EIGHTH MODIFICATION AGREEMENT
Exhibit 10.54
(Loan Agreement)
This Eighth Modification Agreement (the “Modification
Agreement”), dated as of December 31, 2010,
for reference purposes only, is made by and between
XXXXXXXXX & CO., INC., a Delaware
corporation (“Borrower”), and FIRST REPUBLIC BANK
(“Lender”), with reference to the following facts:
A. Lender has previously entered into a Loan Agreement
(“Loan Agreement”) dated as of January 31,
2006, pursuant to which Lender has provided to Borrower a
revolving line of credit loan (“Loan”) in the current
principal amount of Seventy-Five Million and 00/100 Dollars
($75,000,000.00).
B. The Loan Agreement was amended pursuant to the terms of:
1. that certain First Modification Agreement dated as of
August 1, 2006;
2. that certain Second Modification Agreement dated as of
March 14, 2007;
3. that certain Third Modification Agreement dated as of
May 2, 2007;
4. that certain Fourth Modification Agreement dated
December 13, 2007;
5. that certain Fifth Modification Agreement dated
December 18, 2008;
6. that certain Sixth Modification Agreement dated
December 22, 2009; and
7. that certain Seventh Modification Agreement dated
April 30, 2010.
C. In connection with the Loan Agreement, Borrower has
executed one original note and five amended and restated notes
as set forth below, the most current note is referred to as the
“Existing Note.” The Existing Note supersedes and
replaces the prior notes set forth below.
1. that certain Promissory Note dated January 31,
2006, executed by Borrower payable to Lender in the original
principal sum of $20,000,000.00;
2. that certain Amended and Restated Promissory Note dated
March 14, 2007, executed by Borrower payable to Lender in
the original principal sum of $50,000,000.00;
3. that certain Amended and Restated Promissory Note dated
May 2, 2007, executed by Borrower payable to Lender in the
original principal sum of $75,000,000.00;
4. that certain Amended and Restated Promissory Note dated
December 13, 2007, executed by Borrower payable to Lender
in the original principal sum of $90,000,000.00;
5. that certain Amended and Restated Promissory Note dated
December 18, 2008, executed by Borrower payable to Lender
in the original principal sum of $90,000,000.00; and
6. that certain Fifth Amended and Restated Promissory Note
dated April 30, 2010, executed by Borrower payable to
Lender in the original principal sum of 75,000,000.
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D. The Loan Agreement and the Existing Note are secured by
the terms of:
1. A Third-Party Security Agreement dated May 2, 2007,
executed by Xxxxxxxxx Capital Partners, LLC which was later
replaced by an Amended and Restated Third-Party Security
Agreement dated as of December 22, 2009, executed by
Xxxxxxxxx Capital Partners, LLC (“Greenhill Capital
Security Agreement”). Said security agreement was
reaffirmed by the terms of Reaffirmation of Third Party Security
Agreement dated as of April 30, 2010, executed by Greenhill
Capital Partners LLC.
2. A Third-Party Security Agreement dated December 13,
2007, executed by Greenhill Venture Partners, LLC which was
later replaced by an Amended and Restated Third-Party Security
Agreement dated December 22, 2009, executed by Xxxxxxxxx
Venture Partners LLC (“Greenhill Ventures Security
Agreement”). Said security agreement was reaffirmed by the
terms of Reaffirmation of Third Party Security Agreement dated
as of April 30, 2010, executed by Greenhill Venture
Partners, LLC.
3. A Third-Party Security Agreement dated December 22,
2009, executed by Greenhill Capital Partners II LLC
(“Greenhill Capital II Security Agreement”). Said
security agreement was reaffirmed by the terms of Reaffirmation
of Third Party Security Agreement dated as of April 30,
2010, executed by Xxxxxxxxx Capital Partners II LLC.
4. A Security Agreement (LLC Distributions) dated
April 30, 2010, executed by Xxxxxxxxx & Co., Inc.
(“Greenhill Security Agreement”). (The Greenhill
Capital Security Agreement, the Greenhill Ventures Security
Agreement, the Greenhill Capital II Security Agreement and
the Greenhill Security Agreement, as reaffirmed, are
collectively referred to as the “Security Agreements.”)
