FORM OF FIFTH MODIFICATION AGREEMENT (New Terms)
Exhibit
10.44
|
First
Republic LENDER It’s a privilege to serve you® |
FORM OF FIFTH MODIFICATION AGREEMENT
(New Terms)
This
Fifth Modification Agreement (the “Agreement”), dated as of for
reference purposes only, is made by and between Xxxxxxxxx & Co. Inc., a Delaware corporation
(‘Borrower”), and First Republic Bank, a division of Xxxxxxx Xxxxx Bank & Trust Co., FSB (the
“Lender”), with reference to the following facts:
A. The Lender has previously made a loan (the “Loan”) to Borrower in the total principal
amount of Ninety Million and 00/100 Dollars ($90,000,000.00)
B. The Loan arises out of that certain Loan Agreement, dated January 31, 2006, executed by
Borrower and Lender, as modified pursuant to that certain First Modification Agreement dated as of
August 1, 2006, that certain Second Modification Agreement dated as of March 14, 2007, and that
certain Third Modification Agreement dated as of May 2, 2007, and that certain Fourth Modification
Agreement dated as of December 13, 2007 (as modified, including pursuant to this Agreement, the
“Loan Agreement”). All terms with an initial capital letter that are used but not defined in this
Agreement shall have the respective meanings given to such terms in the Loan Agreement. The Loan
is evidenced by that certain amended and restated Promissory Note dated December 13, 2007 (“Note”).
C. Borrower has requested that the Lender further modify certain of the Loan Documents on the
terms and conditions of this Agreement, and the Lender is willing to do so.
THEREFORE, for valuable consideration, the Lender and Borrower agree as follows:
1. Modification of Loan Documents.
1.1 Extension of Maturity Date. Effective as of the date of this Agreement, the
Maturity Date of the Loan is hereby extended from June 30, 2009
(“Existing Maturity Date”) to
December 31, 2009 (“New Maturity Date”).
1.2 Interest Rate. Effective as of the date of this Agreement, the interest rate on
the Loan shall be changed from a LIBOR index-based rate to a Prime-index based rate, as more
specifically set forth in the Amended and Restated Promissory Note dated as of even date herewith
(“Amended Note”). In addition, the Amended Note shall reflect that the Note Rate shall at no time
during the term of the Loan be less than 4.00%. Refer to the Amended and Restated Promissory Note
dated as of even date herewith which supersedes and replaces the Promissory Note dated December 13,
2007.
1.3 Payment of Principal and Interest. From and after the existing Maturity Date to
the New Maturity Date, principal and interest shall be payable as follows: No change.
(a) Payment
on Maturity Date. The entire unpaid principal balance of the
Note and all accrued and unpaid interest thereon shall be due and payable on: December 31, 2009.
2. Execution of Amended and Restated Note. Concurrent with execution of this
Agreement, Borrower shall execute the Promissory Note (Amended and Restated) dated as of even date
herewith. All references to the “Note” shall refer to Promissory Note (Amended and Restated) dated
as of even date herewith, which shall supersede and replace the December 13, 2007 promissory note.
3. Representations and Warranties. As a material inducement to the Lender’s execution
of this Agreement, Borrower makes the following warranties and representations to the Lender:
3.1 Authority. Borrower has the full power and authority to enter into and perform
all of its obligations under this Agreement, and this Agreement, when executed by the Persons
signing this Agreement on behalf of Borrower, shall constitute a legal, valid and binding
obligation of Borrower’s, enforceable in accordance with its terms. The Persons executing this
Agreement on behalf of Borrower have been duly authorized to execute this Agreement by all
requisite action on the part of Borrower.
3.2 Financial Statements. All statements respecting the financial condition of
Borrower, any Guarantors, and any other Persons which have been furnished to the Lender (a) are
accurate and complete in all respects as of the dates appearing thereon; (b) present fairly the
financial condition and results of operations of the Person to whom the statement applies as of the
date and for the period shown on such statement; and (c) disclose all suits, actions, proceedings
and material contingent liabilities affecting the Person to whom the financial statement applies.
3.3 Other Encumbrances. There are no encumbrances or liens affecting all or part of
the Collateral, except for the liens and security interests in favor of the Lender and the
Permitted Liens.
