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EXHIBIT 10.1
THIRD AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AMONG
AMERITRADE HOLDING CORPORATION,
FIRST NATIONAL BANK OF OMAHA,
XXXXXX TRUST AND SAVINGS BANK,
LASALLE BANK NATIONAL ASSOCIATION, AND
FIRSTAR BANK, N. A.
DATED AS OF JANUARY 25, 2000
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THIRD AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT to AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(this "Third Amendment") entered into as of this 10th day of May, 2001, 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, as
previously amended, among AMERITRADE HOLDING CORPORATION, a Delaware corporation
having its principal place of business at 0000 Xxxxx 000xx Xxxxxx, Xxxxx,
Xxxxxxxx 00000 (the "Borrower"); FIRST NATIONAL BANK OF OMAHA, a national
banking association having its principal place of business at Xxx Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("Agent" or "FNB-O"); XXXXXX TRUST AND SAVINGS
BANK, an Illinois banking corporation having its principal place of business at
000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Xxxxxx"); LASALLE BANK NATIONAL
ASSOCIATION, a national banking association having its principal place of
business at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("LaSalle"); and
FIRSTAR BANK, N. A. (formerly known as FIRSTAR BANK MISSOURI, NATIONAL
ASSOCIATION, formerly known as MERCANTILE BANK NATIONAL ASSOCIATION), a national
banking association having its principal place of business at One Firstar
Center, 7th and Washington TRAM 00-0, Xx. Xxxxx, Xxxxxxxx 00000 ("Firstar"). 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 a waiver of certain covenants of the
Agreement and the Revolving Lenders have executed a Waiver Agreement dated as of
April 30, 2001, subject to the execution of this Third Amendment and related
amendments to the Pledge Agreement (together, the "Amendments");
WHEREAS, the Revolving Lenders and the Borrower have agreed to reduce the
Base Revolving Credit Facility; and
WHEREAS, the Borrower has agreed to pledge additional NITE Stock to the
collateral package;
NOW, THEREFORE, the parties hereby agree that as of the date hereof:
1. The following definitions in Section I of the Agreement are hereby amended
to read as follows:
Collateral: All personal property of the Borrower described in the
Security Agreement and the Pledge Agreement, whether now
owned or hereafter acquired, including, without limitation:
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(a) all of the Borrower's stock in any present or future
subsidiary, including without limitation, Advanced Clearing,
Inc., Ameritrade (Inc.), and Accutrade, Inc.;
(b) all of the Borrower's interest in the Pledged NITE Stock
(as that term is defined in the Pledge Agreement), including
any additional Pledged NITE Stock required to be delivered
pursuant to the terms of the Pledge Agreement;
(c) all of the Borrower's accounts, accounts receivable,
chattel paper, documents, instruments and other securities
(excluding NITE Stock other than the Pledged NITE Stock),
goods, inventory, letter of credit rights, equipment,
furniture and fixtures, general intangibles, contract
rights, computer, data processing, hardware and software
licenses, books and records; and
(d) all proceeds and products of the foregoing.
NITE
Stock: The common stock, or any securities exchanged for the common
stock, of Knight Trading Group, Inc. (formerly
Knight/Trimark Group, Inc.)
2. 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.
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, $17,333,340 (28.8889%);
(ii) as to Xxxxxx, $13,333,320 (22.2222%); (iii) as to Firstar, $16,000,020
(26.6667%); (iv) as to LaSalle, $13,333,320 (22.2222%); provided, however, that
each Revolving Lender's Commitment is several and not joint or joint and
several.
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 (w)
the then current Base Revolving Credit Facility, or (x) one and one-half (1 1/2)
times the Borrower's Annualized Modified Cash Flow, or (y) the number of Core
Retail Accounts times $200, or (z) seventy percent (70%) of the then current
fair market value of the Pledged NITE Stock, 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
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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.
