Obligor: | A-Mark Precious Metals, Inc. |
Type: | Uncommitted guidance facility. |
Purpose: | To provide secured Accommodations based upon Collateral Value, as defined in the Intercreditor Agreement (as described herein), for the purpose of financing (a) the purchase of precious metals and coins inventory (collectively “Product”) and the receivables arising therefrom, (b) the making of loans to Collateral Finance Corporation (as described herein), and (c) such other included assets to support certain working capital requirements of the Obligor’s activities. |
And Maturity: | No request for any Accommodation may be made after May 31, 2016, unless the Bank, in its sole discretion and without any obligation to do so, extends such date. |
Availability: | Up to the lower of (i) US$40,000,000 (“Maximum Amount”) and (ii) the amount the by which the Collateral Value (as defined in the Intercreditor Agreement) exceeds the aggregate amount (the “Other Lender Accommodations”) of Outstanding Credits (as defined in the Intercreditor Agreement) of the Other Lenders (as defined below). The value of Other Lender Accommodations shall be set forth on the face of each Collateral Report (as defined below). |
Collateral Report: | “Collateral Report” shall mean the Collateral Report (as defined in the Intercreditor Agreement) together with the schedules attached to such report. |
Prepayments: | Mandatory Prepayments. If at any time the Accommodations shall exceed the Maximum Availability (either based on the most recent Collateral Report or as determined by the Bank it is sole discretion if the Obligor fails to deliver the same) then the Obligor shall, upon the demand of the Bank, repay Accommodations such that, after giving effect thereto, such excess above the Maximum Availability shall no longer exist. |
Administrative Costs: | If (i) any payment of principal of any Advance is made other than on the last day of an interest period for such Advance as a result of (x) any optional or mandatory prepayment, (y) the acceleration of the maturity of the Advances, or (z) for any other reason or (ii) the Obligor fails to make a principal or interest payment with respect to any Advance on the date such payment is due and payable (including, without limitation, pursuant to an optional prepayment), the Obligor shall pay to the Bank any amounts required to compensate the Bank for any additional losses, out-of-pocket costs, or expenses which it may reasonably incur as a result of such prepayment or nonpayment, including, without limitation, any loss (excluding loss of anticipated profits), cost, or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Bank to fund or maintain such Advance. |
Other Requirements: | The following criteria, in addition to any other requirements that may be imposed by the Bank at its sole discretion from time to time, must be satisfied with respect to a requested Accommodation, unless otherwise approved by the Bank in its sole discretion: |
a) | Each Accommodation made available to the Obligor that is associated with a purchase of goods shall be based on a purchase and sale by the Obligor for its own account and not for or on behalf of any other entity. |
b) | Any and all payments by the Obligor which may become due and payable to the Bank hereunder shall be made without setoff, counterclaim or deduction of any nature whatsoever and free and clear of, and without withholding or deduction for, any and all present or future taxes, levies, imposts or duties imposed by any government or any political subdivision thereof. If any taxes are imposed and required by law to be paid or withheld from any amount payable to the Bank |
c) | If any payment to be so made hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day and, to the extent permitted by applicable law, interest thereon shall be payable at the then applicable rate during such extension. |
d) | All payments made in connection with an Advance shall be applied first to the payment of all fees, expenses and other amounts due to the Bank in connection with such Advance (excluding principal and interest), then to accrued interest, and the balance on account of outstanding principal; provided, however, that following any stated or any accelerated maturity of Advances hereunder, payments will be applied to the obligations of the Obligor to the Bank as the Bank determines in its sole discretion. |
Interest: | Without undertaking to make any Advance and without agreeing to any particular rate of interest or fees, the Bank notes for the Obligor’s information that the following will apply until further notice by the Bank: |
(a) | Advances shall bear interest at a rate to be agreed upon on a case-by-case basis, in the Bank’s sole discretion, with respect to each Advance, expressed as a percentage equal to (x) the BNPP Rate (as defined below) plus (y) the Applicable Margin (as defined below). |
(b) | Interest shall be payable on the earlier of demand, or if no demand has been made, monthly in arrears, on the maturity date of the Advance and on the date of repayment of each Advance. |
