Exhibit
10.1
FIRST AMENDMENT TO REVOLVING
CREDIT, TERM LOAN
AND
SECURITY AGREEMENT
This FIRST AMENDMENT TO REVOLVING
CREDIT, TERM LOAN AND SECURITY AGREEMENT (“Amendment”)
is executed among FGDI, L.L.C., a limited liability company formed
under the laws of the State of Delaware (“ Borrower
”), the financial institutions which are now or which
hereafter become a party hereto (collectively, the “
Lenders ” and individually a “ Lender
”) and CoBANK, ACB (“ CoBank ”), as agent
for Lenders (CoBank, in such capacity, the “ Agent
”), for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged effective May 31,
2006.
Recitals
1. Borrower
and CoBank executed a Revolving Credit, Term Loan and Security
Agreement (“Agreement”) on or about March 28,
2006.
2. The
Agreement, in part, requires Borrower to meet certain financial
covenants and restricts Borrower from incurring Indebtedness that
is not subject to a Subordination Agreement.
3. Borrower
has requested CoBank to amend certain financial covenants
applicable as of May 31, 2006, and to allow it to incur
Indebtedness from FCStone Group, subject to a Subordination
Agreement.
4. CoBank is
willing to amend the Agreement as requested by Borrower, subject to
the terms and conditions of this Amendment.
Agreements
1. Capitalized terms used
in this Amendment and not otherwise defined herein shall have the
meanings given them in the Agreement.
2. The
definition of Indebtedness is hereby amended to
read:
“ Indebtedness ”
of a Person at a particular date shall mean all obligations of such
Person which in accordance with GAAP would be classified upon a
balance sheet as liabilities (except capital stock and surplus
earned or otherwise) and in any event, without limitation by reason
of enumeration, shall include all indebtedness, debt and other
similar monetary obligations of such Person whether direct or
guaranteed, and all premiums, if any, due at the required
prepayment dates of such indebtedness, and all indebtedness secured
by a Lien on assets owned by such Person, whether or not such
indebtedness actually shall have been created, assumed or incurred
by such Person. Any indebtedness of such Person resulting from the
acquisition by such Person of any assets subject to any Lien shall
be deemed, for the purposes hereof, to be the equivalent
of
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the creation, assumption and incurring of the
indebtedness secured thereby, whether or not actually so created,
assumed or incurred. Notwithstanding anything to the contrary
contained in this Agreement, in calculating the Total Debt to
Adjusted Working Capital financial covenant set forth herein, the
term “ Indebtedness ” shall exclude all
non-recourse indebtedness and amounts payable to AFG Asset
Management under the AFG Asset Management Investment Facility
Letter and to AFG Trust Finance under the AFG Trust Finance Credit
Facility Letter .
3. The
definition of Net Worth is hereby amended to
read:
“ Net Worth ” at
a particular date, shall mean (a) the aggregate amount of all
assets of Borrower as may properly be classified as such in
accordance with GAAP consistently applied and such other assets as
are properly classified as “ intangible assets
”, less (b) the aggregate amount of all Indebtedness of
Borrower except Indebtedness (up to $1,000,000) to FCStone Group
that is subject to a Subordination Agreement.
4. The
definition of Subordination Agreements is hereby amended to
read:
“ Subordination
Agreements ” shall mean collectively the subordination
and intercreditor agreements with FCStone Financial, Inc. and
FCStone Merchant Services, LLC, and the subordination
agre
