exv10w1



 





EXHIBIT 10.1



NOTE: PORTIONS OF THIS AMENDMENT ARE THE SUBJECT OF A
 CONFIDENTIAL TREATMENT REQUEST BY THE
REGISTRANT TO THE 
SECURITIES AND EXCHANGE COMMISSION. SUCH PORTIONS HAVE BEEN
 REDACTED AND ARE
MARKED WITH A “[*]” IN PLACE OF THE REDACTED LANGUAGE.




FIFTH AMENDMENT TO CREDIT AGREEMENT




     THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of the
19th day of September, 2007 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 permitted Investments, and the Administrative Agent and the 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 by adding the
definition of “JDI LOAN” in alphabetical order to read as follows:




     “JDI Loan” means a one-time advancement of up to $5,000,000 to JDI Financial,
LLC, a Delaware limited liability company, at any time on or before November 30, 2007, on
terms and conditions substantially similar to those previously disclosed to the Lenders
(such terms and conditions shall not be changed without consent of the Lenders).




     (b) Section 7.02(h) and (i) of the Credit Agreement are hereby deleted in their
entirety and are replaced with the following:



FIFTH AMENDMENT TO CREDIT AGREEMENT — Page 1




 









 









     (h) the ***** Acquisition;




     (i) making the JDI Loan; and




     (j) Investments otherwise permitted in this Agreement.



     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 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




     (d) 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.



     3. 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.



     4. 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.



     5. 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.





 




			
	*****	 	Certain information on this page has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.





FIFTH AMENDMENT TO CREDIT AGREEMENT — Page 2




 









 








     6. 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.



     7. 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.



     8. 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.



     9. 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.



     10. 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.



     11. 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,
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.]




FIFTH AMENDMENT TO CREDIT AGREEMENT — Page 3




 









 








     IN WITNESS WHEREOF, the Borrowers, the 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/ Kevin W. McAleer
 	 
	 	 	Name:  	Kevin W. McAleer 	 
	 	 	Title:  	CFO 	 
	 



SIGNATURE PAGE TO FIFTH 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:  	Vice President 	 
	 



SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT





 









 








	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL

ASSOCIATION, as Documentation Agent

and a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Garfield Johnson
 	 
	 	 	Name:  	Garfield Johnson 	 
	 	 	Title:  	Senior Vice President 	 
	 



SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT





 









 








	 	 	 	 	 
	 	REGIONS BANK

 	 
	 	By:  	/s/ Wade Morgan
 	 
	 	 	Name:  	Wade Morgan 	 
	 	 	Title:  	Senior Vice President 	 
	 



SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT




 









 








	 	 	 	 	 
	 	SOVEREIGN BANK

 	 
	 	By:  	/s/ Casey R. Hozer
 	 
	 	 	Name:  	Casey R. Hozer 	 
	 	 	Title:  	Executive VP 	 
	 



SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT