<PAGE>
EXHIBIT 10.1
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AMONG
AMERITRADE HOLDING CORPORATION
AND
FIRST NATIONAL BANK OF OMAHA, AS AGENT
AND
REVOLVING LENDERS PARTY HERETO
DATED AS OF DECEMBER 13, 2004
<PAGE>
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST
AMENDMENT to THIRD AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "First Amendment") entered
into as of this 13th day of December,
2004, is intended to amend the terms of the
Third Amended and Restated Revolving
Credit Agreement (the "Agreement") dated as
of the 15th day of December, 2003,
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 1620
Dodge Street, Omaha, Nebraska 68197-1050
("Agent" or "FNB-O"), LASALLE BANK NATIONAL
ASSOCIATION, a national banking
association having its principal place of
business at 801 Grand Street, Suite
3150, Des Moines, Iowa 50309 , M&I
MARSHALL & ILSLEY BANK, a Wisconsin banking
association having its principal place of
business at 770 North Water Street,
Milwaukee, Wisconsin 53201-2035, WELLS
FARGO BANK, NATIONAL ASSOCIATION, a
national banking association having its
principal place of business at 1919
Douglas Street, Omaha, Nebraska 68102, and
such other lenders as may become
Revolving Lenders under the Agreement. 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 and the Revolving Lenders have
agreed
to make certain amendments to the
Agreement, including increasing the Base
Revolving Credit Facility to $105,000,000
and extending the Termination Date to
December 12, 2005; and
WHEREAS,
the Borrower and the Revolving Lenders are willing to make such
amendments on the terms set forth
below.
NOW,
THEREFORE, the parties hereby agree that as of the date hereof
(the
"Effective Date"):
1. The following
definition under Article I of the Agreement is hereby
amended
and restated in its entirety to read as follows:
Agreement:
This Third Amended and Restated Revolving Credit
Agreement, dated as of December 15, 2003, among the
Borrower and the Revolving Lenders, as amended by the
First Amendment to Third Amended and Restated Revolving
Credit Agreement, dated as of December 13, 2004, as
further amended or restated from time to time.
2. The following
definition under Article I of the Agreement is hereby
amended
and restated in its entirety to read as follows:
Applicable
Margin:
For purposes of determining the Revolving Credit Rate,
the margin, calculated on a quarterly basis, is as
follows:
(a) If the Quarterly Compliance Certificate for the
immediately preceding fiscal
1
<PAGE>
quarter shows that the Leverage Ratio is less than
or equal to 0.25, the margin for the current quarter
shall be plus 1.75%; and
(b) If the Quarterly Compliance Certificate for the
immediately preceding fiscal quarter shows that the
Leverage Ratio is greater than 0.25 and less than or
equal to 0.50, the margin for the current quarter
shall be plus 2.00%.
In the event that any Quarterly Compliance Certificate
is not delivered on or before the due date thereof, the
Applicable Margin shall be the margin set forth in (b)
above until such certificate is delivered.
3. The following
definition is hereby added to Article I of the Agreement as
follows:
Cash
Capital
Expenditure: The amount
of any cash paid by the Borrower for any
capital expenditure pursuant to Section 4.15, whether
such payment is a cash down payment, a cash payment on
financed capital expenditures (other than regularly
scheduled monthly payments on financed capital
expenditures) or a cash payment in full.
4. The following
definition is hereby added to Article I of the Agreement as
follows:
EBITDA:
At any time, for the prior four fiscal quarters, the
Borrower's net income on a consolidated basis, plus (a)
taxes paid or accrued during such period, (b) interest
expenses paid or accrued during such period (other than
interest expenses paid to clients or accrued on cash
balances), and (c) amortization and depreciation
deducted in determining such net income for such period.
5. The following
definition under Article I of the Agreement is hereby
amended
and restated in its entirety to read as follows:
Investments: (i) Any
direct or indirect purchase or other acquisition
by the Borrower or any of its Subsidiaries of, or of a
beneficial interest in, any securities of any other
Person (including any Subsidiary of the Borrower), or
(ii) any direct or indirect loan, advance (other than
advances to employees for moving, entertainment and
travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or
capital contribution by the Borrower or any of its
Subsidiaries to any other Person, but excluding
Acquisitions. For the avoidance of doubt, transactions
in funds, securities or other property held or carried
by the Borrower or any of its Subsidiaries for the
benefit or account of any customer or other Person shall
not be considered Investments.
