THIRD AMENDMENT TO LOAN AGREEMENT (BROKER-DEALER VRDN FACILITY)
Exhibit 10.2
THIRD AMENDMENT TO LOAN AGREEMENT (BROKER-DEALER VRDN FACILITY)
THIS THIRD AMENDMENT TO LOAN AGREEMENT (BROKER-DEALER VRDN FACILITY) (this
“Amendment”) made and entered into as of September 30, 2010, by and between: XXXXX XXXXXXX
& CO., a Delaware corporation (“Borrower”), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association (“Lender”); has reference to the following facts and circumstances
(the “Preambles”):
A. Borrower and Lender entered into the Loan Agreement (Broker-Dealer VRDN Facility) dated as
of September 30, 2008 (as amended, the “Agreement”; all capitalized terms used and not
otherwise defined in this Amendment shall have the respective meanings ascribed to them in the
Agreement as amended by this Amendment).
B. The Agreement was amended previously, as described in the Amendment to Loan Agreement
(Broker-Dealer VRDN Facility) dated as of November 3, 2008 and the Second Amendment to Loan
Agreement (Broker-Dealer VRDN Facility) dated as of September 25, 2009; and Borrower and Lender
desire to further amend the Agreement in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower and Lender
hereby agree as follows:
1. Preambles. The Preambles are true and correct, and, with the defined terms set
forth herein, are incorporated herein by this reference.
2. Amendment to Agreement. The Agreement is amended effective as of September 30,
2008, as follows:
(a) The definition of “Termination Date” in Section 1 of the Agreement is deleted and
replaced with the following:
Termination Date shall mean the earlier of December 31, 2010, or the
date on which this Agreement is terminated pursuant to Section 12.
(b) Exhibit C to the Agreement is deleted and replaced with Exhibit C
attached hereto and incorporated by reference.
3. References. All references in the Note, the Collateral Pledge Agreement, and the
other Credit Documents to “the Loan Agreement (Broker-Dealer VRDN Facility)”, and any other
references of similar import shall henceforth mean the Agreement as amended by this Amendment.
4. Full Force and Effect. Except to the extent specifically amended by this
Amendment, all of the terms, provisions, conditions, covenants, representations and warranties
contained in the Agreement shall be and remain in full force and effect and the same are hereby
ratified and confirmed.
5. Continuing Security. The Agreement, as hereby amended, and the Note, are, and
shall continue to be, secured by the Collateral Pledge Agreement.
6. Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of Borrower and Lender and their respective successors and assigns, except that Borrower
may not assign, transfer or delegate any of its rights or obligations under the Agreement as
amended by this Amendment.
7. Representations and Warranties. Borrower hereby represents and warrants to Lender
that:
(a) the execution, delivery and performance by Borrower of this Amendment are within the
corporate powers of Borrower, have been duly authorized by all necessary corporate action
and require no action by or in respect of, consent of or filing or recording with, any
governmental or regulatory body, instrumentality, authority, agency or official or any other
person or entity;
(b) the execution, delivery and performance by Borrower of this Amendment do not conflict
with, or result in a breach of the terms, conditions or provisions of, or constitute a
default under or result in any violation of,
the terms of the Certificate or Articles of Incorporation or By-Laws of Borrower, any
applicable law, rule, regulation, order, writ, judgment or decree of any court or
governmental or regulatory body, instrumentality authority, agency or official or any
agreement, document or instrument to which Borrower is a party or by which Borrower or any
of its property or assets is bound or to which Borrower or any of its property is subject;
(c) this
Amendment has been duly executed and delivered by Borrower and constitutes the
legal, valid
and binding obligation of Borrower enforceable against Borrower in accordance with its
terms, except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors’ rights generally and
(ii) general principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law);
(d) all of the representations and warranties made by Borrower in the Agreement, the Note,
the Collateral Agreement, and the other Credit Documents are true and correct in all
material respects on and as of the date of this Amendment as if made on and as of the date
of this Amendment; and
(e) as of the date of this Amendment, Borrower is in compliance with all provisions of the
Agreement, the Note, the Collateral Agreement, and the other Credit Documents.
8. Inconsistency. In the event of any inconsistency or conflict between this Amendment and
the Agreement, the terms, provisions and conditions contained in this Amendment shall govern and
control.
