FIRM INVENTORY CREDIT AGREEMENT
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THIS FIRM INVENTORY CREDIT AGREEMENT (this "Agreement") is made and
entered into as of October 12, 1998, by and between: ADVANTAGE TRADING GROUP,
INC., a Florida corporation ("Borrower"); and MERCANTILE BANK NATIONAL
ASSOCIATION, a national banking association ("Bank").
W I T N E S S E T H:
WHEREAS, Borrower desires, and may from time to time make application,
to borrow money from Bank, to be secured by firm owned securities; and
WHEREAS, Bank may from time to time, without any obligation to do so,
advance money to Borrower on the terms and conditions set forth hereinafter in
this Agreement;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower and Bank hereby agree as follows:
1. Loan Advances. Bank may, without any obligation to do so, advance
sums to Borrower in a maximum amount equal to the lesser of:
(a) One Million Five Hundred Thousand and 00/100 Dollars
($1,500,000.00); or
(b) With respect to securities owned by Borrower and deemed
acceptable to Bank in Bank's discretion, and which are pledged
by Borrower to Bank at Depository Trust Company of New York,
or are pledged by Borrower to Bank as evidenced by a trust
receipt in the possession of Bank or physical possession of
such securities by Bank (all as described in paragraph 5
hereof), the sum of the following:
(1) 70% of the current market value of stocks listed on
the New York or American Stock Exchanges or
over-the-counter stocks, all having a current market
value of at least Ten Dollars ($10.00) per share;
plus
(2) 50% of the current market value of stocks listed on
the New York or American Stock Exchanges or
over-the-counter stocks, all having a current market
value of at least Six Dollars ($6.00) per share and
not greater than Nine and 99/100 ($9.99) per share;
plus
(3) 80% of the current "bid" price for corporate and
municipal bonds rated BBB or better by Standard &
Poor's or Baa or better by Moody's Investor's
Service; plus
(4) 90% of the current "bid" price for United States of
America Treasury Notes and Bonds having a maturity
date of over five (5) years; plus
(5) 95% of the current "bid" price for United States of
America Treasury Notes, Bonds and Bills having a
maturity date of five (5) years or less;
provided, however, that the total combined outstanding amounts under this
Agreement and under the certain Customer Credit Agreement dated October _____,
1998, executed by Borrower and Bank shall not exceed Fifteen Million and 00/100
Dollars ($15,000,000.00) in the aggregate at any time.
Unless sooner terminated by Bank under paragraph 13, Borrower's ability
to request loans hereunder shall automatically terminate on September 30, 1999.
2. Replacement of Principal. The principal amount of all loans
hereunder shall be repayable ON DEMAND.
3. Interest. Prior to demand for repayment of the loans outstanding
hereunder, Borrower shall pay interest to Bank on the aggregate and unpaid
principal amount of all loans from time to time outstanding hereunder at a rate
per annum equal to the rate quoted by Bank to Borrower in Bank's sole and
absolute discretion, which rate shall fluctuate as and when said rate so quoted
shall change. After such demand for repayment, Borrower shall pay interest to
Bank on the aggregate and unpaid principal amount of all loans from time to time
outstanding hereunder at a rate per annum equal to Two Percent (2%) over and
above the interest rate announced from time to time by Bank as its "prime rate"
on commercial loans, which interest rate shall fluctuate as and when said prime
rate shall change. All accrued and unpaid interest hereunder shall be due and
payable ON DEMAND, or if demand is not made prior thereto, then all accrued and
unpaid interest hereunder as of the last day of the preceding month, shall be
due and payable monthly commencing November 10, 1998, and on the 10th day of
every month thereafter. All interest hereunder shall be calculated upon the
basis of an actual day, 360-day year.
4. Demand Note. All loans hereunder shall be evidenced by a Demand
Note - Firm Inventory Credit Agreement executed by Borrower payable ON DEMAND to
the order of Bank in the principal amount of One Million Five Hundred Thousand
and 00/100 Dollars ($1,500,000.00) and dated the date hereof. Said Demand Note -
Firm Inventory Credit Agreement shall be in the form of Exhibit A attached
hereto, and, by reference, made a part hereof.
5. Pledge of Securities. Borrower hereby pledges to Bank, as security
for the obligations of Borrower hereunder and under the Note, all securities of
Borrower which now or hereafter are (a) held in a collateral account at
Depository Trust Company of New York for the benefit of Bank or are otherwise
marked on the books and records of Depository Trust Company of New York as being
held for the benefit of or pledged to Bank, (b) described on a trust receipt in
the possession of Bank, or (c) otherwise in the possession of Bank
(collectively, the "Pledged Securities"). Borrower hereby grants to Bank all
rights and remedies of a secured party under the Uniform Commercial Code of the
State of Missouri with respect to such securities.
