Exhibit 10.1
F IRST A MENDMENT T O C REDIT A GREEMENT
This First Amendment to Credit
Agreement (herein, the “Amendment” ) is entered
into as of June 24, 2009, by and among FCStone, LLC, an Iowa
limited liability company (the “Borrower” ),
FCStone Group, Inc., a Delaware corporation (
“Parent” ), as a guarantor, the financial
institutions party to this Amendment, as lenders (the
“Lenders” ), and Bank of Montreal, as
administrative agent (the “Administrative Agent”
).
P RELIMINARY S TATEMENTS
A. The Borrower, the Parent, the
Lenders and the Administrative Agent entered into a certain Credit
Agreement, dated as of July 23, 2008 (the “Credit
Agreement” ). All capitalized terms used herein without
definition shall have the same meanings herein as such terms have
in the Credit Agreement.
B. The Borrower has requested that
the Lenders make certain amendments to the Credit Agreement, and
the Lenders are willing to do so under the terms and conditions set
forth in this Amendment.
N OW ,
T HEREFORE , for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
S ECTION 1. A MENDMENTS .
Subject to the satisfaction of the
conditions precedent set forth in Section 3 below, the Credit
Agreement shall be and hereby is amended as follows:
1.1. Section 1.2 of the Credit
Agreement shall be amended and restated to read in its entirety as
follows:
Section 1.2. Interest
Rates. (a) Each
Revolving Loan made or maintained by a Lender shall bear interest
(computed on the basis of a year of 365 or 366 days, as the
case may be, and the actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is advanced, until maturity
(whether by acceleration or otherwise) at a rate per annum equal to
the sum of the Applicable Margin plus the Base Rate from time to
time in effect, payable by the Borrower on each Interest Payment
Date and at maturity (whether by acceleration or
otherwise).
“Base
Rate” means, for
any day, the rate per annum equal to the greatest of: (a) the
rate of interest announced or otherwise established by the
Administrative Agent from time to time as its prime commercial
rate, or its equivalent, for U.S. Dollar loans to borrowers
located in the United States as in effect on such day, with any
change in the Base Rate resulting from a change in said prime
commercial rate to be effective as of the date of the relevant
change in said prime commercial rate (it being
acknowledged and agreed that such
rate may not be the Administrative Agent’s best or lowest
rate), (b) the Federal Funds Rate plus
1
/ 2 of 1%,
and (c) the LIBOR Quoted Rate for such day plus
1.00%.
“Eurodollar Reserve
Percentage” means
the maximum reserve percentage, expressed as a decimal, at which
reserves (including, without limitation, any emergency, marginal,
special, and supplemental reserves) are imposed by the Board of
Governors of the Federal Reserve System (or any successor) on
“eurocurrency liabilities” , as defined in such
Board’s Regulation D (or any successor thereto), subject
to any amendments of such reserve requirement by such Board or its
successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the relevant Loans shall
be deemed to be “eurocurrency liabilities” as
defined in Regulation D without benefit or credit for any
prorations, exemptions or offsets under Regulation D. The
Eurodollar Reserve Percentage shall be adjusted automatically on
and as of the effective date of any change in any such reserve
percentage.
“Federal Funds
Rate” means, for
any day, the rate determined by the Administrative Agent to be the
average (rounded upward, if necessary, to the next higher
1
/ 100 of 1%)
of the rates per annum quoted to the Administrative Agent at
approximately 10:00 a.m. (Chicago time) (or as soon thereafter
as is practicable) on such day (or, if such day is not a Business
Day, on the immediately preceding Business Day) by two or more
Federal funds brokers selected by the Administrative Agent for sale
to the Administrative Agent at face value of Federal funds in the
secondary market in an amount equal or comparable to the principal
amount for which such rate is being determined.
“LIBOR Quoted
Rate” means, for
any day, the rate per annum equal to the quotient of (i) the
rate per annum (rounded upwards, if necessary, to the next higher
one hundred-thousandth of a percentage point) for deposits in U.S.
Dollars for a one-month interest period which appears on the
LIBOR01 Page as of 11:00 a.m. (London, England time) on such
day (or, if such day is not a Business Day, on the immediately
preceding Business Day) divided by (ii) one (1) minus the
Eurodollar Reserve Percentage.
“LIBOR01
Page” means the
display designated as “LIBOR01 Page” on the
Reuters Service (or such other page as may replace the LIBOR01 Page
on that service or such other service as may be nominated by the
British Bankers’ Association as the information vendor for
the purpose of displaying British Bankers’ Association
Interest Settlement Rates for U.S. Dollar
deposits).
(b) Rate Determinations. The
Administrative Agent shall determine each interest rate applicable
to the Loans and the Reimbursement Obligations hereunder, and its
determination thereof shall be conclusive and binding except in the
case of manifest error.
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1.2. Sections 1.5(b) and 1.8 of the
Credit Agreement shall be and hereby is amended by deleting
references to “Federal Funds Rate” appearing in
such sections and replacing them with references to “Base
Rate” .
