EXHIBIT 10.13
BROKERAGE CREDIT AGREEMENT
--------------------------
(Customer Owned Securities, Loan A)
THIS BROKERAGE CREDIT AGREEMENT (this "Agreement") is made and entered into
as of May 30, 2000, by and between Advantage Trading Group, Inc., a Florida
corporation ("Borrower"), and FIRSTAR BANK, N.A., a national banking association
("Bank").
WITNESSETH:
WHEREAS, Borrower desires, and may from time to time make application, to
borrow money from Bank secured by certain securities; and
WHEREAS, Bank may from time to time, without any obligation to do so,
advance money to Borrower on the terms and conditions set forth hereinafter in
this Agreement;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower and Bank hereby agree as follows:
1. Loan Advances. Bank may, without any obligation to do so, advance sums
-------------
to Borrower in a maximum amount equal to the lesser of;
(a) Twenty Five Million and NO/100 Dollars ($25,000,000.00) less all
current borrowings of Borrower from Bank under that certain Brokerage
Credit Agreement, (Firm owned Securities, Loan B) dated May 30, 2000,
and that certain Brokerage Credit Agreement, (Matched Loan, Loan C)
dated May 30, 2000, entered into by and between Borrower and Bank; or
(b) With respect to securities owned by Borrower's customers, deemed
acceptable to Bank in Bank's discretion, and which are pledged by
Borrower to Bank at Depository Trust Company of New York, or are
pledged by Borrower to Bank as evidenced by a trust receipt in the
possession of Bank or physical possession of such securities by Bank
(all as described in paragraph 5 hereof), the sum of the following:
[(1) 70.0% of the current market value of stocks listed on the New
York or American stock exchanges and Over-the-Counter stock
having a current market value of at least Ten and NO/100 Dollars
($10.00) per share; plus
(2) 50.0% of current market value of stocks listed on the New York
and American stock exchanges and over-the-counter stocks, which
stocks have a current market value not less than $5.00, nor more
than $9.99, per share; provided, however, that the aggregate
amount of advances at any time outstanding hereunder with respect
to the customer securities described in this paragraph 1(b)(5)
shall not exceed $500,000.00; plus]
(3) 80.0% of the current "bid" price for corporate and municipal
bonds rated "BAA" or better; plus
(4) 90.0% of the current "bid" price for United States of America
Treasury Notes and Bonds having a maturity date of over five (5)
years; plus
(5) 95.0% of the current "bid" price for United States of America
Treasury Notes, Bonds and Bills having a maturity date of five
(5) years or less.
Unless sooner terminated by Bank under paragraph 13, Borrower's ability to
request loans hereunder shall automatically terminate on May 30, 2001.
2. Repayment of Principal. The principal amount of all loans hereunder
----------------------
shall be repayable ON DEMAND.
3. Interest. Prior to demand for repayment of the loans outstanding
--------
hereunder, Borrower shall pay interest to Bank on the aggregate and unpaid
principal amount of all loans from time to time outstanding hereunder at a rate
per annum equal to the rate quoted by Bank to Borrower in Bank's sole and
absolute discretion, which rate shall fluctuate as and when said rate so quoted
shall change. After such demand for repayment, Borrower shall pay interest to
Bank on the aggregate and unpaid principal amount of all loans from time to time
outstanding hereunder at a rate per annum equal to Two Percent (2%) over and
above the interest rate announced from time to time by Bank as its "prime rate"
on commercial loans, which interest rate shall fluctuate as and when said prime
rate shall change. All accrued and unpaid interest hereunder shall be due and
payable ON DEMAND, or if demand is not made prior thereto, then all accrued and
unpaid interest hereunder as of the last day of the preceding month, shall be
due and payable monthly commencing June 30, 2000, and on the 30th day of every
month thereafter. All interest hereunder shall be calculated upon the basis of
an actual day, 360-day year.
4. Demand Note. All loans hereunder shall be evidenced by a Demand Note
-----------
executed by Borrower payable ON DEMAND to the order of Bank in the principal
amount of Twenty Five Million and NO/100 Dollars ($25,000,000.00) and dated May
30, 2000 (the "Note").
5. Pledge of Securities. Borrower hereby pledges to Bank, as security for
--------------------
the obligations of Borrower hereunder and under the Note, all securities and
investment property owned by Borrower's customers which now or hereafter are (a)
held in a collateral account at Depository Trust Company of New York for the
benefit of Bank or are otherwise marked on the books and records of Depository
Trust Company of New York as being held for the benefit of or pledge to Bank,
(b) described on a trust receipt in the possession of Bank, or (c) otherwise in
the possession of Bank (collectively, the "Pledged Securities"); and as more
particularly described in the certain Pledge Agreement dated May 30, 2000,
executed by Borrower in favor of Bank. Borrower hereby grants to Bank all rights
and remedies of a secured party under the Uniform Commercial Code of the State
of Missouri with respect to such securities.
6. Reduction in Value of Pledged Securities. In the event the outstanding
----------------------------------------
principal balance of the loans hereunder shall exceed at any time the value of
the Pledged Securities (as determined under paragraph above), the Borrower shall
immediately:
(a) pledge additional securities acceptable to Bank in its sole
discretion with a value (as determines under paragraph 1 above)
sufficient to eliminate such excess; or
(b) make a payment of the principal balance of the loans outstanding
hereunder in the amount of such excess.
Borrower also covenants and agrees that it will not allow, at any time, the
outstanding principal balance of loans hereunder relating to Borrower's
customers to exceed the aggregate indebtedness (both principal and interest) of
Borrower's customers to Borrower relating to the Pledged Securities, and that if
any such excess shall occur, Borrower shall immediately notify Bank thereof and
make an immediate payment of the principal balance of the loans outstanding
hereunder in the amount of such excess.
7. Requests for Loans. Borrower hereby represents and warrants to Bank
------------------
that, until Bank has received written instructions to the contrary, Bank may
rely upon the written or telephonic instructions of any of the following named
employees of Borrower with regard to any requests for loans or repayments by
Borrower hereunder, to-wit:
NAME TITLE
---- -----
Xxxxxxx X. Xxxxx President
Xxxxx X. Xxxxx CEO
8. Funding of Loans. All loans by Bank to Borrower hereunder shall be
----------------
credited by Bank to Borrower's Account No. 1005016926 at Bank. Repayment of
loans hereunder may be accomplished by Bank debiting said account of Borrower at
Bank, by check drawn on said account, by wire transfer in same day funds to Bank
from Borrower or by check drawn on another financial institution (which shall be
subject to additional interest charges as determined by Bank).
9. Statements of Loans. Each month, Bank will issue to Borrower a statement
-------------------
showing the date of each loan or payment, the principal balance and the interest
accrued hereon during the period for which the statement is issued, plus any
accrued and unpaid interest from prior periods. Borrower agrees that if Borrower
does not object in writing to the balances and interest so shown within fifteen
(15) days of the date of such statement, the amounts shown on
said statement shall constitute prima facie evidence of the amount outstanding
hereon as of the date of such statement.
10. Reports. Borrower agrees that until all loans to Borrower hereunder
-------
have been repaid in full with interest, and until the terms and conditions of
this Agreement have been fully performed, Borrower will:
(a) Furnish to Bank within (90) days after the end of its fiscal
year, audited financial statements which shall include but not be
limited to a balance sheet, income and expense statement and
statement of retained earnings; and
(b) Furnish to Bank, within (5) days after filing, copies of all
monthly Financial and Operational Combined Uniform Single (FOCUS)
Reports (Securities and Exchange Commission form X-17A-5).
11. Compliance with SEC and Federal Reserve Rules and Regulations. Borrower
-------------------------------------------------------------
hereby represents and warrants to Bank that it is in compliance and will remain
in compliance with all rules, regulations and directives of the Federal Reserve
System and Securities & Exchange Commission relating to the hypothecation of
customer securities.
