1
Exhibit 10.39
--------------------------------------------------------------------------------
SECOND AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
--------------------------------------------------------------------------------
Second Amendment dated as of February 11, 2000 to Revolving Credit
Agreement (the "Second Amendment"), by and among FREEDOM SECURITIES CORPORATION,
a Delaware corporation (the "Borrower"), BANKBOSTON, N.A. and the other lending
institutions listed on SCHEDULE 1 to the Credit Agreement (as hereinafter
defined) (collectively, the "Banks") and BankBoston, N.A. in its capacity as
administrative and documentation agent for the Banks (the "Agent"), amending
certain provisions of the Revolving Credit Agreement dated as of August 21, 1998
(as amended and in effect from time to time, the "Credit Agreement") by and
among the Borrower, the Banks, the Agent and The Bank of New York in its
capacity as syndication agent. Terms not otherwise defined herein which are
defined in the Credit Agreement shall have the same respective meanings herein
as therein.
WHEREAS, the Borrower and the Banks have agreed to modify certain other
terms and conditions of the Credit Agreement as specifically set forth in this
Second Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Paragraph 1. AMENDMENT TO SECTION 1 OF THE CREDIT AGREEMENT. The definition
of "Applicable Margin" contained in Section 1.1 of the Credit Agreement is
hereby amended by deleting the definition in its entirety and restating it as
follows:
APPLICABLE MARGIN. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a
"Rate Adjustment Period"), the Applicable Margin shall be the applicable
margin set forth below with respect to the Borrower's Leverage Ratio, as
determined for the period ending on the fiscal quarter ended immediately
preceding the applicable Rate Adjustment Period.
------------------------------------------------------------------------------------------------
APPLICABLE APPLICABLE APPLICABLE
MARGIN FOR MARGIN FOR MARGIN FOR
LEVERAGE BASE RATE EURODOLLAR FEDERAL FUNDS COMMITMENT
TIER RATIO LOANS RATE LOANS RATE LOANS FEE RATE
------------------------------------------------------------------------------------------------
Greater than
1 or equal to 0.00% 1.45% 1.45% 0.20%
0.35:1.00
------------------------------------------------------------------------------------------------
Less than
2 0.35:1.00 but 0.00% 1.25% 1.25% 0.20%
greater than
or equal to
0.25:1.00
------------------------------------------------------------------------------------------------
Less than
3 0.25:1.00 but 0.00% 1.125% 1.125% 0.20%
greater than
or equal to
0.15:1.00
------------------------------------------------------------------------------------------------
4 Less than 0.00% 1.00% 1.00% 0.20%
0.15:1.00
------------------------------------------------------------------------------------------------
2
-2-
Notwithstanding the foregoing, (a) for Revolving Credit Loans
outstanding and the Commitment Fee Rate during the period commencing on
November 12, 1999 through the date immediately preceding the first
Adjustment Date to occur after the fiscal quarter ending December 31, 1999,
the Applicable Margin shall be set at Tier 4, and (b) if the Borrower fails
to deliver any Compliance Certificate pursuant to Paragraph 7.4(c) hereof
then, for the period commencing on the next Adjustment Date to occur
subsequent to such failure through the date immediately following the date
on which such Compliance Certificate is delivered, the Applicable Margin
shall be the highest Applicable Margin set forth above.
Paragraph 2. AMENDMENT TO SECTION 9 OF THE CREDIT AGREEMENT. Section 9.1 of
the Credit Agreement is hereby amended by deleting the ratio "0.35:1.00" which
appears in Paragraph 9.1 of the Credit Agreement and substituting in place
thereof the ratio "0.40:1.00".
Paragraph 3. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall not
become effective until the Agent receives the following:
(a) a counterpart of this Second Amendment, executed by the Borrower, the
Guarantors, the Banks and the Agent; and
(b) payment by the Borrower to the Agent of an amendment fee of $25,000 in
cash, which amendment fee shall be for the pro rata accounts of the Banks.
Paragraph 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby repeats,
on and as of the date hereof, each of the representations and warranties made by
it in Paragraph 6 of the Credit Agreement, and such representations and
warranties remain true as of the date hereof (except to the extent of changes
resulting from transactions contemplated or permitted by the Credit Agreement
and the other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and to the
extent that such representations and warranties relate expressly to an earlier
date), PROVIDED, that all references therein to the Credit Agreement shall refer
to such Credit Agreement as amended hereby. In addition, the Borrower hereby
represents and warrants that the execution and delivery by the
3
-3-
Borrower of this Second Amendment and the performance by the Borrower of all of
its agreements and obligations under the Credit Agreement as amended hereby are
within the corporate authority of each the Borrower and has been duly authorized
by all necessary corporate action on the part of the Borrower.
Paragraph 5. RATIFICATION, ETC. Except as expressly amended hereby, the
Credit Agreement and all documents, instruments and agreements related thereto,
including, but not limited to the Guaranty, are hereby ratified and confirmed in
all respects and shall continue in full force and effect. The Credit Agreement
and this Second Amendment shall be read and construed as a single agreement. All
references in the Credit Agreement or any related agreement or instrument to the
Credit Agreement shall hereafter refer to the Credit Agreement as amended
hereby.
Paragraph 6. NO WAIVER. Nothing contained herein shall constitute a waiver
of, impair or otherwise affect any Obligations, any other obligation of the
Borrower or any rights of the Agent or the Banks consequent thereon.
Paragraph 7. COUNTERPARTS. This Second Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but which together
shall constitute one and the same instrument.
Paragraph 8. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
4
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as a document under seal as of the date first above written.
FREEDOM SECURITIES CORPORATION
By:
-----------------------------------
Title:
BANKBOSTON, N.A.
By:
-----------------------------------
Title:
THE BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
5
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as a document under seal as of the date first above written.
FREEDOM SECURITIES CORPORATION
By:
-----------------------------------
Title:
BANKBOSTON, N.A.
By:
-----------------------------------
Title: VP
THE BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
6
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as a document under seal as of the date first above written.
FREEDOM SECURITIES CORPORATION
By:
-----------------------------------
Title:
BANKBOSTON, N.A.
By:
-----------------------------------
Title:
THE BANK OF NEW YORK
By: /s/ Xxxx X. Rooers
-----------------------------------
Name: Xxxx X. Rooers
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
7
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as a document under seal as of the date first above written.
FREEDOM SECURITIES CORPORATION
By:
-----------------------------------
Title:
BANKBOSTON, N.A.
By:
-----------------------------------
Title:
THE BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
8
RATIFICATION OF GUARANTY
Each of the undersigned guarantors hereby acknowledges and consents to the
foregoing Second Amendment as of January __, 2000, and agrees that the Guaranty
dated as of August 21, 1998 from the undersigned Guarantors remain in full force
and effect, and each of the Guarantors confirms and ratifies all of its
obligations thereunder.
FREEDOM CAPITAL
MANAGEMENT CORPORATION
By:
-----------------------------------
Title: Executive Vice President
FREEDOM SECURITIES
HOLDING CORPORATION
By:
-----------------------------------
Title:
THE SUTRO GROUP
By:
-----------------------------------
Title:
SUTRO LEASING CORPORATION
By:
-----------------------------------
Title:
XXXXXX XXXXXXX HOLDING
CORPORATION
By:
-----------------------------------
Title:
9
T.A. LEASING CORP.
By:
-----------------------------------
Title:
