exv10w1






Exhibit 10.1




SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT




     THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”),
dated as of September 22, 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,
COMPASS BANK, an Alabama banking corporation successor in interest to Guaranty Bank, and REGIONS
CAPITAL MARKETS, a division of Regions Bank, as Joint Lead Arrangers, and COMPASS BANK, an Alabama
banking corporation successor in interest to Guaranty Bank, as Syndication Agent.



RECITALS:




     A. The Borrower, the Lenders party thereto and the Administrative Agent have entered into that
certain Amended and Restated Credit Agreement dated as of May 1, 2009 (as the same has been and may
be amended, modified, supplemented or restated from time to time, the “Credit Agreement”).



     B. The Borrower has requested to increase the Total Commitments by an aggregate amount not
exceeding $30,000,000 pursuant to Section 2.14 of the Credit Agreement (the “Commitment
Increase”), and the Borrower, the Lenders, and the Administrative Agent now desire to amend the
Credit Agreement to reflect such Commitment Increase and as otherwise set forth 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:



ARTICLE I

DEFINITIONS




     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.



ARTICLE II

AMENDMENTS




     Section 2.1 Amendment to Schedules to the Credit Agreement. Effective as of the date
hereof, the Schedules to the Credit Agreement are hereby substituted with the Schedules attached
hereto for all purposes under the Credit Agreement, and any reference to a certain Schedule in the
Loan Documents shall refer to the corresponding Schedule attached hereto.













 





ARTICLE III

CONDITIONS PRECEDENT TO EFFECTIVENESS




     Section 3.1 Conditions. The effectiveness of this Amendment and the Commitment
Increase is subject to the full satisfaction of each of the following conditions precedent:



     (a) Documents. The Administrative Agent shall have received all of the following, in
form and substance satisfactory to the Administrative Agent:




     (i) Amendment. Executed counterparts of this Amendment, sufficient in number
for distribution to the Administrative Agent, each Lender and the Borrower.




     (ii) Amended and Restated Notes. An amended and restated Note executed by the
Borrower in favor of each existing Lender which has agreed to increase its Commitment in
connection with the Commitment Increase.




     (iii) Joinder Agreement. Executed counterparts of a joinder agreement for each
Eligible Assignee agreeing to become a Lender (each a “New Lender”) in connection
with the Commitment Increase.




     (iv) New Notes. A Note executed by the Borrower in favor of each New Lender.




     (v) Other Conditions. The conditions precedent specified in Section
2.14(e) of the Credit Agreement shall have been satisfied.




     (vi) Payment of Fees. Any fees required to be paid on or before the date
hereof shall have been paid, including those fees required to be paid in that certain Fee
Letter dated as of July 2, 2009 between the Borrower and Regions Capital Markets.




     (vii) Additional Information. Such additional documents, instruments and
information as the Administrative Agent, the Letter of Credit Issuer, the Swing Line Lender
or the Required Lenders reasonably may require.



     (b) No Default or Event of Default. No Default shall exist or would result from the
execution of this Amendment.



     (c) No Material Adverse Effect. Since the date of the most recent financial
statements delivered by the Borrower to the Administrative Agent, no event or circumstance has
occurred that has had or would be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect.



     (d) Representations and Warranties. All of the representations and warranties
contained in Article V of the Credit Agreement, as amended hereby, and in the other Loan
Documents shall be true and correct on and as of the date hereof, with the same force and effect as
if such representations and warranties had been made on and as of the date hereof, except to the
extent that such representations and warranties specifically refer to an earlier date, in which



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case they shall be true and correct as of such earlier date, and except that the
representations and warranties contained in subsections (a) and (b) of Section 5.05 of the
Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement.



ARTICLE IV

NO WAIVER




     Section 4.1 No Waiver. Nothing contained herein shall be construed as a waiver by the
Administrative Agent or any Lender of any covenant or provision of the Credit Agreement, this
Amendment, or any other Loan Document, or of any other contract or instrument between the Borrower
and the Administrative Agent and/or the Lenders, and the failure of the Administrative Agent and/or
any Lender at any time or times hereafter to require strict compliance by the Borrower of any
provision thereof shall not waive, affect or diminish any right of the Administrative Agent or any
Lender to thereafter demand strict compliance therewith. The Administrative Agent and the Lenders
hereby reserve all rights granted under the Credit Agreement, this Amendment, the other Loan
Documents and any other contract or instrument between the Borrowers and the Administrative Agent
and/or the Lenders.



ARTICLE V

RATIFICATIONS, REPRESENTATIONS AND WARRANTIES




     Section 5.1 Ratifications. The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and
except as expressly modified and superseded by this Amendment, the terms and provisions of the
Credit Agreement are ratified and confirmed and shall continue in full force and effect. The
Borrower, the Administrative Agent and the Lenders agree that the Credit Agreement as amended
hereby shall continue to be legal, valid, binding and enforceable in accordance with its terms.