12. Year 2000 Compliance. Borrower has: (a) initiated a review and
--------------------
assessment of all areas within the business and operations (including those
affected by suppliers and vendors) of Borrower and each affiliate that could be
affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by Borrower or any affiliate [or suppliers or vendors] may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to, on and any date after December 31, 1999); (b) developed
a plan and timeline for addressing the Year 2000 Problem on a timely basis; and
(c) to date implemented that plan in accordance with that timetable. Borrower
represents that all computer applications (including those of its suppliers and
vendors) that are material to the business and operations of Borrower or any
affiliate will on a timely basis, be able to perform date sensitive functions
for all dates before, on and after January 1, 2000, except to the extent that a
failure to do so could not reasonably be expected to have a material adverse
effect. Borrower shall promptly notify Bank in the event Borrower discovers or
determines that any computer application (including those of its suppliers and
vendors) that is material to the business and operations of Borrower or any
affiliate will not be Year 2000 compliant except to the extent that such failure
could not reasonably be expected to have a material adverse effect on Borrower's
business and operations.
13. Termination. Bank may terminate this Agreement at any time in its sole
------------
and absolute discretion.
14. Notice Required by Section 432.045 R.S. Mo. ORAL AGREEMENTS OR
------------------------------------------
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT
OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE.
TO PROTECT BORROWER AND BANK FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS
BORROWER AND BANK REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING
WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BORROWER
AND BANK, EXCEPT AS BORROWER AND BANK MAY LATER AGREE IN WRITING TO MODIFY IT.
15. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
Borrower:
ADVANTAGE TRADING GROUP, INC.
By: /s/Xxxxxxx Xxxxx/Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx/Xxxxx X. Xxxxx
Title: President/CEO
Bank:
FIRSTAR BANK, N.A.
By: /s/Xxx X. Xxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
NOTE
$25,000,000.00 Date: May 30, 2000
FOR THE VALUE RECEIVED, the undersigned, Advantage Trading Group, Inc., a
Florida corporation ("Borrower"), hereby unconditionally promises to pay ON
DEMAND, to the order of FIRSTAR BANK, N.A., a national banking association
("Bank"), the principal amount of Twenty Five Million and No/100 Dollars
($25,000,000.00), or such lesser amount as may then be evidenced by this Demand
Note (this "Note"). The aggregate principal amount which Bank may have
outstanding hereunder at any one time shall not exceed the lesser of Twenty Five
Million and No/100 Dollars ($25,000,000.00) or any lower amount specified in the
Credit Agreement (as hereinafter defined), which amount may be borrowed, paid,
reborrowed and repaid, in whole or in part, subject to the terms and conditions
hereof and of the Credit Agreement.
Borrower also hereby promises to pay to the order of Bank interest from the date
hereof at a rate per annum which shall be equal to the rate quoted by Bank to
Borrower in Bank's sole and absolute discretion (which rate shall fluctuate as
and when said rate so quoted shall change), on the principal balance outstanding
and unpaid. Said interest shall be payable on demand, or if no demand is made,
then monthly on the 30th day of each month, commencing June 30, 2000. After
demand for repayment of the Note, interest shall be payable on demand on the
outstanding principal balance of the Note at a rate per annum equal to Two
Percent (2%) over and above the interest rate announced from time to time by
Bank as its "prime rate" on commercial loans (which rate shall fluctuate as and
when said prime rate shall change). In addition, if Borrower fails to make any
payment of any principal of or interest on this Note as and when the same shall
become due and payable, whether by reason of demand or otherwise, Borrower
hereby promises to pay to the order of Bank hereof on demand with respect to
each such late payment a late fee in an amount equal to the greater of $100.00
or (5.0%) of each such late payment. All payments received by Bank shall be
applied first to the payment of accrued and unpaid late fees and the costs and
expenses hereinafter described, next to accrued and unpaid interest hereon, and
the remainder to principal. The amount of interest accruing hereunder shall be
computed on an actual day, 360-day year basis.
This Note shall evidence all loans made by Bank to Borrower under that certain
Brokerage Credit Agreement between Bank and Borrower dated of even date
herewith, as the same may from time to time be amended (the "Credit Agreement"),
reference to which is made for certain terms and provisions which affect this
Note. Bank may record the date and amount of all loans and all payments of
principal and interest hereunder in the records it maintains with respect
thereto. The books and records of Bank hereof showing the account between Bank
hereof and Borrower shall be admissible in evidence in any action or proceeding
and shall constitute prima facie proof of the items therein set forth.
All payments required hereunder shall be made in lawful money of the United
States of America at the office of Bank situated at 0000 Xxxxx Xxxxxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000 or at such other place as Bank may designate in writing.
If this Note is not paid upon demand, and is placed in the hands of an attorney
or attorney for collection (whether or not litigation shall be commenced in aid
thereof) or for representation of the holder hereto in connection with
bankruptcy or insolvency proceedings, Borrower promises to pay, in addition to
the amount due hereon, the reasonable costs and expenses of such collection and
representation, including reasonable attorneys' fees and expenses. Presentment,
protest and notice of dishonor and of protest are hereby waived by all parties
hereto, whether as maker, endorser, surety or guarantor.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND BANK FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN
THIS WRITING WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
All obligations of the Borrower (if more than one) hereunder are joint and
several. This Note shall be governed by and construed in accordance with the
laws of the State of Missouri.
Borrower: Advantage Trading Group, Inc.
By:/s/ Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
--------------------------------------
Name:Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
------------------------------------
Title:President/CEO
-----------------------------------
Address: 0000 X. Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
CERTIFICATE
To: MERCANTILE BANK NATIONAL ASSOCIATION
In relation to a certain Brokerage Credit Agreement between MERCANTILE BANK
NATIONAL ASSOCIATION ("Bank") and Advantage Trading Group, Inc. ("Borrower") the
in the maximum principal amount of Twenty Five Million and NO/100
($25,000,000.00) and dated as of May 30, 2000, as from time to time amended (the
"Agreement"), Borrower hereby certifies that:
1. Borrower is subject to the provisions of Federal Reserve Board
Regulation T, is subject to the provisions of Rule 8c-1 and/or 15c-2 issued by
the Securities & Exchange Commission, and certain of the securities from time to
time hypothecated with Bank to secure advances under the Agreement marked
"Securities carried for account of customers," negotiated with Bank, if any, are
carried for the account of Borrower's cusotmers other than Borrower's partners,
officers or directors, and that in hypothecating such customer securities
Borrower has the authority required by and has complied with the rules and
regulations of the Federal Reserve System and of the Securities & Exchange
Commission; and
2. The proceeds of all advances under the Agreement are to be used for
purchasing or carrying stock registered on a national securities exchange or
"OTC margin stock" as defined in Section 221.2(j) of Federal Reserve Board
Regulation U. All advances under the Agreement are "excepted" under Section
221.5(c) of Federal Reserve Board Regulation U.
Borrower:
Advantage Trading Group, Inc.
By:/s/ Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
-----------------------------------
Name:Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
---------------------------------
Title: President/CEO
-------------------------------
Date:5/28/00/5/31/00
---------------------------------
This Certificate is accepted in good faith by Bank.
Bank:
FIRSTAR BANK, N.A.
By:/s/Xxx X. Xxxxxxx
-----------------------
Name:Xxx X. Xxxxxxx
---------------------
Title:Vice President
--------------------
Date:5/22/00
---------------------
BROKERAGE CREDIT AGREEMENT
--------------------------
(Firm Owned Securities, Loan B)
THIS BROKERAGE CREDIT AGREEMENT (this "Agreement") is made and entered into
as of May 30, 2000, by and between Advantage Trading Group, Inc., a Florida
corporation ("Borrower"), and FIRSTAR BANK, N.A., a national banking association
("Bank").
