exv10w1






Exhibit 10.1




EIGHTH AMENDMENT TO CREDIT AGREEMENT




     THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “ Amendment”) is entered into effective
as of the 31st day of December, 2008, but executed as of March 16, 2009 by and among the lenders
listed on the signature pages hereof (the “ Lenders”), PENSON WORLDWIDE, INC., a Delaware
corporation (“ Borrower”), GUARANTY BANK, as Administrative Agent, Swing Line Lender,
Arranger and Letter of Credit Issuer for the Lenders (the “ Administrative Agent”), and
Wachovia Bank, National Association, as Documentation Agent (the “ Documentation Agent”),
each to the extent and in the manner provided for in the Credit Agreement (defined below and herein
so called).



BACKGROUND




     A. The Lenders, the Borrower, the Documentation Agent and the Administrative Agent are parties
to that certain Credit Agreement dated as of May 26, 2006 (as it may be amended, extended, renewed,
or restated from time to time, the “ Credit Agreement”). Capitalized terms defined in the
Credit Agreement and not otherwise defined herein shall be used herein as defined in the Credit
Agreement.



     B. The Borrower has requested an amendment to the certain provisions of the Credit Agreement
regarding the calculation of Consolidated Tangible Net Worth and the Consolidated Leverage Ratio,
and the Administrative Agent and the Required Lenders have agreed to such amendment in order to
provide clarification, subject to the terms and conditions contained herein.



     NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy of which are all
hereby acknowledged, the parties hereto covenant and agree as follows:



     1. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement is hereby amended as
follows:




     (a) Section 1.01 of the Credit Agreement is hereby amended so that the
definition of “Applicable Rate” contained therein is restated in its entirety to read as
follows:




“Applicable Rate” means the following percentages per annum,
based upon the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b):



EIGHTH AMENDMENT TO CREDIT AGREEMENT — Page 1 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	 	 	 	 	LIBOR	 	 
	 	 	 	 	 	 	 	 	 	 	Rate/	 	 
	Pricing	 	Consolidated	 	Commitment	 	Letters of	 	Base
	Level	 	Leverage Ratio	 	Fee	 	Credit	 	Rate
	 
	 	1	 	 	Greater than or equal to *** to ***
	 	 	*	**%	 	 	*	**%	 	 	*	**%
	 	2	 	 	Greater than or equal to *** to *** but less than *** to ***
	 	 	*	**%	 	 	*	**%	 	 	*	**%
	 	3	 	 	Less than *** to ***
	 	 	*	**%	 	 	*	**%	 	 	*	**%







     Any increase or decrease in the Applicable Rate resulting from a
change in the Consolidated Leverage Ratio shall become effective as of the
first Business Day immediately following the date a Compliance Certificate
is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due
in accordance with such Section, then Pricing Level 1 shall apply as of the
first Business Day after the date on which such Compliance Certificate was
required to have been delivered.



     (b) Section 1.01 of the Credit Agreement is hereby amended by amending the
definition of “Base Rate” by adding the following sentence to the end of such definition:




Notwithstanding anything contained herein to the contrary, the Base Rate
shall never be less than ***%.



     (c) Section 1.01 of the Credit Agreement is hereby amended so that the
definition of “Consolidated EBITDA” contained therein is restated in its entirety to read as
follows:




     “Consolidated EBITDA” means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such period plus (a) the following to
the extent deducted in calculating such Consolidated Net Income: (i)
Interest Charges for such period, (ii) the provision for Federal, state,
local and foreign income taxes payable by the Borrower and its Subsidiaries
for such period, and (iii) depreciation and amortization expense and
minus (b) the following to the extent included in calculating such
Consolidated Net Income: (i) Federal, state, local and foreign income tax
credits of the Borrower and its Subsidiaries for such period and (ii) all
non-cash items increasing Consolidated Net Income for such period. For
purposes of calculating the Consolidated Leverage Ratio, all calculations
shall exclude the correspondent asset loss of $26,421,000 related to
Evergreen Capital Partners, Inc. when calculating Consolidated EBITDA.



EIGHTH AMENDMENT TO CREDIT AGREEMENT — Page 2 









 





     (d) Section 1.01 of the Credit Agreement is hereby amended by amending the
definition of “LIBOR Rate” by adding the following sentence to the end of such definition:




Notwithstanding anything contained herein to the contrary, the LIBOR Rate
shall never be less than ***%.



     (e) Section 7.16(a) of the Credit Agreement is hereby restated in its entirety
to read as follows:




     (a) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net
Worth at any time to be less than $***; increasing quarterly by the sum of
(i) ***% of the Consolidated Net Income earned in each full fiscal quarter
ending hereafter (with no deduction for a net loss in any such fiscal
quarter) and (ii) an amount equal to ***% of the net aggregate increases in
Shareholders’ Equity of the Borrower and its Subsidiaries after the date
hereof by reason of the issuance and sale of Equity Interests of the
Borrower or any Subsidiary (other than issuances to the Borrower or a
wholly-owned Subsidiary), including upon any conversion of debt securities
of the Borrower into such Equity Interests.



     (f) Section 7.16(c) of the Credit Agreement is hereby restated in its entirety
to read as follows:




     (c) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio at any time during any period of four fiscal quarters of the Borrower
set forth below to be greater than the ratio set forth below opposite such
period:



EIGHTH AMENDMENT TO CREDIT AGREEMENT — Page 3 









 





	 	 	 	 	 
	 	 	Maximum Consolidated	 	Maximum Consolidated
	 	 	Leverage Ratio if Net	 	Leverage Ratio if Net
	Four Fiscal Quarters	 	Cash Proceeds of IPO are	 	Cash Proceeds of IPO are
	Ending	 	less than $***	 	greater than $***
	 
	Closing Date through
December 30, 2006

	 	*** to ***
	 	*** to ***
	 
	 	 	 	 
	December 31,
2006

through December 30, 2007

	 	*** to ***
	 	*** to ***
	 
	 	 	 	 
	December 31, 2007

through December 30, 2008

	 	*** to ***
	 	*** to ***
	 
	 	 	 	 
	December 31, 2008 and
thereafter

	 	*** to ***
	 	*** to ***







Notwithstanding anything to the contrary contained herein, Net Cash
Proceeds as determined in connection with this Section 7.16(c) shall
not include any consideration in connection with the SAMCO Split-Off.



     2. CONDITIONS OF EFFECTIVENESS. This Amendment shall not be effective until each of
the following conditions precedent shall have been met to the satisfaction of the Administrative
Agent:




     (a) Since the date of the most recent financial statements provided to the Lenders,
there shall have been no event or circumstance, either individually or in the aggregate,
that has had or would reasonably be expected to have a Material Adverse Effect;




     (b) No Default shall exist after giving effect to this Amendment;




     (c) The Administrative Agent shall have received, for the account of each Lender
consenting to this Amendment, an amendment fee equal to 0.125% of each such consenting
Lender’s Commitment;




     (d) The Administrative Agent shall have received confirmation that the Borrower has
paid all expenses and fees arising in connection with all matters undertaken or performed at
the request of the Administrative Agent; and




     (e) The Administrative Agent shall have received, in form and substance satisfactory to
the Administrative Agent, a duly executed copy of this Amendment and the other applicable
Loan Documents, together with such additional documents, instruments and certificates as the
Administrative Agent shall require in connection therewith, all in form and substance
satisfactory to the Administrative Agent.



EIGHTH AMENDMENT TO CREDIT AGREEMENT — Page 4 









 





     3. LIMITATION ON ACQUISITIONS. Notwithstanding anything to the contrary contained
within the Credit Agreement, no acquisitions, including Permitted Acquisitions or any other
acquisitions permitted under Section 7.02 of the Credit Agreement, shall be made through
the Maturity Date.



     4. REPRESENTATIONS AND WARRANTIES. The representations and warranties contained
herein and in all other Loan Documents, as amended hereby, shall be true and correct as of the date
hereof as if made on the date hereof.



     5. REFERENCE TO CREDIT AGREEMENT. Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to “this Agreement,” “hereunder,” or words of like import shall
mean and be a reference to the Credit Agreement, as affected and amended by this Amendment.



     6. COUNTERPARTS; EXECUTION VIA FACSIMILE OR ELECTRONIC TRANSMITTAL. This Amendment
may be executed in one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Amendment may be validly
executed and delivered by facsimile or other electronic transmission.



     7. GOVERNING LAW: BINDING EFFECT. This Amendment shall be governed by and construed
in accordance with the laws of the State of Texas and shall be binding upon the Borrower, the
Administrative Agent, the Documentation Agent, each Lender and their respective successors and
assigns.



     8. HEADINGS. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.



     9. LOAN DOCUMENT. This Amendment is a Loan Document and is subject to all provisions
of the Credit Agreement applicable to Loan Documents, all of which are incorporated in this
Amendment by reference the same as if set forth in this Amendment verbatim.



     10. SEVERABILITY. Any provisions 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 provisions so held to be invalid or
unenforceable.



     11. RATIFICATIONS. Except as expressly modified and superseded by this Amendment, the
terms and provisions of the Credit Agreement and the other Loan Documents are ratified and
confirmed and shall continue in full force and effect. The representations and warranties
contained herein and in all other Loan Documents, as amended hereby, shall be true and correct as
of, and as if made on, the date hereof. The Credit Agreement as amended hereby shall continue to
be legal, valid, binding and enforceable in accordance with its respective terms.



     12. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,



EIGHTH AMENDMENT TO CREDIT AGREEMENT — Page 5 









 




CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.



[Remainder of page left intentionally blank. Signature pages follow.]




EIGHTH AMENDMENT TO CREDIT AGREEMENT — Page 6 









 





     IN WITNESS WHEREOF, the Borrowers, the Required Lenders, the Documentation Agent and the
Administrative Agent have executed this Amendment as of the date first above written.



	 	 	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 	 	 
	 	 	PENSON WORLDWIDE, INC.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Roger J. Engemoen, Jr.
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Roger J. Engemoen, Jr.
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Chairman
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO EIGHTH AMENDMENT TO CREDIT AGREEMENT




 









 





	 	 	 	 	 	 	 
	 	 	GUARANTY BANK,
	 
	 	 	 	 	 	 
	 	 	as Administrative Agent, a Lender, Letter of Credit Issuer and Swing Line Lender
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Amanda Cone
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Amanda Cone
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Senior Vice President
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO EIGHTH AMENDMENT TO CREDIT AGREEMENT




 









 





	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL
	 	 	ASSOCIATION, as Documentation Agent and a Lender
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Erik Habres
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Erik Habres
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Vice President
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO EIGHTH AMENDMENT TO CREDIT AGREEMENT




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Garfield Johnson	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Garfield Johnson
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Senior Vice President
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO EIGHTH AMENDMENT TO CREDIT AGREEMENT




 









 





	 	 	 	 	 	 	 
	 	 	REGIONS BANK
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robin Ingari
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Ingari
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Senior Vice President
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO EIGHTH AMENDMENT TO CREDIT AGREEMENT




 









 





	 	 	 	 	 	 	 
	 	 	SOVEREIGN BANK
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	 
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO EIGHTH AMENDMENT TO CREDIT AGREEMENT