exv10w2





Exhibit 10.2





 





$300,000,000




CREDIT AGREEMENT



dated as of



June 28, 2011



among



TD AMERITRADE CLEARING, INC.,

as Borrower



The Lenders Party Hereto,



BANK OF AMERICA, N.A.,

as Syndication Agent



BARCLAYS BANK PLC, CITIBANK, N.A. and WELLS FARGO BANK, NATIONAL ASSOCIATION,



as Co-Documentation Agents



and



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

___________________________



J.P. MORGAN SECURITIES LLC and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Joint Bookrunners and Joint Lead Arrangers




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I	 	 	 	 
	 
	Definitions	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	19	 
	SECTION 1.03. Terms Generally
	 	 	19	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	19	 
	SECTION 1.05. Pro Forma Calculations
	 	 	20	 
	 
	ARTICLE II	 	 	 	 
	 
	The Credits	 	 	 	 
	SECTION 2.01. Commitments
	 	 	20	 
	SECTION 2.02. Loans and Borrowings
	 	 	20	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	21	 
	SECTION 2.04. [Reserved]
	 	 	21	 
	SECTION 2.05. Swingline Loans
	 	 	21	 
	SECTION 2.06. [Reserved]
	 	 	22	 
	SECTION 2.07. Funding of Loans
	 	 	23	 
	SECTION 2.08. Interest Elections
	 	 	23	 
	SECTION 2.09. Termination and Reduction of Commitments
	 	 	24	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	25	 
	SECTION 2.11. Prepayment of Loans
	 	 	26	 
	SECTION 2.12. Fees
	 	 	26	 
	SECTION 2.13. Interest
	 	 	27	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	27	 
	SECTION 2.15. Increased Costs
	 	 	28	 
	SECTION 2.16. Break Funding Payments
	 	 	29	 
	SECTION 2.17. Taxes
	 	 	29	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	32	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	34	 
	SECTION 2.20. Defaulting Lenders
	 	 	35	 
	 
	ARTICLE III	 	 	 	 
	 
	Representations and Warranties	 	 	 	 
	SECTION 3.01. Representations and Warranties of the Borrower
	 	 	36	 






i









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE IV	 	 	 	 
	 
	Conditions	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	39	 
	SECTION 4.02. Each Credit Event
	 	 	40	 
	 
	ARTICLE V	 	 	 	 
	 
	Covenants of the Borrower	 	 	 	 
	SECTION 5.01. Affirmative Covenants
	 	 	40	 
	SECTION 5.02. Negative Covenants
	 	 	42	 
	SECTION 5.03. Reporting Requirements
	 	 	46	 
	SECTION 5.04. Financial Covenants
	 	 	48	 
	 
	ARTICLE VI	 	 	 	 
	 
	Events of Default	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	48	 
	 
	ARTICLE VII	 	 	 	 
	 
	[Reserved]	 	 	 	 
	 
	ARTICLE VIII	 	 	 	 
	 
	The Administrative Agent, Syndication Agent and Co-Documentation Agents	 	 	 	 
	 
	ARTICLE IX	 	 	 	 
	 
	Miscellaneous	 	 	 	 
	SECTION 9.01. Notices
	 	 	53	 
	SECTION 9.02. Waivers; Amendments
	 	 	54	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	55	 
	SECTION 9.04. Successors and Assigns
	 	 	56	 
	SECTION 9.05. Survival
	 	 	59	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	60	 
	SECTION 9.07. Severability
	 	 	60	 
	SECTION 9.08. Right of Setoff
	 	 	60	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	60	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	61	 
	SECTION 9.11. Headings
	 	 	61	 
	SECTION 9.12. Confidentiality
	 	 	61	 
	SECTION 9.13. Interest Rate Limitation
	 	 	62	 
	SECTION 9.14. USA PATRIOT ACT
	 	 	63	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 9.15. No Fiduciary Duty
	 	 	63	 





SCHEDULES:




Schedule 2.01  — Commitments

Schedule 3.01(b) — Subsidiaries



EXHIBITS:




Exhibit A — Form of Assignment and Assumption

Exhibit B — Consolidated Tangible Net Worth Computations



Exhibit C — Form of U.S. Tax Certificate




iii













 





          CREDIT AGREEMENT dated as of June 28, 2011, among TD AMERITRADE CLEARING, INC., a
Nebraska corporation (the “Borrower”), the several banks and other financial institutions
or entities from time to time parties to this Agreement (the “Lenders”), BANK OF AMERICA,
N.A., as syndication agent (the “Syndication Agent”), BARCLAYS BANK PLC, CITIBANK, N.A. and
WELLS FARGO BANK, NATIONAL ASSOCIATION, as co-documentation agents (the “Co-Documentation
Agents”) and JPMORGAN CHASE BANK, N.A., as Administrative Agent (the “Administrative
Agent”).