WITNESSETH:
WHEREAS, Borrower desires, and may from time to time make application, to
borrow money from Bank secured by certain securities; and
WHEREAS, Bank may from time to time, without any obligation to do so,
advance money to Borrower on the terms and conditions set forth hereinafter in
this Agreement;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower and Bank hereby agree as follows:
1. Loan Advances. Bank may, without any obligation to do so, advance sums
-------------
to Borrower in a maximum amount equal to the lesser of;
(a) Twenty Five Million and NO/100 Dollars ($25,000,000.00) less all
current borrowings of Borrower from Bank under that certain
Brokerage Credit Agreement, (customer owned Securities, Loan A)
dated May 30, 2000, and that certain Brokerage Credit Agreement,
(Matched Loan, Loan C) dated May 30, 2000, entered into by and
between Borrower and Bank; or
(b) With respect to securities owned by Borrower, deemed acceptable
to Bank in Bank's discretion, and which are pledged by Borrower
to Bank at Depository Trust Company of New York, or are pledged
by Borrower to Bank as evidenced by a trust receipt in the
possession of Bank or physical possession of such securities by
Bank (all as described in paragraph 5 hereof), the sum of the
following:
[(1) 70.0% of the current market value of stocks listed on the
New York or American stock exchanges and Over-the-Counter
stock having a current market value of at least Ten and
NO/100 Dollars ($10.00) per share; plus
(2) 50.0% of current market value of stocks listed on the New
York and American stock exchanges and over-the-counter
stocks, which stocks have a current market value not less
than $5.00, nor more than $9.99, per share; provided,
however, that the aggregate amount of advances at any time
outstanding hereunder with respect
to the customer securities described in this paragraph
1(b)(5) shall not exceed $500,000.00; plus]
(3) 80.0% of the current "bid" price for corporate and municipal
bonds rated "BAA" or better; plus
(4) 90.0% of the current "bid" price for United States of
America Treasury Notes and Bonds having a maturity date of
over five (5) years; plus
(5) 95.0% of the current "bid" price for United States of
America Treasury Notes, Bonds and Bills having a maturity
date of five (5) years or less.
Unless sooner terminated by Bank under paragraph 13, Borrower's ability to
request loans hereunder shall automatically terminate on May 30, 2001.
2. Repayment of Principal. The principal amount of all loans hereunder
----------------------
shall be repayable ON DEMAND.
3. Interest. Prior to demand for repayment of the loans outstanding
--------
hereunder, Borrower shall pay interest to Bank on the aggregate and unpaid
principal amount of all loans from time to time outstanding hereunder at a rate
per annum equal to the rate quoted by Bank to Borrower in Bank's sole and
absolute discretion, which rate shall fluctuate as and when said rate so quoted
shall change. After such demand for repayment, Borrower shall pay interest to
Bank on the aggregate and unpaid principal amount of all loans from time to time
outstanding hereunder at a rate per annum equal to Two Percent (2%) over and
above the interest rate announced from time to time by Bank as its "prime rate"
on commercial loans, which interest rate shall fluctuate as and when said prime
rate shall change. All accrued and unpaid interest hereunder shall be due and
payable ON DEMAND, or if demand is not made prior thereto, then all accrued and
unpaid interest hereunder as of the last day of the preceding month, shall be
due and payable monthly commencing June 30, 2000, and on the 30th day of every
month thereafter. All interest hereunder shall be calculated upon the basis of
an actual day, 360-day year.
4. Demand Note. All loans hereunder shall be evidenced by a Demand Note
-----------
executed by Borrower payable ON DEMAND to the order of Bank in the principal
amount of Twenty Five Million and NO/100 Dollars ($25,000,000.00) and dated May
30, 2000 (the "Note").
5. Pledge of Securities. Borrower hereby pledges to Bank, as security for
--------------------
the obligations of Borrower hereunder and under the Note, all securities and
investment property owned by Borrower which now or hereafter are (a) held in a
collateral account at Depository Trust Company of New York for the benefit of
Bank or are otherwise marked on the books and records of Depository Trust
Company of New York as being held for the benefit of or pledge to Bank, (b)
described on a trust receipt in the possession of Bank, or (c) otherwise in the
possession of Bank (collectively, the "Pledged Securities"); and as more
particularly described in
the certain Pledge Agreement dated May 30, 2000, executed by Borrower in favor
of Bank. Borrower hereby grants to Bank all rights and remedies of a secured
party under the Uniform Commercial Code of the State of Missouri with respect to
such securities.
6. Reduction in Value of Pledged Securities. In the event the outstanding
----------------------------------------
principal balance of the loans hereunder shall exceed at any time the value of
the Pledged Securities (as determined under paragraph above), the Borrower shall
immediately:
(a) pledge additional securities acceptable to Bank in its sole
discretion with a value (as determines under paragraph 1 above)
sufficient to eliminate such excess; or
(b) make a payment of the principal balance of the loans outstanding
hereunder in the amount of such excess.
Borrower also covenants and agrees that it will not allow, at any time, the
outstanding principal balance of loans hereunder relating to Borrower's
customers to exceed the aggregate indebtedness (both principal and interest) of
Borrower's customers to Borrower relating to the Pledged Securities, and that if
any such excess shall occur, Borrower shall immediately notify Bank thereof and
make an immediate payment of the principal balance of the loans outstanding
hereunder in the amount of such excess.
7. Requests for Loans. Borrower hereby represents and warrants to Bank
------------------
that, until Bank has received written instructions to the contrary, Bank may
rely upon the written or telephonic instructions of any of the following named
employees of Borrower with regard to any requests for loans or repayments by
Borrower hereunder, to-wit:
NAME TITLE
---- -----
Xxxxxxx X. Xxxxx President
Xxxxx X. Xxxxx CEO
8. Funding of Loans. All loans by Bank to Borrower hereunder shall be
----------------
credited by Bank to Borrower's Account No. 1005016926 at Bank. Repayment of
loans hereunder may be accomplished by Bank debiting said account of Borrower at
Bank, by check drawn on said account, by wire transfer in same day funds to Bank
from Borrower or by check drawn on another financial institution (which shall be
subject to additional interest charges as determined by Bank).
9. Statements of Loans. Each month, Bank will issue to Borrower a statement
-------------------
showing the date of each loan or payment, the principal balance and the interest
accrued hereon during the period for which the statement is issued, plus any
accrued and unpaid interest from prior periods. Borrower agrees that if Borrower
does not object in writing to the balances and interest so shown within fifteen
(15) days of the date of such statement, the amounts shown on
on said statement shall constitute prima facie evidence of the amount
outstanding hereon as of the date of such statement.
10. Reports. Borrower agrees that until all loans to Borrower hereunder
-------
have been repaid in full with interest, and until the terms and conditions of
this Agreement have been fully performed, Borrower will:
(a) Furnish to Bank within (90) days after the end of its fiscal
year, audited financial statements which shall include but not be
limited to a balance sheet, income and expense statement and
statement of retained earnings; and
(b) Furnish to Bank, within (5) days after filing, copies of all
monthly Financial and Operational Combined Uniform Single (FOCUS)
Reports (Securities and Exchange Commission form X-17A-5).
11. Compliance with SEC and Federal Reserve Rules and Regulations. Borrower
-------------------------------------------------------------
hereby represents and warrants to Bank that it is in compliance and will remain
in compliance with all rules, regulations and directives of the Federal Reserve
System and Securities & Exchange Commission relating to the hypothecation of
customer securities.
12. Year 2000 Compliance. Borrower has: (a) initiated a review and
--------------------
assessment of all areas within the business and operations (including those
affected by suppliers and vendors) of Borrower and each affiliate that could be
affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by Borrower or any affiliate [or suppliers or vendors] may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to, on and any date after December 31, 1999); (b) developed
a plan and timeline for addressing the Year 2000 Problem on a timely basis; and
(c) to date implemented that plan in accordance with that timetable. Borrower
represents that all computer applications (including those of its suppliers and
vendors) that are material to the business and operations of Borrower or any
affiliate will on a timely basis, be able to perform date sensitive functions
for all dates before, on and after January 1, 2000, except to the extent that a
failure to do so could not reasonably be expected to have a material adverse
effect. Borrower shall promptly notify Bank in the event Borrower discovers or
determines that any computer application (including those of its suppliers and
vendors) that is material to the business and operations of Borrower or any
affiliate will not be Year 2000 compliant except to the extent that such failure
could not reasonably be expected to have a material adverse effect on Borrower's
business and operations.
