SECOND MODIFICATION OF LOAN AGREEMENT
Exhibit
10.16
SECOND
MODIFICATION OF LOAN AGREEMENT
THIS SECOND MODIFICATION OF LOAN
AGREEMENT is effective the 1st day of October, 2008, by and between LEGENT
GROUP, LLC, a Delaware limited liability company ("Borrower"), and UNITED
WESTERN BANK, a Federal Savings Bank ("Lender").
W I T N E
S S E T H:
A. Pursuant
to a Revolving Loan Agreement ("Loan Agreement") dated September 29, 2006,
Lender agreed to make a revolving loan to Borrower in the amount of Five Million
and No/100ths Dollars ($5,000,000.00) ("Loan"). The Loan was
represented by a Promissory Note in the principal amount of Five Million and
No/100ths Dollars ($5,000,000.00) ("Note") and was secured by a Security
Agreement of even date therewith ("Security Agreement").
B. The
obligations of the Borrower under the Loan Agreement were guaranteed in part by
Xxxxx Xxxxxxxxx and Xxxxx X. Xxxxxx ("Guarantors"), pursuant to two
Unconditional Limited Guarantees and Subordinations ("Guarantees").
C. The
terms and conditions of the Loan Agreement were modified by that Modification of
Loan Agreement effective October 1, 2007, executed between Borrower and Lender,
and acknowledged by the Guarantors ("Modification"). Pursuant to the
Modification, the maturity date of the Loan was extended to October 1, 2008, and
Borrower agreed to certain other terms and conditions.
D. Borrower
and Lender wish to further modify the terms and conditions of the Loan Agreement
to provide for a further extension of the maturity date of the Loan Agreement,
provide for a restatement of the obligations of Guarantors pursuant to their
Guarantees and to provide such other changes pursuant to the terms and
conditions contained herein.
NOW, THEREFORE, for and in
consideration of the promises contained herein, the parties do hereby agree to
the following and foregoing modifications:
1. Extension of Maturity
Date. The Maturity Date of the Loan shall be extended to
"October 1,
2010".
2. Additional Agreements of the
Borrower. Article 6 of the Loan Agreement shall be amended by
the addition of or amendment to the following provisions:
2.1 In
Section 5 of Article 6, the phrase "Twenty Million and No/100ths Dollars
($20,000,000.00), as determined by the monthly Focus Report, after advance of
any Loan Proceeds" shall be deleted and substituted with the phrase "the
greatest of (a) Ten Million and No/100ths Dollars ($10,000,000.00), (b) capital
in excess of five percent (5%) of combined aggregate debit items or (c) one
hundred twenty percent (120%) of minimum required regulatory capital as
calculated on Part B of the FOCUS Report, which information shall be provided on
a monthly basis, no later than the seventeenth (17th) calendar day of each
succeeding month." Additionally, the following sentence shall be
added at the end of Section 5: "Borrower shall provide evidence of
such capital in Legent Clearing on a monthly basis, no later than the 17th
calendar day of each succeeding month."
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2.2 A
new Section 9 to Article 6 shall be added as follows:
"9. No
Distributions. Borrower shall not permit any distributions,
payments, transfers of assets, or repayment of any loans to any of its members,
whether in cash or other property, without the advance written consent of
Lender, which may be withheld in Lender's sole discretion."
2.3 A
new Section 10 to Article 6 shall be added as follows:
"10. Sale of Member's
Interest. In the event more than fifty percent (50%) of the
ownership interest in Borrower is sold or otherwise conveyed by its members,
other than any conveyance to any revocable or irrevocable trust for the primary
benefit of such members and/or their families for estate planning purposes, all
amounts owing pursuant to this Loan shall be immediately due and payable in
full. Failure of Borrower to immediately repay such obligations shall
be an event of default hereunder."
2.4 A
new Section 11 to Article 6 shall be added as follows:
"11. Guarantors' Financial
Documents. Borrower shall cause Guarantors to provide annual
financial statements, certified as true and accurate by each respective
Guarantor, no later than sixty (60) days after the end of each calendar year.