9. Conditions. Notwithstanding any provision contained in this Amendment to the
contrary, this Amendment shall not be effective unless and until Lender shall have received:
(a) this Amendment, duly executed by Borrower;
(b) a Certificate of Secretary (with Resolutions), certified by the Secretary of Borrower;
(c) the Pricing Letter, duly executed by Borrower;
(d) a certificate of good standing for Borrower issued by the Delaware Secretary of State
(or other evidence of good standing acceptable to Lender); and
(e) such other documents and information as reasonably required by Lender.
IN WITNESS WHEREOF, Borrower and Lender have executed this Amendment as of the day and year
first above written.
(SIGNATURES ON FOLLOWING PAGE)
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SIGNATURE PAGE-
THIRD AMENDMENT TO LOAN AGREEMENT (BROKER-DEALER VRDN FACILITY)
THIRD AMENDMENT TO LOAN AGREEMENT (BROKER-DEALER VRDN FACILITY)
| Borrower: | ||||||
| XXXXX XXXXXXX & CO. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx
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| By: | /s/ Xxxxxxx X. Xxxxxx
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| Lender: | ||||||
| U.S. BANK NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxxxxxxx X. Xxxxxx
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Exhibit C
(Pricing and Fees)
Applicable Margin shall have the meaning set forth in the letter agreement dated
October 30, 2010, executed by Lender and Borrower (the “Pricing Letter”).
Commitment Fee shall have the meaning set forth in the Pricing Letter.
Advisory Fee shall have the meaning set forth in the Pricing Letter.
September 30, 2010
Xxxxx Xxxxxxx & Co.
800 Nicollet Mall, J09S04
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Chief Financial Officer and Xxxxxxx X. Xxxxxx, Treasurer
800 Nicollet Mall, J09S04
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Chief Financial Officer and Xxxxxxx X. Xxxxxx, Treasurer
Re: Loan Agreement (Broker-Dealer VRDN Facility) dated as of September 30, 2008, executed by U.S.
Bank National Association (“Lender”) and Xxxxx Xxxxxxx & Co. (“Borrower”) (as
amended, the “Agreement”; all capitalized terms used and not otherwise defined in this
Amendment shall have the respective meanings ascribed to them in the Agreement as amended by this
letter agreement)
Dear Xxxxxx and Xxx:
This letter agreement is the Pricing Letter, as defined in the Third Amendment to Loan Agreement
(Broker-Dealer VRDN Facility) dated as of September 30, 2010. The following terms are defined
and incorporated into the Agreement by reference:
Applicable Margin shall mean One Percent (1.0%).
Commitment Fee. From and including the date of this Agreement to but excluding the
Termination Date, Borrower shall pay a nonrefundable commitment fee on the unused portion of the
Facility Amount (determined by subtracting the outstanding principal amount of all Advances from
the Facility Amount) at an annual rate of 25/100 Percent (0.25%). The commitment fee shall be (a)
calculated on a daily basis, (b) payable quarterly in arrears on the first (1st) day of
each calendar quarter prior to the Termination Date and on the Termination Date, (c) calculated on
an actual day, 360-day year basis; and (d) if the credit facility hereunder is terminated by
Borrower at any time prior to December 31, 2010 pursuant to Section 2 above, the commitment fee
owed by Borrower at that time shall be calculated as of December 31, 2010.
Advisory Fee. Borrower shall pay Lender, in conjunction with the Third Amendment to
Loan Agreement dated as of September 30, 2010, an advisory fee in the amount of $78,767.12.
Please indicate your acceptance of this Pricing Letter by signing in the space indicated below
and returning a copy of this letter to the undersigned.
| Very Truly Yours, | ||||
| U.S. BANK NATIONAL ASSOCIATION | ||||
By:
|
/s/ Xxxxxxxxx X. Xxxxxx
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(BORROWER’S SIGNATURES ON PAGE 2)
Xxxxx Xxxxxxx & Co.
September 30, 2010
Page 2
September 30, 2010
Page 2
Accepted and agreed to by Borrower as of October 30, 2010:
| XXXXX XXXXXXX & CO. | ||||
By:
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/s/ Xxxxxx X. Xxxxxxxxx
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By:
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/s/ Xxxxxxx X. Xxxxxx
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