EXHIBIT 10.1
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AMONG
AMERITRADE HOLDING CORPORATION
AND
FIRST NATIONAL BANK OF OMAHA, AS AGENT
AND
REVOLVING LENDERS PARTY HERETO
DECEMBER 15, 2003
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (the
"Agreement") is entered into as of the 15th day of December, 2003, 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,
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association having
its principal place of business at 0000 Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000
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:
AA Rated: Taxable, tax-exempt or tax-advantaged securities that have an
issue or issuer credit rating from a nationally recognized
statistical rating organization of at least AA, Aa2 or the
equivalent; provided, however, that for those securities for
which long-term ratings are not available, "AA Rated" means
those taxable, tax-exempt or tax-advantaged securities that
have an issue or issuer credit rating from a nationally
recognized statistical rating organization of at least A1,
SP1/MIG 1 or P1.
Acquisition: Any acquisition, by purchase or otherwise, of all or
substantially all of the assets of, or stock or other evidence
of equity ownership of, any Person or any division or line of
business of any Person by the Borrower or any of its
Subsidiaries.
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 Third Amended and Restated Revolving Credit Agreement,
dated as of December 15, 2003, 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
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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 is (i) zero for the National Prime Rate, or (ii) plus
2.00% for LIBOR.
Borrower: Ameritrade Holding Corporation, formerly known as Arrow Stock
Holding Corporation.
Broker-
Dealer
Liquidity
Agreements: Liquidity agreements entered into by one or more Broker-Dealer
Subsidiaries, including the $310,000,000 unsecured promissory
note entered into by Ameritrade, Inc. with The Bank of New
York and the $100,000,000 secured liquidity agreement entered
into by Ameritrade, Inc. with The Bank of New York.
Broker-
Dealer
Subsidiary: Any Subsidiary of the Borrower, direct or indirect, that is a
registered broker-dealer pursuant to the Exchange Act.
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
Equivalents: Cash on deposit plus those Permitted Investments described in
clauses (a), (b), (c) (so long as such commercial paper has a
maturity of ninety (90) days or less), (d) and (e) of the
definition of "Permitted Investments" in this Article I.
Change of
Control: (a) At any time when any of the equity securities of the
Borrower shall be registered under Section 12 of 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 or
any "group" formed in connection with that certain
Stockholders Agreement, by and among J. Xxx Xxxxxxxx, members
of his family and trusts held for their benefit, and
investment funds affiliated with Xxxx Capital, Silver Lake
Partners and TA Associates, and entered into in connection
with the 2002 Datek merger) 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 "Board")
consisting of persons other than Continuing Directors (as
hereinafter defined); and (b) at any other time, the majority
of the voting stock of the Borrower being owned beneficially,
directly or indirectly, by any person,
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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;
(e) all of Datek's stock in Ameritrade, Inc.
and in any present or future Material Subsidiary,
including without limitation, the following:
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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.
Datek: Datek Online Holdings Corp., a wholly-owned Subsidiary of the
Borrower.
Default Rate: The Revolving Credit Rate as defined herein plus 3.0%.
Derivatives: (a) Any rate swap transaction, basis swap, credit derivative
transaction, forward rate transaction, equity or equity index
swap or option, bond or bond price or bond index swap or
option or forward bond or forward bond price or forward bond
index transaction, interest rate option, forward foreign
exchange transaction, cap transaction, floor transaction,
collar transaction, currency swap transaction, cross-currency
rate swap transaction, currency option, spot contract or any
other similar transaction or any combination of the foregoing
(including any option to enter into any of the foregoing),
whether or not any such transaction is governed by or subject
to any master agreement and (b) any and all transactions of
any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of
master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign
Exchange Master Agreement or any other master agreement to
which the Borrower or any of its Subsidiaries is a party,
including any Derivative in connection with deferred
compensation for one or more key employees of the Borrower or
its Subsidiaries.
Derivative
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Indebtedness: With respect to any Derivative, the sum (without duplication
and determined after taking into account the effect of any
netting agreement relating to such Derivative) of all required
cash termination amounts thereunder payable by the Borrower or
any Subsidiary, minus cash on deposit securing such
Indebtedness.
Distributable
Net Capital: Excess Regulatory Net Capital which is available to
broker-dealer Subsidiaries of the Borrower to be distributed
to the Borrower or a Guarantor without prior notice or consent
of the applicable regulators.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
Event of
Default: Any of the events set forth in Section 6.1 of this Agreement.
Exchange
Act: The Securities Exchange Act of 1934, as amended from time to
time.