(c) | Any principal, interest, fee or other amount not paid when due hereunder shall bear interest until paid in full at a per annum rate equal to ___%* above the BNPP Rate (plus the Applicable Margin if applicable to the overdue amount) and shall be payable upon demand. |
Documentation Fee: | A fee in an amount of $5,000 shall be payable by the Obligor to the Bank upon execution of this Facility Letter as compensation to the Bank in connection with preparation of Facility Documents. The Bank reserves the right to request additional documentation fees in connection with the preparation of any amendment or modification of any of the same after the execution thereof. The Obligor acknowledges that the payment of such fee(s) is non-refundable and shall not change the uncommitted nature of the facility contemplated herein and shall not require the Bank to provide any Accommodations to the Obligor. |
Interest and Fees: | All interest and fees shall be calculated on a year of 360 days and days actually elapsed. |
Security Interest: | The Obligor’s obligations to the Bank will be secured by a perfected security interest in all personal property and fixtures of the Obligor as more fully described in Intercreditor Agreement and the Second Amended and Restated General Security Agreement, dated September 4, 2014 (the “General Security Agreement”), executed by the Obligor in favor of Brown Brothers Harriman & Co. (BBH) in its capacity as agent on behalf of the lenders party to the Intercreditor Agreement (the “Secured Parties”). All other financial institutions which extend credit to the Company and which have security interests in the personal property of the Company will be joined to the Intercreditor Agreement. |
Documentation: | The documentation governing the Facility shall include, but not be limited to, the following: |
a) | This Uncommitted Facility Letter; |
b) | The Intercreditor Agreement; |
c) | The General Security Agreement ; |
d) | Amended and Restated Demand Promissory Note (as amended, supplemented or otherwise modified from time to time, the “Note”); |
e) | Funds Transfer Agreement / Payment Authorization Agreement; |
f) | Legal opinion from counsel for Obligor in form and substance satisfactory to the Bank; |
g) | For each Advance, a completed and duly executed borrowing request (each, a “Borrowing Request”), in the form of Exhibit A attached hereto, satisfactory to the Bank in its sole discretion, to be delivered to the Bank no later than 2 pm New York Time on the date of such Borrowing Request (or as otherwise may be required by the Bank from time to time); and |
h) | Such other documentation as the Bank may request from time to time. |
a) | Corporate Resolutions (including incumbency certification) or their equivalent of the Obligor; |
b) | Certified copy of Articles of Incorporation and By-laws (or their equivalent) of the Obligor; |
c) | Certificate of Good Standing for Obligor; and |
d) | Signature Cards. |
Futures Contracts: | This Uncommitted Facility Letter does not outline the terms of any facility which might be made available to the Obligor (i) by the Bank’s Commodity Derivatives Group (“CDG”) on an uncommitted basis for the purpose of entering into over-the-counter commodity swaps with CDG and/or (ii) by BNP Paribas Prime Brokerage, Inc., Commodity Futures Division (“PBI”) on an uncommitted basis for the purpose of entering into futures contracts with PBI. Any facility made available by CDG or PBI to the Obligor would be subject, among other things, to documentation and such terms and conditions as are approved by CDG and PBI, respectively. The Obligor acknowledges that none of the “Collateral” under the Agent Security Agreement shall satisfy or be deemed to satisfy any obligation of the Obligor to CDG or PBI to provide margin or other payment or to deliver credit support, posted collateral or similar security under the terms of any ISDA Master Agreement, Credit Support Annex or similar agreement between CDG and Obligor (collectively the “CDG ISDA Documents”) or any Customer Agreement or similar agreement with PBI (collectively, “PBI Futures Documents”) except for cash or other property delivered by Obligor specifically in satisfaction of such obligation under the terms of the relevant CDG ISDA Documents or the PBI Futures Documents, as the case may be. The Obligor further acknowledges that PBI (and for the avoidance of doubt, CDG) is entitled to benefit from the provisions of the preceding sentences, notwithstanding that it is not a party hereto. |
Notifications: | All notices and other communications provided for hereunder and under the other Facility Documents shall be in writing and, except as otherwise specified, mailed, telecopied, or delivered, if to the Obligor, at its address at 429 Santa Monica Blvd., Suite 230, Santa Monica, CA 90401, Attention: Thor Gjerdrum (telecopier no. (310) 260-0368), and if to the Bank, at its address at 787 Seventh Avenue, New York, New York 10019, Attention: Ms. Deborah Whittle (telecopier no. (212) 841-2536); or as to each party, at such other address or telecopy number as shall be designated by such party in a written notice to the other parties. Except as otherwise specified herein or in any other Facility Document, all such notices and communications shall, when mailed (postage prepaid), telecopied (upon receipt of evidence of transmission) or sent by hand delivery or other courier or delivery service, be effective when telecopied or delivered to the recipient, or five (5) Business Days after being deposited in the mails. |