13. Termination. Bank may terminate this Agreement at any time in its sole
-----------
and absolute discretion.
14. Notice Required by Section 432.045 R.S. Mo. ORAL AGREEMENTS OR
------------------------------------------
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT
OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE.
TO PROTECT BORROWER AND BANK FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS
BORROWER AND BANK REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING
WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BORROWER
AND BANK, EXCEPT AS BORROWER AND BANK MAY LATER AGREE IN WRITING TO MODIFY IT.
15. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
Borrower:
ADVANTAGE TRADING GROUP, INC.
By: /s/Xxxxxxx Xxxxx/Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx/Xxxxx X. Xxxxx
Title: President/CEO
Bank:
FIRSTAR BANK, N.A.
By: /s/Xxx X. Xxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
NOTE
$25,000,000.00 Date: May 30, 2000
FOR THE VALUE RECEIVED, the undersigned, Advantage Trading Group, Inc., a
Florida corporation ("Borrower"), hereby unconditionally promises to pay ON
DEMAND, to the order of FIRSTAR BANK, N.A., a national banking association
("Bank"), the principal amount of Twenty Five Million and No/100 Dollars
($25,000,000.00), or such lesser amount as may then be evidenced by this Demand
Note (this "Note"). The aggregate principal amount which Bank may have
outstanding hereunder at any one time shall not exceed the lesser of Twenty Five
Million and No/100 Dollars ($25,000,000.00) or any lower amount specified in the
Credit Agreement (as hereinafter defined), which amount may be borrowed, paid,
reborrowed and repaid, in whole or in part, subject to the terms and conditions
hereof and of the Credit Agreement.
Borrower also hereby promises to pay to the order of Bank interest from the date
hereof at a rate per annum which shall be equal to the rate quoted by Bank to
Borrower in Bank's sole and absolute discretion (which rate shall fluctuate as
and when said rate so quoted shall change), on the principal balance outstanding
and unpaid. Said interest shall be payable on demand, or if no demand is made,
then monthly on the 30th day of each month, commencing June 30, 2000. After
demand for repayment of the Note, interest shall be payable on demand on the
outstanding principal balance of the Note at a rate per annum equal to Two
Percent (2%) over and above the interest rate announced from time to time by
Bank as its "prime rate" on commercial loans (which rate shall fluctuate as and
when said prime rate shall change). In addition, if Borrower fails to make any
payment of any principal of or interest on this Note as and when the same shall
become due and payable, whether by reason of demand or otherwise, Borrower
hereby promises to pay to the order of Bank hereof on demand with respect to
each such late payment a late fee in an amount equal to the greater of $100.00
or (5.0%) of each such late payment. All payments received by Bank shall be
applied first to the payment of accrued and unpaid late fees and the costs and
expenses hereinafter described, next to accrued and unpaid interest hereon, and
the remainder to principal. The amount of interest accruing hereunder shall be
computed on an actual day, 360-day year basis.
This Note shall evidence all loans made by Bank to Borrower under that certain
Brokerage Credit Agreement between Bank and Borrower dated of even date
herewith, as the same may from time to time be amended (the "Credit Agreement"),
reference to which is made for certain terms and provisions which affect this
Note. Bank may record the date and amount of all loans and all payments of
principal and interest hereunder in the records it maintains with respect
thereto. The books and records of Bank hereof showing the account between Bank
hereof and Borrower shall be admissible in evidence in any action or proceeding
and shall constitute prima facie proof of the items therein set forth.
All payments required hereunder shall be made in lawful money of the United
States of America at the office of Bank situated at 0000 Xxxxx Xxxxxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000 or at such other place as Bank may designate in writing.
If this Note is not paid upon demand, and is placed in the hands of an attorney
or attorney for collection (whether or not litigation shall be commenced in aid
thereof) or for representation of the holder hereto in connection with
bankruptcy or insolvency proceedings, Borrower promises to pay, in addition to
the amount due hereon, the reasonable costs and expenses of such collection and
representation, including reasonable attorneys' fees and expenses. Presentment,
protest and notice of dishonor and of protest are hereby waived by all parties
hereto, whether as maker, endorser, surety or guarantor.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND BANK FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN
THIS WRITING WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
All obligations of the Borrower (if more than one) hereunder are joint and
several. This Note shall be governed by and construed in accordance with the
laws of the State of Missouri.
Borrower: Advantage Trading Group, Inc.
By: /s/ Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
-----------------------------------
Title: President/CEO
----------------------------------
Address: 0000 X. Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
CERTIFICATE
To: MERCANTILE BANK NATIONAL ASSOCIATION
In relation to a certain Brokerage Credit Agreement between MERCANTILE BANK
NATIONAL ASSOCIATION ("Bank") and Advantage Trading Group, Inc. ("Borrower") the
in the maximum principal amount of Twenty Five Million and NO/100
($25,000,000.00) and dated as of May 30, 2000, as from time to time amended (the
"Agreement"), Borrower hereby certifies that:
1. Borrower is subject to the provisions of Federal Reserve Board
Regulation T, is subject to the provisions of Rule 8c-1 and/or 15c-2 issued by
the Securities & Exchange Commission, and certain of the securities from time to
time hypothecated with Bank to secure advances under the Agreement marked
"Securities carried for account of customers," negotiated with Bank, if any, are
carried for the account of Borrower's cusotmers other than Borrower's partners,
officers or directors, and that in hypothecating such customer securities
Borrower has the authority required by and has complied with the rules and
regulations of the Federal Reserve System and of the Securities & Exchange
Commission; and
2. The proceeds of all advances under the Agreement are to be used for
purchasing or carrying stock registered on a national securities exchange or
"OTC margin stock" as defined in Section 221.2(j) of Federal Reserve Board
Regulation U. All advances under the Agreement are "excepted" under Section
221.5(c) of Federal Reserve Board Regulation U.
Borrower:
Advantage Trading Group, Inc.
By: /s/ Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
----------------------------------
Title: President/CEO
---------------------------------
Date: 5/28/00/5/31/00
----------------------------------
This Certificate is accepted in good faith by Bank.
Bank:
FIRSTAR BANK, N.A.
By: /s/Xxx X. Xxxxxxx
--------------------------
Name: Xxx X. Xxxxxxx
------------------------
Title: Vice President
-----------------------
Date: 5/22/00
------------------------
BROKERAGE CREDIT AGREEMENT
--------------------------
(Customer Owned Securities "Matched Loan" Loan C)
THIS BROKERAGE CREDIT AGREEMENT (this "Agreement") is made and entered into
as of May 30, 2000, by and between Advantage Trading Group, Inc., a Florida
corporation ("Borrower"), and FIRSTAR BANK, N.A., a national banking association
("Bank").
