LOAN AGREEMENT
This Agreement, made as of the 22nd day of December, 1994, by and among
First National Bank of Omaha ("BANK"), a national banking association with
principal offices in Omaha, Nebraska; TRANSTERRA CO. ("BORROWER"), a Nebraska
corporation with principal offices in Omaha, Nebraska; AmeriTrade, Inc.
("AMERITRADE"), a Nebraska corporation with principal offices in Omaha,
Nebraska; and Xxxx Xxx Xxxxxxxx ("GUARANTOR"), a resident of Xxxxxxx County,
Nebraska.
This Agreement is executed contemporaneously with a revolving promissory
note in the amount of $500,000.00 ("REVOLVING NOTE") in the form attached
hereto as Exhibit A, a term promissory note in the amount of $1,900,000.00,
("TERM NOTE") in the form attached hereto as Exhibit B (which, together with
any renewals, extensions, or modifications thereof are collectively called
"NOTES") of even date in favor of BANK by BORROWER, which are guaranteed by
GUARANTOR. The NOTES shall specify the manner of principal and interest
payments and rate of interest accrual. As collateral for the NOTES, BORROWER
has pledged a security interest in 7,559 shares of AMERITRADE capital stock
as evidenced by a pledge agreement in the form attached hereto as Exhibit C.
AMERITRADE is a wholly owned subsidiary of BORROWER. AMERITRADE has an
interest in assuring that BORROWER obtains the loan proceeds from the TERM
NOTE, to allow the investment by BORROWER in Roundtable Partners. In
consideration of BANK lending such funds to BORROWER, AMERITRADE enters into
this Agreement.
Now, Therefore, in consideration for the NOTES, and their mutual
promises made herein, the parties agree as follows:
1. MINIMUM NET CAPITAL.
AMERITRADE shall, at all times until full repayment to BANK of any and
all indebtedness due to BANK as the result of the NOTES, maintain net capital
in excess of Three Million Seven Hundred Thousand ($3,700,000.00) Dollars.
Said net capital is to be calculated according to United States Securities
and Exchange Commission Rule 15c 3-1. Failure to maintain such minimum net
capital shall constitute a default sufficient to allow BANK, at its option,
to accelerate the loan obligation represented by the NOTES.
2. MINIMUM ALTERNATE NET CAPITAL.
AMERITRADE shall maintain at all times until full repayment of all
indebtedness due to BANK by BORROWER, a minimum 5% alternate net capital
requirement of aggregate debit items as determined by United States
Securities and Exchange Commission Rule 15c-3. Though the Securities and
Exchange Commission requires AMERITRADE to maintain an alternate net capital
requirement of 2% of such debit items, nonetheless, AMERITRADE agrees to
maintain a minimum 5% alternate capital requirement. Failure to maintain
such minimum net capital requirement shall constitute a default sufficient to
allow BANK, at its option, to accelerate the loan obligation represented by
the NOTES.
3. CERTIFICATION OF CAPITAL COMPLIANCE.
AMERITRADE and BORROWER shall provide monthly certification of
AMERITRADE'S compliance with the alternate minimum capital requirement by
providing to BANK a signed copy of the documents furnished to the Securities
and Exchange Commission, wherein AMERITRADE computes alternate capital
requirements pursuant to United States Securities and Exchange Commission
Rule 15c 3-1 and computation of determination of reserve requirement pursuant
to United States Securities and Exchange Commission Rule 15c 3-3.
4. MINIMUM NET WORTH.
BORROWER shall, at all times until full repayment to BANK of any and all
indebtedness due to BANK as the result of the NOTES, maintain net worth in
excess of Seven Million Five Hundred Thousand ($7,500,000.00) Dollars. Said
net worth is to be calculated according to generally accepted accounting
principles ("GAAP"). Failure to maintain such minimum net worth shall
constitute a default in repayment sufficient to allow BANK, at its option, to
accelerate the loan obligation represented by the NOTES.
5. BORROWING PROHIBITION.
Neither AMERITRADE nor BORROWER shall borrow additional funds during the
term of the loan evidenced by the NOTES, except such loans and borrowings as
are collateralized only by AMERITRADE'S securities, unless such additional
borrowings are approved in writing by BANK.
6. ALL ISSUED STOCK.
GUARANTOR, BORROWER and AMERITRADE warrant that the capital stock of
AMERITRADE transferred by the pledge agreement dated April 24, 1992 to BANK
constitutes all of the issued and outstanding capital stock of AMERITRADE.
7. NEGATIVE PLEDGE.
Neither GUARANTOR nor BORROWER shall directly, or indirectly, sell,
pledge, convey, or otherwise dispose of any shares of capital stock, nor all
or any substantial part of such entity's assets.
8. MONTHLY FINANCIAL STATEMENTS.
AMERITRADE and BORROWER shall provide within twenty days after the close
of each monthly accounting period in each fiscal year income statements for
such month and balance sheets as of the close of such month in reasonable
detail, subject to normal year-end audit adjustments prepared in accordance
with GAAP.
9. ANNUAL FINANCIAL AUDITS.
AMERITRADE and BORROWER shall provide BANK within ninety days after the
close of each fiscal year income statements of such fiscal year and balance
sheets as of the close of such fiscal year in reasonable detail, subject to
normal year-end audit adjustments prepared in accordance with GAAP.
10. COMMITMENT FEE.
BORROWER shall pay to BANK on a quarterly basis a fee computed daily at
rate of one-half percent (1/2%) of the difference between the maximum
borrowing available under the REVOLVING LOAN and paid for the actual days
elapsed.
11. DEFAULT.
If one or more of the following events shall have occurred and be
continuing:
a. BORROWER shall fail to pay when due to BANK any sum required by
NOTES;
b. BORROWER, GUARANTOR, or AMERITRADE shall fail to observe any
covenant contained herein or in any other document executed in connection
with the NOTES;
c. Any material representation, warranty, certification or statement
made by BORROWER, AMERITRADE or GUARANTOR in this Agreement or in any
document delivered pursuant to this Agreement shall prove to be incorrect
in any material respect when made or deemed made, then, in such event,
at the option of BANK, without further notice to BORROWER, AMERITRADE or
GUARANTOR, the NOTES, together with accrued interest thereon shall become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by BORROWER,
AMERITRADE, and GUARANTOR.
12. CONSENT AND RATIFICATION.
GUARANTOR consents to this Agreement, and by his execution hereof
ratifies and confirms his executed written guarantee of BORROWER'S
obligations.
In witness whereof the parties set their hands as of the date first written
above.
TransTerra Co. AmeriTrade, Inc.
by /s/ Xxxx X. Xxxxxxxx by /s/ Xxxx X. Xxxxxxxx
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Its Chairman Its Chairman
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First National Bank of Omaha
by /s/ Xxxxx X. Xxxxxx
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Its Vice President
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/s/ Xxxx X. Xxxxxxxx
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Xxxx Xxx Xxxxxxxx, Guarantor
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