Guidelines: | At all times, the Obligor shall maintain a combined financial condition satisfactory to the Bank, in its sole discretion, characterized by, but not limited to, satisfying the following financial guidelines (“Financial Guidelines”): |
a) | The Obligor shall not permit at any time the sum of Tangible Net Worth plus Subordinated Debt of the Obligor and its consolidated subsidiaries on a consolidated basis to be less than US$35,000,000. |
b) | The Obligor shall not permit at any time the ratio of (i) outstanding obligations from Lenders (“Bank Debt”), to (ii) Working Capital to exceed 5:1 with respect to the Obligor and its consolidated subsidiaries (on a consolidated basis). |
c) | The Obligor shall not permit at any time the ratio of Total Liabilities to Working Capital to exceed 10:1 with respect to the Obligor and its consolidated subsidiaries (on a consolidated basis). |
d) | The Obligor shall not permit at any time the Working Capital to be less than $35,000,000. |
(i) | The total book value of all assets of such person or entity and its subsidiaries properly classified as intangible assets under generally accepted accounting principles, including such items as goodwill, the purchase price of acquired assets in excess of the fair market value thereof, trademarks, trade names, service marks, brand names, copyrights, patents and licenses, rights with respect to the foregoing, organizational or developmental expenses, and all unamortized debt discount and expenses; plus |
(ii) | All amounts representing any write-up in the book value of any assets of such person or entity or its subsidiaries resulting from a revaluation thereof subsequent to June 2014; plus |
(iii) | To the extent otherwise included in the compilation of Tangible Net Worth, any subscription receivable; plus |
(iv) | Investments in and receivables and other obligations from subsidiaries and other Affiliates; plus |
(v) | Any deferred charges, deferred taxes, prepaid expenses and treasury stock. |
Solvency: | Obligor represents, warrants, and covenants (and shall be deemed to have represented, warranted, and covenanted at each request for an Accommodation) that the making of any Accommodation hereunder and the other transactions contemplated hereby will not involve or result in any fraudulent transfer or fraudulent conveyance under the provisions of Section 548 of the Bankruptcy Code (11 U.S.C. § 101 et seq., as from time to time hereafter amended, and any successor or similar statute) or any applicable state or other law respecting fraudulent transfers or fraudulent conveyances. As of the date hereof, and as of the date of, and after giving effect to the making of, any Accommodation, the Obligor is Solvent. “Solvent” means, with respect to any entity and its subsidiaries on a particular date, that on such date (a) the fair value of the property of such entity and its subsidiaries on a consolidated basis is greater than the total amount of liabilities, including contingent liabilities, of such entity and its subsidiaries on a consolidated basis, (b) the present fair salable value of the assets of such entity and its subsidiaries on a consolidated basis is not less than the amount that will be required to pay the probable liability of such entity and its subsidiaries on a consolidated basis on its debts as they become absolute and matured, (c) such entity does not intend to, and does not believe that it or its subsidiaries will, incur debts or liabilities beyond the ability of such entity and its subsidiaries to pay as such debts and liabilities mature, and (d) such entity and its subsidiaries on a consolidated basis are not engaged in business or transaction, and such entity and its subsidiaries on a consolidated basis are not about to engage in business or transaction, for which the property of such entity and its subsidiaries on a consolidated basis would constitute unreasonably small capital. |
Conditions: | a) The Obligor shall provide the Bank with monthly management financial statements promptly upon such statements becoming available, but in any event no later than 30 days after the end of each of the first three quarterly periods of each fiscal year of the Obligor, prepared in accordance with GAAP and in a format acceptable to the Bank in its sole discretion, together with a compliance certificate (a |
