EXHIBIT 10.10
AMENDMENT NO. 1 TO THE
LOAN DOCUMENTS
Dated as of March 31, 2006
AMENDMENT NO. 1 TO THE LOAN DOCUMENTS among TD Ameritrade Holding
Corporation (formerly, Ameritrade Holding Corporation), a Delaware corporation
(the "Borrower"), the banks, financial institutions and other institutional
lenders parties to the Credit Agreement referred to below (collectively, the
"Lenders") and Citicorp North America, Inc., as administrative agent (the
"Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Guarantors, the Lenders and the Agent have
entered into a Credit Agreement dated as of January 23, 2006 (the "Credit
Agreement"). Capitalized terms not otherwise defined in this Amendment have the
same meanings as specified in the Credit Agreement.
(2) The Borrower has requested that the Loan Documents be amended as
hereinafter set forth.
(3) The Required Lenders are, on the terms and conditions stated
below, willing to grant the request of the Borrower and the Borrower and the
Required Lenders have agreed to amend the Loan Documents as hereinafter set
forth.
SECTION 1. Amendments to Loan Documents. The Loan Documents are,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:
(a) The definition of "Cash Equivalents" in Section 1.01 of the Credit
Agreement is hereby amended by adding immediately after "auction rate securities
or similar securities with a rating of AA" therein the new language "or better".
(b) The definition of "Excess Cash Flow" in Section 1.01 of the Credit
Agreement is hereby amended by substituting a semi-colon (";") for the period at
the end of clause (vii) and inserting at the end thereof the following new
proviso:
"provided that for the avoidance of doubt, "Excess Cash Flow" for the
Fiscal Year ending September 29, 2006 shall be calculated for the period
commencing on the date of this Agreement through and including September
29, 2006."
(c) The definition of "Guarantors" in Section 1.01 of the Credit
Agreement is hereby amended by adding at the end thereof "and each other
Subsidiary of the Borrower that shall have executed and delivered a Guaranty
Supplement".
(d) The definition of "Guaranty" in Section 1.01 of the Credit
Agreement is hereby amended by adding immediately after "pursuant to Section
5.01(i)" therein the new language "and each Guaranty Supplement".
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(e) Section 5.02(f)(i) of the Credit Agreement is amended by deleting
"and" immediately before clause (D) thereof and by adding a new clause (E) at
the end thereof to read as follows:
"and (E) in connection with any restructuring of the Broker-Dealer
Subsidiaries, after any Loan Party has received any assets or other
distributions from a Subsidiary that is not a Loan Party, in the same
transaction or series of transactions with such receipt of assets or other
distributions, Investments of such assets or such other distributions so
received by such Loan Party in any other Subsidiary that is not a Loan
Party."
(f) Section 5.02(g)(iii) of the Credit Agreement is amended in full to
read as follows:
"(iii) any Subsidiary of the Borrower may (A) declare and pay cash
dividends ratably with respect to its Equity Interests and (B) make
distributions of assets, liabilities, Equity Interests or securities to the
Borrower or any of its Subsidiaries;"
(g) Part I of Schedule I to the Security Agreement Supplement executed
and delivered on January 24, 2006 by TD Waterhouse Group, Inc. (the "TD Security
Agreement Supplement") is amended by deleting in its entirety row number five
that describes Equity Interests issued by TD Waterhouse Canadian Call Center
Inc.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, the Agent
shall have received counterparts of this Amendment executed by the Borrower and
the Required Lenders or, as to any of the Lenders, advice satisfactory to the
Agent that such Lender has executed this Amendment and the consent attached
hereto (the "Consent") executed by each Guarantor. This Amendment is subject to
the provisions of Section 9.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Upon the effectiveness of this Amendment and after giving
effect hereto, the representations and warranties set forth in Section
4.01(a) of the Credit Agreement are true and correct in all material
respects.
(b) The execution, delivery and performance by each Loan Party of
this Amendment, the Consent and the Loan Documents, as amended hereby, to
which it is or is to be a party are within such Loan Party's corporate,
limited liability company or limited partnership (as applicable) powers,
have been duly authorized by all necessary corporate, limited liability
company or limited partnership (as applicable) action and do not (i)
contravene such Loan Party's charter, by-laws, limited liability company
agreement, partnership agreement or other constituent documents, (ii)
violate any law, rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award, (iii)
conflict with or result in the breach of, or constitute a default or
require any payment to be made under, any loan agreement, indenture,
mortgage, deed of trust, material lease or other material contract or
instrument binding on or affecting any Loan Party, any of its Subsidiaries
or any of their properties or (iv) except for the Liens created under the
Loan Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party or any of
its Subsidiaries.
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(c) No Governmental Authorization, and no notice to or filing
with, any Governmental Authority or any other third party is required for
the due execution, delivery or performance by any Loan Party of this
Amendment, the Consent or any of the Loan Documents, as amended hereby, to
which it is or is to be a party, except for (A) such authorizations,
approvals, actions, notices and filings as may be required in connection
with the disposal of Collateral pursuant to any agreement giving rise to a
Lien permitted under Section 5.02(a) of the Credit Agreement and (B) with
respect to the exercise of any remedies with respect to, or any other
transfer of, the Equity Interests of any Broker-Dealer Subsidiary, giving
all necessary notices to third parties and obtaining all necessary
Governmental Authorizations in connection with such exercise of remedies or
transfer including, without limitation, to the extent required under NASD
Rule 1017.
(d) This Amendment and the Consent have been duly executed and
delivered by the Borrower and each Guarantor, respectively. This Amendment,
the Consent and each of the other Loan Documents, as amended hereby, to
which any Loan Party is a party are legal, valid and binding obligations of
such Loan Party, enforceable against such Loan Party in accordance with
their respective terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment, each reference in each of the Credit
Agreement, the Security Agreement and the TD Security Agreement Supplement
(collectively, the "Amended Loan Documents") to "this Agreement", "hereunder",
"hereof" or words of like import referring to such Amended Loan Document, and
each reference in the Notes and each of the other Loan Documents to "the Credit
Agreement", "the Security Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement or the Security Agreement, shall mean
and be a reference to the Credit Agreement or the Security Agreement, as the
case may be, as amended by this Amendment.
(b) Each Amended Loan Document, as specifically amended by this
Amendment, is and shall continue to be in full force and effect and is hereby in
all respects ratified and confirmed. Without limiting the generality of the
foregoing, the Collateral Documents and all of the Collateral described therein
do and shall continue to secure the payment of all Obligations of the Loan
Parties under the Loan Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Costs, Expenses. The Borrower agrees to pay, promptly
following demand and presentation of invoices or other reasonably detailed
statements specifying the costs so incurred, all reasonable out of pocket costs
and expenses of the Agent in connection with the preparation, execution,
delivery and administration, modification and amendment of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agent)
in accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the
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same agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
TD AMERITRADE HOLDING CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President,
Chief Financial Officer and
Chief Administrative Officer
CITICORP NORTH AMERICA, INC.,
as Agent and as Lender
By /s/ ▇▇▇ ▇▇▇▇▇▇
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Title: ▇▇▇ ▇▇▇▇▇▇
Vice President
CITICORP NORTH AMERICA, INC.
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[Please type or print legal name of Lender]
By /s/ ▇▇▇ ▇▇▇▇▇▇
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Title: ▇▇▇ ▇▇▇▇▇▇
Vice President
CONSENT
Dated as of March 31, 2006
Each of the undersigned, as Guarantor under the Guaranty referred to
in the Credit Agreement dated as of January 23, 2006 (the "Credit Agreement")
among TD Ameritrade Holding Corporation (formerly, Ameritrade Holding
Corporation), the Guarantors named therein, the Lenders and agents named
therein, and Citicorp North America, Inc., as administrative agent, hereby
consents to the foregoing Amendment No. 1 to the Loan Documents (the
"Amendment") and hereby confirms and agrees that (a) notwithstanding the
effectiveness of the Amendment, the Guaranty is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all respects,
except that, on and after the effectiveness of the Amendment, each reference in
the Guaranty to the "Credit Agreement", the "Security Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement or the
Security Agreement shall mean and be a reference to the Credit Agreement or the
Security Agreement, as the case may be, as amended by the Amendment, and (b) the
Collateral Documents and all of the Collateral described therein do and shall
continue to secure the payment of all Obligations of the Loan Parties under the
Loan Documents, in each case as amended by this Amendment.
AMERITRADE ONLINE HOLDINGS CORP.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Treasurer
AMERITRADE IP COMPANY, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer
AMERITRADE SERVICES COMPANY, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CEO, President, and Executive VP
DATEK ONLINE HOLDINGS CORP.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Treasurer
THINKTECH, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Treasurer
TD WATERHOUSE GROUP, inc.
By /s/ T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: T. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chairman, President, CEO-U.S.
