EXHIBIT 10.1
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AMONG
AMERITRADE HOLDING CORPORATION
AND
FIRST NATIONAL BANK OF OMAHA, AS AGENT
AND
REVOLVING LENDERS PARTY HERETO
DECEMBER 16, 2002
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (the
"Agreement") is entered into as of the 16th day of December, 2002, among
AMERITRADE HOLDING CORPORATION (formerly Arrow Stock Holding Corporation), a
Delaware corporation having its principal place of business at 0000 Xxxxx 000xx
Xxxxxx, Xxxxx, Xxxxxxxx 00000 (the "Borrower"), FIRST NATIONAL BANK OF OMAHA, a
national banking association having its principal place of business at 0000
Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000-0000 ("Agent" or "FNB-O"), LASALLE BANK
NATIONAL ASSOCIATION, a national banking association having its principal place
of business at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxx, Xxxx 00000, M&I
XXXXXXXX & XXXXXX BANK, a Wisconsin banking association having its principal
place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000,
and such lenders as may become Revolving Lenders hereunder after the date
hereof.
I. DEFINITIONS
For purposes of this Agreement, the following definitions shall apply:
Advance: Any advance of funds to the Borrower by the Revolving Lenders
or any of them under the revolving credit facility provided in
this Agreement.
Agreement: This Second Amended and Restated Revolving Credit Agreement,
dated as of December 16, 2002, among the Borrower and the
Revolving Lenders, as amended or restated from time to time.
Ameritrade,
Inc.: Ameritrade, Inc., formerly known as Advanced Clearing, Inc., a
Nebraska corporation and Subsidiary of Ameritrade Online.
Ameritrade Online: Ameritrade Online Holdings Corp., formerly
known as Ameritrade Holding Corporation, and a wholly-owned
Subsidiary of the Borrower. Applicable Margin: For purposes of
determining the Revolving Credit Rate, the margin, calculated
on a quarterly basis, is as follows:
(a) If the Quarterly Compliance
Certificate shows that cumulative consolidated net
income of the Borrower from September 27th, 2002 to
the then-current date was less than $50,000,000.00,
the margin for the current quarter shall be (i) zero
for the National Prime Rate, or (ii) plus 2.75% for
LIBOR;
(b) If the Quarterly Compliance
Certificate shows that cumulative consolidated net
income of the Borrower from September 27th, 2002 to
the then-current date was equal to or greater than
$50,000,000.00 but less than
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$100,000,000.00, the margin for the current quarter
shall be (i) minus .25% for the National Prime Rate,
or (ii) plus 2.50% for LIBOR;
(c) If the Quarterly Compliance
Certificate shows that cumulative consolidated net
income of the Borrower from September 27th, 2002 to
the then-current date was equal to or greater than
$100,000,000.00 but less than $150,000,000.00, the
margin for the current quarter shall be (i) minus
.50% for the National Prime Rate, or (ii) plus 2.25%
for LIBOR; and
(d) If the Quarterly Compliance
Certificate shows that cumulative consolidated net
income of the Borrower from September 27th, 2002 to
the then-current date was equal to or greater than
$150,000,000.00, the margin for the current quarter
shall be (i) minus .75% for the National Prime Rate,
or (ii) plus 2.00% for LIBOR.
In the event that any Quarterly Compliance Certificate is not
delivered on or before the due date thereof, the Applicable
Margin for such quarter shall be the margin set forth in (a)
above.
Borrower: Ameritrade Holding Corporation, formerly known as Arrow Stock
Holding Corporation.
Broker-
Dealer
Subsidiary: Any Subsidiary of the Borrower, direct or indirect, that is a
registered broker-dealer pursuant to the Securities Exchange
Act of 1934.
Business
Day: Any day other than a Saturday, Sunday or a legal holiday on
which banks in the State of Nebraska are not open for
business.
Cash Capital
Expenditure: The amount of any cash paid by the Borrower for any capital
expenditure pursuant to Section 4.16, whether such payment is
a cash down payment, a cash payment on financed capital
expenditures (other than regularly scheduled monthly payments
on financed capital expenditures) or a cash payment in full.
Change of
Control: (a) At any time when any of the equity securities of the
Borrower shall be registered under Section 12 of the
Securities Exchange Act of 1934 as amended from time to time
(the "Exchange Act"), (i) any person, entity or "group"
(within the meaning of Section 13(d)(3) of the Exchange Act)
(other than any person which is a management employee, or any
such "group" which consists entirely of management employees,
of the Borrower) being or becoming the beneficial owner,
directly or indirectly, of voting stock of the Borrower in an
amount sufficient to elect a majority of the members of the
Borrower's board of directors, or (ii) a majority of the
members of the Borrower's board of directors (the
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"Board") consisting of persons other than Continuing Directors
(as hereinafter defined); and (b) at any other time, the
voting stock of the Borrower being owned beneficially,
directly or indirectly, by any person, entity or group other
than employees of the Borrower or its Subsidiaries. As used
herein, the term "Continuing Director" means any member of the
Board on the date of this Agreement, and any other member of
the Board who shall be recommended or elected to succeed a
Continuing Director by a majority of Continuing Directors who
are the members of the Board.
Collateral: All personal property of the Borrower and each Guarantor
described in the Security Agreements and the Pledge
Agreements, whether now owned or hereafter acquired,
including, without limitation:
(a) all of the Borrower's stock in any
present or future Material Subsidiary, including
without limitation, Ameritrade Online and Datek;
provided, however, that the Collateral shall not
include any investment property or equity securities
issued by any Subsidiary of the Borrower that is
organized under the laws of any jurisdiction other
than the United States of America (or any state
thereof) in excess of sixty-five percent (65%) of the
total voting power of all equity securities of such
Subsidiary;
(b) all of the Borrower's accounts,
accounts receivable, chattel paper, documents,
instruments and other securities, goods, inventory,
letter of credit rights, equipment, furniture and
fixtures, general intangibles, contract rights,
computer, data processing, hardware and software
licenses, books and records;
(c) all of Ameritrade Online's stock in
any present or future Material Subsidiary, including
without limitation, the following: Ameritrade, Inc.;
J.P. Securities, Inc.; Accutrade, Inc.; Financial
Passport, Inc.; TradeCast, Inc.; Nebraska Xxxxxx
Company, Inc.; Ameritrade Institutional Services,
Inc.; Xxxxxxxxx.xxx, Inc.; AmeriVest Brokers, Inc.;
OnMoney Financial Services Corporation; Ten Bagger
Incorporated; Ameritrade Canada, Inc.; Ameritrade
International Company, Inc.; Ameritrade Services
Company; Ameritrade IP Company; and Ameritrade
Development Company; provided, however, that the
Collateral shall not include any investment property
or equity securities issued by any Subsidiary of
Ameritrade Online that is organized under the laws of
any jurisdiction other than the United States of
America (or any state thereof) in excess of
sixty-five percent (65%) of the total voting power of
all equity securities of such Subsidiary;
(d) all of Ameritrade Online's
accounts, accounts receivable, chattel paper,
documents, instruments and other securities
(excluding NITE Stock), goods, inventory, letter of
credit rights, equipment, furniture and fixtures,
general intangibles, contract rights, computer, data
processing, hardware and software licenses, books and
records;
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(e) all of Datek's stock in Ameritrade,
Inc. and in any present or future Material
Subsidiary, including without limitation, the
following: Datek Online Financial Services LLC;
iClearing; BigThink Corp.; Datek Online Management
Corp.; Watcher Technologies LLC; and iCapital Markets
LLC; provided, however, that the Collateral shall not
include any investment property or equity securities
issued by any Subsidiary of Datek that is organized
under the laws of any jurisdiction other than the
United States of America (or any state thereof) in
excess of sixty-five percent (65%) of the total
voting power of all equity securities of such
Subsidiary; provided further, that the Collateral
shall not include any investment property or equity
securities issued by Datek Canada Financial Services,
Inc.;
(f) all of Datek's accounts, accounts
receivable, chattel paper, documents, instruments and
other securities, goods, inventory, letter of credit
rights, equipment, furniture and fixtures, general
intangibles, contract rights, computer, data
processing, hardware and software licenses, books and
records and equitable interests in limited liability
companies, including, without limitation, Datek
Online Financial Services LLC, iClearing, Watcher
Technologies LLC and iCapital Markets LLC; and
(g) all proceeds and products of the
foregoing.
Commitment: As to each Revolving Lender, such Revolving Lender's pro rata
percentage or maximum dollar amount of the commitments set
forth in Section 2.1 of this Agreement.
Core Retail
Accounts: Open accounts of the Subsidiaries of the Borrower, which have
a currently valid account number, are eligible for online
trading and are reported publicly on a quarterly basis.
Datek: Datek Online Holdings Corp., a wholly-owned Subsidiary of the
Borrower.
Default Rate: The Revolving Credit Rate as defined herein plus 3.0%.
EBITDA: Means, at any time, for the prior four fiscal quarters, the
Borrower's net income on a consolidated basis from continuing
operations (excluding the write-down of TradeCast, Inc. in
September 2002), plus (a) taxes paid or accrued during such
period, (b) interest expenses paid or accrued during such
period, and (c) amortization and depreciation deducted in
determining such net income for such period.
Event of
Default: Any of the events set forth in Section 6.1 of this Agreement.
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Excess Net
Capital: The aggregate amount of the actual net capital for each
Broker-Dealer Subsidiary, minus Regulatory Net Capital.
Existing
Credit
Facility: The Amended and Restated Revolving Credit Agreement dated as
of December 31, 2001, as amended July 11, 2002, and as further
amended as of September 9, 2002, by and among FNB-O and
Ameritrade Online.
Fiscal
Month: A month that ends as of the last Friday of a calendar month,
or, as to December, as of December 31st.
FNB-O: First National Bank of Omaha, a national banking association
having its principal place of business at 0000 Xxxxx Xxxxxx,
Xxxxx, Xxxxxxxx 00000-0000, and its successors and assigns.