Excess
Regulatory
Net Capital: The aggregate amount of the actual Regulatory Net Capital for
each Broker-Dealer Subsidiary, minus Minimum Regulatory Net
Capital.
Existing Credit
Facility: The Second Amended and Restated Revolving Credit Agreement
dated as of December 16, 2002, by and among FNB-O, the
Borrower, LaSalle Bank National Association and M&I Xxxxxxxx &
Ilsley Bank.
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 Amended and Restated Guaranty Agreement, dated as
of the date hereof, between Ameritrade Online and
Agent;
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(b) The Second Amended and Restated Guaranty Agreement,
dated as of the date hereof, between Datek and Agent;
(c) The Third Amended and Restated Stock Pledge
Agreement, dated as of the date hereof, between
Ameritrade Online and Agent;
(d) The Second Amended and Restated Stock Pledge
Agreement, dated as of the date hereof, between Datek
and Agent;
(e) The Third Amended and Restated Security Agreement,
dated as of the date hereof, between Ameritrade
Online and Agent; and
(f) The Second 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 to the
Revolving Lenders) and all Derivative Indebtedness; but
excluding the following: (i) capital leases incurred in the
ordinary course of business; (ii) net payables to customers
and broker-dealers in the ordinary course of business; (iii)
borrowings collateralized by client assets in the ordinary
course of business; (iv) Subordinated Debt; and (v) amounts
under Broker-Dealer Liquidity Agreements; provided that the
aggregate outstandings plus undrawn commitment amounts of all
such liquidity agreements shall not exceed $510,000,000 at any
one time.
Investments: (i) Any direct or indirect purchase or other acquisition by
the Borrower or any of its Subsidiaries of, or of a beneficial
interest in, any securities of any other Person (including any
Subsidiary of the Borrower), or (ii) any direct or indirect
loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business) or
capital contribution by the Borrower or any of its
Subsidiaries to any other Person, but excluding Acquisitions.
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 $15,000,000.00 at any time.
Letter of
Credit
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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.
Leverage
Ratio: Minimum Liquid Assets divided by Permitted Indebtedness;
provided, however, for this purpose Non-Broker-Dealer Cash
shall not be less than thirty-three percent (33%) of Minimum
Liquid Assets; and, provided further, that such
Non-Broker-Dealer Cash shall not be subject to any Lien other
than Liens in favor of the Agent on behalf of the Revolving
Lenders.
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 with total assets equal to or greater than
$2,000,000.00.
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.
Minimum
Liquid
Assets: The sum of all Non-Broker-Dealer Cash plus Distributable Net
Capital.
Minimum
Regulatory
Net Capital: The amount of net capital required for any Subsidiary
that is a broker-dealer under Section 15(c)(3) of the Exchange
Act and the regulations promulgated thereunder; provided,
however, in no event shall Minimum Regulatory Net Capital be
less than the greater of (a) the lesser of (x) $250,000 and
(y) the minimum fixed dollar amount applicable to such
Subsidiary or (b) two percent (2%) of aggregate debit items.
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Money
Market
Funds: 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;
provided, however, that any tax-exempt money market funds
shall have minimum assets of at least $2,000,000,000 and any
taxable money market funds shall have minimum assets of at
least $4,000,000,000.
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.
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.
Non-Broker-
Dealer Cash: Cash on hand or on deposit, plus Cash Equivalents, of the
Borrower or any Subsidiary that is not a broker-dealer.
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.
Permitted
Indebtedness: Senior Debt plus Derivative Indebtedness not to exceed
$10,000,000 in the aggregate.
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;
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(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 Ratings Service 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;
(e) Money Market Funds;
(f) AA Rated or equivalent (or better)
variable rate preferred stock or debt;
(g) AA Rated or equivalent (or better)
municipal notes and bonds; and
(h) overnight repurchase agreements with
respect to, and which are fully secured by a security
interest in, direct obligations issued by or fully
guaranteed by the United States of America, and that
are entered into with any commercial bank organized
under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is
at least "adequately capitalized" (as defined in the
regulations of its primary Federal banking regulator)
and (b) has Tier 1 capital (as defined in such
regulations) of not less than $100,000,000.
provided, however, that the percentage of the Borrower's
investment portfolio that can be invested in AA Rated
securities is limited to twenty-five percent (25%) of the
Borrower's total investment portfolio, valued in accordance
with GAAP, so long as the remainder of the Borrower's
investment portfolio is invested in at least AAA securities
(or the equivalent rating for short-term investments) or in
items described in clauses (a) through (e) above; provided
further, that the maturities for any Permitted Investments
shall not exceed one year; and provided further, that the
average maturity of the Borrower's investment portfolio at all
times cannot exceed one hundred eighty (180) days. For
purposes of this definition, "maturity" includes final
maturity, or the put or pre-refunding date when securities are
to be liquidated at a predetermined price (usually par value).