          The parties hereto agree as follows:




ARTICLE I




Definitions



          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:




          “Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as
administrative agent for the Lenders hereunder.




          “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.




          “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.




          “Agreement Value” means, for each Hedge Agreement, on any date of determination, an
amount determined by the Borrower in the exercise of its reasonable business judgment equal to the
amount, if any, that would be payable by the Borrower or any of its Subsidiaries to its
counterparty to such Hedge Agreement in accordance with its terms as if (a) such Hedge Agreement
was being terminated early on such date of determination, (b) the Borrower or such Subsidiary was
the sole “Affected Party” and (c) the Borrower was the sole party determining such payment amount
pursuant to the provisions of the ISDA Master Agreement.




          “Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.




          “Applicable Rate” means, for any day, with respect to any Federal Funds Rate Loan or
Eurodollar Loan, or with respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption “Federal Funds Rate Spread”,
“Eurodollar Spread” or “Commitment Fee Rate”, as the case may be, based upon the
ratings by Moody’s and S&P, respectively, applicable on such date to the Index Debt:




1









 








	 	 	 	 	 
	 	 	Eurodollar	 	 
	 	 	Rate and	 	 
	 	 	Federal Funds	 	Commitment
	Index Debt Ratings:	 	Rate Spread	 	Fee Rate
	Category 1:
Index Debt Ratings of at least A
by S&P/A2 By Moody’s
	 	1.00%	 	0.125%
	 
	 	 	 	 
	Category 2:
Index Debt Ratings of at least A-
by S&P/A3 By Moody’s and not
Category 1
	 	1.25%	 	0.15%
	 
	 	 	 	 
	Category 3:
Index Debt Ratings of at least
BBB+ by S&P/Baa1 by Moody’s and
not Category 1 or 2
	 	1.50%	 	0.20%
	 
	 	 	 	 
	Category 4:
Index Debt Ratings of at least BBB
by S&P/Baa2 by Moody’s and not
Category 1, 2 or 3
	 	1.75%	 	0.25%
	 
	 	 	 	 
	Category 5:
Index Debt Ratings below Category 4
	 	2.00%	 	0.30%






          For purposes of the foregoing, (i) if either Moody’s or S&P shall not have in effect a rating
for the Index Debt, then the Applicable Rate shall be determined by reference to the available
rating; (ii) if the ratings established by Moody’s and S&P for the Index Debt shall fall within
different Categories, the Applicable Rate shall be based on the higher of the two ratings unless
one of the two ratings is two or more Categories lower than the other, in which case the Applicable
Rate shall be determined by reference to the Category next below that of the higher of the two
ratings; and (iii) if the ratings established by Moody’s and S&P for the Index Debt shall be
changed (other than as a result of a change in the rating system of Moody’s or S&P), such change
shall be effective as of the date on which it is first announced by the applicable rating agency,
irrespective of when notice of such change shall have been furnished by the Borrower to the Agent
and the Lenders pursuant to Section 5.03(g) or otherwise. Each change in the Applicable Rate shall
apply during the period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the Administrative Agent and
the Borrower shall determine that the rating system of Moody’s or S&P shall have changed, or if
such rating agencies shall cease to be in the business of rating corporate debt obligations, the
Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such
changed rating system or the unavailability of ratings from such rating agencies and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the
rating most recently in effect prior to such change or cessation.




          “Approved Fund” has the meaning assigned to such term in Section 9.04.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section






2









 







9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.




          “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.




          “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts
or agreements made by such Person.




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.




          “Borrower” has the meaning assigned to such term in the preamble to this Agreement.




          “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect or (b) a Swingline Loan.




          “Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03.




          “Broker-Dealer Subsidiary” means any Subsidiary of the Parent that (a) is a
“registered broker and/or dealer” under the Securities Exchange Act or under any similar foreign
law or regulatory regime established for the registration of brokers and/or dealers of securities
and/or (b) is required to be registered under the Commodity Exchange Act or under any similar
regulatory regime established for the registration of operators, merchants, brokers and/or dealers
of commodities, including, but not limited to, future commissions merchants, introducing brokers
and commodity pool operators.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar deposits in the
London interbank market.







3









 








          “Capitalized Lease Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP;
provided, however, that, for the avoidance of doubt, any obligations relating to a lease that was
accounted for by such Person as an operating lease as of the Effective Date and any similar lease
entered into after the Effective Date by such Person shall be accounted for as an operating lease
and not a Capitalized Lease Obligation.




          “CFC” means an entity that is a controlled foreign corporation of the Borrower under
Section 957 of the Internal Revenue Code.