Additionally, Borrower shall cause Guarantors to provide copies of all federal
income tax returns of Guarantors to Lender within fifteen (15) days of their
filing with the Internal Revenue Service. Lender agrees that such
information shall be made available only for the confidential review of Lender's
executive management group and, as necessary, any federal, state or internal
auditors of the Lender. In the event any such information is not
timely delivered, or in the event Lender, in the exercise of its reasonable
discretion, believes that the financial condition of Guarantors, or either of
them, has materially diminished, Lender may, at its option, require additional
collateral for the Loan or may declare an event of default under the Loan
Documents."
2.5 A
new Section 12 to Article 6 shall be added as follows:
"12. Borrower's Tax
Information. Borrower agrees that it shall provide copies of
all federal income returns of Borrower to Lender within ten (10) days of filing
any such returns with the Internal Revenue Service."
3. Status of
Note. Borrower acknowledges that the principal amount
outstanding under the Note as of the effective date is $5,000,000.00, together
with accrued and unpaid interest.
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4. Fees and
Expenses. Borrower agrees to pay all of Lender's fees and
expenses incurred in the preparation, drafting and negotiation of this
Modification. Such amounts include, but are not limited to, recording
fees, copy charges, reasonable attorneys' fees and all other costs and expenses
incurred by Lender in connection herewith.
5. Restatement of
Guarantees. By execution below where indicated, the Guarantors
do hereby acknowledge the modifications contained herein and agree that they
shall execute restated Unconditional Guarantees for the benefit of
Lender. Such Unconditional Guarantees shall, in the case of Xx.
Xxxxxx, provide for an Unconditional Guaranty for the repayment of any and all
obligations under the Loan and in the case of Xx. Xxxxxxxxx, provide for the
Unconditional Guaranty for the repayment of any and all obligations under the
Loan, subject to a limitation of $1,000,000.00, plus fees and expenses, all as
provided in the Unconditional Guarantees to be executed by the
Guarantors.
6. No Other
Changes. Except as herein modified, the Loan Agreement and all
other documents remain in full force and effect and unmodified.
IN WITNESS WHEREOF, this Second
Modification of Loan Agreement is executed effective October 1,
2008.
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BORROWER:
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LEGENT GROUP,
LLC,
a
Delaware limited liability company
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By:
/s/ Xxxxx
Xxxxxxxxx
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Name: Xxxxx
Xxxxxxxxx
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Title: Manager
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LENDER:
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UNITED WESTERN
BANK,
a
Federal Savings Bank
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By:
/s/ Xxxx X. Xxxxxxx
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Name: Xxxx
X. Xxxxxxx,
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Title: Regional
President
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STATE OF
NEBRASKA
)
)
ss.
COUNTY OF
XXXXXXX
)
The
foregoing Second Modification of Loan Agreement was acknowledged before me this
30th
day of December, 2008, by Xxxxx Xxxxxxxxx as Manager of Legent Group,
LLC, a Delaware limited liability company.
WITNESS
MY HAND AND OFFICIAL SEAL.
My
Commission expires: October 2, 2010
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[SEAL]
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/s/ Xxxxxxx X. Xxxxxxx
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Notary
Public
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STATE OF
COLORADO
)
)
ss.
COUNTY OF
DENVER )
The
foregoing Second Modification of Loan Agreement was acknowledged before me this
5th
day of January, 2009, by Xxxx X. Xxxxxxx as Regional President of United Western
Bank, a Federal Savings Bank.
WITNESS
MY HAND AND OFFICIAL SEAL.
My
Commission expires: December 26, 2011
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[SEAL]
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/s/ Xxxxx X. Xxxxxxx
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Notary
Public
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GUARANTORS'
ACKNOWLEDGMENT
Guarantors hereby acknowledge the
modifications contained herein and agree that they shall execute new Guarantees
consistent with the terms and conditions described above in a form reasonably
acceptable to Lender.
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/s/ Xxxxx Xxxxxxxxx
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Xxxxx
Xxxxxxxxx
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/s/ Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
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