GAAP: Generally accepted accounting principles as in effect from
time to time in the United States of America.
Guarantor: Either Ameritrade Online or Datek, and "Guarantors" means both
of them.
Guarantor
Documents:
(a) The Guaranty Agreement, dated as of the date hereof,
between Ameritrade Online and Agent;
(b) The Amended and Restated Guaranty Agreement, dated as
of the date hereof, between Datek and Agent;
(c) The Second Amended and Restated Stock Pledge
Agreement, dated as of the date hereof, between
Ameritrade Online and Agent;
(d) The Amended and Restated Stock Pledge Agreement,
dated as of the date hereof, between Datek and Agent;
(e) The Second Amended and Restated Security Agreement,
dated as of the date hereof, between Ameritrade
Online and Agent; and
(f) The Amended and Restated Security Agreement, dated as
of the date hereof, between Datek and Agent.
iClearing: iClearing LLC, a Delaware limited liability company and a
Subsidiary of Datek.
Indebtedness: All loans and other obligations of the Borrower and the
Guarantors for borrowed money, without duplication,
(including, without limitation, the indebtedness due
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to the Revolving Lenders) regardless of the maturity thereof,
but excluding capital leases incurred in the ordinary course
of business and excluding net payables to customers and
broker-dealers in the ordinary course of business, excluding
borrowings collateralized by client assets in the ordinary
course of business, and excluding Subordinated Debt and
amounts outstanding under any Other Credit Facility.
LaSalle
Bank National
Association: LaSalle Bank National Association, a national banking
association having its principal place of business at 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxx, Xxxx 00000.
Letter(s) of
Credit: Letter(s) of Credit issued under the Letter of Credit
Facility, the Letter of Credit Amount of which shall not
exceed $5,000,000.00 at any time.
Letter of
Credit
Amount: The original face amount of the Letters of Credit, minus the
amount of any draws thereunder which have been reimbursed to
the Agent for the benefit of the Revolving Lenders.
Letter of
Credit
Facility: The letter of credit facility provided for in Section 2.7 of
the Agreement.
Letter of
Credit Fees: The letter of credit fees specified in Section 2.9 of this
Agreement.
LIBOR
Rate: The floating per annum interest rate published from time to
time as the "one month LIBOR rate" in the "Money Rates"
Section of the Midwest Edition of the Wall Street Journal on
the first Business Day of each month, or if no such rate is
published on such date, on the last preceding date on when
such rate was published.
Material
Subsidiary: Any Subsidiary whose total assets are worth equal to or
greater than $200,000.00.
M&I
Xxxxxxxx &
Xxxxxx Bank: M&I Xxxxxxxx & Ilsley Bank, a Wisconsin banking association
having its principal place of business at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000.
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Money
Market
Funds: Means, at any time, money market funds whose rating from
Standard and Poor's Rating Services Group ("S&P") is AAAm or
AAm or the equivalent thereof or whose Xxxxx'x Investor
Services ("Xxxxx'x") rating is Aaa or Aa or the equivalent
thereof.
National
Prime Rate: The floating per annum interest rate published from time
to time as the "Prime Rate" (the base rate on corporate loans
posted by at least 75% of the nation's 30 largest banks) in
the "Money Rates" Section of the Midwest Edition of the Wall
Street Journal on the first Business Day of the month, or if
no such rate is published on such date, on the last preceding
date when such rate was published.
Net Worth: The Borrower's consolidated net worth as determined in
accordance with GAAP.
NITE Stock: The common stock, or any securities exchanged for the common
stock, of Knight Trading Group, Inc. (formerly Knight/Trimark
Group, Inc.), held by the Borrower or any of its Subsidiaries.
NITE Stock
Market Value: Means, at any time, the price per share of NITE Stock
as reported on the NASDAQ Stock Market on the last day of the
preceding Fiscal Month or, if not reported on the last day of
the preceding Fiscal Month, on the immediately preceding
business day in the preceding Fiscal Month that it is quoted,
times the number of shares of NITE Stock owned by the Borrower
or any of its Subsidiaries, which are not otherwise pledged or
encumbered.
Non-Broker-
Dealer Cash: Cash on hand or on deposit of the Borrower or any Subsidiary
that is not a broker-dealer, minus the amount of deferred tax
liability for the Island, Inc. distribution, which is
estimated to be $52,000,000.00, and once paid to the Internal
Revenue Service, zero.
Notes: The revolving credit notes, substantially in the form of
Exhibit A attached to this Agreement, which notes replace the
revolving credit notes issued and outstanding under the
Existing Credit Facility, and such additional similar notes as
may be issued to certain additional Revolving Lenders, and all
extensions, renewals, and substitutions of or for the
foregoing.
Operative
Documents: This Agreement, the Notes, the Pledge Agreements, the Security
Agreements, the Guarantor Documents, the financing statements
regarding the Collateral and the documents and certificates
delivered pursuant to Section 5.1.
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Other Credit
Facility: Obligations of the Borrower or any of its Subsidiaries under
any credit, margin stock, or put and/or call agreement secured
by or covering any portion of the NITE Stock.
Permitted
Investments: Any one or more of the following:
(a) certificates of deposit fully
covered by Federal Deposit Insurance and maintained
at a bank having capital and surplus of not less than
$50,000,000;
(b) short-term obligations of, or
obligations fully guaranteed by, the United States of
America or any agencies thereof;
(c) commercial paper rated at least A-1
by Standard and Poor's Corporation or P-1 by Xxxxx'x
Investors Service, Inc.;
(d) demand deposit accounts maintained
in the ordinary course of the business at a bank
having capital and surplus of not less than
$50,000,000; and
(e) Money Market Funds.
Permitted
Liens: (i) Liens existing on the date of this Agreement as shown on
Exhibit E; (ii) Liens for taxes, assessments, governmental
charges or claims which are not yet delinquent or which are
being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if a reserve
or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor; (iii)
statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like
Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings, and if a reserve or
other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor; (iv) Liens
(other than any Lien imposed by the Employee Retirement Income
Security Act of 1974, as amended) incurred or deposits made in
the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social
security; (v) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory obligations,
surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a like nature
incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (vi)
easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the
business of the Borrower or any of its Subsidiaries incurred
in the ordinary course of business; (vii) Liens securing
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reimbursement obligations with respect to documentary letters
of credit which encumber documents and other property relating
to such letters of credit and the products and proceeds
thereof; (viii) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods;
(ix) judgment and attachment Liens not giving rise to a
Potential Event of Default or an Event of Default; (x) leases
or subleases granted to others not interfering in any material
respect with the business of the Borrower or any of its
Subsidiaries; (xi) customary Liens securing indebtedness under
interest rate protection agreements and foreign currency
hedging arrangements; (xii) Liens encumbering deposits made to
secure obligations arising from statutory, regulatory,
contractual or warranty requirements of the Borrower; (xiii)
any interest or title of a lessor in the property subject to
any capital lease obligation or operating lease entered into
by the borrower in the ordinary course of business provided
that the incurrence of any related indebtedness is permitted
by this Agreement; (xiv) Liens of banks in funds on deposit
with such banks; (xv) mortgage or deed of trust securing real
estate loan for premises located in Kansas City, Missouri, in
the approximate amount of $6,700,000; and (xvi) extensions,
renewals or regranting of any Liens referred to in clauses (i)
through (xv) above.
Pledge
Agreements: Collectively, the following Stock Pledge Agreements: (i) the
Second Amended and Restated Stock Pledge Agreement, dated as
of the date hereof, between Ameritrade Online and FNB-O, as
agent for the Revolving Lenders, as amended or restated from
time to time; (ii) the Amended and Restated Stock Pledge
Agreement, dated as of the date hereof, between the Borrower
and FNB-O, as agent for the Revolving Lenders, as amended or
restated from time to time; and (iii) the Amended and Restated
Stock Pledge Agreement, dated as of the date hereof, between
Datek and FNB-O, as agent for the Revolving Lenders, as
amended or restated from time to time.
Potential
Event of
Default: Any event which with the passage of time or the giving of
notice or both would, if it continues uncured, constitute an
Event of Default.
Principal
Loan
Amount: The aggregate principal amount of all unpaid Advances made
under the Notes outstanding at any time, plus the then current
Letter of Credit Amount.
Quarterly
Compliance
Certificate: The certificate delivered to the Revolving Lenders by the
Borrower pursuant to Section 4.1(e).
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Regulatory
Net Capital: The amount of net capital required for any Subsidiary that is
a broker-dealer under Section 15(c)(3) of the Securities
Exchange Act of 1934 and Regulations promulgated thereunder in
effect as of December 31, 1999; provided, however, in no event
less than five percent (5%) of aggregate debit items.
Requisite
Revolving
Lenders: Except where a higher percentage is required pursuant to the
express terms of this Agreement, including without limitation
Section 7.1, Revolving Lenders owning fifty-one percent (51%)
of the Principal Loan Amount outstanding or, if no Principal
Loan Amount is outstanding, Revolving Lenders representing
fifty-one percent (51%) of the Commitments in effect at such
time.
Revolving
Credit Rate: As defined in Section 2.3 hereof.
Revolving
Lenders: FNB-O, LaSalle Bank National Association, M&I Xxxxxxxx &
Ilsley Bank and such additional Revolving Lenders as may be
added as Revolving Lenders under Section 2.1 hereto from time
to time in accordance with this Agreement, as such Revolving
Lenders may be modified by assignments permitted under Section
7.4 from time to time.
Security
Agreements: Collectively, the following Security Agreements: (i) the
Second Amended and Restated Security Agreement, dated as of
the date hereof, between Ameritrade Online and FNB-O, as agent
for the Revolving Lenders, as amended or restated from time to
time; (ii) the Amended and Restated Security Agreement, dated
as of the date hereof, between the Borrower and FNB-O, as
agent for the Revolving Lenders, as amended or restated from
time to time; and (iii) the Amended and Restated Security
Agreement, dated as of the date hereof, between Datek and
FNB-O, as agent for the Revolving Lenders, as amended or
restated from time to time.