WITNESSETH:
WHEREAS, Borrower desires, and may from time to time make application, to
borrow money from Bank secured by certain securities; and
WHEREAS, Bank may from time to time, without any obligation to do so,
advance money to Borrower on the terms and conditions set forth hereinafter in
this Agreement;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower and Bank hereby agree as follows:
1. Loan Advances. Bank may, without any obligation to do so, advance sums
-------------
to Borrower in a maximum amount equal to the lesser of;
(a) Twenty Five Million and NO/100 Dollars ($25,000,000.00) less all
current borrowings of Borrower from Bank under that certain
Brokerage Credit Agreement, (Customer owned Securities, Loan A)
dated May 30, 2000, and that certain Brokerage Credit Agreement,
(Borrower owned securities, Loan B) dated May 30, 2000, entered
into by and between Borrower and Bank; or
(b) With respect to securities owned by Borrower's customers "Matched
Loans," deemed acceptable to Bank in Bank's discretion, and
which are pledged by Borrower to Bank at Depository Trust Company
of New York, or are pledged by Borrower to Bank as evidenced by a
trust receipt in the possession of Bank or physical possession of
such securities by Bank (all as described in paragraph 5 hereof),
the sum of the following:
[(1) 70.0% of the current market value of stocks listed on the
New York or American stock exchanges and Over-the-Counter
stock having a current market value of at least Ten and
NO/100 Dollars ($10.00) per share; plus
(2) 50.0% of current market value of stocks listed on the New
York and American stock exchanges and over-the-counter
stocks, which stocks have a current market value not less
than $5.00, nor more than $9.99, per share; provided,
however, that the aggregate amount of advances at any time
outstanding hereunder with respect
to the customer securities described in this paragraph
1(b)(5) shall not exceed $500,000.00; plus]
(3) 80.0% of the current "bid" price for corporate and municipal
bonds rated "BAA" or better; plus
(4) 90.0% of the current "bid" price for United States of
America Treasury Notes and Bonds having a maturity date of
over five (5) years; plus
(5) 95.0% of the current "bid" price for United States of
America Treasury Notes, Bonds and Bills having a maturity
date of five (5) years or less.
Unless sooner terminated by Bank under paragraph 13, Borrower's ability to
request loans hereunder shall automatically terminate on May 30, 2001.
2. Repayment of Principal. The principal amount of all loans hereunder
----------------------
shall be repayable ON DEMAND.
3. Interest. Prior to demand for repayment of the loans outstanding
--------
hereunder, Borrower shall pay interest to Bank on the aggregate and unpaid
principal amount of all loans from time to time outstanding hereunder at a rate
per annum equal to the rate quoted by Bank to Borrower in Bank's sole and
absolute discretion, which rate shall fluctuate as and when said rate so quoted
shall change. After such demand for repayment, Borrower shall pay interest to
Bank on the aggregate and unpaid principal amount of all loans from time to time
outstanding hereunder at a rate per annum equal to Two Percent (2%) over and
above the interest rate announced from time to time by Bank as its "prime rate"
on commercial loans, which interest rate shall fluctuate as and when said prime
rate shall change. All accrued and unpaid interest hereunder shall be due and
payable ON DEMAND, or if demand is not made prior thereto, then all accrued and
unpaid interest hereunder as of the last day of the preceding month, shall be
due and payable monthly commencing June 30, 2000, and on the 30th day of every
month thereafter. All interest hereunder shall be calculated upon the basis of
an actual day, 360-day year.
4. Demand Note. All loans hereunder shall be evidenced by a Demand Note
-----------
executed by Borrower payable ON DEMAND to the order of Bank in the principal
amount of Twenty Five Million and NO/100 Dollars ($25,000,000.00) and dated May
30, 2000 (the "Note").
5. Pledge of Securities. Borrower hereby pledges to Bank, as security for
--------------------
the obligations of Borrower hereunder and under the Note, all securities and
investment property owned by Matched Loans which now or hereafter are (a)
held in a collateral account at Depository Trust Company of New York for the
benefit of Bank or are otherwise marked on the books and records of Depository
Trust Company of New York as being held for the benefit of or pledge to Bank,
(b) described on a trust receipt in the possession of Bank, or (c) otherwise in
the possession of Bank (collectively, the "Pledged Securities"); and as more
particularly described in
the certain Pledge Agreement dated May 30, 2000, executed by Borrower in favor
of Bank. Borrower hereby grants to Bank all rights and remedies of a secured
party under the Uniform Commercial Code of the State of Missouri with respect to
such securities.
6. Reduction in Value of Pledged Securities. In the event the outstanding
----------------------------------------
principal balance of the loans hereunder shall exceed at any time the value of
the Pledged Securities (as determined under paragraph above), the Borrower shall
immediately:
(a) pledge additional securities acceptable to Bank in its sole
discretion with a value (as determines under paragraph 1 above)
sufficient to eliminate such excess; or
(b) make a payment of the principal balance of the loans outstanding
hereunder in the amount of such excess.
Borrower also covenants and agrees that it will not allow, at any time, the
outstanding principal balance of loans hereunder relating to Borrower's
customers to exceed the aggregate indebtedness (both principal and interest) of
Borrower's customers to Borrower relating to the Pledged Securities, and that if
any such excess shall occur, Borrower shall immediately notify Bank thereof and
make an immediate payment of the principal balance of the loans outstanding
hereunder in the amount of such excess.
7. Requests for Loans. Borrower hereby represents and warrants to Bank
------------------
that, until Bank has received written instructions to the contrary, Bank may
rely upon the written or telephonic instructions of any of the following named
employees of Borrower with regard to any requests for loans or repayments by
Borrower hereunder, to-wit:
NAME TITLE
---- -----
Xxxxxxx X. Xxxxx President
Xxxxx X. Xxxxx CEO
8. Funding of Loans. All loans by Bank to Borrower hereunder shall be
----------------
credited by Bank to Borrower's Account No. 1005016926 at Bank. Repayment of
loans hereunder may be accomplished by Bank debiting said account of Borrower at
Bank, by check drawn on said account, by wire transfer in same day funds to Bank
from Borrower or by check drawn on another financial institution (which shall be
subject to additional interest charges as determined by Bank).
9. Statements of Loans. Each month, Bank will issue to Borrower a
-------------------
statement showing the date of each loan or payment, the principal balance and
the interest accrued hereon during the period for which the statement is issued,
plus any accrued and unpaid interest from prior periods. Borrower agrees that if
Borrower does not object in writing to the balances and interest so shown within
fifteen (15) days of the date of such statement, the amounts shown on
said statement shall constitute prima facie evidence of the amount outstanding
hereon as of the date of such statement.
10. Reports. Borrower agrees that until all loans to Borrower hereunder
-------
have been repaid in full with interest, and until the terms and conditions of
this Agreement have been fully performed, Borrower will:
(a) Furnish to Bank within (90) days after the end of its fiscal
year, audited financial statements which shall include but not be
limited to a balance sheet, income and expense statement and
statement of retained earnings; and
(b) Furnish to Bank, within (5) days after filing, copies of all
monthly Financial and Operational Combined Uniform Single (FOCUS)
Reports (Securities and Exchange Commission form X-17A-5).
11. Compliance with SEC and Federal Reserve Rules and Regulations.
-------------------------------------------------------------
Borrower hereby represents and warrants to Bank that it is in compliance and
will remain in compliance with all rules, regulations and directives of the
Federal Reserve System and Securities & Exchange Commission relating to the
hypothecation of customer securities.
12. Year 2000 Compliance. Borrower has: (a) initiated a review and
--------------------
assessment of all areas within the business and operations (including those
affected by suppliers and vendors) of Borrower and each affiliate that could be
affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by Borrower or any affiliate [or suppliers or vendors] may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to, on and any date after December 31, 1999); (b) developed
a plan and timeline for addressing the Year 2000 Problem on a timely basis; and
(c) to date implemented that plan in accordance with that timetable. Borrower
represents that all computer applications (including those of its suppliers and
vendors) that are material to the business and operations of Borrower or any
affiliate will on a timely basis, be able to perform date sensitive functions
for all dates before, on and after January 1, 2000, except to the extent that a
failure to do so could not reasonably be expected to have a material adverse
effect. Borrower shall promptly notify Bank in the event Borrower discovers or
determines that any computer application (including those of its suppliers and
vendors) that is material to the business and operations of Borrower or any
affiliate will not be Year 2000 compliant except to the extent that such failure
could not reasonably be expected to have a material adverse effect on Borrower's
business and operations.
13. Termination. Bank may terminate this Agreement at any time in its sole
-----------
and absolute discretion.