6. The following
definition under Article I of the Agreement is hereby
amended
and restated in its entirety to read as follows:
Letter(s)
of
Credit:
Letter(s) of Credit issued under the Letter of Credit
Facility, the Letter of Credit
2
<PAGE>
Amount of which shall not exceed $25,000,000.00 at any
time.
7. The following
definition under Article I of the Agreement is hereby
amended
and restated in its entirety to read as follows:
Leverage
Ratio:
Permitted Indebtedness divided by EBITDA.
8. The definition of
"Minimum Liquid Assets" is hereby deleted in its
entirety
from the Agreement.
9. The following
definition under Article I of the Agreement is hereby
amended
and restated in its entirety to read as follows:
Money
Market
Funds:
At any time, money market funds whose rating from
Standard and Poor's Rating Services Group ("S&P") is
AAAm or AAm or the equivalent thereof or whose Moody's
Investor Services ("Moody's") rating is Aaa or Aa or the
equivalent thereof.
10. The following definition is
hereby added to Article I of the Agreement as
follows:
Net Worth:
The Borrower's consolidated net worth as determined in
accordance with GAAP.
11. The following definition
under Article I of the Agreement is hereby
amended
and restated in its entirety to read as follows:
Permitted
Investments: Any one or
more of the following:
(a) certificates of deposit fully covered by
Federal Deposit Insurance and maintained at a bank
having capital and surplus of not less than $50,000,000;
(b) short-term obligations of, or obligations
fully guaranteed by, the United States of America or any
agencies thereof;
(c) commercial paper rated at least A-1 by
Standard and Poor's Ratings Service or P-1 by Moody's
Investors Service, Inc.;
(d) demand deposit accounts maintained in the
ordinary course of the business at a bank having capital
and surplus of not less than $50,000,000;
(e) Money Market Funds;
3
<PAGE>
(f) AA Rated or equivalent (or better) variable
rate preferred stock or debt;
(g) AA Rated or equivalent (or better) municipal
notes and bonds; and
(h) overnight repurchase agreements and term
repurchase agreements with a maturity up to two years
with respect to, and which are fully secured by a
security interest in, direct obligations issued by or
fully guaranteed by the United States of America, and
that are entered
into with any commercial bank organized
under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is at
least "adequately capitalized" (as defined in the
regulations of its primary Federal banking regulator)
and (b) has Tier 1 capital (as defined in such
regulations) of not less than $100,000,000.
provided, however, that the percentage of the Borrower's
investment portfolio that can be invested in AA Rated
securities is limited to twenty-five percent (25%) of the
Borrower's total investment portfolio, valued in accordance
with GAAP, so long as the remainder of the Borrower's
investment portfolio is invested in at least AAA securities
(or the equivalent rating for short-term investments) or in
items described in clauses (a) through (e) above; provided
further, that the maturities for any Permitted Investments
shall not exceed two years; and provided further, that the
average maturity of the Borrower's investment portfolio at all
times cannot exceed two hundred seventy (270) days. For
purposes of this definition, "maturity" includes final
maturity, or the put or pre-refunding date when securities are
to be liquidated at a predetermined price (usually par value).
12. The following definition is
hereby added to Article I of the Agreement as
follows:
Quarterly
Compliance
Certificate:
The
certificate delivered to the Revolving Lenders by
the Borrower pursuant to Section 4.1(e).
13. The following definition
under Article I of the Agreement is hereby
amended
and restated in its entirety to read as follows:
Termination
Date:
December 12, 2005, or such later date as is approved in
writing by the Revolving Lenders.
14. The following definition is
hereby added to Article I of the Agreement as
follows:
Unrestricted
Liquidity:
The sum of (i) all Non-Broker-Dealer Cash, plus (ii)
Distributable Net Capital.
15. Section 2.1 of the Agreement
is hereby amended and restated in its
entirety
to read as follows:
4
<PAGE>
2.1 Revolving Credit. Until December 12, 2005, the
Revolving Lenders severally agree to advance funds for general
corporate purposes not to exceed the amount shown on Appendix
I attached hereto, as amended from time to time (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 maximum Advance limits and
applicable percentages for each Revolving Lender as shown on
Appendix I attached hereto, as amended from time to time;
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 then current Base Revolving
Credit Facility 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 Potential Event of Default, or if the
Borrower's representations and warranties hereunder are not
true and correct in all material respects as of 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 11:00 a.m. 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. FNB-O shall promptly transmit a copy
of each such Advance request to the other Revolving Lenders.
Each Revolving Lender shall remit to FNB-O its Commitment
percentage times the amount of the Advanc