Subordinated
Debt: The Convertible Subordinated Notes due August 1, 2004,
originally issued by Ameritrade Online in the amount of
$200,000,000, but as of the date hereof, outstanding in the
amount of $46,295,000, which notes are unsecured obligations
of Ameritrade Online, subordinated in right of payment to all
existing and future senior indebtedness of Ameritrade Online.
Subsidiary: Any corporation business association, partnership, joint
venture, limited liability company or other business entity in
which the Borrower, or one or more of its Subsidiaries, or the
Borrower and one or more of its Subsidiaries has more than 50%
of the equity ownership thereof, or any other entity which,
pursuant to GAAP, would be considered a subsidiary of the
Borrower or any one or more of its Subsidiaries.
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Termination
Date: December 15, 2003, or such later date as is approved in
writing by the Revolving Lenders.
Unrestricted
Liquidity: The sum of (i) all Non-Broker-Dealer Cash, plus (ii)
seventy-five percent (75%) of the NITE Stock Market Value,
plus (iii) fifty percent (50%) of the Excess Net Capital.
All accounting terms not otherwise defined herein shall have the meaning
ordinarily applied under GAAP from time to time in effect.
II. REVOLVING FACILITY
2.1 Revolving Credit. Until December 15, 2003, the Revolving
Lenders severally agree to advance funds for general corporate purposes not to
exceed the amount shown on Appendix I attached hereto, as amended from time to
time (the "Base Revolving Credit Facility"), to the Borrower on a revolving
credit basis.
Such Advances shall be made on a pro rata basis by the Revolving
Lenders, based on the maximum Advance limits and applicable percentages for each
Revolving Lender as shown on Appendix I attached hereto, as amended from time to
time; provided, however, that each Revolving Lender's Commitment is several and
not joint or joint and several.
The Borrower shall not be entitled to any Advance hereunder if, after
the making of such Advance, the Principal Loan Amount would exceed the then
current Base Revolving Credit Facility after giving effect to the requested
Advance. Nor shall the Borrower be entitled to any further Advances hereunder
after the occurrence and during the continuation of any Event of Default or
Potential Event of Default, or if the Borrower's representations and warranties
hereunder are not true and correct in all material respects as of the time of
the requested Advance. Advances shall be made, on the terms and conditions of
this Agreement, upon the Borrower's request. Requests shall be made by 11:00
a.m. Omaha time on the Business Day prior to the requested date of the Advance.
Requests shall be made by presentation to FNB-O of a drawing certificate in the
form of Exhibit B. The Borrower's obligation to make payments of principal and
interest on the foregoing revolving credit indebtedness shall be further
evidenced by the Notes. FNB-O shall promptly transmit a copy of each such
Advance request to the other Revolving Lenders. Each Revolving Lender shall
remit to FNB-O its Commitment times the amount of the Advance request, subject
to the conditions specified hereunder. Such remittance shall be transferred to
FNB-O on the same Business Day as to requests received by such Revolving Lender
before 12:00 noon of a Business Day, and as to requests received thereafter, on
the next Business Day.
2.2 Revolving Credit Fees.
(a) The Borrower shall pay to the Revolving Lenders a
commitment fee equal to 3/8 of 1% (.00375) of the average unused
facility, payable quarterly in arrears. Such fee shall accrue from the
first day of each calendar quarter and shall be payable in arrears on
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the tenth (10th) day of the month following the end of each calendar
quarter; provided, however, that the commitment fee for the calendar
quarter ending December 31st, 2002 shall accrue from December 16th,
2002. Such fee shall be paid to the Agent and based on the average
unused portion of each Revolving Lender's Commitment during the
applicable quarter. FNB-O shall distribute to each Revolving Lender its
pro rata share of such fees based on the maximum Advance limits set
forth above.
(b) The Borrower shall also pay a closing fee to each
Revolving Lender as set forth in Appendix I attached hereto, such fees
to be payable at closing.
(c) All fees hereunder shall accrue based on a year of
360 days, and for actual days elapsed.
2.3 Interest on Revolving Credit. Interest shall accrue on the
Principal Loan Amount outstanding from time to time at a variable rate per annum
(the "Revolving Credit Rate") equal to the lesser of (a) the National Prime Rate
minus the Applicable Margin, or (b) the LIBOR Rate plus the Applicable Margin.
Such rate shall fluctuate monthly based on changes in such rates on the first
day of each month. All interest under the Notes shall accrue based on a year of
360 days, and for actual days elapsed. Interest shall be due no later than the
tenth day of each month. Notwithstanding anything to the contrary elsewhere
herein, after an Event of Default has occurred and is continuing, interest shall
accrue on the entire outstanding balance of principal and interest on all
indebtedness hereunder at a fluctuating rate per annum equal to the Default
Rate.
2.4 Payments. On or prior to the end of each calendar quarter 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 calendar quarter. The
balance of the loan on December 15, 2003, 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.
2.5 Prepayments. The Borrower may at any time prepay the
Principal Loan Amount, in whole or in part, outstanding under the Notes if the
Borrower has given the Agent at least one (1) Business Day's prior written
notice of its intention to make such prepayment. Any such prepayment may be made
without penalty. All such prepayments (other than the prepayments under Section
8.1) shall be made pro rata among the Revolving Lenders based on their
respective pro rata share of the amounts outstanding on the Notes. No such
prepayment shall reduce the Base Revolving Credit Facility.
2.6 Security. All obligations of the Borrower hereunder and under
the Operative Documents, including, without limitation, the Borrower's
obligations to make payments of principal and interest on the Notes and to pay
all amounts due in connection with the Letters of Credit shall be secured by a
first security interest in the Collateral, as more specifically described in the
Security Agreements and the Pledge Agreements, subject to liens permitted
thereunder.
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All references in the Security Agreements and the Pledge Agreements to the
"Revolving Credit Agreement" shall mean this Agreement as amended from time to
time.
2.7 Letter of Credit Facility. Subject to and upon the terms and
conditions herein set forth, the Borrower may request and FNB-O on behalf of the
Revolving Lenders shall issue from time to time for the account of the Borrower
or one or more of its Subsidiaries letters of credit (the "Letters of Credit");
provided, however, FNB-O shall have no obligation to issue any such Letter of
Credit unless at such time the Borrower meets all the conditions for an Advance
under the Base Revolving Credit Facility and, after such issuance, the aggregate
Letter of Credit Amount outstanding will not exceed $5,000,000 and the Principal
Loan Amount will not exceed the then available Base Revolving Credit Facility,
all as more specifically set forth in this Agreement. The Revolving Lenders
shall be obligated to fund pro rata according to their respective pro rata
percentages shown in Section 2.1 of this Agreement any draws on such Letters of
Credit and shall be entitled to share pro rata in the Letter of Credit Fees and
reimbursement amounts received in connection with such Letters of Credit. The
Letter of Credit Amount outstanding at any time shall operate to reduce amounts
available to be drawn under the Base Revolving Credit Facility by such sum, and
shall be deemed to be outstanding for purposes of calculating the commitment fee
under Section 2.2 (a) of this Agreement. No Letter of Credit shall have a
maturity date occurring later than the Termination Date of this Agreement;
provided, however, FNB-O, upon five days prior written notice to the other
Revolving Lenders, may issue one or more Letters of Credit in an aggregate
amount not to exceed $1,000,000.00 in Letters of Credit under this Agreement
with a maturity occurring after the Termination Date of this Agreement (a
"Non-Conforming Letter of Credit"), but no other Revolving Lender shall be
obligated to fund any draws on such Non-Conforming Letters of Credit and shall
not be entitled to share pro rata in the Letter of Credit Fees and reimbursement
amounts received in connection therewith unless such Revolving Lender elects in
writing to participate in such Non-Conforming Letters of Credit after receipt of
notice from FNB-O. Except as provided in the preceding sentence, any such
Non-Conforming Letters of Credit shall in all other respects be deemed a "Letter
of Credit" under this Agreement. Any reference in this Agreement (including
without limitation Articles VII and VIII) to a "loan" or "loans" made under this
Agreement shall include the Letters of Credit, and, for purposes of Article VII,
amounts outstanding under the Notes shall be deemed to include amounts available
to be drawn and unreimbursed drawings under issued and outstanding Letters of
Credit.
2.8 Letter of Credit Documents. Prior to the issuance by FNB-O of
any Letters of Credit, the Borrower and, if requested by FNB-O, the applicable
Subsidiary, shall execute and deliver to FNB-O an application and continuing
letter of credit agreement, such agreements to be in the form provided by FNB-O,
as may be amended from time to time for general use in connection with letters
of credit issued by FNB-O.
2.9 Letter of Credit Fees. In addition to all costs incurred by
FNB-O in the issuance and enforcement of the Letters of Credit which are to be
reimbursed by the Borrower in accordance with the application and continuing
letter of credit agreement executed in connection with each Letter of Credit,
the Borrower shall pay to the Agent a letter of credit fee (the "Letter of
Credit Fee") equal to two and one-half percent (2.5%) per annum of the amounts
available to be drawn under outstanding Letters of Credit, such fee to be based
on the average Letter of Credit Amount outstanding during such quarter;
provided, however, that at any time that an
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Event of Default has occurred and is continuing under the Agreement, such fee
shall be equal to five percent (5%) per annum. Such fee shall accrue from the
first day of each calendar quarter and shall be payable in arrears on the tenth
(10th) day of the month following the end of each calendar quarter; provided,
however, that the Letter of Credit Fee for the calendar quarter ending December
31st, 2002 shall accrue from December 16th, 2002. Interest shall accrue on
amounts drawn under any Letter of Credit, until such amount is reimbursed, at
the then current rate for amounts outstanding under the Revolving Note and, for
any period that such draw remains unreimbursed more than two Business Days after
such draw, at the Default Rate. Agent at its sole option shall have the right to
make an advance under the Base Revolving Credit Facility to repay any
unreimbursed draws under a Letter of Credit. In addition, the Borrower shall pay
such other administrative fees, including a fee for opening the Letter of
Credit, as are agreed in writing between FNB-O and the Borrower. Amounts
received by FNB-O for opening a Non-Conforming Letter of Credit or as
administrative fees with respect to any Letter of Credit remain the property of
FNB-O and shall not be shared pro rata with the Revolving Lenders. Letter of
Credit Fees shall accrue based on a year of 360 days, and for actual days
elapsed.