          “Change in Law” means the occurrence, after the date of this Agreement (or with
respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority, or (c) the making or issuance of any request, rules,
guideline, requirement or directive (whether or not having the force of law) by any Governmental
Authority; provided however, that notwithstanding anything herein to the contrary,(i) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,
requirements and directives thereunder, issued in connection therewith or in implementation
thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the
Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or
similar authority) or the United States or foreign regulatory authorities, in each case pursuant to
Basel III, shall in each case be deemed to a “Change in Law” regardless of the date
enacted, adopted, issued or implemented.




          “Change of Control” means the occurrence of any of the following: (a) other than by
virtue of the exercise of collective voting rights of the TD Shareholders and the R Parties under
the Stockholders Agreement, the TD Shareholders or the R Parties shall have (i) acquired beneficial
ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act), directly or
indirectly, or (ii) acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of control of, in
either case, Voting Interests of the Parent (or other securities convertible into such Voting
Interests) representing more than 45% (or, with respect to the TD Shareholders, such higher “TD
Ownership Limitation Percentage” (as defined in the Stockholders Agreement) as the TD
Shareholders shall have obtained as contemplated by the definition of “TD Ownership Limitation
Percentage” or as permitted pursuant to Section 2.1(b) of the Stockholders Agreement) of the
combined voting power of all Voting Interests of the Parent, provided that prior to
termination of the TD Shareholders’ obligations under Section 2.1(a) of the Stockholders Agreement,
in the event that the TD Shareholders shall have obtained securities in excess of the TD Ownership
Limitation Percentage in compliance with Section 2.1(c) of the Stockholders Agreement, such event
shall not constitute a “Change of Control” for purposes hereof; provided that the
“Stockholders Agreement” referenced in this clause (a) shall mean the Stockholders
Agreement as amended, restated, supplemented or otherwise modified and in effect as of the date
hereof; (b) any Person or two or more Persons acting in concert (other than the TD Shareholders and
the R






4









 







Parties) shall have (i) acquired beneficial ownership (within the meaning of Rule 13d-3 under
the Securities Exchange Act), directly or indirectly, or (ii) acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon consummation, will result in its or
their acquisition of control of, in either case, Voting Interests of the Parent (or other
securities convertible into such Voting Interests) representing more than 35% of the combined
voting power of all Voting Interests of the Parent; (c) during any period of up to 24 consecutive
months, commencing before or after the date of this Agreement, Continuing Directors shall cease for
any reason to constitute a majority of the board of directors of the Parent; or (d) the Parent
shall cease to own, directly or indirectly, all of the Equity Interests of the Borrower. “TD
Shareholders” means The Toronto-Dominion Bank and its Subsidiaries. “R Parties” has the
meaning set forth in the Stockholders Agreement. “Continuing Directors” means the directors
of the Parent on the date hereof and each other director if, in each case, such other director’s
nomination for election to the board of directors of the Parent is recommended by (a) the TD
Shareholders solely pursuant to the Stockholders Agreement, (b) the R Parties solely pursuant to
the Stockholders Agreement or (c) at least a majority of the then Continuing Directors who are
Outside Independent Directors (as defined in the Stockholders Agreement).




          “Charges” has the meaning assigned to such term in Section 9.13.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.




          “Co-Documentation Agents” has the meaning assigned to such term in the preamble to
this Agreement.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the Assignment
and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable. The
initial aggregate amount of the Lenders’ Commitments is $300,000,000.




          “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




          “Consolidated Tangible Net Worth” means, at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of the Borrower and its
Subsidiaries under stockholders’ equity at such date minus the amount of all intangible
items included therein, including, without limitation, goodwill, franchises, licenses, patents,
trademarks, trade names, copyrights, service marks, brand names and write-ups of assets (other than
non-cash gains resulting from mark to market adjustments of securities positions made in the
ordinary course of business) (but only to the extent that such items would be included on a
consolidated balance sheet of the Borrower and its Subsidiaries in accordance with GAAP).







5









 








          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.




          “Credit Documents” means (i) this Agreement and (ii) the Notes, in each case as
amended, restated, supplemented or otherwise modified.




          “Debt” of any Person means, without duplication, (a) all indebtedness of such Person
for borrowed money, (b) all payment Obligations of such Person for the deferred purchase price of
property or services (other than trade payables not more than 60 days past due incurred in the
ordinary course of such Person’s business), (c) all payment Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all payment Obligations of such Person
created or arising under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of such property), (e)
all payment Obligations of such Person as lessee under Capitalized Lease Obligations, (f) all
payment Obligations of such Person as an account party under acceptance or similar facilities, (g)
all Obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment
in respect of any Equity Interests in such Person or any other Person or any warrants, rights or
options to acquire such Equity Interests, valued, in the case of Redeemable Preferred Interests, at
the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (h) all payment Obligations of such Person in respect of Hedge Agreements, valued at the
Agreement Value thereof, (i) all Guaranteed Debt of such Person, (j) all Obligations of such Person
in respect of non-contingent reimbursement obligations pursuant to letters of credit and (k) all
indebtedness and other payment Obligations referred to in clauses (a) through (j) above of another
Person secured by (or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed or become liable for
the payment of such indebtedness or other payment Obligations; provided that, if such
Person has not assumed or otherwise become liable in respect of such Debt or other payment
Obligations, such indebtedness or payment Obligations shall be deemed to be in an amount equal to
the fair market value of the property subject to such Lien at the time of determination.