b) | The Obligor shall provide the Bank with annual audited financial statements prepared by an independent auditor acceptable to the Bank in its sole discretion and in accordance with GAAP (the “Audited Financial Statements”), promptly upon such statements becoming available, but in any event no later than 90 days after the end of each fiscal year of the Obligor, in form and substance acceptable to the Bank in its sole discretion, together with a Compliance Certificate demonstrating compliance with the Financial Guidelines as at the end of such fiscal year; provided, that, if the Obligor’s annual financial statements are provided in a Form 10-K posted on the U.S. Securities and Exchange Commission website at www.sec.gov, then (i) the Bank, in its sole discretion, may determine that such posting satisfies the reporting requirements of this clause (b), and (ii) upon the Bank’s request the Obligor shall deliver to the Bank a Compliance Certificate demonstrating compliance with the Financial Guidelines as at the end of such fiscal year based upon the Audited Financial Statements. |
c) | The Obligor shall provide the Bank with any reports (collectively, “Compliance Reports”) prepared by an independent auditor acceptable to the Bank, with respect to the policies and procedures implemented and maintained by the Obligor to promote and ensure compliance with AML Laws, Sanctions Laws and Anti-Corruption Laws. Such Compliance Reports shall be delivered to the Bank at least once per calendar year and shall be in form and substance acceptable to the Bank in its sole discretion. |
d) | The Obligor shall provide the Bank with such additional written or other information as the Bank may request from time to time and in a format acceptable to the Bank in its sole discretion, including without limitation, Obligor’s trading book and reports of Obligor’s trading positions. |
e) | The Bank or its representative may review and inspect Obligor’s reports, records and assets at the Bank’s discretion. Without limiting the foregoing, the Bank may periodically review the Obligor’s internal controls, credit and risk management practices and policies, trading book and Compliance Reports. The Obligor will or shall cause the Collateral Agent to furnish to the Bank any collateral audit report relative to the Intercreditor Agreement. |
f) | All fees and expenses related to this Facility, including but not limited to Uniform Commercial Code financing statement charges, audit and review charges, inspection fees, lock-box fees (if applicable), custody fees and other bank service fees and reasonable legal fees (including those of Bank’s in-house counsel), will be for the account of the Obligor and may be charged to any of the Obligor’s accounts at the Bank. |
g) | Unless separately consented to in advance by the Bank, dividends, distributions, returns of capital, profit sharing, capital contributions, management fees, or other similar payments may not be paid without ten (10) days prior written notice to the Bank and then only if (i) at the time of (and after giving effect to) any such payment, the Obligor is (and will be) in compliance with the Financial Guidelines, (ii) the |
h) | In no event shall any repayment of any loans and other obligations of the Obligor owed to its shareholder(s) and other affiliates be made unless on the date of such payment, and after giving effect to the same, (i) the Obligor is (and will be) in compliance with the Financial Guidelines referenced above, (ii) the Obligor is (and will be) in compliance with, and not in default under, any of the other terms of this Uncommitted Facility Letter or any of the other Facility Documents to which it is a party, and (iii) the Obligor has made a written representation to the Bank of the same prior to any such payment. |
i) | So long as any Accommodation is outstanding or this Uncommitted Facility Letter is in effect, no liens on assets of the Obligor shall be granted by the Obligor without the prior written consent of the Bank, except for (x) liens permitted by or in accordance with the terms of the Intercreditor Agreement, (y) liens in respect of any real property owned by the Obligor, its subsidiaries or affiliates that appear in the consolidated financial statements of the Obligor as of the date hereof, provided no such lien is intended to secure any indebtedness of the Obligor, and (z) any interest of a lessor in respect of equipment used in the ordinary course of business of the Obligor that are under any leasing or similar arrangement which have been (or, in accordance with GAAP, should be) classified as capitalized leases; |
j) | The Obligor agrees to keep Bank fully informed of its condition (financial and otherwise) and the status of any litigation likely to have a material adverse effect involving the Obligor, any shareholder and/or material affiliate and to promptly advise the Bank of (i) the occurrence of any material adverse change in its business, condition (financial or otherwise) or prospects of the Obligor or (ii) the occurrence and the status of any remedial action by any governmental authority against the Obligor, its Affiliates or any shareholder as a result of a violation of any applicable laws, including, without limitation, AML Laws, Anti-Corruption Laws and Sanctions Laws. |
k) | The Obligor shall not merge or amalgamate with any other party or sell assets other than sales of inventory in the ordinary course of business and other immaterial sales of assets in the ordinary course of business, in each case, without prior written notification to and consent of the Bank. |
l) | The Obligor and its subsidiaries, directly and indirectly, shall continue to engage in the same type of business as they are currently engaged in on the date hereof. |
m) | The Obligor shall not change its fiscal year or its auditors without prior written notice to the Bank. |
n) | The Obligor shall give the Bank prior written notice of payments to be made to subsidiaries, affiliates, or companies under common ownership with the Obligor, excluding payments made in the ordinary course of the Obligor’s business consistent with approved operating practices, and, in each case, the Obligor shall certify in such notice that after giving effect to the making of the proposed payment, the Obligor will in all respects remain in full compliance with the Financial Guidelines set forth herein. |
o) | The Obligor shall not modify its risk management policies without the prior written consent of the Bank. |
p) | In the event a default occurs under any other debt facility maintained for the benefit of the Obligor, the Obligor shall notify the Bank in writing within one (1) Business Day of such occurrence of the nature of the details underlying such default and the debt facility with respect to which it has occurred. |
q) | As soon as possible, and in any event within one (1) Business Day, after the occurrence of each Event of Default (as defined herein) and each event which, with the giving of notice or passing of time, or both, would constitute an Event of Default (and such event is continuing), the Obligor shall deliver to the Bank a statement of the chief financial officer of the Obligor setting forth the details of such Event of Default or event and the action which the Obligor has taken and proposes to take with respect thereto. |
r) | The Obligor shall take all action necessary to insure that the Obligor’s obligations under this Uncommitted Facility Letter and the other the Facility Documents rank, and will continue to rank, at least pari passu in respect of priority of payment with the Obligor’s highest ranting indebtedness. |
s) | The Obligor shall promptly notify the Bank of any material adverse change in the condition or operations of the Obligor or its subsidiaries, financial or otherwise, or any default under any other agreement, instrument or document relating to the Obligor’s indebtedness. |
t) | The Obligor shall provide to Bank such other documentation and/or information as Bank may reasonably request in connection with the Facility. |
u) | The Obligor shall not make or permit any advance or investment (“Investment”) to or in any person or entity or any guarantee thereof other than those Investments currently disclosed without prior written notice to the Bank and so long as (i) at the time of (and after giving effect to) any such advance or investment, the Obligor is (and will be) in compliance with the Financial Guidelines, (ii) the Obligor is (and will be) in compliance with, and not in default under, any of the terms and conditions of this Uncommitted Facility Letter and the other Facility Documents to which it is a party. |
Warranties: | The Obligor represents and warrants, as of the date hereof, as of the date of any request for an Accommodation, and as of the date of funding or issuance, as applicable, of any Accommodation, that: |
a) | It is a corporation duly organized and existing under the laws of the state of its incorporation and is duly qualified to do business in each jurisdiction where such qualification is required; |
b) | This Uncommitted Facility Letter and the other Facility Documents have been duly authorized, executed and delivered by the Obligor and constitute its valid, legally binding and enforceable obligations in accordance with their terms, subject to bankruptcy, insolvency, moratorium or other laws affecting the rights of creditors generally, and do not contravene or constitute a default under any provision of applicable law or regulation or of the constituent documents of the Obligor or any agreement, judgment, order, decree or other instrument binding on the Obligor; |
c) | No authorization, consent or approval of any governmental body or agency is required to be obtained by the Obligor in connection with the execution, delivery or performance of this Uncommitted Facility Letter or any of the other Facility Documents or any other documentation entered into by it; |
d) | Subject to specific representations set forth below, the Obligor represents and warrants that, to its best knowledge, it is in compliance with all provisions of applicable law, rules and regulations; |
e) | The Obligor’s most recent financial statements delivered to the Bank fairly represent the Obligor’s financial condition as of their date and the results of operations for the periods ended on such date, and are prepared in accordance with generally accepted accounting principles consistently applied; and since such date there has been no material adverse change in such condition or operations; |
