Looking for an agreement? Search from over 1 million agreements now.

2ND Amend & Restd Revolving Credit Agreement

This is an actual contract by TD Ameritrade Holding.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
EXHIBIT 10.1


SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT


AMONG


AMERITRADE HOLDING CORPORATION
AND
FIRST NATIONAL BANK OF OMAHA, AS AGENT
AND
REVOLVING LENDERS PARTY HERETO


DECEMBER 16, 2002


SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT


This SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (the "Agreement") is entered into as of the 16th day of December, 2002, among AMERITRADE HOLDING CORPORATION (formerly Arrow Stock Holding Corporation), a Delaware corporation having its principal place of business at 4211 South 102nd Street, Omaha, Nebraska 68127 (the "Borrower"), FIRST NATIONAL BANK OF OMAHA, a national banking association having its principal place of business at 1620 Dodge Street, Omaha, Nebraska 68197-1050 ("Agent" or "FNB-O"), LASALLE BANK NATIONAL ASSOCIATION, a national banking association having its principal place of business at 801 Grand Street, Suite 3150, Des Moines, Iowa 50309, M&I MARSHALL & ILSLEY BANK, a Wisconsin banking association having its principal place of business at 770 North Water Street, Milwaukee, Wisconsin 53201-2035, and such lenders as may become Revolving Lenders hereunder after the date hereof.


I. DEFINITIONS


For purposes of this Agreement, the following definitions shall apply:


Advance: Any advance of funds to the Borrower by the Revolving Lenders
or any of them under the revolving credit facility provided in
this Agreement.


Agreement: This Second Amended and Restated Revolving Credit Agreement,
dated as of December 16, 2002, among the Borrower and the
Revolving Lenders, as amended or restated from time to time.


Ameritrade, Inc.: Ameritrade, Inc., formerly known as Advanced Clearing, Inc., a
Nebraska corporation and Subsidiary of Ameritrade Online.
Ameritrade Online: Ameritrade Online Holdings Corp., formerly
known as Ameritrade Holding Corporation, and a wholly-owned
Subsidiary of the Borrower. Applicable Margin: For purposes of
determining the Revolving Credit Rate, the margin, calculated
on a quarterly basis, is as follows:


(a) If the Quarterly Compliance
Certificate shows that cumulative consolidated net
income of the Borrower from September 27th, 2002 to
the then-current date was less than $50,000,000.00,
the margin for the current quarter shall be (i) zero
for the National Prime Rate, or (ii) plus 2.75% for
LIBOR;


(b) If the Quarterly Compliance
Certificate shows that cumulative consolidated net
income of the Borrower from September 27th, 2002 to
the then-current date was equal to or greater than
$50,000,000.00 but less than


-2-


$100,000,000.00, the margin for the current quarter
shall be (i) minus .25% for the National Prime Rate,
or (ii) plus 2.50% for LIBOR;


(c) If the Quarterly Compliance
Certificate shows that cumulative consolidated net
income of the Borrower from September 27th, 2002 to
the then-current date was equal to or greater than
$100,000,000.00 but less than $150,000,000.00, the
margin for the current quarter shall be (i) minus
.50% for the National Prime Rate, or (ii) plus 2.25%
for LIBOR; and


(d) If the Quarterly Compliance
Certificate shows that cumulative consolidated net
income of the Borrower from September 27th, 2002 to
the then-current date was equal to or greater than
$150,000,000.00, the margin for the current quarter
shall be (i) minus .75% for the National Prime Rate,
or (ii) plus 2.00% for LIBOR.


In the event that any Quarterly Compliance Certificate is not
delivered on or before the due date thereof, the Applicable
Margin for such quarter shall be the margin set forth in (a)
above.


Borrower: Ameritrade Holding Corporation, formerly known as Arrow Stock
Holding Corporation.


Broker- Dealer Subsidiary: Any Subsidiary of the Borrower, direct or indirect, that is a
registered broker-dealer pursuant to the Securities Exchange
Act of 1934.


Business Day: Any day other than a Saturday, Sunday or a legal holiday on
which banks in the State of Nebraska are not open for
business.