14. Notice Required by Section 432.045 R.S. Mo. ORAL AGREEMENTS OR
------------------------------------------
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT
OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE.
TO PROTECT BORROWER AND BANK FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS
BORROWER AND BANK REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING
WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BORROWER
AND BANK, EXCEPT AS BORROWER AND BANK MAY LATER AGREE IN WRITING TO MODIFY IT.
15. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
Borrower:
ADVANTAGE TRADING GROUP, INC.
By: /s/Xxxxxxx Xxxxx/Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx/Xxxxx X. Xxxxx
Title: President/CEO
Bank:
FIRSTAR BANK, N.A.
By: /s/Xxx X. Xxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
NOTE
$25,000,000.00 Date: May 30, 2000
FOR THE VALUE RECEIVED, the undersigned, Advantage Trading Group, Inc., a
Florida corporation ("Borrower"), hereby unconditionally promises to pay ON
DEMAND, to the order of FIRSTAR BANK, N.A., a national banking association
("Bank"), the principal amount of Twenty Five Million and No/100 Dollars
($25,000,000.00), or such lesser amount as may then be evidenced by this Demand
Note (this "Note"). The aggregate principal amount which Bank may have
outstanding hereunder at any one time shall not exceed the lesser of Twenty Five
Million and No/100 Dollars ($25,000,000.00) or any lower amount specified in the
Credit Agreement (as hereinafter defined), which amount may be borrowed, paid,
reborrowed and repaid, in whole or in part, subject to the terms and conditions
hereof and of the Credit Agreement.
Borrower also hereby promises to pay to the order of Bank interest from the date
hereof at a rate per annum which shall be equal to the rate quoted by Bank to
Borrower in Bank's sole and absolute discretion (which rate shall fluctuate as
and when said rate so quoted shall change), on the principal balance outstanding
and unpaid. Said interest shall be payable on demand, or if no demand is made,
then monthly on the 30th day of each month, commencing June 30, 2000. After
demand for repayment of the Note, interest shall be payable on demand on the
outstanding principal balance of the Note at a rate per annum equal to Two
Percent (2%) over and above the interest rate announced from time to time by
Bank as its "prime rate" on commercial loans (which rate shall fluctuate as and
when said prime rate shall change). In addition, if Borrower fails to make any
payment of any principal of or interest on this Note as and when the same shall
become due and payable, whether by reason of demand or otherwise, Borrower
hereby promises to pay to the order of Bank hereof on demand with respect to
each such late payment a late fee in an amount equal to the greater of $100.00
or (5.0%) of each such late payment. All payments received by Bank shall be
applied first to the payment of accrued and unpaid late fees and the costs and
expenses hereinafter described, next to accrued and unpaid interest hereon, and
the remainder to principal. The amount of interest accruing hereunder shall be
computed on an actual day, 360-day year basis.
This Note shall evidence all loans made by Bank to Borrower under that certain
Brokerage Credit Agreement between Bank and Borrower dated of even date
herewith, as the same may from time to time be amended (the "Credit Agreement"),
reference to which is made for certain terms and provisions which affect this
Note. Bank may record the date and amount of all loans and all payments of
principal and interest hereunder in the records it maintains with respect
thereto. The books and records of Bank hereof showing the account between Bank
hereof and Borrower shall be admissible in evidence in any action or proceeding
and shall constitute prima facie proof of the items therein set forth.
All payments required hereunder shall be made in lawful money of the United
States of America at the office of Bank situated at 0000 Xxxxx Xxxxxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000 or at such other place as Bank may designate in writing.
If this Note is not paid upon demand, and is placed in the hands of an attorney
or attorney for collection (whether or not litigation shall be commenced in aid
thereof) or for representation of the holder hereto in connection with
bankruptcy or insolvency proceedings, Borrower promises to pay, in addition to
the amount due hereon, the reasonable costs and expenses of such collection and
representation, including reasonable attorneys' fees and expenses. Presentment,
protest and notice of dishonor and of protest are hereby waived by all parties
hereto, whether as maker, endorser, surety or guarantor.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND BANK FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN
THIS WRITING WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
All obligations of the Borrower (if more than one) hereunder are joint and
several. This Note shall be governed by and construed in accordance with the
laws of the State of Missouri.
Borrower: Advantage Trading Group, Inc.
By: /s/ Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
---------------------------------------
Title: President/CEO
---------------------------------------
Address: 0000 X. Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
CERTIFICATE
To: MERCANTILE BANK NATIONAL ASSOCIATION
In relation to a certain Brokerage Credit Agreement between MERCANTILE BANK
NATIONAL ASSOCIATION ("Bank") and Advantage Trading Group, Inc. ("Borrower") the
in the maximum principal amount of Twenty Five Million and NO/100
($25,000,000.00) and dated as of May 30, 2000, as from time to time amended (the
"Agreement"), Borrower hereby certifies that:
1. Borrower is subject to the provisions of Federal Reserve Board
Regulation T, is subject to the provisions of Rule 8c-1 and/or 15c-2 issued by
the Securities & Exchange Commission, and certain of the securities from time to
time hypothecated with Bank to secure advances under the Agreement marked
"Securities carried for account of customers," negotiated with Bank, if any, are
carried for the account of Borrower's cusotmers other than Borrower's partners,
officers or directors, and that in hypothecating such customer securities
Borrower has the authority required by and has complied with the rules and
regulations of the Federal Reserve System and of the Securities & Exchange
Commission; and
2. The proceeds of all advances under the Agreement are to be used for
purchasing or carrying stock registered on a national securities exchange or
"OTC margin stock" as defined in Section 221.2(j) of Federal Reserve Board
Regulation U. All advances under the Agreement are "excepted" under Section
221.5(c) of Federal Reserve Board Regulation U.
Borrower:
Advantage Trading Group, Inc.
By: /s/ Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx/Xxxxx X. Xxxxx
----------------------------------
Title: President/CEO
---------------------------------
Date: 5/28/00/5/31/00
---------------------------------
This Certificate is accepted in good faith by Bank.
Bank:
FIRSTAR BANK, N.A.
By: /s/Xxx X. Xxxxxxx
--------------------------
Name: Xxx X. Xxxxxxx
------------------------
Title: Vice President
-----------------------
Date: 5/22/00
------------------------
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), executed and delivered as of May
30, 2000, by Advantage Trading Group, Inc., a Florida corporation ("Borrower"),
in favor of FIRSTAR BANK, N.A., a national banking association ("Bank"), has
reference to the following facts and circumstances:
A. heretofore, now and from time to time hereafter, Bank, at the request
of Borrower, has made and/or will make loans, advances, extensions of credit
and/or other financial accommodations to or for the benefit of Borrower pursuant
to the "Other Agreements"; and
B. to secure further the payment of "Borrower's Liabilities" (hereinafter
defined), Bank has requested that Borrower execute and deliver this Agreement in
favor of Bank.
NOW, THEREFORE, in consideration of the foregoing, Borrower agrees with
Bank as follows:
1. DEFINITIONS AND TERMS
1.1 The following words, terms and/or phrases shall have the meanings
set forth thereafter and such meanings shall be applicable to the singular and
plural form thereof, giving effect to the numerical difference, whenever the
context so requires. The use of "it" in reference to Borrower shall mean
Borrower as identified at the beginning of this Agreement.
(A) "Borrower's Liabilities": means all obligations and
liabilities of Borrower to Bank (including, without limitation, all debts,
claims and indebtedness) whether primary, secondary, direct, contingent, fixed
or otherwise, heretofore, now and/or from time to time hereafter owing, due or
payable, however evidenced, created, incurred, acquired or owing and however
arising, whether under this Agreement or the Other Agreements, executed by,
and/or on behalf of Borrower, and delivered to Bank, or by operation of law or
otherwise.
