EXHIBIT 10.3
SECOND 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 9, 2005
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT to THIRD AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Second Amendment") entered into as of this 9 day of December,
2005, 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
(as previously amended by the First Amendment to Third Amended and Restated
Revolving Credit Agreement dated as of December 13, 2004 (the "First
Amendment")), among AMERITRADE HOLDING CORPORATION a Delaware corporation having
its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Borrower"), FIRST NATIONAL BANK OF OMAHA, a national banking
association having its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Agent" or "FNB-O"), LASALLE BANK NATIONAL ASSOCIATION, a
national banking association having its principal place of business at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ BANK, a
Wisconsin banking association having its principal place of business at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, a national banking association having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 announced that it intends to enter into an
acquisition transaction with The Toronto Dominion Bank (the "Transaction"),
which Transaction is anticipated to be consummated on or about January 24, 2006;
and
WHEREAS, in connection with the Transaction the Borrower will terminate
the Agreement and the facilities provided hereunder, will pay in full all
amounts owing hereunder, if any, and will enter into documents providing for an
increased credit facility for approximately $2,200,000,000 (the "Syndicated Loan
Facility"), as such facility is described in the notice from the Borrower to the
Agent addressed November 28, 2005, (the "Syndicated Loan Facility Notice"), a
copy of which is attached hereto as Attachment I to this Second Amendment; and
WHEREAS, the Agreement is scheduled to terminate on December 12, 2005, and
the parties hereto desire to extend the Agreement so that the Agreement will
terminate upon the execution and delivery of the documents evidencing the
Syndicated Loan Facility;
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:
Termination
Date: The earlier of (a) March 12, 2006, and (b) the initial
borrowing under the Syndicated Loan Facility and the
simultaneous payment in full of all amounts owing under
this Agreement and the other Operative Documents, or
such later
Termination Date as is approved in writing by the
Revolving Lenders.
2. The following definitions are hereby added to Article I of the Agreement:
Notice: The letter notice from the Borrower to the Agent dated
as of November 28, 2005, which notice is attached to the
Second Amendment hereto as Attachment II.
Transaction: The anticipated acquisition transaction with The Toronto
Dominion Bank, such transaction to be substantially as
described in the Notice.
Syndicated
Loan Facility: The loan facility described in the recitals to the
Second Amendment hereto.
Syndicated
Loan Facility
Notice: The notice described in the recitals to this Second
Amendment.
3. The first paragraph of Section 2.1 of the Agreement is hereby amended and
restated in its entirety to read as follows:
2.1 Revolving Credit. Until the the Termination Date,
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.
4. Section 2.4 of the Agreement is hereby amended and restated in its
entirely to read as follows:
2.4 Payments. On the next succeeding Business Day after
the end of any Fiscal Month the Borrower shall repay the
amount, if any, outstanding on the Notes which in the
aggregate exceeds the amount of the Base Revolving Credit
Facility to be in place on the next succeeding Business Day
following such Fiscal Month and, within three (3) Business
Days after the end of any Fiscal Month in which the Borrower
is not in compliance with the Leverage Ratio covenant in
Section 4.19, such amount necessary to bring the Borrower into
compliance with Section 4.19. The balance of the loan, if any,
shall be due on the Termination Date. All obligations of the
Borrower under the Notes and under the other Operative
Documents shall be payable in immediately available funds in
lawful money of the United States of America at the principal
office of FNB-O in Omaha, Nebraska or at such other address as
may be designated by FNB-O in writing. In the event that a
payment day is not a Business Day, the payment shall be due on
the next succeeding Business Day.