3. Section 2.2(a) of the Agreement is hereby amended to read as follows:
2.2 Revolving Credit Fees.
(a) The Borrower shall pay to the Revolving Lenders a commitment fee equal
to 1/2 of 1% (.005) of the average unused facility, payable quarterly in
arrears. Such fee shall be paid to the Agent and based on the average
unused portion of the revolving credit commitment during the applicable
quarter. FNB-O shall distribute to each Revolving Lender its pro rata share
of such fees based on the maximum Advance limits set forth above.
4. Section 2.3 of the Agreement is hereby amended to read as follows:
2.3 Interest on Revolving Credit. Interest shall accrue on the Principal
Loan Amount outstanding from time to time at a variable rate per annum (the
"Revolving Credit Rate") equal to the greater of (a) the Base Rate minus
1/4 of 1% (.0025), or (b) the LIBOR Rate plus 2.00%. Such rate shall
fluctuate monthly based on changes in such rates on the first business day
of each month. All interest under the Notes shall accrue based on a year of
360 days, and for actual days elapsed. Interest shall be due no later than
the tenth day of each month. Notwithstanding anything to the contrary
elsewhere herein, after an Event of Default has occurred and is continuing,
interest shall accrue on the entire outstanding balance of principal and
interest on all indebtedness hereunder at a fluctuating rate per annum
equal to the Default Rate.
5. Section 4.24 of the Agreement is hereby amended to read as follows:
4.24 Cumulative Pre-Tax Earnings (Losses). The Borrower shall not incur net
income prior to taxes less than (or net losses prior to taxes more than)
the amounts shown below, such income (or losses) to be calculated for the
quarters ending on or before March 31, 2001, on a cumulative basis during
the Borrower's fiscal year, and for the quarters ending after March 31,
2001, for the respective fiscal quarter on a stand-alone (i.e.,
non-cumulative) basis as indicated:
Fiscal Year Ending Fiscal Quarter Ending Net Income (or Loss) Before Taxes
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9/30/00 12/31/99 ($80,000,000) (cumulative)
3/31/00 ($115,000,000) (cumulative)
6/30/00 ($75,000,000) (cumulative)
9/30/00 ($60,000,000) (cumulative)
9/30/01 12/31/00 ($35,000,000) (waived)
3/31/01 ($20,000,000) (waived)
6/30/01 ($500,000) (single quarter)
9/30/01 $15,000,000 (single quarter)
in each case as tested at the end of each fiscal quarter.
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6. The following Section 6.1(m) is hereby added to the Agreement:
(m) The Principal Amount Outstanding shall exceed eighty percent (80%) of
the fair market value of the Pledged NITE Stock and such excess shall
continue for more than two Business Days, as set forth in Section 4.3
of the Pledge Agreement.
7. The first sentence of Section 6.2 of the Agreement is hereby amended to
read as follows:
If an Event of Default occurs and is continuing, upon the election of
the Requisite Revolving Lenders, the entire unpaid principal amount under
the Notes, together with interest accrued thereon, shall become immediately
due and payable without presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived, the Commitments of the Revolving
Lenders hereunder shall terminate, and the Revolving Lenders may exercise
their rights under the other Operative Documents or the Notes, including,
without limitation, under the Security Agreement and the Pledge Agreement.