     Section 5.2 Representations and Warranties. The Borrower hereby represents and
warrants to the Administrative Agent and each Lender that (a) the representations and warranties
contained in Article V of the Credit Agreement, as amended hereby, and in the other Loan
Documents are true and correct on and as of the date hereof as though made on and as of the date
hereof, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier date, and except that
the representations and warranties contained in subsections (a) and (b) of Section 5.05 of
the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, and (b) no
Default exists.



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ARTICLE VI

MISCELLANEOUS




     Section 6.1 Survival of Representations and Warranties. All representations and
warranties made in this Amendment or any other Loan Document including any Loan Document furnished
in connection with this Amendment shall survive the execution and delivery of this Amendment and
the other Loan Documents, and no investigation by the Administrative Agent or any Lender or any
closing shall affect the representations and warranties or the right of the Administrative Agent or
any Lender to rely upon them.



     Section 6.2 Reference to Agreement. Each of the Loan Documents, including the Credit
Agreement and any and all other agreements, documents, or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement as amended
hereby, are hereby amended so that any reference in such Loan Documents to the Credit Agreement
shall mean a reference to the Credit Agreement as amended hereby. This Amendment is a Loan
Document.



     Section 6.3 Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder
of this Amendment and the effect thereof shall be confined to the provision so held to be invalid
or unenforceable.



     Section 6.4 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED
PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN TEXAS AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.



     Section 6.5 Successors and Assigns. This Amendment is binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns, except the Borrower
may not assign or transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender.



     Section 6.6 Counterparts. This Amendment may be executed in one or more counterparts
and by different parties on separate counterparts, each of which when so executed shall be deemed
to be an original, but all of which when taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of any signature pages hereto by telecopy, e-mail
or other electronic transmission shall be effective as delivery of originally executed signature
pages.



     Section 6.7 Effect of Waiver. No consent or waiver, express or implied, by the
Administrative Agent and the Lenders to or for any breach of or deviation from any covenant,
condition or duty by the Borrower shall be deemed a consent or waiver to or of any other breach of
the same or any other covenant, condition or duty.



     Section 6.8 Headings. The headings, captions, and arrangements used in this Amendment
are for convenience only and shall not affect the interpretation of this Amendment.



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     Section 6.9 Entire Agreement. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



[Remainder of the Page Intentionally Left Blank. Signature Pages to Follow.]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.



	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	PENSON WORLDWIDE, INC.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Roger J. Engemoen, Jr.
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Roger J. Engemoen, Jr.
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Chairman
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT




 









 





     Each Loan Party (a) consents and agrees to the terms of this Amendment and all other Loan
Documents executed in connection therewith, (b) affirms that nothing contained in this Amendment
shall modify in any respect whatsoever its obligations under the Guaranty and the Pledge Agreement,
(c) agrees that the “Obligations” under the Guaranty and the Pledge Agreement include, without
limitation, the indebtedness and obligations of any Loan Party under the Loan Documents, including
the Credit Agreement as amended hereby, and (d) agrees that the Guaranty and the Pledge Agreement
remain in full force and effect and continue to be legal, valid, binding, and enforceable in
accordance with their terms.



	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	SAI HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Roger J. Engemoen, Jr.
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Roger J. Engemoen, Jr.
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Chairman
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	PENSON HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Roger J. Engemoen, Jr.
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Roger J. Engemoen, Jr.
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Chairman
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT




 









 






	 	 	 	 	 	 	 
	 	 	REGIONS BANK,
	 	 	as Administrative
Agent, a Lender, Letter of Credit
	 	 	 Issuer and Swing Line Lender
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Ingari
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Ingari
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Sr. Vice President
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT




 









 





	 	 	 	 	 	 	 
	 	 	COMPASS BANK,
	 	 	an Alabama banking
corporation successor in 

interest to Guaranty Bank, as a Lender
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Amanda Cone
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Amanda Cone
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Senior Vice President
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT




 









 





	 	 	 	 	 	 	 
	 	 	CAPITAL ONE, N.A., as a Lender
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Jacob Villere
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Jacob Villere
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Vice President
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT




 









 





	 	 	 	 	 	 	 
	 	 	TEXAS CAPITAL BANK, NATIONAL
	 	 	ASSOCIATION, as a Lender
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Paul Howell
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Paul Howell
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Senior Vice President
	 

	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 
	 	 	THE PRIVATEBANK AND TRUST
	 	 	COMPANY, as a Lender
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Ronald Fontenot
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Ronald Fontenot
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Associate Managing Director
	 

	 	 	 	 	 	 





 









 





	 	 	 	 	 	 	 
	 	 	UNION BANK, N.A., as a Lender
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Marissa Petri
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Marissa Petri
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Vice President