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6. Reduction in Value of Pledged Securities. In the event the
outstanding principal balance of the loans hereunder shall exceed at any time
the value of the Pledged Securities (as determined under paragraph 1 above), the
Borrower shall immediately either:
(a) pledge additional securities acceptable to Bank in its sole
discretion with a value (as determined under paragraph 1
above) sufficient to eliminate such excess; or
(b) make a payment of the principal balance of the loans
outstanding hereunder in the amount of such excess.
7. Requests for Loans. Borrower hereby represents and warrants to Bank
that, until Bank has received written instructions to the contrary, Bank may
rely upon the written instructions by facsimile of any of the following named
employees of Borrower with regard to any requests for loans or repayments by
Borrower hereunder, to-wit:
NAME TITLE
---- -----
Xxxxxxx Xxxxx President
___________________________________ ______________________________________
Xxxxx Xxxxx Vice President
___________________________________ ______________________________________
___________________________________ ______________________________________
___________________________________ ______________________________________
8. Funding of Loans. All loans by Bank to Borrower hereunder shall be
credited by Bank to Borrower's Account No(s). 1005007487 at Bank. Repayments of
loans hereunder may be accomplished by Bank debiting said account of Borrower at
Bank, by check drawn on said account, by wire transfer in same day funds to Bank
from Borrower or by check drawn on another financial institution (which shall be
subject to additional interest charges as determined by bank).
9. Statements of Loans. Each month, Bank will issue to Borrower a
statement showing the date of each loan or payment, the principal balance and
the interest accrued hereon during the period for which the statement is issued,
plus any accrued and unpaid interest from prior periods. Borrower agrees that if
Borrower does not object in writing to the balances and interest so shown within
fifteen (15) days of the date of such statement, the amounts shown on said
statement shall constitute prima facie evidence of the amount outstanding hereon
as of the date of such statement.
10. Reports. Borrower agrees that until all loans to Borrower
hereunder have been repaid in full with interest, and until the terms and
conditions of this Agreement have been fully performed, Borrower will:
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(a) Furnish to Bank within ninety (90) days after the end of its
fiscal year, audited financial statements which shall include
but not be limited to a balance sheet, income and expense
statement and statement of retained earnings; and
(b) Furnish to Bank, within fifteen (15) days after filing, copies
of all monthly Financial and Operational Combined Uniform
Single (FOCUS) Reports (Securities and Exchange Commission
form X-17A-5).
11. Compliance with SEC and Federal Reserve Rules and Regulations.
Borrower hereby represents and warrants to Bank that it is in compliance and
will remain in compliance with all rules, regulations and directives of the
Federal Reserve System and the Securities & Exchange Commission relating to the
hypothecation of customer securities.
12. Year 2000 Compliance. Borrower has: (a) initiated a review and
assessment of all areas within the business and operations (including those
affected by suppliers and vendors) of Borrower and each subsidiary and affiliate
that could be affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by Borrower or any subsidiary or affiliate [or
suppliers or vendors] may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to, on and any date after
December 31, 1999); (b) developed a plan and timeline for addressing the Year
2000 Problem on a timely basis; and (c) to date implemented that plan in
accordance with that timetable. Borrower represents that all computer
applications (including those of its suppliers and vendors) that are material to
the business and operations of Borrower or any subsidiary or affiliate will on a
timely basis, be able to perform date sensitive functions for all dates before,
on and after January 1, 2000, except to the extent that a failure to do so could
not reasonably be expected to have a material adverse effect. Borrower shall
promptly notify Bank in the event Borrower discovers or determines that any
computer application (including those of its suppliers and vendors) that is
material to the business and operations of Borrower or any subsidiary or
affiliate will not be Year 2000 compliant except to the extent that such failure
could not reasonably be expected to have a material adverse effect.
13. Termination. Bank may terminate this Agreement at any time in its
sole and absolute discretion.
14. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement
is submitted to Bank at Bank's principal place of business in St. Louis,
Missouri and shall be deemed to have been made thereat. This Agreement shall be
governed and controlled as to interpretation, enforcement, validity,
construction, effect and in all other respects by the laws, statutes and
decisions of the State of Missouri. Borrower irrevocably agrees that, subject to
Bank's sole and absolute election, all actions or proceedings in any way, manner
or respect arising out of or from or related to this Agreement shall be
litigated only in courts having situs within the County of St. Louis, State of
Missouri. Borrower hereby consents and submits to the jurisdiction of any local,
state or federal court within said county and state. BORROWER AND BANK HEREBY
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY LITIGATION BROUGHT IN ACCORDANCE WITH
THIS SECTION.