(B) "Borrower's Obligations": all terms, conditions, warranties,
representations, agreements, undertakings, covenants and provisions (other than
Borrower's Liabilities) to be performed, discharged, kept, observed or complied
with by Borrower pursuant to this Agreement, and/or any of the Other Agreements,
executed by, and/or on behalf of Borrower, and delivered to Bank.
(C) "Collateral": the definition ascribed to this term in
Paragraph 2.1 below.
(D) "Event of Default": the definition ascribed to this term in
Paragraph 4.1 below.
(E) "Other Agreements": all agreements, instruments and
documents, including, without limitation, loan agreements, security agreements,
guaranties, mortgages, deeds of trust, notes, applications and agreements for
letters of credit, letters of credit, advices of credit,
bankers acceptances, pledges, powers of attorney, consents, assignments,
contracts, notices, leases, financing statements and all other written matter
heretofore, now and/or from time to time hereafter, executed by and/or on behalf
of Borrower and delivered to Bank, or issued by Bank upon the application and/or
other request of, and on behalf of, Borrower.
(F) "Person": any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, entity, party or government (whether national, federal, state,
county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
(G) "Securities": the definition ascribed to this term in
Paragraph 2.1 below.
(H) "Supplemental Documentation": the definition ascribed to
this term in Paragraph 2.2 below.
1.2 Except as otherwise defined in this Agreement, or the Other
Agreements, all words, terms and/or phrases used herein and therein shall be
defined by the applicable definition therefor (if any) in the Uniform Commercial
Code as adopted by the State of Missouri.
2. COLLATERAL; GENERAL TERMS
2.1 To secure the prompt payment to Bank of Borrower's Liabilities,
and the prompt, full and faithful performance of Borrower's Obligations,
Borrower grants to Bank a security interest in and to, and pledges and assigns
to Bank, all of Borrower's now owned and hereafter acquired: (a) right, title,
share and interest in, to and under those shares of stock and/or other
securities and investment property located in Depository Trust Company Account
No(s). 2270, and that have been specifically pledged as collateral to Bank,
together with any and all distributions, whether in cash or in kind, upon or in
connection therewith, whether such distributions or payments are dividends, are
in partial or complete liquidation, or are the result of reclassification,
readjustment or other changes in the capital structure of the person issuing the
same, or otherwise, and any and all subscriptions, warrants, options and other
rights issued upon and/or in connection therewith (the "Securities"); (b) any
and all investment property, monies, revenues, deposits, certificates of deposit
and deposit accounts and interest or dividends thereon, securities, cash, cash
equivalents and other property now or at any time or times hereafter in the
possession or under the control of Bank, its parent, subsidiaries or affiliates,
or its bailee; (c) any and all accessions to any of the Collateral and all
substitutions, renewals, improvements and replacements of and additions thereto;
(d) any and all other property of Borrower, real and/or personal, in which
Borrower heretofore, now and/or from time to time hereafter has granted or
grants to Bank a security interest, lien, claim or other encumbrance; and (e)
all products and proceeds of the foregoing (whether in the form of cash,
proceeds of insurance policies, instruments, documents, general intangibles,
investment property, contract rights, accounts, chattel paper, inventory
equipment, goods or otherwise). All of the foregoing is referred to herein
individually and/or collectively as the "Collateral".
2.2 Borrower shall execute and/or deliver to Bank upon request, at
any time and from time to time hereafter, all agreements, instruments, documents
and other written matter (the "Supplemental Documentation") that Bank reasonably
may request, in form and substance acceptable to Bank, to perfect and maintain
Bank's perfected security interest, lien and/or encumbrance in and/or pledge and
assignment of the Collateral and to consummate the transactions contemplated in
or by this Agreement.
2.3 Borrower warrants and represents to and covenants with Bank that
Bank's security interest in the Collateral is now and at all times hereafter
shall be perfected and have a first priority.
3. COLLATERAL; SECURITIES
3.1 Borrower warrants and represents to Bank that the Securities
identified on collateral schedules attached hereto are being delivered to Bank
concurrently herewith accompanied by irrevocable stock powers or assignments
relating thereto endorsed in blank by Borrower. Borrower, from time to time
hereafter, shall endorse any additional Securities to Bank in a form acceptable
to Bank in its sole discretion. Such Securities shall be delivered to Bank
accompanied with irrevocable stock powers relating thereto or assignments
thereof duly executed by Borrower in form acceptable to Bank and duly endorsed
in blank by Borrower.
3.2 That portion of the Securities consisting of distributions and
payments upon or in connection therewith (whether such distributions or payments
are dividends, or in partial or complete liquidation, or the result of
reclassification, readjustment or other changes in the capital structure of the
Persons issuing the same or otherwise) shall be delivered by Borrower to Bank in
the form that the distribution or payment is received by Borrower, and Bank
shall hold any such distribution or payment as additional Collateral to secure
Borrower's Liabilities and Borrower's Obligations. Any shares of capital stock,
securities or evidence of indebtedness so distributed to Borrower shall be
delivered to Bank accompanied with irrevocable stock powers relating thereto or
assignments thereof duly signed by Borrower in form acceptable to Bank and duly
endorsed in blank by Borrower.
3.3 That portion of the Securities consisting of subscriptions,
warrants, options and any other rights issued upon or in connection therewith or
any portion thereof, shall be delivered by Borrower to Bank, and Bank shall hold
such subscriptions, warrants, options and other rights to secure Borrower's
Liabilities and Borrower's Obligations; provided, however, that if Bank
determines in its sole discretion that the value of any of such subscriptions,
warrants, options or other rights shall terminate, expire or be materially
reduced by holding the same as Collateral, Bank shall have the right, in its
sole discretion, to sell or exercise the same, and if exercised, then the monies
disbursed by Bank in connection therewith shall be deemed a loan by Bank to
Borrower, and shall constitute part of Borrower's Liabilities, payable by
Borrower to Bank on demand.
3.4 Bank may now or at any time or times hereafter, transfer any or
all of the Securities into the name of Bank, or into the name of Bank's nominee,
without disclosing that such Securities so transferred are pledged or
hypothecated, and without any indication on any
new certificate or other document issued to evidence such Securities, that such
stock is pledged, and the Persons issuing the same, or their transfer agents,
shall not be bound to inquire in the event that Bank or said nominee makes any
other transfer of the Securities, as to whether Bank or its nominee has the
right to make such further transfer, and the Persons issuing the same, or their
transfer agents, shall not be liable for transferring the same.
3.5 Unless and until an Event of Default shall have occurred,
Borrower shall be entitled to exercise any and all voting or consensual rights
and powers and stock purchase or subscription rights relating or pertaining to
the Securities or any part thereof for any purpose; provided, however, that
Borrower shall give Bank at least 10 days' prior written or telegraphic notice
of the manner in which it intends to exercise or the reasons for refraining from
the exercise of any such right or power, other than with respect to the election
of directors at any meeting of stockholders and incidental matters coming before
such meeting; and provided further, that the Borrower agrees that it will not
exercise or refrain from exercising any such right or power if, as a result of
so doing, the value of the Securities or any part thereof would be adversely
affected .
3.6 Borrower warrants and represents to Bank and covenants with Bank
as follows: (a) the Securities are, and/or upon issuance thereof will be,
validly issued, fully paid and non-assessable and Borrower has, and/or upon
issuance thereof will have, good, indefeasible and marketable title thereto,
free and clear of all liens, pledges, security interests, encumbrances, claims
or demands of any kind, except those of Bank; and (b) the Securities are, and/or
upon issuance thereof will be, freely transferable without restriction under
federal and state securities laws.
4. DEFAULT
4.1 The occurrence of any one of the following events shall
constitute a default ("Event of Default") under this Agreement: (a) if Borrower
fails or neglects to perform, keep or observe any term, provision, condition,
covenant, warranty or representation contained in this Agreement which is
required to be performed, kept or observed by Borrower; (b) occurrence of a
default or an event of default under any of the Other Agreements which is not
cured within the time, if any, specified therefor, in such Other Agreement.