5. The Revolving Lenders hereby acknowledge receipt of the Notice and the
Syndicated Loan Facility Notice and agree that such notices shall be
sufficient to meet the notice requirements of Sections 4.5, 4.13 and 4.17
of the Agreement, to the extent notice is required under any such section;
provided, however, that the Borrower hereby covenants and agrees to
provide to the Agent additional notices if there shall be any material
change in the Transaction or the
Syndicated Loan Facility as described in such notices, including without
limitation any material delay or postponement of such anticipated
transactions. Notwithstanding the acknowledgment of the receipt and
sufficiency of the Notice and the Syndicated Loan Facility Notice as
referenced above, such acknowledgment does not waive any Event of Default
or Potential Event of Default which may arise out of the consummation of
the Transaction or the Syndicated Loan Transaction prior to the
Termination Date, including without limitation any Change of Control or
any breach of the financial covenants or negative covenants set forth in
Article IV of the Agreement.
6. The form of Notes currently attached as Exhibit A to the Agreement is
hereby amended and restated in its entirety to read as shown on Attachment
III to this Second Amendment.
7. In consideration of the Revolving Lenders entering into this Second
Amendment, the Borrower agrees to pay to the Agent on or before the
Effective Date (i) an amendment and extension fee equal to the product of
2-1/2 basis points (.025%) and the existing aggregate commitment set
forth in Section 2.1 of the Agreement, such fees to be fully earned and
non-refundable upon execution and delivery of this Second Amendment. Such
fee shall be distributed among the Revolving Lenders pro rata based on
their commitments.
8. Ameritrade Online Holdings Corp. ("Ameritrade Online") and Datek Online
Holdings Corp. ("Datek" and, together with Ameritrade Online, the
"Guarantors") hereby reaffirm and acknowledge their respective guaranty
obligations under that certain Amended and Restated Guaranty Agreement,
dated as of December 15, 2003, between Ameritrade Online and the Agent,
and that certain Second Amended and Restated Guaranty Agreement, dated as
of December 15, 2003, between Datek and the Agent.
9. On or prior to the Effective Date, the Borrower shall deliver to the
Agent:
(a) the replacement Notes;
(b) a certificate of an executive officer of the Borrower, dated as of
the Effective Date, affirming as of such Effective Date (i) that the
representations and warranties of the Borrower set forth in the
Operative Documents are true and correct in all material respects as
of the Effective Date, and (ii) that no Potential Event of Default
or Event of Default has occurred and is continuing;
(c) a certificate of the secretary or assistant secretary of the
Borrower and each of the Guarantors that this Second Amendment has
been duly authorized, executed and delivered by the Borrower and
each of the Guarantors, such certificate to include a copy of
corporate resolutions of the Borrower and each of the Guarantors
authorizing the execution of this Second Amendment, incumbency and
copies of corporate documents;
(d) such other documents and certificates as shall be reasonably
requested by the Agent to effect the intent of this Second
Amendment; and
(e) the amendment and renewal fee described in Section 7 above.
10. This Second Amendment may be executed in several counterparts and such
counterparts together shall constitute one and the same instrument.
11. From the Effective Date, all references in the Operative Agreements to the
Third Amended and Restated Credit Agreement, dated as of December 15,
2003, shall mean such Agreement, as amended by the First Amendment and
this Second Amendment. Obligations under the Notes and the Agreement are
secured in accordance with the Security Agreements and the Pledge
Agreements.
[Signature page follows]
IN WITNESS WHEREOF, the Borrower, the Guarantors and the Revolving Lenders
have caused this Second Amendment to the Third Amended and Restated Revolving
Credit Agreement to be executed by their duly authorized corporate officers as
of the day and year first above written.
BORROWER:
AMERITRADE HOLDING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President, Chief Financial
Officer and Chief Administrative Officer
GUARANTORS:
AMERITRADE ONLINE HOLDINGS CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President, Chief Financial
Officer and Chief Administrative Officer
DATEK ONLINE HOLDINGS CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President, Chief Financial
Officer and Chief Administrative Officer
REVOLVING LENDERS:
FIRST NATIONAL BANK OF OMAHA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Second Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
M&I ▇▇▇▇▇▇▇▇ & ILSLEY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