1.3. Section 1.7(b)(i) of the
Credit Agreement shall be and hereby is amended by deleting the
phrase “seven (7) or more Business Days”
and inserting in its place the phrase “five (5) or
more Business Days” .
1.4. Section 1.12 of the Credit
Agreement shall be and hereby is amended by (a) deleting the
amount “50,000,000” appearing in clause
(i) thereof and inserting in its place the amount
“75,000,000” and (b) deleting the amount
“$300,000,000” appearing in clause
(ii) thereof and inserting in its place the amount
“$150,000,000” .
1.5. The defined terms
“Applicable Margin”, “Commitment”,
“Commitment Amount Increase Request”, “Required
Lenders” and “Termination Date”
appearing in Section 5.1 of the Credit Agreement shall be
amended and restated to read in their entirety as
follows:
“Applicable
Margin” means
(i) with respect to Loans, 1.50% per annum and
(ii) with respect to commitment fees set forth in
Section 2.1(a) hereof, 0.50% per annum.
“Commitment” means, as to any Lender, the obligation of such
Lender to make Revolving Loans and to participate in Swing Loans
hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such
Lender’s name on Schedule 1 attached hereto and made a
part hereof, as the same may be reduced or modified at any time or
from time to time pursuant to the terms hereof. The Borrower and
the Lenders acknowledge and agree that the Commitments of the
Lenders aggregate $75,000,000 on the First Amendment Effective
Date.
“Commitment Amount Increase
Request” means a
Commitment Amount Increase Request in the form of Exhibit F
hereto.
“Required
Lenders” means, as
of the date of determination thereof, (i) in the event there
are two (2) Lenders, 100% and (ii) in the event there are
more than two (2) Lenders, Lenders whose outstanding Loans and
Unused Commitments constitute more than 50% of the sum of the total
outstanding Loans and Unused Commitments of the Lenders.
“Termination
Date” means
June 23, 2010 or such earlier date on which the
Commitments are terminated in whole pursuant to Section 1.10,
9.2 or 9.3 hereof.
1.6. Section 5.1 of the Credit
Agreement shall be and hereby is amended by adding the new defined
terms in their appropriate alphabetical order, each such defined
term shall read in their entirety as follows:
“First
Amendment” means
that certain First Amendment to Credit Agreement dated as of
June 24, 2009, by and among the Borrower, the Parent, the
Lenders party thereto and the Administrative Agent.
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“First Amendment Effective
Date” means the
date upon which the First Amendment becomes effective pursuant to
its terms.
1.7. Section 6.6 of the Credit
Agreement shall be and hereby is amended by deleting the date
“February 29, 2008” appearing therein and
inserting in its place the date “April 30, 2009”
.
1.8. Section 7.1(b) of the
Credit Agreement shall be amended and restated to read in its
entirety as follows:
(b) no Default or Event of Default
shall have occurred and be continuing or would occur as a result of
such Credit Event and the Borrower shall have delivered to the
Lenders a description of the purpose for the Borrowing including a
schedule of the Borrower’s largest ten (10) clients
giving rise to such Borrowing or such other explanation if the
Borrowing is not related to the Borrower’s clients in form
and substance satisfactory to the Administrative Agent;
and
1.9. Section 8.18 of the Credit
Agreement shall be and hereby is amended by deleting the
“Neither the Parent nor the Borrower shall not”
appearing therein and inserting in its place the phrase
“Neither the Parent nor the Borrower shall”
.
1.10. Section 8.21(a) of the
Credit Agreement shall be and hereby is amended by deleting the
amount “$110,000,000” appearing therein and
inserting in its place the amount “$105,000,000”
.
1.11. Section 8 of the Credit
Agreement shall be and hereby is amended by inserting a new
Section 8.22 immediately after Section 8.21 to read in
its entirety as follows:
Section 8.22. Settlement and
Clearing Accounts. The
Borrower shall maintain all of its exchange settlement and clearing
accounts with the Administrative Agent or one of its Affiliates or
another depository satisfactory to the Administrative
Agent.
1.12. Section 12.12(d) of the
Credit Agreement shall be and hereby is amended by deleting the
reference to “Section 1.7” appearing in the last
line thereof and inserting in its place reference to
“Section 1.5” .
1.13. Exhibit A and Exhibit C to the
Credit Agreement shall be and hereby is amended and restated in
their entirety in the form of Exhibit A and Exhibit C,
respectively, attached hereto.
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1.14. Schedule 1 to the Credit
Agreement is hereby amended and restated in its entirety to read as
set forth on Schedule 1 hereto.
1.15. On the First Amendment
Effective Date each of CoBank, ACB and Deere Credit, Inc.
(collectively, the “Departing Lenders” ), hereby
agrees to sell and assign without representation, recourse, or
warranty (except that each Departing Lender represents it has
authority to execute and deliver this Agreement and sell its
Obligations contemplated hereby, which Obligations are owned by
such Departing Lender free and clear of all Liens), 100% of such
Departing Lender’s outstanding Obligations under the
Cred
