Exhibit 10.9
SECOND AMENDMENT TO CREDIT AND
SECURITY AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AND
SECURITY AGREEMENT (this “ Amendment ”) is made
as of July 29, 2008, by and between INTL GLOBAL CURRENCIES
LIMITED, a corporation organized under the laws of the United
Kingdom (the “ Borrower ”) and BANK OF AMERICA,
N.A., a national banking association (the “ Lender
”).
Recitals
Pursuant to that certain Credit and
Security Agreement dated as of December 8, 2006 between the
Lender and the Borrower, as amended by that certain First Amendment
to Credit Agreement dated as of February 29, 2008 (as the same
may from time to time be amended, restated, supplemented, or
otherwise modified, the “ Credit Agreement ”),
the Lender established a revolving credit facility pursuant to
which the Lender agreed to make advances to the Borrower from time
to time in an aggregate principal amount not to exceed Twenty
Million Dollars ($20,000,000) at any one time
outstanding.
The Borrower has asked the Lender to
amend the Credit Agreement to increase the Revolving Credit Amount
thereunder and extend the maturity date thereof and the Lender has
agreed to do so, provided the parties hereto execute and deliver
this Amendment, among other things.
Agreement
NOW THEREFORE, in consideration of
the premises and in order to induce the Lender to amend the Credit
Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Terms Defined . Unless
otherwise defined or stated in this Amendment, each capitalized
term used in this Amendment has the meaning given to such term in
the Credit Agreement (as amended by this Amendment).
2. Amendments to Credit
Agreement . The Credit Agreement is, effective as of the date
hereof, hereby amended as follows:
The following definitions set forth
in Section 1.1. of the Credit Agreement are hereby
amended and restated to read as follows:
“Applicable Margin”
shall mean 2.25% per annum, or 225 basis points.
“Note” shall mean that
certain Second Amended and Restated Revolving Loan Note in the
stated amount of Twenty Five Million Dollars ($25,000,000) from the
Borrower and made payable to the order of the Lender.
“Revolving Credit
Amount” shall mean Twenty Five Million Dollars
($25,000,000).
Second Amendment to Credit and Security
Agreement
Page 1 of 4
“Revolving Credit Expiration
Date” shall mean December 31, 2009, or such later date
as to which the Lender shall, in its discretion, agree to extend
the Revolving Credit Expiration Date.
Subsection
1.3(e)(1) of the
Credit Agreement is hereby amended to add the following sentence at
the end thereof:
“The parties intend that each
of the Financing Documents shall constitute a “Finance
Document” as such term is defined in the U.K. Security
Agreement.”
Section 4.2 of the Credit Agreement shall be amended to add
the following new subsection (e) at the end
thereof:
(e) Compliance Certificates .
Concurrent with the delivery of the financial statements described
in Sections (a) and (b) above, a written certification,
signed by an authorized financial officer of the Borrower, to the
effect that such officer has no knowledge of the existence of any
Defaults under the Financing Documents or if such officer has
knowledge of the existence of an Event of Default, a statement as
to the nature thereof and the action which the Borrower proposes to
take with respect thereto. Such written certification shall include
the calculations made by the Borrower to determine compliance by
the Borrower with each of the financial covenants set forth herein
as of the date of the financial statements delivered
therewith.
3. Upfront Fee . In
consideration for the agreements of the Lender as set forth herein,
the Borrower agrees to pay to the Lender, upon execution hereof, an
upfront fee of Fifty Three Thousand Dollars ($53,000.00), which fee
is hereby deemed to be earned upon its receipt by the
Lender.
4. Conditions Precedent . The
effectiveness of this Amendment is subject to the satisfaction of
each of the following conditions precedent, all of which conditions
precedent must be satisfied on or before the date of this
Amendment:
(a) The Lender shall have received
this Amendment executed by the parties hereto, and all fees and
expenses called for herein or incurred in connection with the
preparation and execution of this Amendment including, without
limitation the foregoing upfront fee and all of the
attorneys’ fees, costs and expenses incurred by the Lender in
connection herewith;
(b) The Lender shall have received
the fully executed Confirmation of A