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15. Notice Required by Section 432.045 R.S. Mo. ORAL AGREEMENTS OR
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT
OF A DEBT, INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE.
TO PROTECT BORROWER AND BANK FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS REACHED BY BORROWER AND BANK COVERING SUCH MATTERS ARE CONTAINED IN
THIS AGREEMENT AND THE NOTE, WHICH AGREEMENT AND NOTE ARE A COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENTS BETWEEN BORROWER AND BANK, EXCEPT AS
BORROWER AND BANK MAY LATER AGREE IN WRITING TO MODIFY THEM. THIS AGREEMENT AND
THE NOTE EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES
HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR WRITTEN)
RELATING TO THE SUBJECT MATTER HEREOF.
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DEMAND NOTE - CUSTOMER CREDIT AGREEMENT
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$15,000,000.00 St. Louis, Missouri
October 12, 1998
FOR VALUE RECEIVED, the undersigned: ADVANTAGE TRADING GROUP, INC., a
Florida corporation ("Borrower"), hereby promises to pay ON DEMAND, to the order
of MERCANTILE BANK NATIONAL ASSOCIATION, a national banking association
("Bank"), the principal amount of Fifteen Million and 00/100 Dollars
($15,000,000.00), or such lesser amount as may then be evidenced by this Demand
Note - Customer Credit Agreement (this "Note"). The aggregate principal amount
which Bank hereof may have outstanding under this Note at any one time shall not
exceed the lesser of Fifteen Million and 00/100 Dollars ($15,000,000.00) or any
lower amount specified in the Customer Credit Agreement (as hereinafter
defined), which amount may be borrowed, paid, reborrowed and repaid, in whole or
in part, subject to the terms and conditions hereof and of the Customer Credit
Agreement.
Borrower also hereby promises to pay to the order of Bank interest from
the date hereof at a rate per annum which shall be equal to the rate quoted by
Bank to Borrower in Bank's sole and absolute discretion (which rate shall
fluctuate as and when said rate so quoted shall change), on the principal
balance outstanding and unpaid. Said interest shall be payable on demand, or if
no demand is made, then monthly on the 10th day of each month, commencing
November 10, 1998. After demand for repayment of the loans evidenced hereby,
interest shall be payable on demand on the outstanding principal balance of such
loans at a rate per annum equal to Two Percent (2%) over and above the interest
rate announced from time to time by Bank as its "prime rate" on commercial loans
(which rate shall fluctuate as and when said prime rate shall change). In
addition, if Borrower fails to make any payment of any principal of or interest
on this Note as and when the same shall become due and payable, whether by
reason of demand or otherwise, Borrower hereby promises to pay to the order of
the holder hereof on demand with respect to each such late payment a late fee in
an amount equal to the greater of $100.00 or 5% percent of each such late
payment. All payments received by the holder hereof shall be applied first to
the payment of accrued and unpaid late fees and the costs and expenses
hereinafter described, next to accrued and unpaid interest hereon, and the
remainder to principal. The amount of interest accruing hereunder shall be
computed on an actual day, 360-day year basis.
This Note shall evidence all loans made by Bank to Borrower under that
certain Customer Credit Agreement between Bank and Borrower dated of even date
herewith, as the same may from time to time be amended; (the "Customer Credit
Agreement"), reference to which is made for certain terms and provisions which
affect this Note. Bank may record the date and amount of all loans and all
payments of principal and interest hereunder in the records it maintains with
respect thereto. The books and records of Bank hereof showing the account
between Bank hereof and Borrower shall be admissible in evidence in any action
or proceeding and shall constitute prima facie proof of the items therein set
forth.
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All payments required hereunder shall be made in lawful money of the
United States of America at the office of Bank situated at Xxx Xxxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or at such other place as the holder hereof
may designate in writing.
If this Note is not paid upon demand, and is placed in the hands of an
attorney or attorneys for collection (whether or not litigation shall be
commenced in aid thereof) or for representation of the holder hereof in
connection with bankruptcy or insolvency proceedings, Borrower promises to pay,
in addition to the amount due hereon, the reasonable costs and expenses of such
collection and representation, including reasonable attorneys, fees and
expenses. Presentment, protest and notice of dishonor and of protest are hereby
waived by all parties hereto, whether as maker, endorser, surety or guarantor.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND BANK FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER AND BANK
COVERING SUCH MATTERS ARE CONTAINED IN THIS NOTE AND THE CREDIT AGREEMENT, WHICH
NOTE AND CREDIT AGREEMENT ARE A COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN BORROWER AND BANK, EXCEPT AS BORROWER AND BANK MAY LATER AGREE
IN WRITING TO MODIFY THEM.
This Note shall be governed by and construed in accordance with the
laws of the State of Missouri.
(SIGNATURE ON FOLLOWING PAGE)
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Signature Page
$15,000,000.00 Demand Note - Customer Credit Agreement
of Advantage Trading Group, Inc.
dated October 12, 1998
BORROWER:
ADVANTAGE TRADING GROUP, INC.
By: /s/ Xxxxxxx Xxxxx
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Title: President
----------------
By: /s/ Xxxxx Xxxxx
-------------------
Title: President
-----------------
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AMENDMENT TO
CUSTOMER CREDIT AGREEMENT AND FIRM INVENTORY
CREDIT AGREEMENT
THIS AMENDMENT TO CUSTOMER MARGIN CREDIT AGREEMENT AND FIRM INVENTORY
CREDIT AGREEMENT (this "Amendment") is made and entered into as of October 1,
1999, by and between: ADVANTAGE TRADING GROUP, INC., a Florida corporation
("Borrower"), and MERCANTILE BANK NATIONAL ASSOCIATION, a national banking
association ("Bank").
W I T N E S S E T H:
WHEREAS, Borrower and Bank have heretofore entered into that certain
Customer Credit Agreement dated as of October 12, 1998 and that certain Firm
Inventory Credit Agreement dated as of October 12, 1998 (Collectively, the
"Agreements");
WHEREAS, pursuant to the Agreements, Borrower executed its Demand Note
-- Customer Credit Agreement dated October 12, 1998, in favor of Bank, in the
principal amount of $15,000,000, and its Demand Note -- Firm Inventory Credit
Agreement dated October 12, 1998, in favor of Bank, in the principal amount of
$1,500,000 (collectively, the "Notes");
WHEREAS, Borrower and Bank desire to amend the Agreements in the manner
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Bank hereby agree as follows:
1. The last sentences of Section 1 of both Agreements are deleted and
substituted with the following:
"Unless sooner terminated by Bank under Section 14, Borrower's
ability to request loans hereunder shall automatically
terminate on September 30, 2000."
2. All references in the Agreements and Notes to this "Agreement" and
any other reference of similar import shall henceforth mean the respective
Agreement as amended by this Amendment. All capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to them in
the Agreement as amended by this Agreement.
3. Except to the extent specifically amended by this Amendment, all of
the terms, provisions, conditions, covenants, benefits of Borrower and Bank and
their respective successors
and assigns, except that Borrower may not assign, transfer or delegate any of
its rights or obligations hereunder.
5. [SIC] In the event of any inconsistency or conflict between this
Amendment and the Agreement, the terms, provisions and conditions of this
Amendment shall govern and control.
6.[SIC] This Amendment shall be governed by and construed in accordance
with the internal laws of the State of Missouri.
7.[SIC] Borrower hereby reaffirms all representations, warranties,
covenants and agreements recited in the Agreements and Notes, as of the date
hereof, and the same are hereby adopted as representations, warranties,
covenants and agreements of Borrower herein. Borrower further represents and
warrants that it is not in default under any of its obligations under the
Agreements and Notes and that it has full power and authority to execute and
deliver this Amendment, and that the execution and delivery hereof has been duly
authorized, and that all necessary and proper acts have been performed or taken.
8.[SIC] ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR
TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND BANK FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS BORROWER AND BANK REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BORROWER AND BANK, EXCEPT AS
BORROWER AND BANK MAY LATER AGREE IN WRITING TO MODIFY IT.
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SIGNATURE PAGE -- AMENDMENT TO CUSTOMER CREDIT AGREEMENT AND FIRM INVENTORY
CREDIT AGREEMENT DATED AS OF OCTOBER 1, 1999, EXECUTED BY ADVANTAGE TRADING
GROUP, INC. AND MERCANTILE BANK NATIONAL ASSOCIATION
BORROWER:
ADVANTAGE TRADING GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: President
By: /s/ Xxxxx X. Xxxxx
------------------------
Title: C.E.O.
BANK:
MERCANTILE BANK
NATIONAL ASSOCIATION
By: /s/ Xxxx Xxx Xxxxxxx
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Xxxx Xxx Xxxxxxx,
Vice President
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