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EXHIBIT 4.2
SUBORDINATED LOAN AGREEMENT
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FORM SL-1
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NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC.
0000 X XXXXXX, X.X., XXXXXXXXXX, X.X. 00000
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NASD
SUBORDINATED LOAN AGREEMENT
SL-1
AGREEMENT BETWEEN:
Lender Xxxxx X. Xxxxxx
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(Name)
0000 Xxxx Xxxxxx Xxxx
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(Street Address)
Xxxxxx Xxxxx 00000
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(City) (State) (Zip)
AND
Broker-Dealer Tejas Securities Group, Inc.
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(Name)
0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx Xxxx. 2 Suite 500
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(Street Address)
Xxxxxx Xxxxx 00000
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(City) (State) (Zip)
NASD ID NO.: 036705
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DATE FILED: June 4, 1999
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NASD
SUBORDINATED LOAN
AGREEMENT
upon
NASD
Approval
AGREEMENT dated 6/4/99 to be effective ________ between Xxxxx X. Xxxxxx
(the "Lender") and Tejas Securities Group, Inc. (the "Broker-Dealer")
In consideration of the sum of $500,000.00 and subject to the terms and
conditions hereinafter set forth, the Broker-Dealer promises to pay to the
Lender or assigns on November 1, 2001 at the principal office of the
Broker-Dealer the aforedescribed sum and interest thereon payable at the rate of
11.5% percent per annum from the effective date of this Agreement, which date
shall be the date so agreed upon by the Lender and the Broker-Dealer unless
otherwise determined by the National Association of Securities Dealers, Inc.
("NASD"). This Agreement shall not be considered a satisfactory subordination
agreement pursuant to the provisions of 17 CFR 240.15c3-1d unless and until the
NASD has found the Agreement acceptable and such Agreement has become effective
in the form found acceptable.
The cash proceeds covered by this Agreement shall be used and dealt
with by the Broker-Dealer as part of its capital and shall be subject to the
risks of the business. The Broker-Dealer shall have the right to deposit any
cash proceeds of this Subordinated Loan Agreement in an account or accounts in
its own name in any bank or trust company.
The Lender irrevocably agrees that the obligations of the Broker-Dealer
under this Agreement with respect to the payment of principal and interest shall
be and are subordinate in right of payment and subject to the prior payment or
provision for payment in full of all claims of all other present and future
creditors of the Broker-Dealer arising out of any matter occurring prior to the
date on which the related Payment Obligation (as defined herein) matures
consistent with the provisions of 17 CFR 240.15c3-1 and 240.15c3-1d, except for
claims which are the subject of subordination agreements which rank on the same
priority as or are junior to the claim of the Lender under such subordination
agreements.
I. PERMISSIVE PREPAYMENTS (OPTIONAL)
At the option of the Broker-Dealer, but not at the option of the
Lender, payment of all or any part of the "Payment Obligation" amount hereof
prior to the Scheduled Maturity Date may be made by the Broker-Dealer only upon
receipt of the prior written approval of the NASD, but in no event may any
prepayment be made before the expiration of one year from the date this
Agreement became effective. No prepayment shall be made if, after giving effect
thereto (and all payments of Payment Obligations under any other subordination
agreements then outstanding, the maturity or accelerated maturity of which are
scheduled to fall due either within six months after the date such prepayment is
to occur or on or prior to the date on which the Payment Obligation hereof is
scheduled to mature, whichever date is earlier), without reference to any
projected profit or loss of the Broker-Dealer, either aggregate indebtedness of
the Broker-Dealer would exceed 1000 percent of its net capital or such lesser
percent as may be made applicable to the Broker-Dealer from time to time by the
NASD, or a governmental agency or self-regulatory body having appropriate
authority, or if the Broker-Dealer is operating pursuant to paragraph (a)(1)(ii)
of 17 CFR 240.15c3-1, its net capital would be less than 5 percent of aggregate
debit items computed in accordance with 17 CFR 240.15c3-3a, or, if registered as
a futures commission merchant, 7 percent of the funds required to be segregated
pursuant to the Commodity Exchange Act and the regulations thereunder, (less the
market value of commodity options purchased by option customers on or subject to
the rules of a contract market, provided, however, the deduction for each option
customer shall be limited to the amount of customer funds in such option
customers account,) if greater, or its net capital would be less than 120
percent of the minimum dollar amount required by 17 CFR 240.15c3-1 or such
greater dollar amount as may be made applicable to the Broker-
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Dealer by the NASD, or a governmental agency or "self-regulatory" body having
appropriate authority.