2.10 Voluntary Reduction or Termination of Base Revolving Credit
Facility. The Borrower may from time to time on at least two (2) Business Days'
prior written notice to the Agent (which shall promptly advise each Revolving
Lender thereof) permanently reduce the amount of the Base Revolving Credit
Facility to an amount not less than the then-outstanding Principal Loan Amount;
provided, however, that any such reduction shall be in an aggregate minimum
amount of $5,000,000.00 and integral multiples of $1,000,000.00 in excess of
that amount. Concurrently with any reduction of the amount of the Base Revolving
Credit Facility to zero, as provided in the first sentence of this Section 2.10,
the Borrower shall pay all interest on the Advances and all fees. All reductions
of the Base Revolving Credit Facility shall reduce the Commitments pro rata
among the Revolving Lenders.
2.11 Payment Receipt. Payments received before 12:00 noon on any
Business Day will be credited the same Business Day. Payments received after
12:00 noon on any Business Day will be credited the next Business Day.
III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that as of the date hereof and as
of the date of each and every request for an Advance hereunder, the following
are and shall be true and correct:
3.1 Corporate Existence. Each of the Borrower and its
Subsidiaries is a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of the state of its
incorporation and duly qualified and in good standing in all states where it is
doing business except where the failure to be so qualified would not have a
material adverse effect on it and its Subsidiaries taken as a whole, and it has
full corporate power and authority to own and operate its properties and to
carry on its business.
3.2 Corporate Authority. Each of the Borrower and the Guarantors
has full corporate power, authority and legal right to execute, deliver and
perform the Operative Documents to which it is a party, and all other
instruments and agreements contemplated hereby and thereby, and to perform its
obligations hereunder and thereunder; and such actions have been duly
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authorized by all necessary corporate action, and are not in conflict with any
applicable law or regulation, or any order, judgment or decree of any court or
other governmental agency or instrumentality or its articles of incorporation or
bylaws, or with any provisions of any indenture, contract or agreement to which
it or any of its Subsidiaries is a party or by which it or any of its
Subsidiaries or any of its or their property may be bound.
3.3 Validity of Agreements. The Operative Documents of the
Borrower and each of the Guarantors have been duly authorized, executed and
delivered and constitute their legal, valid and binding agreements, enforceable
against the Borrower and the Guarantors in accordance with their respective
terms (except to the extent that enforcement thereof may be limited by any
applicable bankruptcy, reorganization, moratorium or similar laws now or
hereafter in effect, or by principles of equity).
3.4 Litigation. Neither the Borrower nor any Subsidiary is a
party to any pending lawsuit or proceeding before or by any court or
governmental body or agency, which is likely to have a material adverse effect
on (a) the Borrower's ability or any Guarantor's ability to perform its
obligations under its Operative Documents or (b) a Subsidiary's ability to pay
dividends to the Borrower, to the extent that such impaired ability would have a
material adverse effect on the Borrower and its Subsidiaries, taken as a whole;
nor is the Borrower aware of any threatened lawsuit or proceeding, to which it
or any Subsidiary may become a party or of any investigation of any Court or
governmental body or agency into its affairs, which if instituted would have a
material adverse effect upon the Borrower's ability or any Guarantor's ability
to perform its obligations under its Operative Documents or a Subsidiary's
ability to pay dividends to the Borrower.
3.5 Governmental Approvals. The execution, delivery and
performance by the Borrower and the Guarantors of the Operative Documents do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any federal, state or
other governmental authority or agency other than as contemplated herein and
therein.
3.6 Defaults Under Other Documents. Neither the Borrower nor any
Subsidiary is in default or in violation (nor has any event occurred which, with
notice or lapse of time or both, would constitute a default or violation) under
any document or any agreement or instrument to which it may be a party or under
which it or any of its properties may be bound, the result of which would have a
material adverse effect upon the Borrower's ability or any Guarantor's ability
to perform its obligations under its Operative Documents or a Subsidiary's
ability to pay dividends to the Borrower and/or the Guarantors.
3.7 Judgments. There are no outstanding or unpaid judgments
(which are not adequately bonded) of the Borrower or any Subsidiary which would
have a material adverse effect upon the Borrower's ability or any Guarantor's
ability to perform its obligations under its Operative Documents or a
Subsidiary's ability to pay dividends to the Borrower and/or the Guarantors.
3.8 Compliance with Laws. Neither the Borrower nor any Subsidiary
is in violation of any laws, regulations or judicial or governmental decrees in
any respect which would have
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any material adverse effect upon the validity or enforceability of any of the
terms of the Borrower or any Guarantor's Operative Documents or which would have
a material adverse effect upon the Borrower's ability or any Guarantor's ability
to perform its obligations under its Operative Documents or a Subsidiary's
ability to pay dividends to the Borrower and/or the Guarantors.
3.9 Taxes. All tax returns of the Borrower and its Subsidiaries
for material taxes required to be filed have been filed or extensions permitted
by law have been obtained; all taxes of the Borrower and its Subsidiaries of a
material nature and which are due and payable as reflected on such returns have
been paid, other than taxes which are due but for which only a nominal late
payment penalty is payable and for which the taxing authority is not yet
entitled to enforce its remedies for payment thereof and other than taxes being
contested in good faith and with respect to which adequate reserves have been
established; and no material amounts of taxes of the Borrower and its
Subsidiaries not reflected on such returns are payable.
3.10 Collateral. The Borrower and each Guarantor have good title
to the Collateral and the Collateral is free from all liens, encumbrances or
security interests, except for Permitted Liens and except as disclosed on
Exhibit E attached hereto. The Borrower is a Delaware corporation with its
principal place of business, chief executive office, and the principal place
where it keeps its records concerning the Collateral at 0000 Xxxxx 000xx Xxxxxx,
Xxxxx, Xxxxxxxx 00000.
3.11 Pension Benefits. Neither the Borrower nor any Subsidiary
maintains an employee benefits pension plan as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") (a
"Plan"), or each such entity is in compliance with the minimum funding
requirements with respect to any such Plan maintained by it to the extent
applicable, and it has not incurred any material liability to the Pension
Benefit Guaranty Corporation (other than liability for premiums) or otherwise
under ERISA in connection with any such Plan.
3.12 Margin Regulations. No part of the proceeds of any Advance
hereunder shall be used for any purpose that violates, or which is inconsistent
with, the provisions of Regulation T, U or X of the Board of Governors of the
Federal Reserve System of the United States.
3.13 Financial Condition. The financial condition of the Borrower
and its Subsidiaries is fairly presented in the most recent financial statement
which has been provided to the Agent and such financial statement does not
contain any untrue statements of a material fact or omit to state any material
fact necessary to make the statement therein not misleading in light of the
circumstances under which it was made. No material adverse change has occurred
since the date of such financial statement.
IV. COVENANTS
The Borrower hereby covenants that:
4.1 Financial Reports.
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(a) Within thirty (30) days after the end of each month, the
Borrower, at its sole expense, shall furnish the Agent a consolidated balance
sheet, a statement of earnings of the Borrower and its consolidated
Subsidiaries, and a statement of cash flows of the Borrower and its consolidated
Subsidiaries, all such financial statements to be prepared in accordance with
GAAP consistently applied and certified as completed and correct, subject to
normal changes resulting from year-end audit adjustments, by the chief financial
officer of the Borrower.
(b) Within ninety (90) days after the close of the Borrower's
fiscal year, the Borrower, at its sole expense, shall furnish the Agent: (i) a
consolidated balance sheet, a statement of earnings of the Borrower and its
consolidated Subsidiaries and a statement of cash flows of the Borrower and its
consolidated Subsidiaries, certified by Deloitte & Touche LLP, or other
comparable nationally recognized independent certified public accountants, that
such financial reports fairly present the financial condition of the Borrower
and its consolidated Subsidiaries and have been prepared in accordance with GAAP
consistently applied; and (ii) a certificate from such accountants certifying
that in making the requisite audit for certification of the Borrower's financial
statements, the auditors either (1) have obtained no knowledge, and are not
otherwise aware of, any condition or event which constitutes an Event of Default
or which with the passage of time or the giving of notice would constitute an
Event of Default under this Agreement; or (2) have discovered such condition or
event, as specifically set forth in such certificate, which constitutes an Event
of Default or which with the passage of time or the giving of notice would
constitute an Event of Default under such sections. The auditors shall not be
liable to the Revolving Lenders by reason of the auditors' failure to obtain
knowledge of such event or condition in the ordinary course of their audit
unless such failure is the result of negligence or willful misconduct in the
performance of the audit.
(c) Within thirty (30) days after submission to the Securities and
Exchange Commission, the Borrower shall provide to the Agent copies of its Forms
10K and 10Q, as submitted to the Securities and Exchange Commission during the
term of this Agreement, plus consolidating statements of the Borrower and its
consolidated Subsidiaries, including a balance sheet, a statement of earnings
and a statement of cash flows.
(d) Within thirty (30) days after the end of each month, the
Borrower shall cause Ameritrade Online and iClearing to provide to the Agent the
FOCUS report of Ameritrade, Inc. and iClearing for such month.