4. No Modification of Loan Documents. Nothing contained in this Agreement shall be
construed to obligate the Lender to extend the time for payment of the Note or otherwise modify any
of the Loan Documents in any respect, except as expressly set forth in this Agreement.
5. No Waiver. No waiver by the 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 the Lender. The
Lender’s rights and remedies under this Agreement are cumulative with and in addition to any and
all other legal and equitable rights and remedies which the Lender may have in connection with the
Loan.
6. Entire Agreement. This Agreement and the other Loan Documents contain the entire
agreement and understanding among the parties concerning the matters covered by this 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 the Lender or Borrower concerning the matters covered by this Agreement and the other
Loan Documents.
7. Modifications. This Agreement may be modified only by a written agreement signed
by Borrower and the Lender.
8. Descriptive Headings; Interpretation. The headings to sections of this Agreement
are for convenient reference only and shall not be used in interpreting this Agreement. For
purposes of this Agreement, the term “including” shall be deemed to mean “including without
limitation.”
9. Indemnification. Borrower shall indemnify and hold the 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, lawsuits, costs and expenses, including attorneys’ fees and
costs, directly or indirectly arising out of or relating to any commission or brokerage fee or
charge claimed to be due or owing to any person or entity in connection with the transactions
contemplated by this Agreement as a result of any act or agreement made by the Borrower.
10. No Third Party Beneficiaries. This Agreement is entered into for the sole benefit
of the Lender and Borrower, and no other party shall have any right of action under this Agreement.
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11. NO CLAIMS. BORROWER ACKNOWLEDGES AND AGREES THAT (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 THE LENDER IN CONNECTION WITH THE LOAN OR THE
COLLATERAL.
12. Fees.
12.1 Borrower shall pay to the Lender, noon execution of this Agreement, a commitment fee of
$ and a documentation fee of $ totaling $ , which fees shall be debited from Borrower’s account
number held with Lender.
12.2 Upon the Lender’s request, Borrower shall pay to the Lender all costs, charges, and
expenses paid or incurred by the Lender in connection with the preparation of this Agreement and
the transactions contemplated hereby, including reasonable attorneys’ fees and costs, filing fees,
recording charges, and document preparation fees.
13. Attorneys’ Fees. Borrower shall pay all costs and expenses, including attorneys’
fees and costs, incurred by the Lender in enforcing any of the terms of this Agreement or the other
Loan Documents, whether or not any legal proceedings are instituted by the Lender. Without
limiting the generality of the immediately preceding sentence, upon the Lender’s demand, Borrower
shall reimburse the Lender for all costs and expenses, including attorneys’ fees and costs, which
are incurred by the Lender in connection with any action by the Lender for relief from the
automatic stay arising under Bankruptcy Code Section 362(a), 11 U.S.C. §362(a).
14. Continuing Effect of Documents. The Note and other Loan Documents, as modified by
this Agreement, shall remain in full force and effect in accordance with their terms and are
affirmed by Borrower.
15. Time of the Essence. Time is of the essence with respect to each provision of
this Agreement.
16. Counterparts: Successors. This 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. This Agreement shall be binding upon and shall inure to the benefit of the parties and
their respective permitted successors and assigns.
17. REVIEW BY BORROWER WITH INDEPENDENT COUNSEL. BORROWER
ACKNOWLEDGES AND AGREES THAT (A) IT HAS CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND THE DOCUMENTS CONTEMPLATED BY THIS AGREEMENT AND UNDERSTANDS SUCH TERMS
AND CONDITIONS, AND (B) IT HAS ENTERED INTO THIS 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.
[Signatures on following page.]
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IN WITNESS WHEREOF, the undersigned parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
| BORROWER: | ||||||
| Xxxxxxxxx & Co., Inc. a Delaware corporation |
||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| LENDER: | ||||||
| First Republic Bank a division of Xxxxxxx Xxxxx Bank & Trust Co., FSB |
||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
Greenhill Capital Partners, LLC hereby reaffirms its Third-Party Security Agreement dated as of May
2, 2007, and Greenhill Venture Partners, LLC hereby reaffirms its Third-Party Security Agreement
dated December 13, 2007.
| Greenhill Capital Paatners, LLC | Xxxxxxxxx Venture Partners, LLC | |||||||||
By:
|
By: | |||||||||
Name:
|
Name: | |||||||||
Its:
|
Its: | |||||||||
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