Cash Capital Expenditure: The amount of any cash paid by the Borrower for any capital
expenditure pursuant to Section 4.16, whether such payment is
a cash down payment, a cash payment on financed capital
expenditures (other than regularly scheduled monthly payments
on financed capital expenditures) or a cash payment in full.


Change of Control: (a) At any time when any of the equity securities of the
Borrower shall be registered under Section 12 of the
Securities Exchange Act of 1934 as amended from time to time
(the "Exchange Act"), (i) any person, entity or "group"
(within the meaning of Section 13(d)(3) of the Exchange Act)
(other than any person which is a management employee, or any
such "group" which consists entirely of management employees,
of the Borrower) being or becoming the beneficial owner,
directly or indirectly, of voting stock of the Borrower in an
amount sufficient to elect a majority of the members of the
Borrower's board of directors, or (ii) a majority of the
members of the Borrower's board of directors (the


-3-


"Board") consisting of persons other than Continuing Directors
(as hereinafter defined); and (b) at any other time, the
voting stock of the Borrower being owned beneficially,
directly or indirectly, by any person, entity or group other
than employees of the Borrower or its Subsidiaries. As used
herein, the term "Continuing Director" means any member of the
Board on the date of this Agreement, and any other member of
the Board who shall be recommended or elected to succeed a
Continuing Director by a majority of Continuing Directors who
are the members of the Board.


Collateral: All personal property of the Borrower and each Guarantor
described in the Security Agreements and the Pledge
Agreements, whether now owned or hereafter acquired,
including, without limitation:


(a) all of the Borrower's stock in any
present or future Material Subsidiary, including
without limitation, Ameritrade Online and Datek;
provided, however, that the Collateral shall not
include any investment property or equity securities
issued by any Subsidiary of the Borrower that is
organized under the laws of any jurisdiction other
than the United States of America (or any state
thereof) in excess of sixty-five percent (65%) of the
total voting power of all equity securities of such
Subsidiary;


(b) all of the Borrower's accounts,
accounts receivable, chattel paper, documents,
instruments and other securities, goods, inventory,
letter of credit rights, equipment, furniture and
fixtures, general intangibles, contract rights,
computer, data processing, hardware and software
licenses, books and records;


(c) all of Ameritrade Online's stock in
any present or future Material Subsidiary, including
without limitation, the following: Ameritrade, Inc.;
J.P. Securities, Inc.; Accutrade, Inc.; Financial
Passport, Inc.; TradeCast, Inc.; Nebraska Hudson
Company, Inc.; Ameritrade Institutional Services,
Inc.; Freetrade.com, 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;


-4-


(e) all of Datek's stock in Ameritrade,
Inc. and in any present or future Material
Subsidiary, including without limitation, the
following: Datek Online Financial Services LLC;
iClearing; BigThink Corp.; Datek Online Management
Corp.; Watcher Technologies LLC; and iCapital Markets
LLC; provided, however, that the Collateral shall not
include any investment property or equity securities
issued by any Subsidiary of Datek that is organized
under the laws of any jurisdiction other than the
United States of America (or any state thereof) in
excess of sixty-five percent (65%) of the total
voting power of all equity securities of such
Subsidiary; provided further, that the Collateral
shall not include any investment property or equity
securities issued by Datek Canada Financial Services,
Inc.;


(f) all of Datek's accounts, accounts
receivable, chattel paper, documents, instruments and
other securities, goods, inventory, letter of credit
rights, equipment, furniture and fixtures, general
intangibles, contract rights, computer, data
processing, hardware and software licenses, books and
records and equitable interests in limited liability
companies, including, without limitation, Datek
Online Financial Services LLC, iClearing, Watcher
Technologies LLC and iCapital Markets LLC; and


(g) all proceeds and products of the
foregoing.


Commitment: As to each Revolving Lender, such Revolving Lender's pro rata
percentage or maximum dollar amount of the commitments set
forth in Section 2.1 of this Agreement.


Core Retail Accounts: Open accounts of the Subsidiaries of the Borrower, which have
a currently valid account number, are eligible for online
trading and are reported publicly on a quarterly basis.


Datek: Datek Online Holdings Corp., a wholly-owned Subsidiary of the
Borrower.


Default Rate: The Revolving Credit Rate as defined herein plus 3.0%.


EBITDA: Means, at any time, for the prior four fiscal quarters, the
Borrower's net income on a consolidated basis from continuing
operations (excluding the write-down of TradeCast, Inc. in
September 2002), plus (a) taxes paid or accrued during such
period, (b) interest expenses paid or accrued during such
period, and (c) amortization and depreciation deducted in
determining such net income for such period.


Event of Default: Any of the events set forth in Section 6.1 of this Agreement.


-5-


Excess Net Capital: The aggregate amount of the actual net capital for each
Broker-Dealer Subsidiary, minus Regulatory Net Capital.


Existing Credit Facility: The Amended and Restated Revolving Credit Agreement dated as
of December 31, 2001, as amended July 11, 2002, and as further
amended as of September 9, 2002, by and among FNB-O and
Ameritrade Online.


Fiscal Month: A month that ends as of the last Friday of a calendar month,
or, as to December, as of December 31st.


FNB-O: First National Bank of Omaha, a national banking association
having its principal place of business at 1620 Dodge Street,
Omaha, Nebraska 68197-1050, and its successors and assigns.


GAAP: Generally accepted accounting principles as in effect from
time to time in the United States of America.


Guarantor: Either Ameritrade Online or Datek, and "Guarantors" means both
of them.


Guarantor Documents:


(a) The Guaranty Agreement, dated as of the date hereof,
between Ameritrade Online and Agent;


(b) The Amended and Restated Guaranty Agreement, dated as
of the date hereof, between Datek and Agent;


(c) The Second Amended and Restated Stock Pledge
Agreement, dated as of the date hereof, between
Ameritrade Online and Agent;


(d) The Amended and Restated Stock Pledge Agreement,
dated as of the date hereof, between Datek and Agent;


(e) The Second Amended and Restated Security Agreement,
dated as of the date hereof, between Ameritrade
Online and Agent; and


(f) The Amended and Restated Security Agreement, dated as
of the date hereof, between Datek and Agent.


iClearing: iClearing LLC, a Delaware limited liability company and a
Subsidiary of Datek.


Indebtedness: All loans and other obligations of the Borrower and the
Guarantors for borrowed money, without duplication,
(including, without limitation, the indebtedness due


-6-


to the Revolving Lenders) regardless of the maturity thereof,
but excluding capital leases incurred in the ordinary course
of business and excluding net payables to customers and
broker-dealers in the ordinary course of business, excluding
borrowings collateralized by client assets in the ordinary
course of business, and excluding Subordinated Debt and
amounts outstanding under any Other Credit Facility.


LaSalle Bank National Association: LaSalle Bank National Association, a national banking
association having its principal place of business at 801
Grand Street, Suite 3150, Des Moines, Iowa 50309.


Letter(s) of Credit: Letter(s) of Credit issued under the Letter of Credit
Facility, the Letter of Credit Amount of which shall not
exceed $5,000,000.00 at any time.


Letter of Credit Amount: The original face amount of the Letters of Credit, minus the
amount of any draws thereunder which have been reimbursed to
the Agent for the benefit of the Revolving Lenders.


Letter of Credit Facility: The letter of credit facility provided for in Section 2.7 of
the Agreement.


Letter of Credit Fees: The letter of credit fees specified in Section 2.9 of this
Agreement.


LIBOR Rate: The floating per annum interest rate published from time to
time as the "one month LIBOR rate" in the "Money Rates"
Section of the Midwest Edition of the Wall Street Journal on
the first Business Day of each month, or if no such rate is
published on such date, on the last preceding date on when
such rate was published.


Material Subsidiary: Any Subsidiary whose total assets are worth equal to or
greater than $200,000.00.


M&I Marshall & Ilsley Bank: M&I Marshall & Ilsley Bank, a Wisconsin banking association
having its principal place of business at 770 North Water
Street, Milwaukee, Wisconsin 53201-2035.


-7-


Money Market Funds: Means, at any time, money market funds whose rating from
Standard and Poor's Rating Services Group ("S&P") is AAAm or
AAm or the equivalent thereof or whose Moody's Investor
Services ("Moody's") rating is Aaa or Aa or the equivalent
thereof.


National Prime Rate: The floating per annum interest rate published from time
to time as the "Prime Rate" (the base rate on corporate loans
posted by at least 75% of the nation's 30 largest banks) in
the "Money Rates" Section of the Midwest Edition of the Wall
Street Journal on the first Business Day of the month, or if
no such rate is published on such date, on the last preceding
date when such rate was published.


Net Worth: The Borrower's consolidated net worth as determined in
accordance with GAAP.


NITE Stock: The common stock, or any securities exchanged for the common
stock, of Knight Trading Group, Inc. (formerly Knight/Trimark
Group, Inc.), held by the Borrower or any of its Subsidiaries.


NITE Stock Market Value: Means, at any time, the price per share of NITE Stock
as reported on the NASDAQ Stock Market on the last day of the
preceding Fiscal Month or, if not reported on the last day of
the preceding Fiscal Month, on the immediately preceding
business day in the preceding Fiscal Month that it is quoted,
times the number of shares of NITE Stock owned by the Borrower
or any of its Subsidiaries, which are not otherwise pledged or
encumbered.


Non-Broker- Dealer Cash: Cash on hand or on deposit of the Borrower or any Subsidiary
that is not a broker-dealer, minus the amount of deferred tax
liability for the Island, Inc. distribution, which is
estimated to be $52,000,000.00, and once paid to the Internal
Revenue Service, zero.


Notes: The revolving credit notes, substantially in the form of
Exhibit A attached to this Agreement, which notes replace the
revolving credit notes issued and outstanding under the
Existing Credit Facility, and such additional similar notes as
may be issued to certain additional Revolving Lenders, and all
extensions, renewals, and substitutions of or for the
foregoing.


Operative Documents: This Agreement, the Notes, the Pledge Agreements, the Security
Agreements, the Guarantor Documents, the financing statements
regarding the Collateral and the documents and certificates
delivered pursuant to Section 5.1.


-8-


Other Credit Facility: Obligations of the Borrower or any of its Subsidiaries under
any credit, margin stock, or put and/or call agreement secured
by or covering any portion of the NITE Stock.


Permitted Investments: Any one or more of the following:


(a) certificates of deposit fully
covered by Federal Deposit Insurance and maintained
at a bank having capital and surplus of not less than
$50,000,000;


(b) short-term obligations of, or
obligations fully guaranteed by, the United States of
America or any agencies thereof;


(c) commercial paper rated at least A-1
by Standard and Poor's Corporation or P-1 by Moody's
Investors Service, Inc.;


(d) demand deposit accounts maintained
in the ordinary course of the business at a bank
having capital and surplus of not less than
$50,000,000; and


(e) Money Market Funds.


Permitted Liens: (i) Liens existing on the date of this Agreement as shown on
Exhibit E; (ii) Liens for taxes, assessments, governmental
charges or claims which are not yet delinquent or which are
being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if a reserve
or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor; (iii)
statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like
Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings, and if a reserve or
other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor; (iv) Liens
(other than any Lien imposed by the Employee Retirement Income
Security Act of 1974, as amended) incurred or deposits made in
the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social
security; (v) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory obligations,
surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a like nature
incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (vi)
easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the
business of the Borrower or any of its Subsidiaries incurred
in the ordinary course of business; (vii) Liens securing


-9-


reimbursement obligations with respect to documentary letters
of credit which encumber documents and other property relating
to such letters of credit and the products and proceeds
thereof; (viii) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods;
(ix) judgment and attachment Liens not giving rise to a
Potential Event of Default or an Event of Default; (x) leases
or subleases granted to others not interfering in any material
respect with the business of the Borrower or any of its
Subsidiaries; (xi) customary Liens securing indebtedness under
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |