Exhibit 10
AMENDMENT NO.3
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AMENDMENT NO. 3 (this "AMENDMENT"), dated as of February 4, 2000, to the
Credit Agreement, dated as of June 26, 1998, by and among XxXXXXXXX & CO., a New
York limited partnership (the "BORROWER") and THE BANK OF NEW YORK (the "BANK"),
as amended by Amendment No. 1 thereto, dated as of June 23, 1999 and Amendment
No. 2 thereto, dated as of August 24, 1999 (the "CREDIT AGREEMENT").
RECITALS
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I. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
II. The Borrower has requested that the Credit Agreement be amended to the
extent and in the manner set forth below and the Bank is agreeable to such
amendment subject to the terms and conditions hereof.
Accordingly, in consideration of the terms and conditions hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
1. Section 1.3 of the Credit Agreement is amended to restate in their
entirety the following definitions:
"COMMITMENT" shall mean $200,000,000, as the same may be (a) reduced from
time to time pursuant to Section 2.3(a)(ii) hereof and/or increased pursuant to
Section 2.4 hereof.
"CONCENTRATION BASE" shall mean, at any time, an amount equal to 20% of the
Collateral Value at such time, provided that in the case of Collateral
consisting of any stock being a component of the Standard & Poor's 500 Index,
such percentage shall be 30%.
"TERMINATION DATE" shall mean February 4, 2001.
2. Section 2.6 of the Credit Agreement is amended to change the percentage
contained in the third line thereof from ".28125%" to ".25%".
3. Sections 5.1(a) and 5.1(b) of the Credit Agreement are restated in their
entirety to read as follows:
(a) NET CAPITAL. Maintain at all times a net capital (as defined in Rule
15c3-1(c)(2) promulgated by the SEC) of not less than $150,000,000.
(b) NET WORTH. Maintain at all times a net worth (computed as required by
reporting on item 5, line 3530 of Computation of Net Capital of a
FOCUS Report of the Borrower) of not less than $300,000,000.
4. This Amendment shall not be effective until such date as the Borrower
and the Bank shall have executed and delivered this Amendment and the Bank shall
have received a certified copy of all action (in form and substance satisfactory
to the Bank) taken by the Managing Committee of LaB, as the general partner of
the Borrower to authorize the execution and delivery of this Amendment.
5. On and as of the date hereof the Borrower hereby (a) reaffirms and
admits the validity and enforceability of the Loan Documents and all of its
obligations thereunder, (b) agrees and admits that it has no defenses to or
offsets against any such obligation, (c) represents and warrants that no
Default has occurred and is continuing, and that each of the representations
and warranties made by it in the Loan Documents is true and correct with the
same effect as though such representation and warranty had been made on such
date, and (d) agrees to pay the reasonable fees and disbursements of Special
Counsel in connection with this Amendment.
6. In all other respects, the Loan Documents shall remain in full force and
effect, and no amendment in respect of any term or condition of any Loan
Document contained herein shall be deemed to be an amendment in respect of any
other term or condition contained in any Loan Document.
7. This Amendment may be executed in any number of counterparts all of
which, taken together, shall constitute one amendment. In making proof of this
Amendment, it shall only be necessary to produce the counterpart executed and
delivered by the party to be charged.
8. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED TO BE
PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCEABLE IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK OTHER THAN THOSE RELATING TO
CONFLICT OF LAWS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
XxXXXXXXX & CO.
By LaB Investing Co. L.L.C.
Its General Partner
By: /s/ Xxxxxx X.X. XxXxxxxxx, XX
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Name: Xxxxxx X.X. XxXxxxxxx, XX
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Title: CEO
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THE BANK OF NEW YORK
By:
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Name:
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Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
XxXXXXXXX & CO.
By LaB Investing Co. L.L.C.
Its General Partner
By:
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Name:
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Title:
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THE BANK OF NEW YORK
By: /s/ X. X. Xxxxxx
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Name: X. X. Xxxxxx
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Title: Vice President
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