FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “
Amendment ”), dated as of May 27, 2009, is by and
among PENSON WORLDWIDE, INC. a Delaware corporation (the “
Borrower ”), each lender from time to time party
hereto (collectively, the “ Lenders ” and
individually, a “ Lender ”), REGIONS BANK, as
Administrative Agent (in such capacity, the “
Administrative Agent ”), Swing Line Lender, and Letter
of Credit Issuer, GUARANTY BANK and REGIONS CAPITAL MARKETS, a
division of Regions Bank, as Joint Lead Arrangers, and GUARANTY
BANK, as Syndication Agent (the “ Syndication Agent
”).
A. The
Borrower, the Lenders and the Administrative Agent have entered
into that certain Amended and Restated Credit Agreement dated as of
May 1, 2009 (as the same may be amended, modified,
supplemented or restated from time to time, the “ Credit
Agreement ”).
B. The
Borrower, the Lenders, and the Administrative Agent now desire to
amend the Credit Agreement as provided herein.
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 parties hereto agree as
follows:
Section 1.1
Definitions . Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same
meanings as in the Credit Agreement, as amended hereby.
Section 2.1
Amendments to Section 1.01 of the Credit Agreement
.
(a) Effective
as of the date hereof, the following definitions shall be added to
Section 1.01 of the Credit Agreement in alphabetical order
to read in their entirety as follows:
“
Convertible Notes ” means those certain convertible
senior notes due 2014 issued pursuant to the Notes Offering in an
aggregate principal amount of up to $75,000,000.
“
Indenture ” means that certain Indenture by and
between the Borrower and US Bank, National Association, as Trustee,
with respect to the Convertible Notes.
“ Notes
Offering ” means the issuance by the Borrower of the
Convertible Notes pursuant to the Indenture and the Offering
Memorandum.
“ Notes
Offering Documents ” means the Convertible Notes and the
Indenture.
“
Offering Memorandum ” means that certain Offering
Memorandum issued by the Borrower with respect to the sale of the
Convertible Notes.
(b) Effective
as of the date hereof, the paragraph containing the definition of
“Consolidated Fixed Charge Coverage Ratio” in
Section 1.01 of the Credit Agreement shall be amended
to read in its entirety as follows:
“
Consolidated Fixed Charge Coverage Ratio ” means, at
any date of determination, the ratio of (a) Consolidated
EBITDA, to (b) the sum of (i) Interest Charges,
(ii) the aggregate principal amount of all regularly scheduled
principal payments or redemptions or similar acquisitions for value
of outstanding debt for borrowed money, it being understood the
Total Outstandings hereunder shall be assumed to be amortized over
a five year period solely in order to calculate scheduled payments
of the Loans and (iii) the aggregate amount of Federal, state,
local and foreign income taxes paid in cash, in each case, of or by
the Borrower and its Subsidiaries for the most recently completed
period of determination; provided , however , that
for purposes of calculating the Consolidated Fixed Charge Coverage
Ratio, Interest Charges with respect to the Convertible Notes shall
be limited to interest paid in cash for such period.
(c) Effective
as of the date hereof, the paragraph containing the definition of
“Disposition” or “Dispose” in
Section 1.01 of the Credit Agreement shall be amended
to read in its entirety as follows:
“
Disposition ” or “ Dispose ” means
the sale, transfer, license, lease or other disposition (including
any sale and leaseback transaction) of any property by any Person,
including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights
and claims associated therewith; provided , however ,
that the Notes Offering and the conversion of Convertible Notes
shall not be considered a Disposition.
(d) Effective
as of the date hereof, the paragraph containing the definition of
“Investment” in Section 1.01 of the Credit
Agreement shall be amended to read in its entirety as
follows:
“
Investment ” means, as to any Person, any direct or
indirect acquisition or investment by such Person, whether by means
of (a) the purchase or other acquisition of capital stock or
other securities of another Person, (b) a loan, advance or
capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any
partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness
of such other Person, or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of assets of
another Person that constitute a business unit; provided ,
however , that the Notes Offering and the
conversion of
Convertible Notes shall not be considered an Investment. For
purposes of covenant compliance, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
Section 2.2
Amendment to Section 2.05(f) of the Credit Agreement .
Effective as of the date hereof, Section 2.05(f) of the
Credit Agreement is amended to read in its entirety as
follows:
(f) Upon the
issuance and sale of any Equity Interests by the Borrower or any
Subsidiary as permitted in Section 7.06(d) (other than
(i) the issuance and sale of JBO Stock consistent with
historical practice of the Borrower and (ii) the issuance and
sale of Equity Interests in connection with the Notes Offering and
the conversion of Convertible Notes), 100% of the Net Cash Proceeds
shall be immediately paid to the Administrative Agent to be applied
to the Loans, and the Total Commitments shall be permanently
reduced by the amount of the Net Cash Proceeds of such issuance.
The provisions of this Section do not constitute a consent to the
issuance and sale of any Equity Interests not otherwise permitted
in Section 7.06 .
Section 2.3
Amendment to Section 6.03(f) of the Credit Agreement .
Effective as of the date hereof, Section 6.03(f) of the
Credit Agreement is amended to read in its entirety as
follows:
(f) of the sale by
the Borrower of any of its capital stock or other Equity Interest
(other than (a) as contemplated under the 2000 Stock Incentive
Plan or securities issued upon exercise of stock options issued to
employees, directors or contractors of the Borrower or its
Subsidiaries, or (b) any conversion of Convertible Notes
representing less than 50% in the aggregate of the aggregate
principal amount of all Convertible Notes issued pursuant to the
Notes Offering; provided , however , at the request
of the Administrative Agent, the Borrower shall provide any
information regarding such sales to the Administrative
Agent);
Section 2.4
Amendment to Section 7.03(f) of the Credit Agreement .
Effective as of the date hereof, Section 7.03(f) of the
Credit Agreement is amended by removing the “and” at
the end thereof.
Section 2.5
Amendment to Section 7.03(g) of the Credit Agreement .
Effective as of the date hereof, Section 7.03(g) of the
Credit Agreement is amended to delete the “.” at the
end thereof and substituting “; and” in lieu
thereof.
Section 2.6
Amendment to Section 7.03 of the Credit Agreement .
Effective as of the date hereof, Section 7.03 of the
Credit Agreement is amended to add a new Section 7.03(h) to
read in its entirety as follows:
(h) Indebtedness
associated with the Notes Offering Documents.
Section 2.7
Amendment to Section 7.06(e) of the Credit Agreement .
Effective as of the date hereof, Sec
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