4.2 All of Bank's rights and remedies under this Agreement are
cumulative and non-exclusive.
4.3 Upon an Event of Default, Bank, in its sole and absolute
discretion, may exercise any one or more of the following remedies: (a) if
Borrower's Liabilities are not paid, Bank may at Bank's election, proceed to
suit against Borrower; (b) reduce to cash or the like any of Borrower's assets
of any kind or nature in the possession, control or custody of Bank, and,
without notice to Borrower, apply the same in reduction or payment of Borrower's
Liabilities; (c) without demand or notice of any kind, appropriate and apply
toward the payment of Borrower's Obligations, and in such order as the Bank may
from time to time elect, any balances, credit deposits, accounts or moneys of
Borrower; (d) exercise any one or more of the rights and remedies accruing to a
secured party under the Uniform Commercial Code of the relevant state or states
and any other applicable law upon default by a debtor; and/or (e) sell or
cause to be sold the Collateral or any part thereof and all of Borrower's right,
title and interest therein at public or private sales as Bank deems advisable in
accordance with the applicable laws of the United States or of any state.
4.4 Borrower agrees that in any sale of the Collateral, Bank is
authorized to comply with any limitation or restriction in connection with such
sale as Bank may deem is necessary or advisable in order to avoid any violation
of applicable law, or in order to obtain any required approval of the sale or of
the purchaser by any governmental regulatory authority or official, and Borrower
further agrees that such compliance shall not result in such sale being
considered commercially unreasonable, nor shall Bank be liable or accountable to
Borrower for any discount allowed by reason of the fact that the Collateral was
sold in compliance with any such limitation or restriction.
4.5 Any sale of the Collateral may be made for cash or credit at the
election of Bank and the amounts of any such sale be credited to Borrower's
Liabilities only when the proceeds thereof are actually received by Bank in
immediately available or collected funds. Bank, or its nominee, may become the
purchaser at such sale. Bank may, if it deems it reasonable, postpone or adjourn
any such sale of the Collateral from time to time by an announcement at the time
and place of sale or by announcement at the time and place of such postponed or
adjourned sale, without being required to give a new notice of sale.
4.6 Borrower recognizes that in the event Borrower fails to perform,
observe or discharge any of Borrower's Liabilities or Borrower's Obligations
hereunder, no remedy of law will provide adequate relief to Bank, and agrees
that Bank shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
4.7 Any notice required to be given by Bank of a sale, lease or other
intended action by Bank, deposited in the United States mail, postage prepaid
and duly addressed to Borrower at the address specified below not less than five
(5) days prior to such proposed action, shall constitute commercially reasonable
and fair notice to Borrower thereof.
4.8 Borrower agrees that Bank has no obligation to preserve rights
against prior parties to the Collateral. Further, Borrower waives and releases
any cause of action and claim against Bank as a result of Bank's possession,
collection or sale of the Collateral, any liability or penalty for failure of
Bank to comply with any requirement imposed on Bank relating to notice of sale,
holding of sale or reporting of sale of the Collateral, and, to the extent
permitted by law, any right of redemption from such sale.
5. GENERAL
5.1 If at any time or times hereafter Bank employs counsel (including
attorneys who are employees of Bank and/or any of its subsidiaries or
affiliates) (A) for advice or other representation with respect to the
Collateral, this Agreement or the administration thereof, (B) to represent Bank
in any litigation, contest, dispute, suit or proceeding or to commerce, defend
or intervene or to take any action in or with respect to any litigation,
contest, dispute, suit or proceeding (whether instituted by Bank, Borrower or
any other Person) in any way or respect
relating to the Collateral, this Agreement or Borrower's affairs, and/or (C) to
enforce any rights of Bank against Borrower or any other Person which may be
obligated to Bank by virtue of this Agreement the reasonable costs, fees and
expenses incurred by Bank in any manner or way with respect to the foregoing
shall be part of Borrower's Liabilities, payable by Borrower to Bank on demand.
For purposes of this Agreement, "affiliate" of the Bank shall include, but not
be limited to, Merchantile Bancorporation Inc. ("MBI") and any banking or
non-banking subsidiary of MBI, whether owned, controlled by, controlling or
under common control with MBI directly or indirectly through any subsidiary.
5.2 If the Collateral shall at any time or from time to time become
unsatisfactory to Bank, Borrower shall upon demand, pledge, assign, transfer and
deposit with Bank and grant to Bank a security interest in and to such
additional property satisfactory to Bank as Bank may request.
5.3 BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO BANK'S SOLE AND
ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT
ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT, THE OTHER AGREEMENTS OR THE
COLLATERAL SHALL BE LITIGATED ONLY IN COURTS HAVING SITUS WITHIN THE COUNTY OF
ST. LOUIS, STATE OF MISSOURI. BORROWER HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID COUNTY AND
STATE. BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE
VENUE OF ANY LITIGATION BROUGHT IN ACCORDANCE WITH THIS SECTION. BORROWER AND
BANK IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN
WHICH BORROWER AND BANK ARE PARTIES.
5.4 If any provision of this Agreement or the application thereof to
any Person or circumstance is held invalid or unenforceable, the remainder of
this Agreement and the application of such provision to other Persons or
circumstances will not be affected thereby, the provisions of this Agreement
being severable in any such instance.
5.5 Bank's failure at any time hereafter to require strict
performance by Borrower of any provision of this Agreement shall not waive,
affect or diminish any right of Bank thereafter to demand strict compliance and
performance therewith. Any suspension or waiver by Bank of an Event of Default
by Borrower under this Agreement shall not suspend, waive or affect any other
Event of Default by Borrower under this Agreement, whether the same or of a
different type. None of the undertakings, agreements, warranties, covenants and
representatives of Borrower contained in this Agreement and no Event of Default
by Borrower under this Agreement shall be deemed to have been suspended or
waived by Bank unless such suspension or waiver is by an instrument in writing
signed by an officer of Bank and directed to Borrower specifying such suspension
or waiver.
5.6 This Agreement shall continue in full force and effect until
Borrower's Liabilities and Borrower's Obligations are fully paid, performed and
discharged. This
Agreement shall continue to be effective or be reinstated, as the case may be,
if at any time payment of any of Borrower's Liabilities is rescinded or must
otherwise be returned by Bank upon the insolvency, bankruptcy or reorganization
of Borrower or otherwise, all as though such payment had not been made. This
Agreement shall be binding upon Borrower and inure to the benefit of Bank and
Borrower, and their respective heirs, personal representatives, successors and
assigns.
5.7 No termination of this Agreement or the Other Agreements shall in
any way affect or impair the powers, obligations, duties, rights and liabilities
of Borrower or Bank in any way or respect relating to (i) any transaction or
event occurring prior to such termination, (ii) any of the Collateral, and (iii)
any of the undertakings, agreements, covenants, warranties and representations
of Borrower contained in this Agreement or the Other Agreements.
5.8 All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, telecopier or similar
writing) and shall be given to such party at the address or telecopier number
set forth on the signature pages hereof or such other address or telecopier
number as such party may hereafter specify. Each such notice, request or other
communication shall be effective (i) if given by telecopier, when such telecopy
is transmitted to the telecopier number specified in this Section and the
appropriate confirmation is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered at
the address specified in this Section.
5.9 All covenants, warranties and representations contained herein
shall be true as of the date hereof and shall survive the execution and delivery
of this Agreement.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND BANK FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS BORROWER AND BANK REACH COVERING SUCH MATTERS ARE
CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN BORROWER AND BANK, EXCEPT AS BORROWER AND BANK MAY LATER AGREE
IN WRITING TO MODIFY IT.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year specified at the beginning hereof.
Borrower: Advantage Trading Group, Inc.
By:/s/ Xxxxx X. Xxxxx / /s/ Xxxxxxx Xxxxx
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Name: Xxxxx X. Xxxxx / Xxxxxxx Xxxxx
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Title: CEO / President
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