          “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.




          “Defaulting Lender” means any Lender that, in the reasonable determination of the
Administrative Agent, (a) has failed, within three (3) Business Days of the date required to be
funded or paid, to (i) fund any portion of its Loans or (ii) pay over to the Borrower any other
amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender
notifies the Administrative Agent in writing that such failure is the result of such Lender’s good
faith determination that a condition precedent to funding (specifically identified and including
the particular default, if any) has not been satisfied, (b) has notified the Borrower in writing,
or has made a public statement to the effect, that it does not intend or expect to comply with any
of






6









 







its funding obligations under this Agreement (unless such writing or public statement
indicates that such position is based on such Lender’s good faith determination that a condition
precedent (specifically identified and including the particular default, if any) to funding a loan
under this Agreement cannot be satisfied) or generally under other agreements in which it commits
to extend credit, (c) has failed, within three (3) Business Days after written request by the
Borrower, acting in good faith, to provide a certification in writing from an authorized officer of
such Lender that it will comply with its obligations to fund prospective Loans and participations
in then outstanding Swingline Loans under this Agreement, provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon the Borrower’s receipt of such
certification in form and substance satisfactory to the Borrower and the Administrative Agent, or
(d) has become, or the Lender Parent has become, the subject of a Bankruptcy Event.




          “dollars” or “$” refers to lawful money of the United States of America.




          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).




          “Environmental Action” means any action, suit, demand, demand letter, claim, notice of
non compliance or violation, notice of liability or potential liability, investigation, proceeding,
consent order or consent agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to health, safety or the
environment, including, without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.




          “Environmental Laws” means any Federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, writ, judgment, injunction, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment, health,
safety or natural resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.




          “Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.




          “Equity Contribution” has the meaning set forth in the definition of Minimum TNW.




          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.




          “Equity Payment” has the meaning set forth in the definition of Minimum TNW.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.







7









 








          “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member
of the controlled group of the Borrower, or under common control with the Borrower, within the
meaning of Section 414 of the Internal Revenue Code.




          “ERISA Event” means (a)(i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30 day notice requirement with respect
to such event has been waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a facility of the Borrower or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by
the Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan;
(g) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to administer, such
Plan; or (h) the failure of any insured medical Plan to satisfy the non-discrimination requirements
of Section 105 of the Code.




          “Eurocurrency Reserve Requirements” for any Interest Period for all Eurodollar Loans
comprising part of the same Borrowing means the reserve percentage applicable from time to time
under regulations issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Loans is determined) having a term
equal to such Interest Period.




          “Eurodollar Base Rate” means, with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the first day of such
Interest Period appearing on the Reuters Screen LIBOR01 Page as of 11:00 A.M., London time, two (2)
Business Days prior to the beginning of such Interest Period. In the event that such rate does not
appear on such page (or otherwise on such screen), the “Eurodollar Base Rate” shall be
determined by reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is offered Dollar deposits
at or about 11:00 A.M., New York City time, two (2) Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein.







8









 








          “Eurodollar Borrowing” means a Borrowing comprised of Eurodollar Loans.




          “Eurodollar Loans” means Loans the rate of interest applicable to which is based upon
the Eurodollar Rate.




          “Eurodollar Rate” means with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with the
following formula:




Eurodollar Base Rate
 


1.00 — Eurocurrency Reserve Requirements




          “Event of Default” has the meaning assigned to such term in Article VI.




          “Excluded Taxes” means, with respect to any payment made by the Borrower under any
Credit Document, any of the following Taxes imposed on or with respect to a Recipient: (a) income
or franchise Taxes imposed on (or measured by) net income by the United States of America, or by
the jurisdiction under the laws of which such Recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending office is located,
(b) any branch profits Taxes imposed by the United States of America or any similar Taxes imposed
by any other jurisdiction in which the Borrower is located and (c) in the case of a Non-U.S. Lender
(other than an assignee pursuant to a request by the Borrower under Section 2.19(b)), any U.S.
Federal withholding Taxes resulting from any requirement of law in effect (including FATCA) on the
date such Non-U.S. Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Non-U.S. Lender’s failure to comply with Section 2.17(f), except to the
extent that such Non-U.S. Lender (or its assignor, if any) was entitled, at the time of designation
of a new lending office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding Taxes pursuant to Section 2.17(a).