f) | Advances shall be only be utilized by the Obligor in accordance with the Purpose set forth herein and in no event shall the Obligor use any part of the proceeds of any Advance to purchase or carry any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or to extend credit to others for the purpose of purchasing or carrying any margin stock; |
g) | There is no pending or (to the best of the Obligor’s knowledge) threatened action or proceeding affecting the Obligor or any subsidiary before any court, governmental agency or arbitrator, and there is no governmental investigations or proceeding pending with respect to our affecting the Obligor or any subsidiary in each case (if adversely determined) could materially adversely effect the Obligor’s or any subsidiary’s financial condition or operations or result in loss, cost, liability or expense to the Obligor or any subsidiary in excess of $500,000 (or the equivalent thereof in another currency) in the aggregate with respect to all such actions, proceedings or investigations; |
h) | The Obligor is not in default under any agreement or instrument with or in favor of the Bank, or under any other agreement or instrument involving the borrowing of money or the advance of credit between the Obligor and any other party; and |
i) | As of the date of this Uncommitted Facility Letter, the Obligor has no subsidiaries except as set forth in Exhibit C attached hereto, and said Exhibit C accurately lists all Affiliates of the Obligor. |
a) | The Obligor is in compliance with the terms of this Uncommitted Facility Letter and the other Facility Documents. |
b) | The information set forth on the Compliance Certificate with respect to the Financial Guidelines is complete and accurate. |
c) | The financial statements accompanying such Compliance Certificate, if any, present fairly in all material respects, the financial condition of the Obligor separately as of date set forth thereon and the related results of operations for the period then ended. |
d) | There is no default or Event of Default occurring or reasonably anticipated to occur under this Uncommitted Facility Letter or any of the other Facility Documents. |
Anti-Corruption: | a) The Obligor represents that neither it, nor any of its subsidiaries or affiliates, nor any of their respective directors or officers, or, to the best of the Obligor’s knowledge, employees or agents is a Sanctions Target. |
b) | The Obligor and represents and covenants that it will not, and shall procure that its subsidiaries and its or their respective directors, officers, employees, affiliates and agents shall not, directly or indirectly, use the proceeds of the Accommodations, or lend, contribute or otherwise make available such proceeds to any subsidiary, other affiliate, joint venture partner or other person or entity, for the purpose of funding or facilitating any business of or with any Sanctions Target or any Sanctioned Country, nor in any other manner, in each case as will result in a violation of any Sanctions Law by, or could result in the imposition of sanctions against, the Obligor, the Bank or its affiliates. |
c) | The Obligor represents that, except as has been disclosed to the Bank in writing, neither the Obligor nor any of its subsidiaries or Affiliates have engaged in any dealings or transactions with or for the benefit of a Sanctions Target, or with or in a Sanctioned Country, in the preceding three years, nor do the Obligor or any of its Affiliates or subsidiaries have any plans to increase its dealings or transactions with Sanctions Targets or Sanctioned Countries. |
d) | The Obligor represents that (i) none of the Obligor or any of its Affiliates or subsidiaries nor any of their respective directors or officers, or, to the best of the Obligor’s knowledge, employees or agents have engaged in any activity or conduct that would result in a violation of, or be sanctionable under, any Sanctions Laws, and (ii) there are not pending, nor to the best of the Obligor’s knowledge, threatened, claims, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Obligor or any of |
e) | (i) The Obligor and its subsidiaries, directors, officers, employees, affiliates and agents are in compliance with all anti-money laundering laws, rules, regulations and orders of jurisdictions applicable to the Obligor or its subsidiaries (collectively, “AML Laws”), including without limitation, the USA PATRIOT Act (as hereinafter defined); (ii) to the best of the Obligor’s knowledge, no investigation, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator, involving the Obligor or any of its subsidiaries, directors, officers, employees, affiliates and agents, with respect to AML Laws is currently pending or threatened; and (iii) the Obligor agrees to provide the Bank with all information reasonably required by the Bank to carry out its obligations under applicable AML Laws and the Bank’s AML policies and procedures. |