E. The Loan Agreement, the Existing Note and the Security
Agreements are referred to collectively as the “Existing
Loan Documents.” The Existing Note and any Amended and
Restated Note to be executed and delivered as provided below are
referred to collectively as the “Note.” The Existing
Loan Documents and all documents to be executed and delivered as
provided below, including the Note, are referred to collectively
as the “Loan Documents,” Capitalized terms which are
not defined herein shall have the meanings provided in the Loan
Agreement or the other Loan Documents or, if not defined
therein, in the California Commercial Code.
NOW THEREFORE, for valuable consideration the receipt and
adequacy of which is hereby acknowledged, Lender and Borrower
agree as follows.
1. Adoption of Recitals. The
recitals set forth above are adopted as a part of the agreement
of the parties, and the facts set forth therein are acknowledged
and agreed to be true, accurate and complete.
2. Acknowledgment of Loan
Documents. Borrower hereby acknowledges and
agrees that as of the date of this Modification Agreement the
Loan Agreement as modified and all other Existing Loan Documents
remain in full force and effect.
3. UCC Lien Borrower hereby
acknowledges and agrees that pursuant to the terms of the
Security Agreements, all Obligations owed to Lender under the
Loan Agreement and the Existing Note are secured by the assets
referred to therein (“Collateral”); and Borrower has
not granted and is not aware of any other lien on such
Collateral other than the lien of Lender.
4. Release of Collateral for
Loan. Concurrently with the execution and
delivery of this Modification Agreement, the Greenhill
Capital II Security Agreement shall be deemed terminated.
Lender shall be deemed to have released the lien granted
thereunder on the assets specified as collateral therein. Lender
shall thereafter promptly file a UCC-3 lien release on the
assets specified as collateral therein to the extent that the
assets are encumbered only by virtue of said security agreement.
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5. Modification of Loan Documents.
5.1 No Change in Loan Amount and Promissory
Note.
(a) Section 5.3 of the Seventh Modification Agreement
is here by deleted in its entirety.
(b) Currently with the execution and delivery of this
Modification Agreement, the maximum principal amount of the Loan
is SEVENTY-FIVE MILLION AND NO/100THS DOLLARS
($75,000,000,00); and it shall remain at such amount until
the Maturity Date, absent further agreement between Lender and
Borrower or default under the Loan Agreement unless otherwise
provided in the Loan Agreement as amended.
6. Representations and
Warranties. As a material inducement to
Lender’s execution of this Modification Agreement, Borrower
makes the following warranties and representations to Lender.
6.1 Authority. This Modification
Agreement and each other document delivered to Lender in
connection with this Modification Agreement have been duly
authorized, and upon execution and delivery will constitute
legal, valid and binding agreements and obligations of such
party enforceable in accordance with their respective terms,
except, in each case, as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors’ rights or by general equity
principles.
6.2 Financial Information. All
financial and other information that has been or will be
supplied to Lender is sufficiently complete to give Lender
accurate knowledge of such party’s financial condition as
of the time of the delivery of same to Lender and is a true
statement of such party’s financial condition and reflects
any and all material contingent liabilities as of the time of
the delivery of same to Lender.
6.3 No Defaults. There currently
exist no fact or occurrence which would constitute an Event of
Default under the Loan Agreement.
6.4 Other Encumbrances. There are
no encumbrances or liens affecting all or part of the Collateral
provided by Borrower except for the liens and security interests
in favor of Lender and the Permitted Liens.
6.5 Lawsuits. There is no lawsuit,
tax claim or adjustment or other dispute pending, or, to the
knowledge of such party, threatened against such party, his, her
or its property, his, her or its business or the Collateral as
to which there is a significant probability of an adverse
decision that, after taking into account any insurance coverage
for such matter, reasonably would be expected to have a material
adverse effect on the business or the financial condition of
Borrower, the Collateral or Lender’s right and remedies
under this Modification Agreement,
7. No Other Modification of Loan
Documents. Nothing contained in this
Modification Agreement shall be construed to obligate Lender to
extend the time for payment of the Existing Note issued in
connection with the Loan Agreement or otherwise modify any of
the Loan Documents in any respect, except as expressly set forth
in this Modification Agreement.