II. SUSPENDED REPAYMENTS
(a) The Payment Obligation of the Broker-Dealer shall be suspended and
shall not mature if, after giving effect to such payment (together with the
payment of any Payment Obligation of the Broker-Dealer under any other
subordination agreement scheduled to mature on or before such Payment
Obligation) the aggregate indebtedness of the Broker-Dealer would exceed 1200
percent of its net capital or such lesser percent as may be made applicable to
the Broker-Dealer from time to time by the NASD, or a governmental agency or
self-regulatory body having appropriate authority, or if the Broker-Dealer is
operating pursuant to paragraph (a)(1)(ii) of 17 CFR 240.15c3-1, its net capital
would be less than 5 percent of aggregate debit items computed in accordance
with 17 CFR 240.15c3-3a, or, if registered as a futures commission merchant, 6
percent of the funds required to be segregated pursuant to the Commodity
Exchange Act and the regulations thereunder, (less the market value of commodity
options purchased by option customers on or subject to the rules of a contract
market, provided, however, the deduction for each option customer shall be
limited to the amount of customer funds in such option customers account,) if
greater, or its net capital would be less than 120 percent of the minimum dollar
amount required by 17 CFR 240.15c3-1, or such greater dollar amount as may be
made applicable to the Broker-Dealer by NASD, or a governmental agency or
self-regulatory body having appropriate authority.
IV. ACCELERATED MATURITY OF THE SUBORDINATION AGREEMENT UPON THE
OCCURRENCE OF AN EVENT OF ACCELERATION (OPTIONAL)
By prior written notice delivered to the Broker-Dealer at its
principal office and to the NASD upon the occurrence of any Event of
Acceleration (as defined herein), given no sooner than six months from the
effective date of this Agreement, the Lender may accelerate such Payment
Obligation to the last business day of a calendar month not less than six
months after the receipt of such notice by both the Broker-Dealer and the NASD.
If, upon such accelerated maturity, the Payment Obligation of the Broker-Dealer
is suspended pursuant to paragraph II of this Agreement, and liquidation of the
Broker-Dealer has not commenced on or prior to such accelerated maturity date,
such Agreement shall mature on the day immediately following such accelerated
maturity date and, in any event, the Payment Obligations of the Broker-Dealer
with respect to all other subordination agreements then outstanding shall also
mature at the same time. Events of Acceleration which may be included shall be
limited to:
(a) Failure to pay interest or any installment of principal on this
Agreement as scheduled;
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(b) Failure to pay when due other money obligations of a specified
material amount;
(c) Discovery that any material, specified representation or warranty
of the broker-dealer which is included in this Agreement and on which this
Agreement was based or continued was inaccurate in a material respect at the
time made; or,
(d) The following specified and clearly measurable event(s), which the
Lender and Broker-Dealer agree (i) is a significant indication that the
financial position of the Broker-Dealer has changed materially and adversely
from agreed upon specified norms; or (ii) could materially and adversely affect
the ability of the Broken-Dealer to conduct its business as conducted on the
effective date of the subordination agreements; or (iii) is a significant
change in the senior management or in the general business conducted by the
Broker-Dealer from the date this Agreement became effective; or (iv) constitute
continued failure to perform agreed-upon covenants included in this Agreement
relating to the maintenance and reporting by the Broker-Dealer of its financial
position or relating to the conduct of its business.