8. Section 7.1 of the Agreement is hereby amended to read as follows:
7.1 FNB-O as Servicer. FNB-O will act as sole servicer of the loans
evidenced by the Notes. For purposes of this Article VII, the term Event of
Default means any Event of Default hereunder. FNB-O will enforce, administer
and otherwise deal with the loans made by the Revolving Lenders in accordance
with safe and prudent banking standards employed by FNB-O in the case of the
loan made by FNB-O. Without limiting the generality of the foregoing, FNB-O
will, on its own behalf and on behalf of the Revolving Lenders: (i) maintain
originals of the Operative Documents (excluding the Notes); (ii) receive
requests for Advances from the Borrower, promptly transmit the same to the
Revolving Lenders and make such Advances on behalf of the Revolving Lenders
(provided that FNB-O is assured of reimbursement therefor by the other
Revolving Lenders for their pro rata shares); (iii) receive payments and
prepayments from the Borrower and apply such payments as provided in Section
7.2; (iv) receive notices from the Borrower and send copies thereof to the
Revolving Lenders if FNB-O has reasonable cause to believe that such Revolving
Lenders have not received such notice from another source; and (v) advise the
Revolving Lenders of the occurrence of any Event of Default which FNB-O
obtains actual knowledge of. The Revolving Lenders agree not to attempt to
take any action against the Borrower under the Operative Documents or the
Notes, or with respect to the indebtedness evidenced thereby without FNB-O's
consent unless the Requisite Revolving Lenders shall have requested FNB-O to
take specific action against the Borrower and FNB-O shall have failed to do so
within a reasonable period after receipt of such request. All actions,
consents, waivers and approvals by the Revolving Lenders shall be deemed taken
or given and amendments hereto deemed agreed to if the Requisite Revolving
Lenders shall have indicated their consent thereto. Notwithstanding the
foregoing, approval of a Revolving Lender shall be required for: (i) any
reduction or compromise of the principal loan amount of any Note held by such
Lender, the amount or rate of interest accrued or accruing
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thereon or the fees due hereunder; and (ii) extension of the date of any
scheduled payment under such Note; and unanimous consent of all the Revolving
Lenders shall be required for (iii) permitting the sale of or releasing the
security interest of the Revolving Lenders in (x) any stock held in
Subsidiaries or (y) other Collateral which comprises more than ten percent
(10%) of net book value of fixed assets of the Borrower; and (iv) any
amendment of Sections 7.1 or 7.2 hereof. A Revolving Lender's commitment
hereunder may not be increased without the consent of such Revolving Lender,
it being understood, however, that increases in the total revolving credit
facility hereunder may be made with the consent of the Requisite Revolving
Lenders, so long as such increase does not result in the increase of any
non-consenting Revolving Lender's commitment hereunder.
9. Simultaneously with the execution and delivery of this Third Amendment, the
Borrower will execute and deliver to each of the Revolving Lenders a Note,
substantially in the form of Attachment A to this Third Amendment, which will
reflect the revised commitment of such Revolving Lender. Upon receipt of such
new Note each Revolving Lender will cancel and return to the Agent for
distribution to the Borrower the cancelled prior note.
10. The drawing certificate attached as Exhibit B to the Agreement is amended
to read as shown on Attachment B to this Third Amendment.
11. The compliance certificate attached as Exhibit C to the Agreement is
amended to read as shown on Attachment C to this Third Amendment.
12. This Third Amendment may be executed in several counterparts and such
counterparts together shall constitute one and the same instrument.
13. This Third Amendment shall be effective upon receipt by the Agent of
counterpart signature pages from each of the parties hereto, and also from the
Borrower:
(a) the revised Notes specified in Paragraph 7 above,
(b) a certificate dated as of the effective date of this Third Amendment
(the "Effective Date") of an executive officer of the Borrower affirming as
of such Effective Date (i) the representations and warranties of the
Borrower set forth in the Operative Documents, and (ii) that no Default or
Event of Default has occurred and is continuing;
(c) a certificate of the secretary or assistant secretary of the Borrower
that the Amendments have been duly authorized, executed and delivered by
the Borrower, such certificate to include a copy of the corporate
resolution of the Borrower authorizing the execution of the Amendments;
(d) UCC-3s reflecting the amended Collateral description and in lieu
financing statements, such UCC-3s and in lieu financing statements to be in
a form acceptable to the Agent; and
(e) such other documents and certificates as shall be requested by the
Agent to effect the Amendments.
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14. Notwithstanding any other provision in the Operative Documents prior to
the Effective Date, after the Effective Date all references in the Operative
Documents to the Uniform Commercial Code shall mean the Uniform Commercial Code
adopted by the State of Nebraska, as amended from time to time.