f) | The Obligor, its subsidiaries, directors, officers, employees, affiliates and agents, in each case, acting on the Obligor’s or its subsidiaries’ behalf, have not corruptly paid, offered or promised to pay, or authorized payment of any monies or a thing of value, directly or indirectly, to any person, including without limitation any government official (including employees of government-owned or -controlled entities or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing) or any political party or party official or candidate for political office, for the purpose of obtaining or retaining business, or directing business to any person, or obtaining any other improper advantage, in each case in violation of the U.S. Foreign Corrupt Practices Act or any other applicable anti-bribery or anti-corruption law, rule or regulation (collectively, “Anti-Corruption Laws”), and to the best of the Obligor’s knowledge, no investigation, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator, involving the Obligor or any of its respective subsidiaries, directors, officers, employees, affiliates or agents, with respect to Anti-Corruption Laws, is currently pending or threatened. |
g) | The Obligor covenants that it will, and will cause its respective subsidiaries to (i) maintain in effect and enforce policies and procedures designed to ensure compliance by the Obligor, its subsidiaries, directors, officers, employees, affiliates and their agents with Anti-Corruption Laws, AML Laws and applicable Sanctions Laws, (ii) ensure at all times the truth and accuracy of the representations and warranties, and adherence to, the covenants, set forth in clauses (a) through (f) above, and (iii) provide to the Bank all documentation and other information requested by the Bank from time to time to demonstrate or certify compliance with such representations, warranties and covenants. |
Capital Adequacy: | The Obligor further agrees that if the Bank shall have determined that the adoption or implementation of any law, rule, regulation or guideline regarding capital adequacy, capital maintenance or similar requirement or any change therein or in the interpretation or application thereof or compliance by the Bank or any corporation controlling the Bank with any request, guideline, policy or directive regarding capital adequacy (whether or not having the force of law) from any central bank or comparable entity or any governmental authority has the effect of reducing the rate of return on the Bank or on the Bank's controlling corporation's capital as a consequence of, and to the extent of, this Uncommitted Facility Letter or any Advance hereunder, to a level below that which the Bank or the Bank's controlling corporation could have achieved but for such adoption, implementation, change or compliance (taking into consideration the Bank's and its controlling corporation's policies with respect to capital adequacy) then from time to time, upon the Bank's demand, including an explanation of the calculation thereof, the Obligor shall pay to the Bank such additional amount or amounts as the Bank determines will compensate it for such reduction, the Bank's determination to be conclusive, absent manifest error. |
Increased Costs: | The Obligor hereby agrees that if the Bank shall have determined that the adoption of any applicable law, rule, regulation or treaty, or any change therein, or any change in the interpretation or administration thereof by any governmental authority charged with the interpretation or administration thereof, or compliance by the Bank with any request, policy, guideline or directive (whether or not having the force of law) of any monetary, fiscal or other authority shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, assessment or insurance fee or similar requirement (including any such requirement imposed by the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency of the United States of America (or any successor agency) or the Federal Reserve Board) against assets of, deposits with or for the account of, or credit extended by, the Bank or shall subject the Bank to any taxes with respect to this Uncommitted Facility Letter or any Advance or |
Remedies: | Without limiting the right of the Bank to demand payment of Advances or other extensions of credit or the right of the Bank to terminate this Uncommitted Facility Letter and/or decline to make any Advance or other extensions of credit hereunder, if any default (as set forth in any of the Facility Documents, each an “Event of Default”) shall occur and be continuing, the Bank may, by notice to the Obligor, declare all Advances and reimbursement obligations and all accrued interest thereon to be forthwith due and payable, whereupon the Advances and all such interest shall become forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Obligor. The Obligor hereby expressly authorizes the Bank, at any time and from time to time, without notice to the Obligor or to any other person or entity, any such notice being expressly waived by the Obligor, to setoff and apply any and all deposits (general or special) and other indebtedness or sums at any time held, credited or owing by the Bank to or for the credit or account of the Obligor, in any currency and whether or not due, to the payment of the Obligor’s liabilities and obligations under this Uncommitted Facility Letter and the other Facility Documents, irrespective of whether or not the Bank shall have made any demand hereunder or thereunder and although said obligations or liabilities, or any of them, shall be contingent or unmatured. All of the foregoing is subject to the terms and provisions of the Intercreditor Agreement. |