(e) Within thirty (30) days after the end of each quarter, the
Borrower, at its expense, shall furnish the Agent a certificate of the chief
financial officer of the Borrower in the form of Exhibit C attached hereto,
setting forth such information (including detailed calculations) sufficient to
verify the conclusions of such officer after due inquiry and review, that:
(i) The Borrower and each Subsidiary, either (y) is in
compliance with the requirements set forth in this Agreement or (z) is
NOT in compliance with the foregoing for reasons specifically set forth
therein; and
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(ii) The chief financial officer of the Borrower has
reviewed or caused to be reviewed all of the terms of the Operative
Documents of the Borrower and each Guarantor and that such review
either (y) has NOT disclosed the existence of any condition or event
which constitutes an Event of Default or a Potential Event of Default
under the Operative Documents or (z) has disclosed the existence of a
condition or event which constitutes an Event of Default or a Potential
Event of Default, under the aforesaid instrument or instruments and the
specific condition or event is specifically set forth.
(f) Within thirty (30) days after the end of each month, the
Borrower, at its sole expense, shall furnish the Agent a certificate of the
chief financial officer of the Borrower in the form of Exhibit D attached
hereto, setting forth such information (including detailed calculations)
sufficient to verify the conclusions of such officer after due inquiry and
review, that the Borrower and each Subsidiary is in compliance with the
liquidity requirements set forth in Section 4.7 of this Agreement, such
certificate to be effective until the due date of the next certificate pursuant
to this subsection.
(g) The Borrower shall provide the Agent with such other financial
reports and statements as the Revolving Lenders may reasonably request.
4.2 Corporate Structure and Assets.
(a) The Borrower shall not, and shall not permit any Guarantor to,
merge or consolidate with any other corporation or entity without the prior
written consent of the Requisite Revolving Lenders, except as provided in clause
(b) below.
(b) The foregoing restriction on mergers and consolidations shall
not apply if: (i) in the case of a merger, the Borrower or a Guarantor (provided
that, in the event of a merger involving the Borrower, the Borrower shall be the
surviving entity) is the surviving entity and expressly reaffirms its
obligations hereunder; (ii) in the case of a consolidation, the resulting
corporation expressly assumes the obligations of the Borrower or the Guarantor
hereunder; (iii) the surviving or resulting corporation is organized under the
laws of the United States or a jurisdiction thereof; (iv) after giving effect to
such merger or consolidation, the surviving or resulting corporation will be
engaged in substantially the same lines of business as are now engaged in by the
Borrower and its Subsidiaries and businesses reasonably related thereto; and (v)
immediately after giving effect to such merger or consolidation, no Event of
Default will exist hereunder.
(c) The Borrower shall not, and shall not permit any Guarantor to,
sell any assets, other than in the ordinary course of business, in an aggregate
amount greater than one million dollars ($1,000,000), except (i) items that are
obsolete or no longer necessary for operation of the business, (ii) Ameritrade
Online's interest in Comprehensive Software Systems, Ltd., (iii) Ameritrade
Online's interest in the NITE Stock, (iv) the interest of the Borrower and/or
its Subsidiaries in TradeCast, Inc., (v) the interest of the Borrower and/or its
Subsidiaries in the premises located in Kansas City, Missouri, (vi) sales of
assets to the Borrower or a Guarantor, (vii) the interest of the Borrower and/or
its
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Subsidiaries in Watcher Technologies LLC and (viii) the transaction with General
Electric Capital Corp. related to Datek's building located in Jersey City, New
Jersey. The Revolving Lenders shall be entitled to receive as a prepayment on
the Notes the net cash proceeds of any sale of assets of the Borrower or any
Guarantor which are prohibited by the preceding sentence. Notwithstanding the
foregoing prepayment requirements, any such prohibited sale shall remain a
violation of this Agreement. For purposes of this Section 4.2(c), "net cash
proceeds" shall mean the amount in cash or cash equivalents received from the
sale after taxes and after payment of all costs and expenses incurred in
connection with the sale, including brokerage or similar fees.
(d) In addition, the Borrower and the Guarantors shall
not engage in any business materially different from that in which they
are presently engaged and businesses reasonably related thereto without
the prior written consent of the Requisite Revolving Lenders, which
consent shall not be unreasonably withheld.
(e) The Borrower shall at all times maintain a one
hundred percent (100%) ownership interest in Ameritrade Online and
Datek.
4.3 Net Worth. The Borrower shall maintain a minimum Net Worth at
closing and during the term of this Agreement of at least $1,000,000,000.00.
4.4 Indebtedness. The Borrower shall not, and shall not permit any
Guarantor to, have any Indebtedness other than as incurred under this Agreement,
and shall not at any time permit the sum of the total consolidated Indebtedness
of the Borrower and the Guarantors in the aggregate to exceed the lesser of (i)
twenty-five percent (25%) of its Net Worth or (ii) three (3) times its EBITDA,
in each case tested at the end of each calendar quarter.
4.5 Use of Proceeds. No part of the proceeds of the Advances shall
be used for any purpose that violates, or which is inconsistent with, the
provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System of the United States.
4.6 Notice of Occurrences. The Borrower shall give to the Agent
written notification (promptly after the Borrower becomes aware thereof) of the
existence or occurrence of:
(a) the occurrence of an Event of Default or Potential
Event of Default hereunder;
(b) any proceedings instituted by or against the Borrower
or any Subsidiary in any federal, state or local court or before any
governmental body or agency, or before any arbitration board, or any
such proceedings threatened against the Borrower or any Subsidiary by
any governmental agency, or any change in law or regulation applicable
to the Borrower or one or more of its Subsidiaries, which event alone
or in the aggregate is, in the Borrower's reasonable judgment, likely
to have a material adverse effect upon the Borrower's ability or a
Guarantor's ability to perform its obligations under its Operative
Documents;
(c) any default or event of default involving the payment
of money under any agreement or instrument which is material to the
Borrower or any Subsidiary to which such entity is a party or by which
it or any of its property may be bound, and which
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default or event of default would have a material adverse effect upon
the Borrower's ability or a Guarantor's ability to perform its
obligations under its Operative Documents;
(d) the commencement of any proceeding under the Federal
Bankruptcy Code or similar law affecting creditor's rights by or
against the Borrower or any Subsidiary; and
(e) pending or threatened litigation exists against the
Borrower or any Subsidiary with a prayer for damages in excess of
$1,000,000 or for any other relief which is likely to have a material
adverse effect upon the Borrower's ability or a Guarantor's ability to
perform its obligations under its Operative Documents.
4.7 Distributions.
(a) The Borrower shall not declare any dividends or make
any cash distribution in respect of any shares of its capital stock or
warrants of its capital stock, without the prior written consent of the
Requisite Revolving Lenders; provided, however, that the Borrower may
declare stock dividends.
(b) In any Fiscal Month, the Borrower shall not redeem
stock or Subordinated Debt with an aggregate redemption value greater
than Unrestricted Liquidity as reported as of the last day of the
preceding Fiscal Month, minus the sum of (i) the amount of cash paid as
purchase price in any acquisitions pursuant to Section 4.17, plus (ii)
the amount of all Cash Capital Expenditures, in each case during the
Fiscal Month in which such stock redemptions are effected.
(c) Neither the Borrower nor any Subsidiary will enter
into any agreements limiting a Subsidiary's ability to make dividends
to the Borrower which are more restrictive than the net capital rule
promulgated under Section 15(c) of the Securities Exchange Act of 1934
in effect on October 28, 1997; provided, however, that the granting of
a security interest pursuant to a Broker-Loan Pledge and Security
Agreement in the ordinary conduct of business of any broker-dealer
Subsidiary shall not in and of itself be deemed a violation of this
Subsection 4.7(c).
4.8 Compliance with Law and Regulations. The Borrower and each
Subsidiary shall comply in all material respects with all applicable federal and
state laws and regulations except when the failure to so comply would not have a
material adverse effect on the Borrower's business.
4.9 Maintenance of Property; Accounting; Corporate Form; Taxes;
Insurance.
(a) The Borrower and each Subsidiary shall maintain its
property in good condition in all material respects, ordinary wear and
tear excepted.
(b) The Borrower and each Subsidiary shall keep true
books of record and accounts in which full and correct entries shall be
made of all its business transactions, all in accordance with GAAP
consistently applied.
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(c) The Borrower and each Subsidiary shall do or cause to
be done all things necessary to preserve and keep in full force and
effect its corporate or limited liability company form of existence as
is necessary for the continuation of its business in substantially the
same form, except where such failure to do so with respect to any
Subsidiary would not have a material adverse effect on the ability of
the Borrower or of any Guarantor to perform its obligations under the
Operative Documents.
(d) The Borrower and each Subsidiary shall pay all taxes,
assessments and governmental charges or levies imposed upon it or its
property; provided, however, that the Borrower or any Subsidiary shall
not be required to pay any of the foregoing taxes which are being
diligently contested in good faith by appropriate legal proceedings and
with respect to which adequate reserves have been established.
4.10 Inspection of Properties and Books. Each of the Borrower and
each Guarantor shall recognize and honor the right of the Revolving Lenders,
upon reasonable advance notice to an officer of such entity, to visit and
inspect, during normal business hours, any of the properties of, to examine the
books, accounts, and other records of, and to take extracts therefrom and to
discuss the affairs, finances, loans and accounts of, and to be advised as to
the same by the officers of, such entity at all such times, in such detail and
through such agents and representatives as the Revolving Lenders may reasonably
desire.
4.11 Guaranties. Neither the Borrower nor any Subsidiary shall
guaranty or become responsible for the Indebtedness of any other person or
entity in excess of an aggregate amount outstanding at any time of $1,000,000;
provided, however, that, pursuant to the Guarantor Documents, Ameritrade Online
and Datek shall act as guarantors of the obligations of the Borrower under the
Operative Documents.