Permitted
Liens: (i) Liens existing on the date of this Agreement as shown on
Exhibit D; (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
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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) judgment and
attachment Liens not giving rise to an Event of Default;
(viii) leases or subleases granted to others not interfering
in any material respect with the business of the Borrower or
any of its Subsidiaries; (ix) Liens securing Permitted
Indebtedness; (x) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual or
warranty requirements of the Borrower; (xi) 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 not prohibited by this
Agreement; (xii) Liens of banks in funds on deposit with such
banks; (xiii) 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;
(xiv) customary Liens securing Derivative Indebtedness; and
(xv) extensions, renewals or regranting of any Liens referred
to in clauses (i) through (xiv) above.
Person: Natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability
partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land
trusts, business trusts or other organizations, whether or not
legal entities, and governments (whether federal, state or
local, domestic or foreign, and including political
subdivisions thereof) and agencies or other administrative or
regulatory bodies thereof.
Plan: All pension, savings, retirement, health, insurance, severance
and other employee benefit or fringe benefit plans, programs,
arrangements or agreements (including "employee benefit plans"
as defined in Section 3(3) of ERISA) maintained or sponsored
by the Borrower or any Subsidiary or with respect to which the
Borrower or any Subsidiary has any responsibility, obligation
or liability, contingent or otherwise.
Pledge
Agreements: Collectively, the following Stock Pledge Agreements: (i) the
Third Amended and Restated Stock Pledge Agreement, dated as of
the date hereof, between
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Ameritrade Online and FNB-O, as agent for the Revolving
Lenders, as amended or restated from time to time; (ii) the
Second 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 Second 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.
Regulatory
Net Capital: The amount of net capital held by any Subsidiary that is a
broker-dealer under Section 15(c)(3) of the Exchange Act and
regulations promulgated thereunder.
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, Xxxxx Fargo 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 Third
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 Second 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 Second
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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.
Senior
Debt: All amounts owed to the Revolving Lenders under the Notes and
the Operative Documents.
Subordinated
Debt: Any indebtedness of the Borrower subordinated in right of
payment to the obligations of the Borrower to the Revolving
Lenders under the Operative Documents, pursuant to
documentation containing maturities, amortization schedules,
covenants, defaults, remedies, subordination provisions and
other material terms in form and substance satisfactory to and
approved by written consent of the Agent and the Requisite
Revolving Lenders.
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.
Termination
Date: December 13, 2004, or such later date as is approved in
writing by the Revolving Lenders.
Xxxxx Fargo: Xxxxx Fargo Bank, National Association, a national banking
association having its principal place of business at 0000
Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
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 13, 2004, 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
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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 including a
default of the Leverage Ratio covenant under Section 4.19, 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
percentage 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 1/4 of 1% (.0025) 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
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, 2003 shall accrue from December 15, 2003.
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 for any month shall be due no
later than the tenth day of the following 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 the next succeeding Business Day after the end of
any Fiscal Month the Borrower shall repay the amount, if any, outstanding on the
Notes which in the
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aggregate exceeds the amount of the Base Revolving Credit Facility to be in
place on the next succeeding Business Day following such Fiscal Month and,
within three (3) Business Days after the end of any Fiscal Month in which the
Borrower is not in compliance with the Leverage Ratio covenant in Section 4.19,
such amount necessary to bring the Borrower into compliance with Section 4.19.
The balance of the loan on December 13, 2004, 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. 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 $15,000,000 and the
Principal Loan Amount will not exceed the then available Base Revolving Credit
Facility and no Potential Event of Default or Event of Default shall have
occurred or be continuing, including a default of the Leverage Ratio covenant
under Section 4.19, 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
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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 percent (2.0%) 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 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, 2003 shall accrue from December
15, 2003. 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 Notes 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
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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 organization 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 or limited
liability company 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 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
- 17 -
obligations under its Operative Documents or 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.
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, to the extent
that such impaired ability would have a material adverse effect on the Borrower
and its Subsidiaries, taken as a whole.
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, to the extent
that such impaired ability would have a material adverse effect on the Borrower
and its Subsidiaries, taken as a whole.
