit Extensions will not exceed the Revolving Line.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The undersigned hereby certifies each and every matter contained herein to be true and correct.
BORROWER:
XXXXXXXX XXXX ADVISORS, L.L.C.
XXXXXXXX XXXX ADVISORS, L.L.C.
By:
Name:
Title:
ACCEPTED AND AGREED:
First Republic Bank
By:
First Republic Bank
By:
Name:
Schedule I to Revolving Loan and Security Agreement
The name of Borrower is (attach a copy of the formation documents): Xxxxxxxx Xxxx Advisors, L.L.C.
Borrower’s State of formation: Pennsylvania
Borrower has operated under only the following other names (if none, so state):
None
Borrower has deposit accounts and/or investment accounts located only at the following institutions:
Please see attached.
List Acct. Numbers: Please see attached.
Liens existing on the Effective Date and disclosed to and accepted by Lender in writing:
None
Investments existing on the Effective Date and disclosed to and accepted by Lender in writing:
Bison Illiquid Securities Offering Network, Inc (Bison), Private Market Connect,
Canoe Software, LegalApp Holdings Inc., Institutional Capital Network, Inc.
Indebtedness on the Effective Date and disclosed to and consented to by Lender in writing:
First Republic Bank Term Loan and Revolving Loan
Borrower is not subject to litigation which would have a material adverse effect on the Borrower’s financial condition, except the following (attach additional comments, if needed):
None
Tax ID Number 00-0000000
Organizational Number, if any: 2816405
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