Beneficiaries: | The terms and provisions of this Uncommitted Facility Letter and any of the other Facility Documents shall create no right in any person, firm or corporation other than the Obligor and the Bank and no third party shall have the right to enforce or benefit from the terms hereof or thereof. |
Confidentiality: | The Obligor agrees that the terms and provisions of this Uncommitted Facility Letter and the other Facility Documents are confidential and may not be disclosed by the Obligor to any other person (except as required by applicable law, regulation or judicial process) other than the Obligor’s accountants, attorneys and other advisors and only in connection with the transactions contemplated by this Uncommitted Facility Letter and on a confidential basis unless specifically approved by the Bank. |
Records: | The Bank shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Obligor to the Bank resulting from each Advance made by the Bank, including (i) the amount of each Advance made hereunder, the rate of interest and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Obligor to the Bank hereunder and (iii) the amount of any sum received by the Bank hereunder. The entries made in the accounts maintained pursuant to this paragraph shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided, that, the failure of the Bank to maintain such accounts or any error therein shall not in any manner affect the obligation of the Obligor to repay the Advances in accordance with the terms of this Uncommitted Facility Agreement. |
Miscellaneous: | In the event of any conflict between any of the terms of this Uncommitted Facility Letter and any of the terms of any of the Facility Documents or between any of the terms of the Facility Documents, the term which gives the Bank the greater rights, as determined by the Bank in its sole discretion, shall control. |
Jurisdiction: | THIS UNCOMMITTED FACILITY LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH NEW YORK LAW WITHOUT REGARD TO NEW YORK CONFLICTS OF LAWS PRINCIPLES. BY ITS EXECUTION HEREOF, THE OBLIGOR HEREBY SUBMITS TO THIS JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND FEDERAL COURTS SITTING IN NEW YORK, NEW YORK IN ANY ACTION, MATTER OR PROCEEDING RELATING HERETO OR THE OTHER FACILITY DOCUMENTS. |
JURY TRIAL: | EACH OF THE OBLIGOR AND THE BANK HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING UNDER OR RELATING TO THIS UNCOMMITTED FACILITY LETTER AND THE OTHER FACILITY DOCUMENTS. |
Notice: | The Bank hereby notifies the Obligor that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) as the same may be amended from time to time) (the “USA PATRIOT Act”), it is required to obtain, verify and record information that identifies the Obligor, which information includes the name and address of the Obligor and other information that will allow the Bank to identify the Obligor in accordance with the USA PATRIOT Act. The Obligor shall, and shall cause each of its subsidiaries and affiliates to, provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Bank to maintain compliance with the USA PATRIOT Act. |
A-Mark Precious Metals, Inc. and Subsidiaries | ||||||
Month Ended [_____], | Better/ (Worse) | [_____] Months Ended [____], | Better/ (Worse) | |||
20[15] | 20[14] | 20[15] | 20[14] | |||
Sales | ||||||
NGP | ||||||
Opex | ||||||
Operating P/(L) | ||||||
Acquisition Related Costs* | ||||||
Pre-Tax P/(L) | ||||||
* | Acquisition related costs represent $_____ and $_____ per month during FY’[15] and FY’[14] respectively in non-cash amortization related to the A-Mark purchase accounting. |
Description | Requirement | Actual as of [_______] | In Compliance? |
A-Mark consolidated tangible net worth | Minimum $35,000,000 | ||
A-Mark consolidated working capital leverage ratio | Maximum 10 to 1 | ||
A-Mark consolidated working capital leverage ratio (using bank lines only) | Maximum 5 to 1 | ||
Collateral Agency Agreement (CAA) Report excess collateral as of [January 30, 2015] | No Deficit | ||
1. | [Unaudited] Balance Sheets as of [_____] and [_____]; |
2. | [Unaudited] Statements of Income for the month ended [_____] and [_____], and for the [_____] months ended [_____] and [_____]; |
3. | [Unaudited] Detail Balance Sheets as of [_____]; and |
4. | Aging Schedule of Trade Receivables and Supplier Advances as of [_____], and a listing of the ten largest obligors for each. |