EXHIBIT 10.33
CONSENT, WAIVER AND AMENDMENT TO OPERATIVE DOCUMENTS
This Consent, Waiver and Amendment to Operative Documents (the "Second
Amendment") is given as of the 9th day of September, 2002, by the undersigned
First National Bank of Omaha ("FNB-O"), as agent (the "Agent") and the sole
Revolving Lender under the Amended and Restated Revolving Credit Agreement (the
"Agreement"), dated as of December 28, 2001 and as amended July 11, 2002, among
Ameritrade Online Holdings Corp., formerly Ameritrade Holding Corporation (the
"Borrower"), the Agent for the Revolving Lender(s), and the Revolving Lender(s),
Datek Online Holdings Corp. ("DATEK"), and Ameritrade Holding Corporation,
formerly Arrow Stock Holding Corporation ("New Ameritrade"). All capitalized
terms not defined herein shall have their respective meanings set forth in the
Agreement.
WHEREAS, as of March 30, 2002, FNB-O and Borrower entered into a consent
to DATEK Acquisition, whereby the parties agreed to a transaction wherein
Borrower and DATEK would merge on the terms specified therein (the "DATEK
Transaction"); and
WHEREAS, the form of the DATEK Transaction has changed from the form
originally presented to FNB-O (the "Revised DATEK Transaction"); and
WHEREAS, the Borrower has requested in a letter from William J. Gerber to
James P. Bonham dated as of September 3, 2002 (the "Request Letter") that FNB-O
approve the Revised DATEK Transaction; and
WHEREAS, FNB-O has agreed to consent to such Revised DATEK Transaction as
restructured pursuant to the Request Letter on the following conditions: (i)
that New Ameritrade and DATEK act as guarantors of the Borrower's obligations
under the Agreement; (ii) that New Ameritrade pledge its stock and equity
interests in DATEK and the Borrower to Agent; and (iii) that DATEK pledge its
stock and equity interests in certain of its Subsidiaries to Agent; and
WHEREAS, in consideration of FNB-O's waiver and consent to the Revised
DATEK Transaction, New Ameritrade and DATEK have determined that they will
receive substantial benefit from the Revised DATEK Transaction and the loan
facility with FNB-O and therefore have agreed to these conditions; and
WHEREAS, as of the date hereof, each of DATEK and New Ameritrade is
entering into a guaranty agreement between such Person and Agent (with respect
to each Guarantor, its "Guaranty Agreement"), a stock pledge agreement, dated as
of the date hereof, between such Person and Agent (with respect to each
Guarantor, its "Pledge Agreement"), and a security agreement, dated as of the
date hereof, between such Person and Agent (with respect to each Guarantor, its
"Security Agreement");
WHEREAS, Ameritrade, Inc., a direct Subsidiary of the Borrower, and Datek
Online Financial Services LLC ("DOFS"), a direct Subsidiary of DATEK, desire to
enter into a transaction (the "Ameritrade, Inc. Transaction") wherein DOFS will
transfer certain of its accounts to Ameritrade, Inc. in exchange for certain
stock issued by Ameritrade, Inc. (the "Ameritrade, Inc. Stock");
WHEREAS, FNB-O has agreed to consent to the Ameritrade, Inc. Transaction,
so long as DOFS dividends the Ameritrade, Inc. Stock to its parent, DATEK, and
DATEK pledges such Ameritrade, Inc. Stock to FNB-O pursuant to its Pledge
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. FNB-O consents to the Revised DATEK Transaction by the Borrower in
accordance with the terms outlined in the Request Letter, a copy of which
is attached hereto, in consideration of the promises and undertakings of
DATEK and New Ameritrade set forth below.
2. New Ameritrade hereby acknowledges it has received full consideration
for the following actions and agrees that it shall:
(a) effective immediately be deemed to be a guarantor of the
Borrower's obligations under the Agreement and a pledging party as
to the stock referenced in Paragraph 2(b) below (the "Additional
Pledged Stock") under the Guaranty Agreement, Security Agreement and
Pledge Agreement (collectively, the "New Ameritrade Agreements"),
and shall execute such agreements evidencing its role as a guarantor
and pledging party on substantially the same terms and conditions as
are applicable to the Borrower under the Pledge Agreement; and
(b) not later than September 25, 2002, deliver to the Agent a grant
of its first perfected security interest in such equity, authorize
the Agent to file one or more financing statements evidencing such
security interest, deliver stock and stock powers in connection
therewith, and take such other action as the Agent shall reasonably
request to comply with the terms and the intent of the New
Ameritrade Agreements and this Second Amendment.
3. DATEK hereby acknowledges it has received full consideration for the
following actions and agrees that it shall:
(a) effective immediately be deemed to be a guarantor of the
Borrower's obligations under the Agreement, and a pledging party as
to the stock referenced in Paragraph 3(b) below (the "DATEK
Subsidiaries Pledged Stock") under the Guaranty Agreement, Security
Agreement and Pledge Agreement (collectively, the "DATEK
Agreements") and shall execute such agreements evidencing DATEK's
role as a guarantor and pledging party on substantially the same
terms and conditions as are applicable to the Borrower under the
Pledge Agreement; and
(b) promptly, or such later time as the parties hereto agree,
deliver to the Agent a grant of its first perfected security
interest in the stock and other equity
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interest in its Subsidiaries (other than World XT, LLC and Datek
Canada Brokerage Services, Inc.) and in Ameritrade, Inc., authorize
the Agent to file one or more financing statements evidencing such
security interest, deliver stock and stock powers in connection
therewith, and take such other action as the Agent shall reasonably
request to comply with the terms and the intent of the DATEK
Agreements and this Second Amendment; provided, that in no event
will the pledge of stock of Datek Canada Financial Services Inc.
exceed sixty-five percent (65%) of the total voting power of all
equity securities of such Subsidiary.
4. FNB-O consents to the Ameritrade, Inc. Transaction in consideration of
and so long as DOFS dividends the Ameritrade, Inc. Stock to DATEK, and
DATEK pledges its interest in such Ameritrade, Inc. Stock to FNB-O under
its Pledge Agreement.
5. The Borrower hereby authorizes Agent to file new and/or amended
financing statements to perfect Agent's security interest in the
Collateral.
6. FNB-O agrees that the Revised DATEK Transaction as described in the
Request Letter will not constitute a Change of Control under the Agreement
provided that the composition of the Board of Directors of New Ameritrade
is selected substantially as described in Amendment No. 4 to Form S-4
filed by Arrow Stock Holding Corporation on August 5, 2002 (the "S-4").
This agreement is related solely to the transaction as described in the
S-4 and is not a waiver as to further changes in the control of the board
of directors of Ameritrade or New Ameritrade.
7. Failure to deliver the documents, stocks and stock powers required
under Sections 2 and 3 above in the time specified above shall constitute
an Event of Default under the Agreement.
8. The Borrower and FNB-O hereby agree that the following definitions
shall be added to Section I of the Agreement:
"Guarantor" means either Datek Online Holdings Corp. or Ameritrade
Holding Corporation, formerly Arrow Stock Holding Corporation, and
"Guarantors" means both of them.
"Guarantor Documents" include the following documents:
(a) The Guaranty Agreement, dated as of September 9th, 2002,
between Ameritrade Holding Corporation (formerly Arrow
Stock Holding Corporation) and Agent;
(b) The Guaranty Agreement, dated as of September 9th, 2002,
between Datek Online Holdings Corp. and Agent;
(c) The Stock Pledge Agreement, dated as of September 9th,
2002, between Ameritrade Holding Corporation (formerly
Arrow Stock Holding Corporation) and Agent;
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(d) The Stock Pledge Agreement, dated as of September 9th,
2002, between Datek Online Holdings Corp. and Agent;
(e) The Security Agreement, dated as of September 9th, 2002,
between Ameritrade Holding Corporation (formerly Arrow
Stock Holding Corporation) and Agent; and
(f) The Security Agreement, dated as of September 9th, 2002,
between Datek Online Holdings Corp. and Agent.
9. The Borrower and FNB-O hereby agree that the following definition in
Section I of the Agreement shall be amended to read as follows:
"Operative Documents": This Agreement, the Notes, the Pledge
Agreement, the Security Agreement, the Guarantor Documents, the
financing statements regarding the Collateral and the documents and
certificates delivered pursuant to Section 5.1.
10. The Borrower and FNB-O hereby agree that Section 4.7(b) of the
Agreement shall be amended to read as follows:
(b) [Intentionally left blank]
11. The Borrower and FNB-O hereby agree that Section 6.1(e) of the
Agreement shall be amended to read as follows:
(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.
12. Except as expressly provided herein, this Consent shall not act as a
consent to or waiver of any other transaction or action or inaction by the
Borrower.
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Executed as of the 9th day of September, 2002.
AGENT AND REVOLVING LENDER:
FIRST NATIONAL BANK OF OMAHA
By /s/ James P. Bonham
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Name: James P. Bonham
Its: Vice President
BORROWER:
AMERITRADE ONLINE HOLDINGS CORP.,
formerly Ameritrade Holding Corporation
By /s/ John R. MacDonald
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Name:
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Its:
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GUARANTORS AND
ADDITIONAL
PLEDGING
PARTIES:
DATEK ONLINE HOLDINGS CORP.
By /s/ John R. MacDonald
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Name:
-----------------------------------
Its:
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AMERITRADE HOLDING CORPORATION,
formerly Arrow Stock Holding Corporation
By /s/ John R. MacDonald
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Name:
-----------------------------------
Its:
-----------------------------------
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DATEK
SUBSIDIARY:
DATEK ONLINE FINANCIAL SERVICES LLC
By /s/ John R. MacDonald
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Name:
-----------------------------------
Its:
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