The events of Acceleration as discussed in paragraphs (a) through (d)
with respect to this Agreement are enumerated below:
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V. ACCELERATED MATURITY OF THE SUBORDINATION AGREEMENT UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT (OPTIONAL)
(a) If the liquidation of the business of the Broker-Dealer has not
already commenced, the Payment Obligation shall mature, together with accrued
interest or compensation, upon the occurrence of an Event of Default, as
hereinafter defined.
(b) Further, if liquidation of the business of the Broker-Dealer has
not already commenced, the rapid and orderly liquidation of the business of the
Broker-Dealer shall then commence upon the happening of on Event of Default,
and the date of said Event of Default shall be the date on which the Payment
Obligations of the Broker-Dealer with respect to all other subordination
agreements then outstanding shall mature.
Events of Default which may be included shall be limited to:
(i) The filing of an application by the Securities Investor Protection
Corporation for a decree adjudicating that customers of the Broker-Dealer are
in need of protection under the Securities Investor Protection Act of 1970 and
the failure of the Broker-Dealer to obtain the dismissal of such application
within 30 days;
(ii) The aggregate indebtedness of the Broker-Dealer exceeding 1500 percent of
its net capital or, in the case of a Broker-Dealer which has elected to operate
under paragraph (a)(1)(ii) of 17 CFR 240.15c-1, its net capital computed in
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accordance therewith is less than 2 percent of its aggregate debit items
computed in accordance with 17 CFR 240.15c33a, or, if registered as a futures
commission merchant. 4 percent of the funds required to be segregated pursuant
to the Commodity Exchange Act and the regulations thereunder, (less the market
value of commodity options purchased by option customers on or subject to the
rules of a contract market, provided, however, the deduction for each option
customer shall be limited to the amount of customer funds in such option
customer's account') if greater, throughout a period of 15 consecutive business
days, commencing on the day the Broker-Dealer first determines and notifies the
Lender and the NASD, or the NASD or the Commission first determines and
notifies the Broker-Dealer of such fact;
(iii) Revocation by the Commission of the registration of the Broker-Dealer;
(iv) Suspension by the NASD (without reinstatement within 10 days) or
revocation of the Broker-Dealer's status as a member thereof; and,
(v) Receivership, insolvency, liquidation pursuant to the Securities Investor
Protection Act of 1970 or otherwise, bankruptcy, assignment for the benefit of
creditors, reorganization whether or not pursuant to bankruptcy laws, or any
other marshaling of the assets and liabilities of the Broker-Dealer.
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VI. NOTICE OF MATURITY OR ACCELERATED MATURITY
The Broker-Dealer shall immediately notify the NASD it, after giving
effect to all payments of Payment Obligations under subordination agreements
then outstanding which are then due or mature within six months without
reference to any projected profit or loss of the Broker-Dealer, either the
aggregate indebtedness of the Broker-Dealer would exceed 1200 percent of its
net capital, or in the case of a Broker-Dealer operating pursuant to paragraph
(a)(1)(ii) of 17 CFR 240.15c3-1, its net capital would be less than 5 percent
of aggregate debit items computed in accordance with 17 CFR 240.15c3-3a, or,
if registered as a futures commission merchant, 6 percent of the funds required
to be segregated pursuant to the Commodity Exchange Act and the regulations
thereunder, (less the market value of commodity options purchased by option
customers on or subject to the rules of a contract market, provided, however,
the deduction for each option customer shall be limited to the amount of
customer funds in such option customer's account,) if greater, and in either
case, if its net capital would be less than 120-percent of the minimum dollar
amount required by 17 CFR 240.15c3-1, or such greater dollar amount as may be
made applicable to the Broker-Dealer by the NASD, or a governmental agency or
self-regulatory body having appropriate authority.
VII. BROKER-DEALERS CARRYING THE ACCOUNTS OF SPECIALISTS AND MARKET MAKERS
IN LISTED OPTIONS
A Broker-Dealer who guarantees, endorses, carries or clears specialist
or market-maker transactions in options listed an a national securities
exchange or facility of a national securities association shall not permit a
reduction, prepayment or repayment of the unpaid principal amount if the effect
would cause the equity required in such specialist or market-maker accounts to
exceed 1000 percent of the Broker-Dealer's net capital or such percent as may
be made applicable to the Broker-Dealer from time to time by the NASD or a
governmental agency or self-regulatory body having appropriate authority.