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 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, to the extent that such impaired ability would have a
material adverse effect on the Borrower and its Subsidiaries, taken as a whole.
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 D attached hereto. The Borrower is a Delaware
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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 a Plan as defined in Section 3(3) of ERISA, 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 all material respects 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.
(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 fairly presenting, in all material respects, the
financial condition of the Borrower and its consolidated Subsidiaries,
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 in all material respects 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
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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 month, the
Borrower, at its sole expense, shall furnish the Agent a liquidity
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.
(f) 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.
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(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 five million dollars ($5,000,000);
provided, however, that if the aggregate net cash proceeds obtained by
the Borrower or any Guarantor through the sale of such assets exceeds
one million dollars ($1,000,000), then the amount of such net cash
proceeds exceeding one million dollars ($1,000,000) shall be used to
repay the amount, if any, outstanding on the Notes. Notwithstanding the
foregoing sentence, the following sales of assets are permitted
hereunder, without any necessity of prepaying the Notes with the
proceeds of such sales: (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) sales of assets to the
Borrower or a Guarantor or another Subsidiary, (v) the interest of the
Borrower and/or its Subsidiaries in Watcher Technologies LLC, (vi) the
transaction with General Electric Capital Corp. related to Datek's
building located in Jersey City, New Jersey, and (vii) the interest of
the Borrower and/or its Subsidiaries in TradeCast, Inc., Xxxxxxx &
Company, Inc. and/or iClearing. 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 Indebtedness. The Borrower shall not, and shall not permit any
Guarantor to, have any Indebtedness other than Permitted Indebtedness.
4.4 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.
4.5 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
- 21 -
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 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
$10,000,000 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.
4.6 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) The Borrower shall not redeem stock or Subordinated Debt
at any time at which an Event of Default or Potential Event of Default
has occurred and is continuing or would exist after giving effect to
such distribution, with an aggregate redemption value greater than
Minimum Liquid Assets as of the date of distribution.
(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 Exchange Act.
4.7 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.
4.8 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.
4.9 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.
4.10 Guaranties. Neither the Borrower nor any Subsidiary shall
guaranty or become responsible for the Indebtedness (other than Permitted
Indebtedness) of any other person or entity (other than wholly-owned
Subsidiaries) 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.
4.11 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.
4.12 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.
4.13 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 any Guarantor, which notice shall be given as soon as the Borrower
obtains notice or knowledge of such change.
4.14 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
- 23 -
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.
4.15 Capital Expenditures. The Borrower and the Subsidiaries shall
not incur capital expenditures commencing with the fiscal year beginning
September __, 2003, determined in accordance with generally accepted accounting
principles, of more than $50,000,000.00 in the aggregate.
4.16 Acquisitions; Investments.
(a) Acquisitions. The Borrower shall not, and shall not permit
any Subsidiaries to, make any Acquisitions without the prior written
consent of the Requisite Revolving Lenders; provided, however, that
without the consent of the Requisite Revolving Lenders the Borrower and
its Subsidiaries shall be permitted to make in any fiscal year of the
Borrower the following: (i) Acquisitions for which the Borrower or a
Subsidiary pays cash in an aggregate amount not to exceed $75,000,000;
and (ii) 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 $250,000,000.00 in the
aggregate. Notwithstanding the foregoing, Acquisitions permitted under
this Section must be of such entities that are in similar lines of
business as the Borrower and its Subsidiaries as of the date hereof.
(b) Investments. The Borrower shall not, and shall not permit
any Subsidiaries to, acquire any Investments without the prior written
consent of the Requisite Revolving Lenders; provided, however, that
without the consent of the Requisite Revolving Lenders the Borrower and
its Subsidiaries shall be permitted to make in any fiscal year of the
Borrower the following Investments: (i) Permitted Investments; (ii)
short term equity positions held by any Subsidiary that is a
broker-dealer, in the normal course of its securities clearing
business; (iii) Derivatives entered into in the ordinary course of
business provided that Derivative Indebtedness does not at any time
exceed $10,000,000 in the aggregate; (iv) bank deposits in the ordinary
course of business; (v) contributions by the Borrower or any Subsidiary
to the capital of any of its Subsidiaries; (vi) Investments by the
Borrower in any Subsidiary or by any Subsidiary in the Borrower, or by
any Subsidiary in any Subsidiary, by way of intercompany loans,
advances or guaranties, so long as any Subsidiary receiving such
Investment is wholly-owned by the Borrower or by a Guarantor and one
hundred percent (100%) of such Subsidiary's stock or other equity
interests are pledged to the Agent for the benefit of the Revolving
Lenders; and (vii) Investments in securities of account debtors
received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such account debtors or in
connection with any workout or restructuring of obligations of such
account debtors. Any Investment which when made complies with the
requirements of the definition of the term "Permitted Investment" may
continue to be held notwithstanding that such Investment if made
thereafter would not comply with such requirements; provided, however,
Investments which cease to meet the requirements of clauses (a) - (e)
of the Permitted Investments shall not be deemed to be Cash
- 24 -
Equivalents. 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.
