THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD
AMENDMENT TO CREDIT AGREEMENT
This
Third Amendment to Credit Agreement is entered into as of October 1, 2009, by
and between Highbury Financial
Inc., a Delaware corporation ("Borrower") and City National Bank, a national
banking association ("CNB").
RECITALS
A. Borrower
and CNB are parties to that certain Credit Agreement, dated as of November 9,
2006, as amended by that certain First Amendment to Credit Agreement dated as of
October 31, 2007 and that certain Second Amendment to Credit Agreement dated
October 1, 2008 (the Credit Agreement, as herein amended, hereinafter the
"Credit Agreement").
B. Borrower
and CNB desire to supplement and amend the Credit Agreement as hereinafter set
forth.
NOW, THEREFORE, the parties
agree as follows:
1.
|
Definitions. Capitalized
terms used in this Amendment without definition shall have the meanings
set forth in the Credit Agreement.
|
2.
|
Amendments. The
Credit Agreement is amended as
follows:
|
2.1 Section
1.11 (Demand Deposit
Account) of the Credit Agreement is deleted in its entirety and the
number is reserved.
2.2 Section
1.30 (Termination Date)
of the Credit Agreement is amended by deleting the date “September 30, 2009” and
inserting in its place and stead the date “September 30, 2010”.
2.3 Sections
1.33 (Liquid Assets) and
1.34 (Marketable Securities) are deleted in their entirety and the numbers are
reserved.
2.3 Section
2.1 (Revolving Credit
Loan) is stricken and replaced with the following:
“2.1 Revolving Credit
Loan. Subject to the terms of this Agreement, CNB agrees to
make loans (“Revolving Credit Loans”) to Borrower, from the date of this
Agreement up to and including the Termination Date, at such times as Borrower
may request, up to the amount of the lesser of (a) the Revolving Credit
Commitment, or (b) twice the amount of EBITDA at the time of such request. The
Revolving Credit Loans may be repaid and reborrowed at any time up to the
Termination Date.”
1
2.4 Section
2.1.1 (Interest) is
stricken and replaced with the following:
“2.1.1 Interest. The
Revolving Credit Loans will bear interest from disbursement until due (whether
at stated maturity, by acceleration or otherwise) at a rate equal to, at
Borrower's option, either (a) for a LIBOR Loan, the greater of (i) three and
one-half percent (3.50%) per year, or (ii) the LIBOR Interest Rate plus two and
three-quarters percent (2.75%) per year, or (b) for a Prime Revolving Loan, the
greater of (i) three and one-half percent (3.50%) per year, or (ii) the
fluctuating Prime Rate plus one-half percent (.50%) per
year. Interest on the Revolving Credit Loans and other charges
incurred under this Agreement will accrue daily and be payable (a) in the case
of a LIBOR Loan in which the Interest Period is (i) 3 months or less, the last
day of such Interest Period and (ii) more than 3 months, the date that is 3
months from the first day of such Interest Period, then 3 months after each such
date if applicable, and, in addition, the last day of such Interest Period and
(b) in the case of a Prime Loan, monthly in arrears, on the last day of each
month, commencing on the first such date following disbursement; (c) if a LIBOR
Loan, upon any prepayment of any LIBOR Loan (to extent accrued on the amount
prepaid); and (d) at the Termination Date. A Revolving Credit Loan
will be a Prime Loan any time it is not a LIBOR Loan.”
2.5 Section
2.3 (Loans and Payments)
is stricken and replaced with the following:
“2.3 Loans and
Payments. All payments will be in United States Dollars and in
immediately available funds. Interest will be computed on the basis
of a 360 day year, actual days elapsed. Any Loan will be
conclusively presumed to have been made to or for the benefit of Borrower when
CNB, in its sole discretion, believes that the request therefor has been made by
authorized persons (whether in fact that is the case), or when the Loan is
advanced via wire transfers as requested by Borrower, regardless of whether any
Person other than Borrower may have authority to draw against such
account.”
2.6 Section
2.5 (Unused Facility
Fee) is stricken and replaced with the following:
“2.5 Unused Facility
Fee. Borrower will pay the Unused Facility Fee on the last day
of each calendar quarter; such fee will be non-refundable and fully earned when
paid.”
2.7 Sections
6.8.2 and 6.8.4 are deleted in their entirety and the numbers are
reserved.
3.
|
Existing
Agreement. Except as expressly amended herein, the
Credit Agreement shall remain in full force and effect, and in all other
respects is affirmed.
|
4.
|
Conditions
Precedent. This Amendment shall become effective upon
the fulfillment of all of the following conditions to CNB’s
satisfaction:
|
4.1 CNB
shall have received this Amendment duly executed by Borrower; and
4.2 CNB
shall have received the Unused Facility Fee in the approximate amount of
$7,666.67.
5.
|
Counterparts. This
Amendment may be executed in any number of counterparts, and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.
|
6.
|
Governing
Law. This Amendment and the rights and obligations of
the parties hereto shall be construed in accordance with, and governed by
the laws of the State of
California.
|
2
IN WITNESS WHEREOF, the
parties have executed this Amendment as of the day and year first above
written.
"Borrower"
|
Highbury Financial Inc.,
a Delaware corporation
|
By: /s/ Xxxxxxx
Xxxxx
|
Xxxxxxx Xxxxx, Chief Executive
Officer
|
"CNB"
City National Bank, a
national
banking
association
By: /s/ Xxxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxxxxxx, Vice President
3