8. Conditions Precedent. The
following are conditions precedent to Lender’s obligations
under this Modification Agreement:
8.1 Receipt by Lender of the executed originals of:
(i) this Modification Agreement; (ii) a Reaffirmation
Agreement to be executed by Xxxxxxxxx Capital Partners, LLC
consenting to the transaction provided for herein in form and
substance acceptable to Lender; and (iii) a Reaffirmation
Agreement to be executed by Xxxxxxxxx Venture Partners, LLC
consenting to the transaction provided for herein in form and
substance acceptable to Lender.
8.2 Reimbursement to Lender by Borrower of Lender’s
costs and expenses incurred in connection with this Modification
Agreement and the transactions contemplated hereby, including,
without limitation, the fees set forth in Section 9 below,
whether such services are furnished by Lender’s employees
or agents or by independent contractors.
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8.3 The representations and warranties contained in this
Modification Agreement and the other Loan Documents are true and
correct.
8.4 All payments due and owing to Lender under the Loan
Documents have been paid current as of the effective date of
this Modification Agreement.
8.5 Any UCC, tax lien, litigation, judgment and other
searches, fictitious business name statement filings, insurance
certificates, notices or other similar documents which Lender
may reasonably require and in such form as Lender may reasonably
require, in order to reflect Lender’s first priority
security interest in the Collateral, or to terminate the lien as
specified in Section 4 above and in order to fully
consummate all of the transactions contemplated hereunder
8.6 Such other documents as Lender may require under any
other section of this Amendment.
9. Fees, Borrower shall pay to
Lender upon the execution of this Modification or upon
Lender’s request the following:
9.1 Modification Fee. A
Modification Fee of Twenty-five Thousand Dollars
($25,000,00). Said amount shall be owed whether or not the
maximum loan amount is advanced for whatever reason; and said
amount shall be deemed fully earned upon execution of this
Modification Agreement regardless whether the Loan is later
accelerated upon the occurrence of an Event of Default.
9.2 Expenses and Attorneys
Fees. All of Lender’s costs, charges and
expenses paid or incurred by Lender in connection with the
preparation of this Modification Agreement and the transactions
contemplated hereby, including all reasonable attorneys fees and
costs and all filing fees.
9.3 Method of Payment. Such
amounts may be debited by Lender from any account maintained in
the name of Borrower.
10. Events of Default and Remedies.
10.1 Events. The occurrence and
continuance of any of the following events shall constitute an
Event of Default hereunder at the option of Lender:
(a) Failure to make any payment provided for under this
Modification Agreement.
(b) Failure to take any action or comply with any condition
provided for under this Modification Agreement.
(c) The occurrence and continuance of an Event of Default
under the (i)’Loan Agreement as modified or any related
documents, (ii) this Modification Agreement, (iii) the
Existing Note, or (iv) any documents executed in connection
herewith,
10.2 Remedies. Upon the occurrence
of an Event of Default, Lender may declare an Event of Default
under the Loan Agreement
and/or any
other Loan Document and exercise the remedies under the Loan
Agreement, the Existing Note and any other Loan Document,
including (without limitation) the imposition of default
interest under the Note).
11. Indemnification. Borrower
hereby agrees to indemnify and hold Lender and its officers,
directors, agents, employees, representatives, shareholders,
affiliates, participating lenders, successors and assigns
harmless from and against any and all claims, demands, damages,
liabilities, actions, causes of action, suits, costs and
expenses, including attorneys’ fees and costs, directly or
indirectly arising out of or relating to the transactions
contemplated by this Modification Agreement.
12. NO CLAIMS. BORROWER
ACKNOWLEDGES AND AGREES THAT TO THE BEST OF ITS PRESENT
KNOWLEDGE (A) IT HAS NO OFFSETS OR DEDUCTIONS OF ANY KIND
AGAINST ANY OR ALL OF THE OBLIGATIONS; AND (B) IT HAS NO
DEFENSES OR OTHER CLAIMS OR CAUSES OF ACTION OF ANY KIND AGAINST
LENDER IN CONNECTION WITH THE LOAN OR THE COLLATERAL,
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13. Waiver and Release.
13.1 In further consideration of Borrower and Lender
entering into this Modification Agreement, Borrower and Pledgors
and Borrower’s and Pledgors’ past and present
employees and agents (collectively referred to as the
“Releasing Parties”) hereby waive and release
any and all claims, rights and defenses, causes of action,
damages, debts and offsets of any nature whatsoever whether
heretofore or now existing (known or unknown, liquidated or
unliquidated, whether based in tort, contract, or other legal or
equitable theory) which each of them now has (or might have)
against Lender, all of its past and present officers, directors,
employees, agents, attorneys or representatives (“Released
Claims”). This waiver and release includes, but is not
limited to, claims, defenses, offsets and causes of action
arising from or in any way related to any of the Loan Documents
and any promissory notes executed in connection and all
modifications, supplements and extensions thereto, all the
advances thereunder and Lender’s actions in connection
therewith.
13.2 The Releasing Parties each understand (a) that it
is possible that unknown losses or claims may exist, or
(b) that past known losses have been underestimated;
nevertheless each of the Releasing Parties is taking this risk
into account in determining the consideration it is to receive
for this release through this Modification Agreement.
Consequently, each of the Releasing Parties expressly waives all
rights and benefits conferred by Section 1542 of the
California Civil Code which provides as follows:
“A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor
at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with the
debtor.”
13.3 Each person signing below on behalf of Borrower or
Pledgor hereunder acknowledges that he or she has read each of
the provisions of this Release. Each such person fully
understands that this Release has important legal consequences,
and each such person realizes that they are releasing any and
all Released Claims that Borrower or any such guarantor may have
as of the Release Date. Borrower and each guarantor hereunder
hereby acknowledge that each of them has had an opportunity to
obtain a lawyer’s advice concerning the legal consequences
of each of the provisions of this Release.
14. Continuing Effect of Loan
Documents. The Loan Agreement, the Note and
other Loan Documents, as modified by this Modification
Agreement, shall remain in full force and effect in accordance
with their terms and are affirmed by Borrower.
15. Miscellaneous.
15.1 Controlling Provisions. To
the extent that there is any inconsistency or conflict between
the terms, conditions and provisions of the Loan Documents, this
Modification Agreement and any document executed in connection
herewith, the terms, conditions and provisions of this
Modification Agreement will prevail.
15.2 Modifications of
Agreement. This Modification Agreement may be
modified only by a written agreement signed by Lender and the
other party who is affected by such modification.
15.3 Entire Agreement. This
Modification Agreement shall be included within the meaning of
the term “Loan Documents” under the Loan Agreement.
This Modification Agreement and the other Loan Documents contain
the entire agreement and understanding among the parties
concerning the matters covered by this Modification Agreement
and the other Loan Documents and supersede all prior and
contemporaneous agreements, statements, understandings, terms,
conditions, negotiations, representations and warranties,
whether written or oral, made by Lender and any of the other
parties to this Modification Agreement concerning the matters
covered by this Modification Agreement and the other Loan
Documents.
15.4 Severability. In the event
that any provision, or portions thereof, of this Modification
Agreement is held to be unenforceable or invalid by any court of
competent jurisdiction, the validity and enforceability of the
remaining provisions, or portions thereof, shall not be affected
thereby.
15.5 Descriptive Headings;
Interpretation. The headings to sections of
this Modification Agreement are for convenient reference only
and shall not be used in interpreting this Modification
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Agreement. For purposes of this Modification Agreement, the term
“including” shall be deemed to mean “including
without limitation.”
15.6 No Waiver. No waiver by
Lender of any of its rights or remedies in connection with the
Loan shall be effective unless such waiver is in writing and
signed by Lender. No waiver of any breach or default shall be
deemed a waiver of any breach or default thereafter occurring.