          “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement
and any regulations or official interpretations thereof.




          “Federal Funds Effective Rate” means, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business Day, the average
of the quotations for such day for such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.




          “Federal Funds Rate” means, for any day, a rate per annum equal to the greater of (a)
the rate of interest per annum which is the average of the rates on the offered side of the Federal
funds market quoted by three interbank Federal funds brokers at the approximate time of the
relevant Borrowing (for the first day of such Borrowing and until the next Business Day) and 12:00
noon (New York City time) (for each subsequent Business Day on which such Borrowing is
outstanding), for Federal funds in an amount comparable to the portion of such Borrowing






9









 







made available by the Administrative Agent and (b) the Eurodollar Rate for a one-month
Interest Period commencing two (2) Business Days after such day.




          “Federal Funds Rate Borrowing” means a Borrowing comprised of Federal Funds Rate
Loans.




          “Federal Funds Rate Loans” means Loans the rate of interest applicable to which is
based upon the Federal Funds Rate.




          “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.




          “FINRA” means the Financial Industry Regulatory Authority, Inc., or any other
self-regulatory body which succeeds to the functions of the Financial Industry Regulatory
Authority, Inc.




          “Fiscal Year” means a fiscal year of the Borrower and its Consolidated Subsidiaries
ending on the last day of September in any calendar year.




          “FOCUS-II Report” means the Financial and Operational Combined Uniform Single Report
on Form X-17A-5 Part II.




          “GAAP” means generally accepted accounting principles in the United States of America.




          “Governmental Authority” means any nation or government, any state, province, city,
municipal entity or other political subdivision thereof, and any governmental, executive,
legislative, judicial, administrative or regulatory agency, department, authority, instrumentality,
commission, board, bureau or similar body, including, without limitation, any self-regulatory
organization as defined in Section 3(a)(26) of the Securities Exchange Act, whether federal, state,
provincial, territorial, local or foreign.




          “Governmental Authorization” means any authorization, approval, consent, franchise,
license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar
right, undertaking or other action of, to or by, or any filing, qualification or registration with,
any Governmental Authority.




          “Guaranteed Debt” means, with respect to any Person, any payment Obligation or
arrangement of such Person to guarantee or intended to guarantee any Debt, leases, dividends or
other payment Obligations (“primary obligations”) of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, including, without limitation, (a) the direct or
indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such Person of the payment
Obligation of a primary obligor, (b) the payment Obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party or parties to an agreement
or (c) any payment Obligation of such Person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of any such primary






10









 







obligation or (B) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property,
assets, securities or services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the holder of such primary obligation against loss in respect
thereof. The amount of any Guaranteed Debt shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranteed Debt is made (or,
if less, the maximum amount of such primary obligation for which such Person may be liable pursuant
to the terms of the instrument evidencing such Guaranteed Debt) or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof (assuming such Person is required
to perform thereunder), as determined by such Person in good faith.




          “Guaranteed Hedge Agreement” means any Hedge Agreement permitted under Article V that
is entered into by and between the Borrower and any Hedge Bank.




          “Hazardous Materials” means (a) petroleum or petroleum products, by-products or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls
and radon gas and (b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.




          “Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts and other
hedging agreements. 




          “Hedge Bank” means (a) any Lender or an Affiliate of a Lender in its capacity as a
party to a Guaranteed Hedge Agreement or (b) any counterparty to a Guaranteed Hedge Agreement that
was a Lender or Affiliate of a Lender at the time such Guaranteed Hedge Agreement was entered into
by such counterparty.




          “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by the Borrower under any Credit Document and (b) Other Taxes.




          “Indemnitee” has the meaning specified in Section 9.03(b).




          “Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the
Parent that is not guaranteed by any other Person or subject to any other credit enhancement.




          “Information Memorandum” means the Confidential Information Memorandum dated June 1,
2011 relating to the Borrower and the Transactions.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.08.







11









 








          “Interest Payment Date” means (a) with respect to any Federal Funds Rate Loan (other
than a Swingline Loan), the last day of each calendar month, (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period and (c) with respect to any Swingline
Loan, the day that such Loan is required to be repaid.




          “Interest Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect;
provided, that




          (i) if any Interest Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Borrowing
only, such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day and




          (ii) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the case a Revolving Borrowing,
thereafter shall be the effective date of the most recent conversion or continuation of such
Borrowing.




          “IRS” means the United States Internal Revenue Service.




          “ISDA Master Agreement” means the Master Agreement (Multicurrency-Cross Border)
published by the International Swap and Derivatives Association, Inc., as in effect from time to
time.




          “Lead Arrangers” means J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.