VIII. BROKER-DEALERS REGISTERED WITH CFTC
If the Broker-Dealer is a futures commission merchant or introductory
broker as that term is defined in the Commodity Exchange Act, the Organization
agrees, consistent with the requirements of 1.17(h) of the regulations of the
CFTC (17 CFR 1.17(h)), that:
(a) Whenever prior written notice by the Broker-Dealer to the NASD is required
pursuant to the provisions of this Agreement, the same prior written notice
shall be given by the Broker-Dealer to (i) the CFTC at its principal office in
Washington, D.C., attention Chief Accountant of Division of Trading and
Markets, and/or (iii) the commodity exchange of which the Organization is a
member and which is then designated by the CFTC as the Organization's
designated self-regulatory organization the "DSRO");
(b) Whenever prior written consent, permission or approval of the NASD is
required pursuant to the provisions at this Agreement, the Broker-Dealer shall
also obtain the prior written consent, permission or approval at the CFTC
(and/or of the DSRO); and,
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(c) Whenever the Broker-Dealer receives written notice of acceleration of
maturity pursuant to the provisions of this Agreement, the Broker-Dealer shall
promptly give written notice thereof to the CFTC at the address above stated
and/or to the OSRO.
X. GENERAL
This Agreement shall not be subject to cancellation by either the
Lender or the Broker-Dealer, and no payment shall be made, nor the Agreement
terminated, rescinded, or modified my mutual consent or otherwise if the effect
thereof would be inconsistent with the requirements of 17 CFR 240.15c3-1 and
240.15c3-1d.
The Agreement may not be transferred, sold, assigned, pledged, or
otherwise encumbered or otherwise disposed of, and no lien, charge or other
encumbrance may be created or permitted to be created thereon without the prior
written consent of the NASD.
In the event of the appointment of a receiver or trustee of the
Broker-Dealer or in the event of its insolvency, liquidation pursuant to the
Securities Investor Protection Act of 1970 or otherwise, bankruptcy, assignment
for the benefit of creditors, reorganization whether or not pursuant to
bankruptcy laws, or any other marshaling of the assets and liabilities of the
Broker-Dealer, the Payment Obligation of the Broker-Dealer shall mature, and
the holder hereof shall not be entitled to participate or share, ratably or
otherwise, in the distribution of the assets of the Broker-Dealer until all
claims of all other present and future creditors of the Broker-Dealer, whose
claims are senior hereto, have been fully satisfied.
The Lender irrevocably agrees that the loan evidenced hereby is not
being made in reliance upon the standing of the Broker-Dealer as a member
organization of the NASD or upon the NASD surveillance of the Broker-Dealer's
financial position or its compliance with the By-Laws, rules and practices of
the NASD. The Lender has made such investigation of the Broker-Dealer and its
partners, officers, directors and stockholders as the Lender deems necessary
and appropriate under the circumstances. The Lender is not relying upon the
NASD to provide any information concerning or relating to the Broker-Dealer and
agrees that the NASD has no responsibility to disclose to the Lender any
information concerning or relating to the Broker-Dealer which it may now, or at
any future time, have.
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The term "Broker-Dealer" as used in this Agreement shall include the
broker-dealer, its heirs, executors, administrators, successors, and assigns.
The term "Payment Obligation" shall mean the obligation of the
Broker-Dealer to repay cash loaned to it pursuant to this Subordinated Loan
Agreement.
The provisions of this Agreement shall be binding upon the
Broker-Dealer and the Lender and their respective heirs, executors,
administrators, successors and assigns.
Any controversy arising out of or relating to this Agreement may be
submitted to and settled by arbitration pursuant to the By-Laws and rules of
the NASD. The Broker-Dealer and the Lender shall be conclusively bound by such
arbitration.