15.7 Rights
Cumulative. Lender’s rights and remedies
under this Modification Agreement are cumulative with and in
addition to any and all other legal and equitable rights and
remedies which Lender may have in connection with the Loan.
15.8 Time of the Essence. Time is
of the essence with respect to each provision of this
Modification Agreement.
15.9 Counterparts. This
Modification Agreement may be executed in counterparts, each of
which shall constitute an original, and all of which together
shall constitute one and the same agreement.
15.10 Successors and Assigns. This
Modification Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns.
Lender may assign its rights under this Modification Agreement;
however, any party to this Modification Agreement may not assign
this Modification Agreement or any rights and duties or
obligations of them hereunder without the prior written consent
of Lender.
15.11 Controlling Law. This
Modification Agreement and any instrument or agreement executed
in connection with this Modification Agreement shall be governed
by and construed under the laws of the State of California.
15.12 Attorneys’ Fees. Lender
shall be entitled to recover all costs and expenses, including
attorneys’ fees and costs, incurred by Lender in enforcing
any of the terms of this Modification Agreement or the other
Loan Documents, from any party against whom this Modification
Agreement is sought to be enforced whether or not any legal
proceedings are instituted by Lender. Without limiting the
generality of the Immediately preceding sentence, upon
Lender’s demand, Lender shall be reimbursed for all costs
and expenses, including attorneys’ fees and costs, which
are incurred by Lender in connection with any action by Lender
for relief from the automatic stay arising under Bankruptcy Code
Section 362(a), 11 U.S.C. § 362(a).
15.13 Authorization. Borrower
hereby authorizes Lender to file any appropriate financing
statements to reflect any and all modifications to the Loan
Documents set forth in this Modification Agreement and to
perfect any liens grated in connection herewith.
15.14 No Third Party
Beneficiaries. This Modification Agreement is
entered into for the sole benefit of Lender and the other
parties executing this Modification Agreement, and no other
party shall have any right of action under this Modification
Agreement.
16. REVIEW WITH INDEPENDENT
COUNSEL. EVERY PARTY WHO EXECUTES THIS
MODIFICATION AGREEMENT ACKNOWLEDGES AND AGREES THAT (A) IT
HAS CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS
MODIFICATION AGREEMENT AND THE DOCUMENTS CONTEMPLATED BY THIS
MODIFICATION AGREEMENT AND UNDERSTANDS SUCH TERMS AND
CONDITIONS; AND (B) IT HAS ENTERED INTO THIS MODIFICATION
AGREEMENT FREELY AND VOLUNTARILY, AFTER HAVING CONSULTED WITH
ITS INDEPENDENT LEGAL COUNSEL OR AFTER HAVING HAD AN OPPORTUNITY
TO CONSULT WITH ITS INDEPENDENT LEGAL COUNSEL.
[SIGNATURE
PAGE FOLLOWS]
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|
BORROWER:
|
LENDER: | |
|
XXXXXXXXX & CO., INC., a Delaware corporation |
FIRST REPUBLIC BANK | |
|
By: /s/ Xxxxxx
X. Xxxxxxxxx, Xx. |
By: |
|
| Name: Xxxxxx X. Xxxxxxxxx, Xx. | Name: | |
| Title: Chief Administrative Officer | Title: |
PLEDGORS:
The undersigned Pledgors hereby agree to the
terms of, and are bound by, Section 13 of this
Agreement.
terms of, and are bound by, Section 13 of this
Agreement.
Greenhill Capital Partners, LLC,
a Delaware limited liability company
| By: |
/s/ Xxxxxx
X. Xxxxxxxxx, Xx.
|
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Chief Financial Officer
Greenhill Venture Partners, LLC, a
Delaware limited liability company
Delaware limited liability company
| By: |
/s/ Xxxxxx
X. Xxxxxxxxx, Xx.
|
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Chief Financial Officer
Greenhill Capital Partners II LLC,
a Delaware limited liability company
a Delaware limited liability company
| By: |
/s/ Xxxxxx
X. Xxxxxxxxx, Xx.
|
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Chief Financial Officer
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