          “Lender Parent” means, with respect to any Lender, any Person as to which such Lender
is, directly or indirectly, a subsidiary.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lender.




          “Lien” means any lien, security interest or other charge of any kind, or any other
type of preferential arrangement intended to have the effect of a lien or security interest,
including, without limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.







12









 








          “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.




          “Material Adverse Effect” means any event that could reasonably be expected to have a
material adverse effect on (a) the business, financial condition, or results of operations of the
Borrower and its Subsidiaries, taken as a whole, since September 30, 2010, (b) the rights and
remedies of the Lenders under any Credit Document or (c) the ability of the Borrower, taken as a
whole, to perform their obligations under any Credit Document (any such effect being a
“Material Adverse Effect”).




          “Maturity Date” means June 28, 2014.




          “Maximum Rate” has the meaning assigned to such term in Section 9.13.




          “Measurement Period” means, except as otherwise expressly provided herein, each period
of four consecutive fiscal quarters of the Borrower.




          “Minimum TNW” means, at any time, $975,000,000; provided that such amount shall be (a)
reduced on a dollar-for-dollar basis by an amount equal to any dividend or other distribution paid
by the Borrower on, or any repurchase or redemption by the Borrower of, any Equity Interests of
the Borrower since the Effective Date (each, an “Equity Payment”) and (b) increased on a
dollar-for-dollar basis by (i) an amount equal to the sum of (x) 50% of Consolidated net income of
the Borrower for each fiscal quarter of the Borrower ended after the Closing Date for which such
Consolidated net income is positive and (ii) an amount equal to the proceeds received on account of
equity contributions to the Borrower or issuances by the Borrower of its Equity Interests (each, an
“Equity Contribution”); provided, further, that the Minimum TNW shall in no event be less
than $650,000,000. Notwithstanding the foregoing, the Borrower may make an election that any
Equity Contribution shall not increase Minimum TNW but, if it makes such an election, all
subsequent Equity Payments shall not reduce Minimum TNW until the amount of such subsequent Equity
Payments equal the amount of such Equity Contribution.




          “Moody’s” means Moody’s Investors Service, Inc., or any successor thereto.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA to which the Borrower or any ERISA Affiliate has contributed or has had an obligation to
contribute.




          “Non-Consenting Lender” has the meaning assigned to such term in Section 2.19(b).




          “Non-U.S. Lender” means a Lender that is not a U.S. Person.




          “Notes” means the collective reference to any promissory note evidencing Loans.




          “Obligation” means, with respect to any Person, any payment, performance or other
obligation of such Person of any kind, including, without limitation, any liability of such Person
on any claim, whether or not the right of any creditor to payment in respect of such claim






13









 







is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed,
undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 6.01(f). Without limiting the
generality of the foregoing, the Obligations of the Borrower under the Credit Documents include (a)
the obligation to pay principal, interest, charges, expenses, fees, attorneys’ fees and
disbursements, indemnities and other amounts payable by the Borrower under any Credit Document and
(b) the obligation of the Borrower to reimburse any amount in respect of any of the foregoing that
any Lender, in its sole discretion, may elect to pay or advance on behalf of the Borrower.




          “Ordinary Course Operating Debt” means (i) Debt incurred for operational liquidity
needs pursuant to lines of credit and other liabilities payable to brokers, dealers, clearing
organizations, clients and correspondents, and liabilities in respect of securities or commodities
sold but not yet purchased and Debt of the Borrower, in each case incurred in the ordinary course
of the “broker-dealer” or “commodity futures trading” business of the Broker-Dealer Subsidiaries,
including Debt incurred in the ordinary course of business to finance or secure the purchase or
carrying of securities, the provision of margin for forward, futures, repurchase or similar
transactions, the making of advances to customers, the establishment of performance or surety bonds
or guarantees, or in the nature of a letter of credit or letter of guaranty to support or secure
trading and other obligations incurred in the ordinary course of business, (ii) accounts payable
and accrued liabilities in the ordinary course of business of the Borrower and its Subsidiaries,
(iii) notes, bills and checks presented in the ordinary course of business by such Person to banks
for collection or deposit, (iv) all obligations of the Borrower and its Subsidiaries of the
character referred to in this definition to the extent owing to the Borrower or any of its
Subsidiaries and (v) Guaranteed Debt arising in the ordinary course of business pursuant to
contract or applicable law, rule or regulation with respect to the Obligations of other members of
securities and commodities clearinghouses and exchanges.




          “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing such
Taxes (other than a connection arising solely from such Recipient having executed, delivered,
enforced, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, or engaged in any other transaction pursuant to, or enforced,
any Credit Document, or sold or assigned an interest in any Credit Document).