15. The Revolving Lenders have previously waived, pursuant to the Waiver
Agreement (the "Waiver") dated as of April 30, 2001 among the Borrower, the
Agent and the Revolving Lenders, and subject to the execution of the Amendments,
certain covenants of the Agreement specified in the Waiver. The Waiver also
stated that for purposes of calculating Annualized Modified Cash Flow as of
March 31, 2001, the subordinated debt retirement expense in the amount of
$62,082,119 which was incurred in the quarter ending March 31, 2001 (the
"Subordinated Debt Retirement Expense"), would be excluded. The Agent and the
Revolving Lenders hereby confirm that the Subordinated Debt Retirement Expense
is excluded for purposes of determining Annualized Modified Cash Flow for the
quarter ending March 31, 2001, in determining the maximum Principal Loan Amount
permitted under clause (x) of the second paragraph of Section 2.1 of the
Agreement as amended by this Third Amendment.
IN WITNESS WHEREOF, the Borrower and the Revolving Lenders have caused this
Third 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.
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AMERITRADE HOLDING CORPORATION
By: /s/ Xxxx X. XxxXxxxxx
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Title: Chief Financial Officer
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FIRST NATIONAL BANK OF OMAHA
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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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
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XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
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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
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FIRSTAR BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Title: Vice President
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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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Xxxxxxxx
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XXXXXXX XXXX NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxx
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Title: First Vice President
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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
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NOTICE OF EFFECTIVE DATE
Ameritrade Holding Corporation is the borrower (the "Borrower") under
that certain Amended and Restated Revolving Credit Agreement (the "Agreement")
dated as of January 25, 2000, as previously amended by the First Amendment to
Amended and Restated Revolving Credit Agreement and the Second Amendment to
Amended and Restated Revolving Credit Agreement, by and among the Borrower;
First National Bank of Omaha, as agent (the "Agent") for itself and the other
lenders (the "Lenders") named therein; Xxxxxx Trust and Savings Bank; LaSalle
Bank National Association and Firstar Bank, N.A.
In connection with the Waiver Agreement (the "Waiver Agreement") dated
as of April 30, 2001, by the Agent and the Lenders,
(a) the Borrower, the Agent and the Lenders have entered into a Third
Amendment to Amended and Restated Revolving Credit Agreement (the
"Third Amendment") dated as of May 10, 2001, and
(b) the Borrower and the Agent have entered into a Second Amendment to
the Amended and Restated Stock Pledge Agreement (the "Second
Amendment") dated as of May 10, 2001.
Certain requirements for the effectiveness of the Third Amendment were not
completed until June 20, 2001. The parties to the Second Amendment and the Third
Amendment (together, the "Amendments") desire for the effective date of the
Amendments to be the same for both Amendments and to avoid any confusion as to
such effective dates. Therefore, the parties to the Amendments hereby agree that
(i) notwithstanding the as-of date of May 10, 2001, shown in the Amendments or
any other reference in the Amendments to an Effective Date, the "Effective Date"
of both Amendments is hereby acknowledged by all such parties to have occurred
on June 20, 2001; (ii) the reference in Section 4.3(a) of the Amended and
Restated Stock Pledge Agreement, as amended by the Second Amendment (the
"Revised Pledge Agreement"), to "the date hereof" is deemed to read "June 20,
2001;" and (iii) the reference in Section 4.3(a) of the Revised Pledge Agreement
to "$85,715,000" is amended to read $74,550,000." This Notice of Effective Date
may be executed by the parties in counterparts.
BORROWER: AMERITRADE HOLDING CORPORATION
By: /s/ Xxxx X. XxxXxxxxx
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Title: Chief Financial Officer
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AGENT and LENDER: FIRST NATIONAL BANK OF OMAHA
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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LENDERS: XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
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FIRSTAR BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Title: Vice President
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LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxx
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Title: First Vice President
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