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Exhibit 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AMONG
AMERITRADE HOLDING CORPORATION,
FIRST NATIONAL BANK OF OMAHA,
HARRIS TRUST AND SAVINGS BANK,
LASALLE BANK NATIONAL ASSOCIATION, AND
MERCANTILE BANK NATIONAL ASSOCIATION
DATED AS OF JANUARY 25, 2000
APRIL 28, 2000
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FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT to AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(this "First Amendment") entered into as of this 28th day of April, 2000, is
intended to amend the terms of the Amended and Restated Revolving Credit
Agreement (the "Agreement") dated as of the 25th day of January, 2000, among
AMERITRADE HOLDING CORPORATION, a Delaware corporation having its principal
place of business at 4211 South 102nd Street, Omaha, Nebraska 68127 (the
"Borrower"); FIRST NATIONAL BANK OF OMAHA, a national banking association having
its principal place of business at One First National Center, Omaha, Nebraska
68102 ("Agent" or "FNB-O"); HARRIS TRUST AND SAVINGS BANK, an Illinois banking
corporation having its principal place of business at 111 W. Monroe Street,
Chicago, Illinois 60603 ("Harris"); LASALLE BANK NATIONAL ASSOCIATION, a
national banking association having its principal place of business at 135 South
LaSalle Street, Chicago, Illinois 60603 ("LaSalle"); and MERCANTILE BANK
NATIONAL ASSOCIATION, a national banking association having its principal place
of business at One Mercantile Center, 7th and Washington TRAM 12-3, St. Louis,
Missouri 63101 ("Mercantile"). All terms and conditions of the Agreement shall
remain in full force and effect except as expressly amended herein. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings prescribed in the Agreement.
WHEREAS, the Borrower has requested that it be permitted to pledge the NITE
Stock pursuant to the terms of a credit facility with one or more third parties
other than the Revolving Lenders; and
WHEREAS, the Revolving Lenders have agreed to permit such additional
borrowing and pledge on the terms and conditions specified below;
NOW, THEREFORE, the parties hereby agree that as of the Effective Date
specified below:
1. The definition of "Collateral" in Section I of the Agreement is hereby
amended to add the words "(excluding NITE Stock other than the Pledged
NITE Stock)" in clause (c) of such definition immediately after the
word "securities." The definition of "Indebtedness" in Section I of
the Agreement is hereby amended to add the words "and amounts
outstanding under any Other Credit Facility" after the words
"Subordinated Debt."
2. The following definition is hereby added to Section I of the
Agreement:
Other Credit Facility: As defined in Section 4.25 hereof.
3. Section 2.1 of the Agreement is hereby amended to read as follows:
2.1 Revolving Credit. Until December 31, 2001, the Revolving Lenders
severally agree to advance funds for general corporate purposes not to
exceed the amount shown below (the "Base Revolving Credit Facility")
to the Borrower on a revolving credit basis.
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Such Advances shall be made on a pro rata basis by the Revolving
Lenders, based on the following maximum Advance limits and applicable
percentages for each Revolving Lender: (i) as to FNB-O, $21,666,675
(28.8889%); (ii) as to Harris, $16,666,650 (22.2222%); (iii) as to
Mercantile, $20,000,000 (26.6667%); (iv) as to LaSalle, $16,666,650
(22.2222%); provided, however, that each Revolving Lender's Commitment
is several and not joint or joint and several. The Base Revolving
Credit Facility shall be subject to reduction as specified in Section
4.3 of the Pledge Agreement.
The Borrower shall not be entitled to any Advance hereunder if,
after the making of such Advance, the Principal Loan Amount would
exceed the least of (x) the then current Base Revolving Credit
Facility, or (y) the sum of $25,000,000 plus one and one-half (1 1/2)
times the Borrower's Annualized Modified Cash Flow, or (z) the number
of Core Retail Accounts times $200, determined in each case after
giving effect to the requested Advance. Nor shall the Borrower be
entitled to any further Advances hereunder after the occurrence and
during the continuation of any Event of Default or any event which
with the passage of time or the giving of notice or both would
constitute an Event of Default, or if the Borrower's representations
and warranties cease to be true and correct in all material respects
at the time of the requested Advance. Advances shall be made, on the
terms and conditions of this Agreement, upon the Borrower's request.
Requests shall be made by 12:00 noon Omaha time on the Business Day
prior to the requested date of the Advance. Requests shall be made by
presentation to FNB-O of a drawing certificate in the form of Exhibit
B. The Borrower's obligation to make payments of principal and
interest on the foregoing revolving credit indebtedness shall be
further evidenced by the Notes.
4. Section 4.2 of the Agreement is hereby amended to read as follows:
4.2 Corporate Structure and Assets.
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(a) The Borrower shall not merge or consolidate with any other
corporation or entity without the prior written consent of the
Requisite Revolving Lenders, except as provided in clause (b)
below.
(b) The foregoing restriction on mergers and consolidations
shall not apply if: (i) in the case of a merger, the Borrower is
the surviving entity and expressly reaffirms its obligations
hereunder; (ii) in the case of a consolidation, the resulting
corporation expressly assumes the obligations of the Borrower
hereunder; (iii) the surviving or resulting corporation is
organized under the laws of the United States or a jurisdiction
thereof; (iv) after giving effect to such merger or
consolidation, the surviving or resulting corporation will be
engaged in substantially the same lines of business as are now
engaged in by the Borrower and its Subsidiaries and businesses
reasonably related thereto; and (v) immediately after giving
effect to such merger or consolidation, no Event of Default will
exist hereunder.
(c) The Borrower shall not sell any assets, other than in the
ordinary course of business, in an aggregate amount greater than
one million dollars ($1,000,000),
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except (i) items that are obsolete or no longer necessary for
operation of the business, (ii) the Borrower's interest in
Comprehensive Software Systems, Ltd. and (iii) the Borrower's
interest in the NITE Stock (other than the Pledged NITE Stock).
The Revolving Lenders shall be entitled to receive as a
prepayment on the Notes the net cash proceeds of any sale of
assets of the Borrower which are prohibited by the preceding
sentence. Notwithstanding the foregoing prepayment requirements,
any such prohibited sale shall remain a violation of this
Agreement. Any net cash proceeds from the sale of the Borrower's
interest in the NITE Stock (other than the Pledged NITE Stock)
shall either (y) be reinvested solely in Permitted Investments or
additional investments in Advance Clearing, or (z) subject to the
provisions of the following sentence, paid to the Revolving
Lenders as a prepayment on the Notes as specified below. To the
extent the sold NITE Stock secured an Other Credit Facility and
the net cash proceeds of the sale are required to be used to
reduce the amount outstanding under the Other Credit Facility,
the net cash proceeds shall be repaid first to reduce such Other
Credit Facility as required thereby, and second, to the extent of
any remaining net cash proceeds, pro rata in accordance with the
next sentence. If the sold NITE Stock did not secure an Other
Credit Facility, the net cash proceeds shall be applied pro rata
(based on the amounts outstanding thereunder) to prepayment of
the Other Credit Facility or Facilities and the prepayment of the
Notes. For purposes of this Section 4.2 (c), "net cash proceeds"
shall mean any proceeds shall mean the amount in cash or cash
equivalents received from the sale after taxes and after payment
of all costs and expenses incurred in connection with the sale,
including brokerage or similar fees.
(d) In addition, the Borrower shall not engage in any business
materially different from that in which it is presently engaged
and businesses reasonably related thereto without the prior
written consent of the Requisite Revolving Lenders, which consent
shall not be unreasonably withheld.
7. The following Section 4.25 is hereby added to the Agreement:
4.25 Other Credit Agreements; NITE Stock.
(a) The Borrower shall not suffer to exist any security interest
on the Pledged NITE Stock. The Borrower shall not suffer to exist
any security interest or other encumbrance on any other portion
of the NITE Stock owned by the Borrower and its Subsidiaries
other than to secure indebtedness of the Borrower under any
credit, margin stock, or put and/or call agreement secured by or
covering such NITE Stock (an "Other Credit Facility").
(b) The Borrower shall not permit the Principal Loan Amount, at
any time when there is indebtedness outstanding under any Other
Credit Facility, to be less than the lesser of (i) one half of
the aggregate principal amount outstanding under all Other Credit
Facilities and (ii) the maximum amount permitted to be
outstanding at such time under Section 2.1 of this Agreement.
Notwithstanding anything to
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the contrary herein or in any other Operative Document, no
Temporary Administrative Convenience Breach by the Borrower of
this Section 4.25(b) shall be an Event of Default (or an event
which with the passage of time or the giving of notice or both
will constitute an Event of Default) nor create a default upon
which Agent or any other Revolving Lender may exercise any remedy
against any Collateral or exercise any right of set-off. For
purposes of this Section 4.25(b), a "Temporary Administrative
Convenience Breach" is a breach of this Section 4.25 (b) which
(y) does not continue for more than two Business Days, or (z)
does not result in the ratio of the aggregate amount outstanding
under all Other Credit Facilities to the Principal Loan Amount to
exceed 7:3 .
(c) The Borrower shall not permit the aggregate principal amount
outstanding under all Other Credit Facilities to exceed 70% of
the fair market value of the NITE Stock (exclusive of the Pledged
NITE Stock) owned by the Borrower and its Subsidiaries.
(d) Prior to entering into any Other Credit Facility, the
Borrower shall provide to Agent a copy of the final form of the
operative agreements for the Other Credit Facility and such Other
Credit Facility shall not, in the reasonable opinion of Agent,
constitute an Event of Default hereunder or materially adversely
affect the rights of the Revolving Lenders under this Agreement.
9. Section 6.1(f) of the Agreement is hereby amended by adding "Other
Credit Agreement," after the phrase "(including the Subordinated Debt)."
10. Section 4.17 of the Agreement is hereby amended by inserting the
following at the end of the proviso to the first sentence "and (iv) Permitted
Investments."
CHANGE TO SECURITY AGREEMENT
11. Section 5(a) of the Security Agreement is hereby amended by adding the
following at the end of the last sentence thereof "and other than Permitted
Liens."
CHANGE TO PLEDGE AGREEMENT
12. Section 4.3 of the Pledge Agreement is hereby amended to read as
follows:
Section 4.3 NITE Stock Covenants. In connection with the NITE
Stock, the Borrower agrees as follows:
(a) Mark to Market. The Borrower represents and warrants that
the original Pledged NITE Stock has a market value of at least
$50,000,000. The Pledged NITE Stock shall be marked to market
weekly to determine the fair market value of such Collateral.
The Borrower shall provide to the Agent weekly a report
showing the current fair market value of the Pledged NITE
Stock.
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(b) Additional Pledged NITE Stock. In the event that the fair
market value of the Pledged NITE Stock at any time is less
than $36,000,000, the Borrower shall give notice of such
deficiency to the Agent and, within three Business Days after
the determination of the deficiency, deliver to the Agent, or
transfer into the Pledged Account, as applicable, additional
NITE Stock such that the fair market value of the Pledged NITE
Stock again shall be at least $50,000,000. Prior to the
provision of such additional Pledged NITE Stock, the Base
Revolving Credit Facility shall be reduced immediately to an
amount equal to the sum of (a) 1.5 times Annualized Modified
Cash Flow (but not to exceed $50,000,000), plus (b) 70% of the
fair market value of the Pledged NITE Stock (as to (a) and (b)
together, the "Maximum Loan Availability"). Failure to provide
such additional Pledged NITE Stock within three Business Days
shall constitute a default under this Stock Pledge Agreement
unless the total amount outstanding under the Notes does not
exceed the Maximum Loan Availability.
(c) Release of Pledged NITE Stock. The Agent shall release
the Pledged NITE Stock and return all interest therein to
the Borrower upon satisfaction of all of the following
conditions:
(i) the Base Revolving Credit Facility is reduced to
$50,000,000.00 or less;
(ii) the aggregate amounts outstanding under the Notes
and the Revolving Credit Agreement do not exceed the
product of l.5 times Annualized Modified Cash Flow; and
(iii) no Event of Default nor any event or occurrence
which with the passage of time, or notice, or both, would
constitute an Event of Default, has occurred and is
continuing.
13. This First Amendment may be executed in several counterparts and such
counterparts together shall constitute one and the same instrument.
14. Except as expressly agreed herein, all terms of the Agreement, the
Security Agreement and the Pledge Agreement shall remain in full force and
effect.
15. This First Amendment shall be effective as of April 28, 2000 (the
"Effective Date").
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IN WITNESS WHEREOF, the Borrower and the Revolving Lenders have caused
this First Amendment to Amended and Restated Revolving Credit Agreement to be
executed by their duly authorized corporate officers as of the day and year
first above written.
AMERITRADE HOLDING CORPORATION
By: /s/ John R. MacDonald
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Title: Chief Financial Officer
John R. MacDonald
FIRST NATIONAL BANK OF OMAHA
By: /s/ J. P. Bonham
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Title: Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED: /s/ JRM
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Borrower
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HARRIS TRUST AND SAVINGS BANK
By: /s/ Gary R. Shafer
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Title: Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
/s/ JRM
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Borrower
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MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/ Joseph L. Sooter, Jr.
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Title: Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
/s/ JRM
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Borrower
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LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Darren Lemkau
Title: FVP
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NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
/s/ JRM
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Borrower