          “Other Taxes” mean any present or future stamp, court, documentary, intangible,
recording, filing or similar excise or property Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, or from the registration,
receipt or perfection of a security interest under, or otherwise with respect to, any Credit
Document, except any such Taxes that are Other Connection Taxes imposed with respect to an
assignment (other than an assignment under Section 2.19(b)).




          “Parent” means TD Ameritrade Holding Corporation, a Delaware corporation.




          “Participant” has the meaning set forth in Section 9.04.







14









 








          “Participant Register” has the meaning set forth in Section 9.04.




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




          “Permitted Encumbrances” means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced:




          (a) Liens for unpaid utilities and for taxes, assessments and governmental charges or levies
to the extent not yet due or otherwise not required to be paid under Section 5.01(b);




          (b) Liens imposed by law, such as landlords’, materialmen’s, mechanics’, carriers’, workmen’s
and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing
obligations that (i) are not overdue for a period of more than 30 days or are being contested in
good faith by appropriate proceedings diligently prosecuted and (ii) individually or together with
all other Permitted Encumbrances outstanding on any date of determination do not materially
adversely affect the use of the property to which they relate;




          (c) pledges or deposits in the ordinary course of business to secure obligations under
workers’ compensation, unemployment insurance or other social security or employment laws or
regulations or similar legislation or to secure public, statutory or regulatory obligations;




          (d) deposits to secure the performance of bids, trade contracts and leases (other than Debt),
statutory or regulatory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;




          (e) Liens securing judgments for the payment of money not constituting a Default under Section
6.01(g) or securing appeal or other surety bonds related to such judgments;




          (f) easements, rights of way, covenants, zoning, use restrictions and other encumbrances on
title to real property that do not render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present purposes;




          (g) any interest or title of a lessor, sublessor, licensee or licensor under any operating
lease or license agreement entered into in the ordinary course of business and not interfering in
any material respect with the business of the Borrower or any of its Subsidiaries;




          (h) banker’s liens, rights of set off or similar rights and remedies as to deposit accounts or
other funds maintained with depository institutions in the ordinary course of business; and




          (i) Liens arising by virtue of Uniform Commercial Code financing statement filings (or similar
filings under applicable law) regarding operating leases entered into in the ordinary course of
business.




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.





15











 





          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Preferred Interests” means, with respect to any Person, Equity Interests issued by
such Person that are entitled to a preference or priority over any other Equity Interests issued by
such Person upon any distribution of such Person’s property and assets, whether by dividend or upon
liquidation.




          “Recipient” means, as applicable, (a) the Administrative Agent and (b) any Lender.




          “Redeemable” means, with respect to any Equity Interest, any such Equity Interest that
(a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely within
the control of the issuer or (b) is redeemable at the option of the holder.




          “Register” has the meaning set forth in Section 9.04.




          “Regulatory Net Capital” of any Person means (a) in the case such Person is a
Broker-Dealer Subsidiary of the type described in clause (a) of the definition of “Broker-Dealer
Subsidiary”, the amount of net capital held by such Person as a broker-dealer under Section
15(c)(3) of the Securities Exchange Act and regulations promulgated thereunder (or under comparable
statutes and regulations of the applicable jurisdiction) and (b) in the case such Person is a
Broker-Dealer Subsidiary of the type described in clause (b) of the definition of “Broker-Dealer
Subsidiary”, the amount of net capital held by such Person as a futures commission merchant or
introducing broker under Section 4f(b) of the Commodity Exchange Act and regulations promulgated
thereunder (or under comparable statutes and regulations of the applicable jurisdiction).




          “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.




          “Required Lenders” means, at any time, the holders of more than 50% of the Commitments
then in effect or, if the Commitments have been terminated, the Revolving Extensions of Credit then
outstanding.




          “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and Swingline Exposure at such
time.




          “Revolving Extensions of Credit” means as to any Lender at any time, an amount equal
to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender then
outstanding and (b) such Lender’s Applicable Percentage of the aggregate principal amount of
Swingline Loans then outstanding.







16









 








          “Revolving Loan” means a Loan made pursuant to Section 2.03.




          “SEC” means the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.




          “Securities Exchange Act” means Securities Exchange Act of 1934, as amended from time
to time.




          “Significant Subsidiary” means, at any time, a Subsidiary of the Borrower that is a
“significant subsidiary” as defined in Rule 1.02(w) of Regulation S-X of the SEC, determined based
upon the Borrower’s most recent consolidated financial statements for the most recently completed
Fiscal Year as set forth in the Borrower’s Annual Report on Form 10-K (or 10-K-A) filed with the
SEC; provided that in the case of a Subsidiary formed or acquired after the Effective Date,
the determination of whether such Subsidiary is a Significant Subsidiary shall be made on a pro
forma basis based on the Borrower’s most recent consolidated financial statements for the most
recently completed fiscal quarter or Fiscal Year, as applicable, as set forth in the Borrower’s
Quarterly Report on Form 10-Q or Annual Report on Form 10-K (or 10-K-A), as applicable, filed with
the Securities Exchange Commission.