4.17 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.
4.18 Regulatory Net Capital Requirement. Ameritrade, Inc.,
iClearing and any other Broker-Dealer Subsidiary that is a Material Subsidiary
will have Regulatory Net Capital at all times in compliance with law but in no
event less than five percent (5%) of aggregate debit items.
4.19 Leverage Ratio. The Borrower shall at all times maintain on a
consolidated basis a Leverage Ratio of not less than one hundred two percent
(102%).
4.20 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.
4.21 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
- 25 -
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, 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 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.
4.22 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 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, and 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
- 26 -
amended or continued as may be appropriate to perfect or continue the
perfection of 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 such additional certificates covered by the Pledge
Agreements, if any, to perfect the security interest of FNB-O, as agent
for the Revolving Lenders, in the Collateral and such related stock
powers, if any, 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.
(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, 4.6, 4.10, 4.11, 4.14, 4.15, 4.16, 4.18, 4.19,
4.20 (but solely if a lien has attached to assets of the Borrower or
any Subsidiary as a result of such failure) or 4.21 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) 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
$5,000,000.
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(g) The entry of a final judgment that exceeds $10,000,000
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 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
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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 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
- 29 -
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 (other than sales or
dispositions permitted by Section 4.2 and releases of Collateral in connection
with such sales and dispositions); and (iv) any amendment of Sections 7.1 or 7.2
hereof. The Revolving Lenders irrevocably authorize the Agent, at its option and
in its discretion, (a) to release any Lien granted to or held by the Agent under
any Operative Document (i) upon termination of the Commitments and payment in
full of all Revolving Loans and all other obligations of the Borrower hereunder
and the expiration or termination of all Letters of Credit; (ii) constituting
property sold or to be sold or disposed of as part of or in connection with any
disposition permitted hereunder; or (iii) if approved, authorized or ratified in
writing by the Requisite Revolving Lenders, or all Revolving Lenders if required
by clause (iii) of the immediately preceding sentence; or (b) to subordinate its
interest in any collateral to any holder of a Lien on such collateral that is
permitted by clause (viii) or (xi) of the definition of "Permitted Liens". Upon
request by the Agent at any time, the Revolving Lenders will confirm in writing
the Agent's authority to release, or subordinate its interest in, particular
types or items of collateral pursuant to this Section 7.1. 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. At all times other than when an Event
of Default has occurred and is continuing, 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;
(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 and during the continuance 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
- 30 -
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-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.
- 31 -
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, 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
32
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.
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:
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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. Xxxx X. Xxxxxxx
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 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.
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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 & Treasurer
FIRST NATIONAL BANK OF OMAHA
By:/s/ Xxxx X. Xxxxxxx
------------------------------------------
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 Xxxxxxx
------------------------------
Title: Commercial Loan Officer
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
37
M&I XXXXXXXX & XXXXXX BANK
By:/s/ Xxxx 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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XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:/s/ Xxxxxx X. Toll
-----------------------------------------
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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APPENDIX I
TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AMONG
AMERITRADE HOLDING CORPORATION
AND
FIRST NATIONAL BANK OF OMAHA, AS AGENT
AND
REVOLVING LENDERS PARTY HERETO
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 $ 25,000,000 33.3% $ 7,500
LaSalle Bank National
Association $ 25,000,000 33.3% $ 7,500
M&I Bank Xxxxxxxx &
Xxxxxx Bank $ 15,000,000 20% $ 7,500
Xxxxx Fargo Bank,
National Association $ 10,000,000 13.3% $15,000
TOTAL REVOLVING --------------
CREDIT COMMITMENT $75,000,000.00
Dated as of December 15, 2003.
(1) Closing fees will be equal to .0015 (15 bps) times the size of the increase
in the respective Commitment as shown below:
Commitment Amount Increase Closing Fee
-------------------------- -----------
$ 5,000,000.00 $ 7,500.00
$10,000,000.00 $15,000.00
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