4.12 Collateral. The Borrower shall not, and shall not permit any
Guarantor to, incur or permit to exist any mortgage, pledge, lien, security
interest or other encumbrance on the Collateral, other than Permitted Liens and
except as otherwise permitted in the Security Agreements or the Pledge
Agreements.
4.13 Name; Location. The Borrower shall, and shall cause any
Guarantor to, give the Agent thirty (30) days notice prior to changing its name,
identity or corporate structure, state of incorporation, or its principal place
of business, chief executive office or the place where it keeps its records
concerning the Collateral.
4.14 Notice of Change in Ownership or Management. During the term
of this Agreement, the Borrower shall give the Revolving Lenders notice of the
occurrence of any change, directly or indirectly, in the existing controlling
interest in the Borrower or in any Guarantor, which notice shall be given as
soon as the Borrower obtains notice or knowledge of such change.
4.15 Subordinated Debt. After the date of this Agreement, the
Borrower shall not, and shall not permit any Subsidiary to, incur any
subordinated debt or issue any preferred stock or warrants for preferred stock
except upon the prior written consent of the Requisite Revolving Lenders. The
Borrower shall not, and shall not permit any Subsidiary to, amend its articles
of
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incorporation or any other documents or agreements relating to the issuance of
subordinated debt, preferred stock or warrants for preferred stock without the
prior written consent of the Requisite Revolving Lenders.
4.16 Capital Expenditures. The Borrower and the Subsidiaries shall
not incur capital expenditures commencing with the fiscal year beginning
September 28, 2002, determined in accordance with generally accepted accounting
principles, of more than $50,000,000.00 in the aggregate.
4.17 Acquisitions. The Borrower shall not, and shall not permit any
Subsidiaries to, acquire any stock or any equity interest in, or warrants
therefor or securities convertible into the same, or a substantial portion of
the assets of, or debentures of, or other investments in another entity without
the prior written consent of the Requisite Revolving Lenders; provided, however,
that without the consent of the Requisite Revolving Lenders (i) the Borrower and
its Subsidiaries shall be permitted to make in any fiscal year of the Borrower
the following: (y) acquisitions and investments other than as permitted in
Section 4.7(b) for which the Borrower or a Subsidiary pays cash in an amount not
to exceed $20,000,000.00 in the aggregate and (z) acquisitions the consideration
for which is payable by the issuance by the Borrower of capital stock having a
value (determined, with respect to the consideration for any such acquisition,
at the time such acquisition is consummated) not to exceed $200,000,000.00 in
the aggregate; (ii) the Borrower and each Subsidiary shall be permitted to make
investments in short term marketable securities in the normal course of its cash
management activities; (iii) each Subsidiary that is a broker-dealer shall be
permitted to hold short term equity positions in the normal course of its
securities clearing business; and (iv) the Borrower and its Subsidiaries may
make Permitted Investments. Notwithstanding the foregoing, the Borrower shall
not be permitted to act as a market maker or to conduct trading activities; and
no Subsidiary shall be permitted to conduct trading activities for its own
account or to act as a market maker.
4.18 Subsidiaries. The Borrower shall give prompt written notice to
the Revolving Lenders of the Borrower's intent to acquire, or the Borrower's
acquisition of, any Material Subsidiary. Upon the creation or acquisition of
such Material Subsidiary, the Borrower shall cause a first security interest in
the Borrower's equity interest in such Material Subsidiary to be perfected in
favor of FNB-O, as agent for the Revolving Lenders; provided, however, that the
Borrower shall not pledge to Agent any investment property or equity securities
issued by any Material Subsidiary of the Borrower that is organized under the
laws of any jurisdiction other than the United States of America (or any state
thereof) in excess of sixty-five percent (65%) of the total voting power of all
equity securities of such Material Subsidiary. The Borrower shall cause a
Guarantor to give prompt written notice to the Revolving Lenders of that
Guarantor's intent to acquire, or the Guarantor's acquisition of, any Material
Subsidiary. Upon the creation or acquisition of such Material Subsidiary, each
Guarantor shall cause a first security interest in such Guarantor's equity
interest in such Material Subsidiary to be perfected in favor of FNB-O, as agent
for the Revolving Lenders; provided, however, that the Guarantors shall not
pledge to Agent any investment property or equity securities issued by any
Material Subsidiary of any Guarantor that is organized under the laws of any
jurisdiction other than the United States of America (or any state thereof) in
excess of sixty-five percent (65%) of the total voting power of all equity
securities of such Material Subsidiary.
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4.19 Minimum Regulatory Net Capital. Ameritrade, Inc. and iClearing
will have Regulatory Net Capital at all times in compliance with law but in no
event less than 5% of aggregate debit items.
4.20 Minimum Core Retail Accounts. The Borrower shall cause its
Subsidiaries to have at least 2,500,000 Core Retail Accounts as of the date
hereof and during the term of this Agreement.
4.21 Taxes. The Borrower shall, and shall cause its Subsidiaries
to, pay all Federal and other material taxes imposed upon them before any
penalties or interest accrue thereon; provided, however, that no such taxes need
be paid for so long as they are being diligently contested in good faith by
appropriate proceeding and with respect to which adequate reserves in accordance
with GAAP have been established.
4.22 ERISA. The Borrower shall not, and shall not permit any of its
Subsidiaries, to:
(a)(i) engage in any transaction in connection with
which the Borrower or any Subsidiary reasonably could be subject to
either a criminal or civil penalty under section 501 or 502(i) of ERISA
or a tax imposed by section 4975 of the Internal Revenue Code of 1986,
as amended from time to time, (ii) fail to make full payment when due
of all amounts which would be deductible by the Borrower or a
Subsidiary and which, under the provisions of any Plan, applicable law
or applicable collective bargaining agreement, the Borrower or any
Subsidiary is required to pay as contributions thereto, or (iii) permit
to exist any accumulated funding deficiency, whether or not waived,
with respect to any Plan, if, in the case of any of subdivision (i),
(ii) or (iii) above, such penalty or tax, or the failure to make such
payment, or the existence of such deficiency, as the case may be, could
have a material adverse effect on (a) the Borrower's or its
Subsidiaries' abilities to conduct their business, (b) a Subsidiary's
ability to pay dividends to the Borrower, or (c) the Borrower's ability
or any Guarantor's ability to perform its obligations under the
Operative Documents; or
(b) permit the aggregate complete or partial withdrawal
liability under Title IV of ERISA which is due and unpaid with respect
to all Plans which are multiemployer plans (as defined in Section
4001(a)(3) of ERISA) incurred by the Borrower or one or more of its
Subsidiaries to exceed $1,000,000.
4.23 Expenses. The Borrower shall, immediately upon demand by the
Agent, reimburse the Agent for all reasonable and documented costs and expenses,
including reasonable and documented fees and expenses of counsel to the Agent,
incurred by the Agent in connection with the negotiation and documentation of
this Agreement, such payment to be payable at closing, and in connection with
the transaction contemplated by the Operative Documents after the closing,
including without limitation, any waiver, amendment or enforcement thereof, such
payment to be payable on demand by the Agent. After the occurrence of an Event
of Default, the Borrower shall, immediately upon demand, reimburse each
Revolving Lender for all reasonable and documented costs and expenses, including
reasonable and documented fees and expenses of counsel to such Revolving Lender,
incurred by such Revolving Lender in connection with enforcing such Revolving
Lender's rights under the Operative Documents, including, without
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limitation, in the context in, of and related to any bankruptcy case and any
proceedings in any such bankruptcy case.
V. CONDITIONS PRECEDENT
5.1 Closing Conditions. Any and all obligations of the Revolving
Lenders to make their initial Advances hereunder are subject to satisfaction of
the following conditions precedent:
(a) FNB-O, as agent, shall have received an opinion of
counsel to the Borrower and the Guarantors covering such matters as the
Agent may request (including, without limitation, corporate existence
and good standing, corporate authority, due authorization, execution
and delivery of the Operative Documents, the legal, valid, binding and
enforceable nature of the Operative Documents), such opinion to be
satisfactory in form and substance to counsel to FNB-O;
(b) FNB-O, as agent, shall have received such
certificates and documents as the Agent may reasonably request from the
Borrower and the Guarantors, including articles of incorporation and
bylaws, certificates regarding good standing, incumbency, copies of
other corporate documents, and appropriate authorizing resolutions;
(c) the Operative Documents shall have been duly
authorized and executed and shall be in full force and effect, and such
UCC financing statements shall have been filed in such offices as may
be appropriate to perfect the security interest of FNB-O, as agent for
the Revolving Lenders, in the Collateral;
(d) the Borrower and the Guarantors shall have delivered
to FNB-O as agent the certificates covered by the Pledge Agreements and
the applicable stock powers endorsed in blank, or, at the option of
FNB-O, evidence of the recording of the interest of FNB-O as agent in
book entry form; and
(e) the Borrower shall have paid the reasonable and
documented fees and expenses of counsel to the Agent in connection with
the preparation, negotiation and execution of the Operative Documents.
VI. DEFAULTS AND REMEDIES
6.1 Events of Default. Any of the following shall be deemed an
event of default under this Agreement (an "Event of Default"):
(a) Any payment of principal required by any of the
Operative Documents shall not be paid within three (3) Business Days
after the date on which such payment was invoiced or due.
(b) Any payment of interest or other fees due hereunder
or under any of the Operative Documents shall not be paid within three
(3) Business Days after the date on which such payment was invoiced or
due.
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(c) Any representation or warranty of the Borrower or any
Guarantor under any of the Operative Documents, or any financial
reports or statements or certificates submitted pursuant to this
Agreement, shall prove to have been false in any material respect when
made.
(d) A failure of the Borrower or any Subsidiary to comply
with any requirement or restriction applicable to such entity and
contained in Sections 4.2, 4.3, 4.4, 4.5, 4.7, 4.11, 4.12, 4.15, 4.16,
4.17, 4.19, 4.20, 4.21 (but solely if a lien has attached to assets of
the Borrower or any Subsidiary as a result of such failure) or 4.22 of
this Agreement.
(e) A failure of the Borrower, any Guarantor or any
Subsidiary to comply with any requirement or restriction contained in
any provision of the Operative Documents not otherwise specified in
this Article VI, which failure remains unremedied for thirty (30) days
following knowledge or receipt of notice as to such failure from any
source.
(f) The occurrence of a default or a breach of any of the
obligations of the Borrower or any Subsidiary (other than obligations
of such Subsidiary to the Borrower) under any note, loan agreement,
preferred stock, subordinated debt instrument or agreement (including
the Subordinated Debt), Other Credit Facility, or any other agreement
evidencing an obligation to repay borrowed money when the aggregate
amount of indebtedness thereby affected, as to the Borrower and/or any
Subsidiary, exceeds $1,000,000.
(g) The entry of a final judgment that exceeds $1,000,000
against the Borrower or any Subsidiary for the payment of money, which
is not covered by insurance, and the expiration of thirty (30) days
from the date of such entry during which the judgment is not discharged
in full or stayed.
(h) The occurrence of any one or more of the following:
(1) The Borrower or any Subsidiary shall file a
voluntary petition in bankruptcy or an order for relief shall
be entered in a bankruptcy case as to such entity or shall
file any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under
any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief
for debtors; or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of such
entity or of all or any part of its property, or of any or all
of the royalties, revenues, rents, issues or profits thereof,
or shall make any general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its
debts or shall generally not pay its debts as they become due;
or
(2) A court of competent jurisdiction shall
enter an order, judgment or decree approving a petition filed
against the Borrower or any Subsidiary seeking any
reorganization, dissolution or similar relief under any
present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief
for debtors, and such order, judgment or decree shall remain
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unvacated and unstayed for an aggregate of sixty (60) days
(whether or not consecutive) from the first date of entry
thereof; or any trustee, receiver or liquidator of the
Borrower or any Subsidiary or of all or any part of its
property, or of any or all of the royalties, revenues, rents,
issues or profits thereof, shall be appointed without the
consent or acquiescence of such entity and such appointments
shall remain unvacated and unstayed for an aggregate of sixty
(60) days (whether or not consecutive); or
(3) A writ of execution or attachment or any
similar process shall be issued or levied against all or any
part of or interest in the Collateral, or any judgment
involving monetary damages shall be entered against the
Borrower or any Subsidiary which shall become a lien on the
Collateral or any portion thereof or interest therein and such
execution, attachment or similar process or judgment is not
released, bonded, satisfied, vacated or stayed within thirty
(30) days after its entry or levy.
(i) A Change of Control shall occur.
(j) Any adverse regulatory action has been taken against
the Borrower or one or more of its Subsidiaries which will materially
adversely affect (a) the Borrower's or its Subsidiaries' abilities to
conduct their business, (b) a Subsidiary's ability to pay dividends to
the Borrower, to the extent that such impaired ability would have a
material adverse effect on the Borrower and its Subsidiaries, taken as
a whole, or (c) the Borrower's ability or any Guarantor's ability to
perform its obligations under this Agreement or any of the Operative
Documents.
(k) Any litigation has been filed against the Borrower or
one or more of its Subsidiaries which will materially adversely affect
(a) the Borrower's or its Subsidiaries' abilities to conduct their
business, (b) a Subsidiary's ability to pay dividends to the Borrower,
to the extent that such impaired ability would have a material adverse
effect on the Borrower and its Subsidiaries, taken as a whole, or (c)
the Borrower's ability or any Guarantor's ability to perform its
obligations under this Agreement or any of the Operative Documents.
6.2 Remedies. If an Event of Default occurs and is continuing,
upon the election of the Requisite Revolving Lenders, the entire unpaid
principal amount under the Notes, together with interest accrued thereon, shall
become immediately due and payable without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived, the Commitments of
the Revolving Lenders hereunder shall terminate, and the Revolving Lenders may
exercise their rights under the other Operative Documents or the Notes,
including, without limitation, under the Security Agreements and the Pledge
Agreements. Upon the occurrence of an Event of Default described in Section
6.1(h)(1) or (2) hereof, acceleration under this Section 6.2 shall occur
automatically without the election, declaration, notice or other act on the part
of any of the Revolving Lenders. In addition, the Revolving Lenders shall have
such other remedies as are available at law and in equity. Remedies under this
Agreement, the Operative Documents, and the Notes are cumulative. Any waiver
must be in writing by the Revolving
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Lenders and no waiver shall constitute a waiver as to any other occurrence which
constitutes an Event of Default or as to any party not specifically included in
such written waiver.
VII. INTER-CREDITOR AGREEMENTS
7.1 FNB-O as Servicer. FNB-O will act as sole servicer of the
loans evidenced by the Notes. For purposes of this Article VII, the term Event
of Default means any Event of Default hereunder. FNB-O will enforce, administer
and otherwise deal with the loans made by the Revolving Lenders in accordance
with safe and prudent banking standards employed by FNB-O in the case of the
loan made by FNB-O. Without limiting the generality of the foregoing, FNB-O
will, on its own behalf and on behalf of the Revolving Lenders: (i) maintain
originals of the Operative Documents (excluding the Notes); (ii) receive
requests for Advances from the Borrower, promptly transmit the same to the
Revolving Lenders and make such Advances on behalf of the Revolving Lenders
(provided that FNB-O is assured of reimbursement therefor by the other Revolving
Lenders for their pro rata shares); (iii) receive payments and prepayments from
the Borrower and apply such payments as provided in Section 7.2; (iv) receive
notices and financial statements from the Borrower and send copies thereof to
the Revolving Lenders if FNB-O has reasonable cause to believe that such
Revolving Lenders have not received such notice or financial statement from
another source; and (v) advise the Revolving Lenders of the occurrence of any
Event of Default of which FNB-O obtains actual knowledge. The Revolving Lenders
agree not to attempt to take any action against the Borrower under the Operative
Documents or the Notes, or with respect to the indebtedness evidenced thereby
without FNB-O's consent unless the Requisite Revolving Lenders shall have
requested FNB-O to take specific action against the Borrower and FNB-O shall
have failed to do so within a reasonable period after receipt of such request.
All actions, consents, waivers and approvals by the Revolving Lenders shall be
deemed taken or given and amendments hereto deemed agreed to if the Requisite
Revolving Lenders shall have indicated their consent thereto. Notwithstanding
the foregoing, approval of a Revolving Lender shall be required for: (i) any
reduction or compromise of the principal loan amount of any Note held by such
Lender, the amount or rate of interest accrued or accruing thereon or the fees
due hereunder; and (ii) extension of the date of any scheduled payment under
such Note; and unanimous consent of all the Revolving Lenders shall be required
for (iii) permitting the sale of or releasing the security interest of the
Revolving Lenders in Collateral which comprises more than ten percent (10%) of
net book value of fixed assets of the Borrower on a consolidated basis; and (iv)
any amendment of Sections 7.1 or 7.2 hereof. A Revolving Lender's commitment
hereunder may not be increased without the consent of such Revolving Lender, it
being understood, however, that increases in the total revolving credit facility
hereunder may be made with the consent of the Requisite Revolving Lenders, so
long as such increase does not result in the increase of any non-consenting
Revolving Lender's commitment hereunder.
7.2 Application of Payments. Until the earlier of the occurrence
of an Event of Default, payments or prepayments made by the Borrower may be
applied to the indebtedness designated by the Borrower or otherwise applied as
follows:
(a) first, to pay interest to date on the Notes and fees
due to the Revolving Lenders;
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(b) second, pro rata to the Revolving Lenders, such pro
rata share to be determined as set forth below in subsection (bb) of
this Section 7.2.
After the occurrence of an Event of Default, payments or prepayments on the
Notes received by FNB-O or any of the Revolving Lenders and funds realized upon
the disposition of any of the Collateral shall be applied as follows:
(aa) first, to reimburse FNB-O for any reasonable and
documented costs, expenses, and disbursements (including reasonable and
documented attorneys' fees) which may be incurred or made by FNB-O: (i)
in connection with its servicing obligations; (ii) in the process of
collecting such payments or funds; or (iii) as advances made by FNB-O
to protect the Collateral (provided, however, that FNB-O shall have no
obligation to make such protective advances); and
(bb) second, pari passu among the Revolving Lenders, based
on their respective pro rata shares of the funds to be applied. Each
Revolving Lender's pro rata share shall be equal to a fraction, (x) the
numerator of which shall be the total principal loan amount then
outstanding which is owing to each such Revolving Lender under its
Notes, and (y) the denominator of which shall be the total Principal
Loan Amount then outstanding which is owing to the Revolving Lenders
under all Notes.
Except as specifically provided in this Section 7.2, FNB-O shall have no
obligation to repay or prepay any amount due from the Borrower to any of the
other Revolving Lenders nor shall FNB-O have any obligation to purchase all or a
part of any Note hereunder or any Advance made by any Revolving Lenders, nor
shall the Revolving Lenders have any recourse whatsoever against FNB-O with
respect to any failure of the Borrower to repay the indebtedness referenced
herein.
7.3 Liability of FNB-O. FNB-O shall not be liable to the Revolving
Lenders for any error of judgment or for any action taken or omitted to be taken
by it hereunder, except for gross negligence or willful misconduct. Without
limiting the generality of the foregoing, FNB-O, except as expressly set forth
herein, (a) may consult with legal counsel, independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (b) makes no representation or warranty with
respect to, and shall not be responsible for, the accuracy, completeness,
execution, legality, validity, legal effect or enforceability of this Agreement,
the Notes, or the other Operative Documents, or the value or sufficiency of any
Collateral given by the Borrower or any Guarantor or the priority of the
Revolving Lenders' security interest therein or the financial condition of the
Borrower or any Guarantor; and (c) shall not be responsible for the performance
or observance of any of the terms, covenants or conditions of the Operative
Documents on the part of the Borrower or of any Guarantor and shall not have any
duty to inspect the property (including, without limitation, the books and
records) of the Borrower or of any Guarantor.
7.4 Transfers. No Revolving Lender shall subdivide or transfer its
respective Notes (except to a Federal Reserve Bank) without first giving ten
(10) days prior written notice to and obtaining the prior written consent (which
consent shall not be unreasonably withheld) of FNB-
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O and the Borrower. No Revolving Lender may grant a participation in any Advance
hereunder without the prior written consent of FNB-O (which consent shall not be
unreasonably withheld).
7.5 Reliance. The Revolving Lenders acknowledge that they have
been advised that none of the Notes nor any interest therein or related thereto
has been (i) registered under the Securities Act of 1933, as amended, nor (ii)
insured by the Federal Deposit Insurance Corporation. The Revolving Lenders
acknowledge that they have received from the Borrower all financial information
and other data relevant to their decision to extend credit to the Borrower and
that they have independently approved the credit quality of the Borrower.
7.6 Relationship of Lenders. The Revolving Lenders intend for the
relationships created by this Agreement to be construed as concurrent direct
loans from each Revolving Lender respectively to the Borrower. Nothing herein
shall be construed as a loan from any Revolving Lender to FNB-O or as creating a
partnership or joint venture relationship among them.
7.7 New Revolving Lenders. In the event that new Revolving Lenders
are added to this Agreement, such Revolving Lenders shall be required to agree
to the inter-creditor provisions of this Article VII.
7.8 Agenting Fee. The Borrower will pay to FNB-O a quarterly
agenting fee equal to $2,500.00, payable quarterly on or before the last day of
such quarter.
VIII. REIMBURSEMENTS; INDEMNIFICATION
8.1 Capital Adequacy. If, after the date hereof, the adoption or
implementation of any applicable law, rule or regulation regarding capital
adequacy (including, without limitation, any law, rule or regulation
implementing the Basle Accord), or any change therein, or any change in the
interpretation or administration thereof by any central bank or other
governmental authority charged with the interpretation or administration
thereof, or compliance by a Revolving Lender (or its parent) with any guideline,
request or directive regarding capital adequacy (whether or not having the force
of law) of any such central bank or other governmental authority (including,
without limitation, any guideline or other requirement implementing the Basle
Accord), has or would have the effect of reducing the rate of return on such
Revolving Lender's capital as a consequence of its obligations hereunder or the
transactions contemplated hereby to a level below that which such Revolving
Lender could have achieved but for such adoption, implementation, change or
compliance (taking into consideration such Revolving Lender's policies with
respect to capital adequacy) by an amount deemed by such Revolving Lender to be
material, then such Revolving Lender shall provide to the Borrower notice of
such matter, and from time to time thereafter within ten (10) Business Days
after demand by such Revolving Lender (which demand shall be accompanied by a
statement setting forth the basis for such demand and a calculation of the
amount thereof in reasonable detail), the Borrower shall pay to such Revolving
Lender such additional amount or amounts as will compensate such Revolving
Lender for such reduction which is incurred by such Revolving Lender after the
date of such Revolving Lender's notice to the Borrower under this Section 8.1.
Notwithstanding the preceding sentence, upon Borrower's receipt of such notice
from such Revolving Lender,
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Borrower may provide to such Revolving Lender its notice of prepayment in
accordance with Section 2.5 hereof. A certificate of such Revolving Lender
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be prima facie evidence thereof,
provided that the determination thereof is made on a reasonable basis. In
determining such amount or amounts, such Revolving Lender may use any reasonable
averaging and attribution methods. Upon receipt of a notice from a Revolving
Lender under this section, the Borrower, upon ten (10) days prior written notice
to the Agent, may replace such Revolving Lender with a new Revolving Lender that
would not require a payment under this section, which replacement Revolving
Lender shall purchase the rights and assume the obligations of the replaced
Revolving Lender under this Agreement and the other Operative Documents for a
price equal to the outstanding principal and accrued but unpaid interest on the
Note issued to such replaced Revolving Lender, plus the amount of other fees
(including without limitation the commitment fee payable in accordance with
Section 2.2 (a) of this Agreement), such fees to be pro rated through the
purchase and assumption date; provided, however, that such replacement Revolving
Lender must be reasonably acceptable to the Agent.
Each Revolving Lender shall promptly notify the Borrower and the Agent
of any event of which it has knowledge which will result in, and will use
reasonable commercial efforts available to it (and not, in such Revolving
Lender's reasonable judgment, otherwise disadvantageous to such Revolving
Lender) to mitigate or avoid, any obligation by the Borrower to pay any amount
pursuant to this Section 8.1 (and, if any Revolving Lender has given notice of
any such event and thereafter such event ceases to exist, such Revolving Lender
shall promptly so notify the Borrower and the Agent). Without limiting the
foregoing, each Revolving Lender will designate a different funding office if
such designation will avoid (or reduce the cost to the Borrower of) any event
described in the preceding sentence and such designation will not, in such
Revolving Lender's reasonable judgment, be otherwise disadvantageous to such
Revolving Lender.
8.2 General Indemnity. The Borrower shall indemnify each Revolving
Lender and its directors, officers, employees and agents from and against any
and all losses, claims, liabilities, damages, reasonable and documented
attorneys' fees and disbursements, and other reasonable and documented costs and
expenses which the indemnified party may at any time sustain or incur in
connection with the Borrower's use of loan proceeds; provided that the
indemnified party shall not have any right to be indemnified for its own gross
negligence or willful misconduct. All indemnities and all provisions relative to
reimbursement to the Revolving Lenders of amounts sufficient to compensate the
Revolving Lenders for changes in capital adequacy requirements, including, but
not limited to, Section 8.1 hereof, shall survive the termination of this
Agreement and the payment of the Notes.
IX. MISCELLANEOUS
9.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and, except as specified by Section 7.1, may not be effectively amended,
changed, modified or altered, except in writing executed by the Borrower and the
Requisite Revolving Lenders.
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9.2 Governing Law. The Operative Documents shall be governed by
and construed pursuant to the laws of the State of Nebraska.
9.3 Notices. Until changed by written notice from one party hereto
to the other, all communications under the Operative Documents shall be in
writing and shall be hand delivered or mailed by registered mail to the parties,
and shall be deemed given when mailed, as follows:
If to the Borrower:
AMERITRADE HOLDING CORPORATION
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. XxxXxxxxx
If to the Guarantors:
AMERITRADE ONLINE HOLDINGS CORP.
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. XxxXxxxxx
DATEK ONLINE HOLDINGS CORP.
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. XxxXxxxxx
If to the Agent:
FIRST NATIONAL BANK OF OMAHA
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxx X. Xxxxxx
If to the Revolving Lenders, at their respective addresses
listed herein.
9.4 Headings. The captions and headings herein are for convenience
only and in no way define or limit the scope or intent of any provisions or
sections of this Agreement.
9.5 Counterparts. This Agreement may be executed in several
counterparts and such counterparts together shall constitute one and the same
instrument.
9.6 Survival; Successors and Assigns. The covenants, agreements,
representations and warranties made herein, and in the certificates delivered
pursuant hereto, shall survive the execution and delivery to the Revolving
Lenders of this Agreement and shall continue in full force and effect so long as
any Note or any obligation to the Revolving Lenders under any of the
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Operative Documents (other than contingent obligations that, by their terms,
survive the termination hereof) is outstanding and unpaid or any Commitment
remains in effect. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party, and all covenants, promises and agreements by or on
behalf of the Borrower which are contained in this Agreement shall bind the
successors and assigns of the Borrower and shall inure to the benefit of the
successors and assigns of the Revolving Lenders.
9.7 Severability. If any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Agreement.
9.8 Assignment. The Borrower may not assign its rights or
obligations hereunder and any assignment in contravention of the terms hereof
shall be void.
9.9 Consent to Form of Pledge Agreements and Security Agreements.
The parties hereto expressly approve the form of the Pledge Agreements and the
Security Agreements.
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IN WITNESS WHEREOF, the Borrower and the Revolving Lenders have caused
this Agreement to be executed by their duly authorized corporate officers as of
the day and year first above written.
AMERITRADE HOLDING CORPORATION
By: /s/ Xxxx X. XxxXxxxxx
--------------------------
Title: EVP, CFO and Treasurer
FIRST NATIONAL BANK OF OMAHA
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Title: Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
/s/ JRM
------------------
Borrower
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LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxx
-----------------------
Title: FVP
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
/s/ JRM
------------------
Borrower
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M&I XXXXXXXX & XXXXXX BANK
By: /s/ X.X. Xxxxxx
-----------------------
Title: SVP
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
/s/ JRM
------------------
Borrower
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APPENDIX I
TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AMONG
AMERITRADE HOLDING CORPORATION
AND
FIRST NATIONAL BANK OF OMAHA, AS AGENT
AND
REVOLVING LENDERS PARTY HERETO
REVOLVING CREDIT COMMITMENTS
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REVOLVING CREDIT COMMITMENTS
AMERITRADE HOLDING CORPORATION
REVOLVING REVOLVING CLOSING
LENDER COMMITMENT COMMITMENT % FEE(1):
--------------------- -------------- ------------ ----------
First National Bank
of Omaha $20,000,000.00 40% $40,000.00
LaSalle Bank National
Association $20,000,000.00 40% $40,000.00
M&I Bank Xxxxxxxx &
Xxxxxx Bank $10,000,000.00 20% $10,000.00
TOTAL REVOLVING
CREDIT COMMITMENT $50,000,000.00
Dated as of December 16, 2002.
(1) Closing fees will be determined on the size of the Commitment as shown
below:
Commitment Amount Closing Fee Percentage
----------------- ----------------------
$20,000,000.00 1/5 of 1% or (.0020)
$10,000,000.00 1/10 of 1% or (.0010)
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