This instrument embodies the entire agreement between the
Broker-Dealer and Lender and no other evidence of such agreement has been or
will be executed without the prior written consent of the NASD.
This Agreement shall be deemed to have been made under, and shall be
governed by, the laws of the State of Texas in all respects.
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IN WITNESS WHEREOF the parties have set their hands and seal this 4th day of
June 1999.
Tejas Securities Group, Inc.
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(Name of Broker-Dealer)
By: /s/ XXXX X. XXXXXX XX L.S.
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(Authorized Person)
Xxxx X. Xxxxxx XX
/s/ XXXXX X. XXXXXX L.S.
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(Lender)
Xxxxx X. Xxxxxx
FOR NASD USE ONLY
ACCEPTED BY /s/ XXXX XXXXX
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(Name)
Associate Director
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(Title)
*EFFECTIVE DATE: 6/17/99
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LOAN NUMBER: 06-D-SLA-10110
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SUBORDINATED LOAN AGREEMENT
LENDER'S ATTESTATION
It is recommended that you discuss the merits of this investment with
an attorney, accountant or some other person who has knowledge and experience
in financial and business matters prior to executing this Agreement.
1. I have received and reviewed a reprint of Appendix D
of 17 CFR 240.15c3-1, and am familiar with its
provisions.
2. I am aware that the funds or securities subject to
this Agreement are not covered by the Securities
Investor Protection Act of 1970.
3. I understand that I will be furnished financial
statements pursuant to SEC Rule 17a-5(c).
4. On the date this Agreement was entered into, the
broker-dealer carried funds or securities for my
account. (State Yes or No) Yes.
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5. Lender's business relationship to the broker-dealer
is: client
6. If not a partner or stockholder actively engaged in
the business of the broker-dealer, acknowledge
receipt of the following:
a. Certified audit and accountant's
certificate dated 12/31/98
b. Disclosure of financial and/or operational
problems since the last certified audit
which required reporting pursuant to SEC
Rule 17a-11. (If no such reporting was
required, state "none") none
c. Balance sheet and statement of ownership
equity dated 4/30/99
d. Most recent computation of net capital and
aggregate indebtedness or aggregate debit
items dated 4/30/99 reflecting a net
capital of $946,655 and a ratio of 10.95:1.
e. Debt/equity ratio as of 4/30/99 of 1.8:1.
f. Other disclosures:
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Dated: 6-4-99 /s/ XXXXX X. XXXXXX L.S.
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(Lender)
Xxxxx X. Xxxxxx
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NOTE THAT NASDR DOES
NOT HAVE AN OPINION
ON THIS ADDENDUM AND HAS
NOT APPROVED OR DISAPPROVED
OF THIS ADDENDUM.
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ADDENDUM AGREEMENT
Reference is hereby made to that certain Subordinated Loan Agreement
dated effective June 4, 1999, between XX. XXXXX X. XXXXXX (the "Lender") and
TEJAS SECURITIES GROUP, INC. (the "Broker-Dealer"), as the same may be amended
or modified from time to time (the "Loan Agreement"). Capitalized terms used in
this Addendum Agreement (the "Addendum"), to the extent not otherwise defined
herein, shall have the same meanings as in the Loan Agreement. The terms and
conditions of the Loan Agreement are incorporated herein by reference. This
Addendum shall constitute additional terms and conditions to which the Payment
Obligation is subject.
NOW, THEREFORE, IN CONSIDERATION of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Lender and the Broker-Dealer hereby agree as follows:
1. Notwithstanding anything to the contrary set forth in the Loan Agreement,
Broker-Dealer may incur, issue, and permit to exist obligations of the
Broker-Dealer for borrowed money in a principal amount outstanding which shall
not at any time exceed $2,500,000.00, which obligations shall be senior to the
repayment of the Payment Obligation which is the subject of the Loan Agreement.
2. Notwithstanding anything to the contrary set forth in the Loan Agreement,
Broker-Dealer may incur, issue, and permit to exist obligations of
Broker-Dealer for borrowed money in a principal amount outstanding at any time
not to exceed $2,000,000.00, which obligations shall rank pari passu with the
Payment Obligation which is the subject of the Loan Agreement and shall bear
terms substantially similar to the Payment Obligation which is the subject of
the Loan Agreement.
3. Broker-Dealer agrees that, so long as the Payment Obligation or any part
thereof is outstanding, the Broker-Dealer shall not pay salary to its
President, Mr. Xxxx Xxxxxx IV, in an amount in excess of $360,000.00 per year.
Broker-Dealer shall however be permitted to provide to Mr. Xxxx Xxxxxx IV,
President of Broker-Dealer, in addition to such salary, such additional
standard benefits as Broker-Dealer deems necessary or desirable, including
without limitation stock options, the use of a company automobile, insurance,
and other standard benefits.
4. Broker-Dealer agrees that so long as the Payment Obligation or any part
thereof remains outstanding, Broker-Dealer shall not, without the prior written
consent of the Lender, pay any dividends or make any other payment or
distribution in cash on account of its capital stock.
5. Broker-Dealer agrees that, for so long as the Payment Obligation or any part
thereof remains outstanding, the Broker-Dealer shall authorize a representative
of the Lender to maintain a seat on the Board of Directors of Broker-Dealer.
6. As a condition of the Loan Agreement, Broker-Dealer shall issue to the
Lender, on the date of approval of the transaction which is the subject of the
Loan Agreement by the NASD, warrants to purchase 112,500 shares of common
capital stock of the Broker-Dealer, which warrants shall be exercisable at a
price of $2.65 per share of common stock and shall be exercisable through
November 12, 2003. The terms of such warrants, whether or not exercised,
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shall entitle the Lender to participate in underwriter warrant distributions to
shareholders of the Broker-Dealer at any time while the Payment Obligation or
any part thereof remains outstanding, such distributions to be determined on
the basis that each such warrant for the purchase of a share of common stock
equals a single share of common stock.
7. If Broker-Dealer shall fail to perform, observe, or comply with any
covenant, agreement or term contained in this Addendum, and such failure shall
continue for thirty (30) days after the Lender sends to the Broker-Dealer
notice thereof, such failure shall constitute an Event of Acceleration and
shall entitle the Lender to exercise the rights and remedies available to it
under the Loan Agreement.
8. This Addendum shall be governed by and construed in accordance with the laws
of the State of Texas. THIS ADDENDUM, THE LOAN AGREEMENT, AND THE OTHER
DOCUMENTS REFERRED TO IN THE LOAN AGREEMENT EMBODY THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE
PARTIES HERETO. The provisions of this Addendum and the Loan Agreement to which
the Broker-Dealer is a party may be amended or waived only by an instrument in
writing signed by the parties hereto.
9. The unenforceability of any provision of this Addendum shall not affect the
enforceability or validity of any other provision hereof.
10. This Addendum may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument.
11. All notices and other communications provided for in this Addendum shall be
given to the parties hereto at the "Address for Notices" specified below its
name on the signature pages hereof; or as to any party at such other address as
shall be designated by such party in a notice to the other party given in
accordance with this section. All such communications shall be given or made by
telecopy or in writing, mailed by certified mail, return receipt requested, or
delivered to the intended recipient, and shall be deemed to have been duly
given when transmitted by telecopy subject to telephone confirmation of receipt
or when personally delivered, or in the case of a mailed notice, when duly
deposited in the mail, in each case given or addressed as aforesaid.
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EXECUTED as of the date first above written.
Broker-Dealer:
TEJAS SECURITIES GROUP, INC.
By: /s/ XXXX X. XXXXXX, XX
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Name: Xxxx X. Xxxxxx, XX
Title: President
Address for Notices:
1250 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx XX, Xxxxx 000
Xxxxxx, Xxxxx 00000
Lender:
Xx. Xxxxx X. Xxxxxx
By: /s/ XXXXX X. XXXXXX
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Name: Xx. Xxxxx X. Xxxxxx
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