          “Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and no Person
other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which
the Borrower or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.




          “Solvent” means, with respect to any Person on a particular date, that on such date
(a) the fair value of the property of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or liabilities beyond such
Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or a transaction, for
which such Person’s property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.




          “S&P” means Standard & Poor’s., or any successor thereto.




          “Stockholders Agreement” means that certain Stockholders Agreement, dated as of June
22, 2005, among the Borrower and the stockholders of the Borrower party thereto, as amended,
restated, supplemented or otherwise modified from time to time.




          “Subsidiary” of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to elect a majority of the Board of






17









 







Directors of such corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership, joint venture or
limited liability company or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Person’s other Subsidiaries; provided that
solely for purposes of Section 3.01(a), “Subsidiaries” referred to therein shall not
include any Subsidiary that is specified on Schedule 3.01(b) as a Subsidiary that is in the process
of being liquidated or dissolved as of the Effective Date.




          “Surviving Debt” means Debt of any Subsidiary of the Borrower, other than Ordinary
Course Operating Debt, and Debt of the type permitted under Section 5.02(b)(x), outstanding on the
Effective Date.




          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.




          “Swingline Lender” means each of JPMorgan Chase Bank, N.A. and Bank of America, N.A.,
in its capacity as lender of Swingline Loans hereunder.




          “Swingline Loan” means a Loan made pursuant to Section 2.05.




          “Syndication Agent” has the meaning assigned to such term in the preamble to this
Agreement.




          “Taxes” means any present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




          “Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans, the use of the proceeds thereof.




          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Eurodollar Rate or the Federal Funds Rate.




          “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)
of the Code.




          “U.S. Tax Certificate” shall have the meaning set forth in Section 2.17(f)(ii)(D).




          “Voting Interests” means shares of capital stock issued by a corporation, or
equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.







18









 








          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          “Withholding Agent” means the Borrower and the Administrative Agent.




          SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type
(e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving
Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a
“Eurodollar Revolving Borrowing”).




          SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. All terms of an accounting or financial nature shall be
construed, and all computations of amounts and ratios shall be made without giving effect to any
treatment of indebtedness in respect of convertible debt instruments under Financial Accounting
Standards Board Staff Position APB 14-1 to value any such indebtedness in a reduced or bifurcated
manner as described therein, and such indebtedness shall at all times be valued at the full stated
principal amount thereof.






19









 







Notwithstanding any other provision contained herein, all computations of amounts and ratios
referred to in this Agreement shall be made without giving effect to any election under FASB ASC
Topic 825 “Financial Instruments” (or any other financial accounting standard having a similar
result or effect) to value any Debt or other liabilities of the Borrower or any Subsidiary at “fair
value” as defined therein.




          SECTION 1.05. Pro Forma Calculations. All pro forma computations required to be made
hereunder giving effect to any acquisition, investment, sale, disposition, merger or similar event
shall reflect on a pro forma basis such event and, to the extent applicable, the historical
earnings and cash flows associated with the assets acquired or disposed of and any related
incurrence or reduction of Debt, but shall not take into account any projected synergies or similar
benefits expected to be realized as a result of such event.




ARTICLE II




The Credits



          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make Revolving Loans to the Borrower from time to time during the Availability
Period in an aggregate principal amount that will not result in (a) such Lender’s Revolving Credit
Exposure exceeding such Lender’s Commitment or (b) the sum of the total Revolving Credit Exposures
exceeding the total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.




          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part of
a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make
Loans as required.




          (b) Subject to Section 2.14, (i) each Revolving Borrowing shall be comprised entirely of
Federal Funds Rate Loans or Eurodollar Loans as the Borrower may request in accordance herewith.
Each Swingline Loan shall be a Federal Funds Rate Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. At the time that each Federal Funds Rate Borrowing is made, such Borrowing shall
be in an aggregate amount that is an integral multiple of $1,000,000; provided that a
Federal Funds Rate Borrowing may be in an aggregate



20









 






amount that is equal to the entire unused balance of the total Commitments. Each Swingline
Loan shall be in an amount equal to $500,000 or a whole multiple of $100,000 in excess thereof.
Loans of more than one Type and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of five Eurodollar Revolving Borrowings
outstanding.




          (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.




          SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 3:00 p.m., New York City time, three (3) Business Days
before the date of the proposed Borrowing or (b) in the case of a Federal Funds Rate Borrowing, not
later than 3:00 p.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery
or electronic communication in PDF format to 12012443660@tls.ldsprod.com) or facsimile to the
Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02: (i) the amount and Type of Revolving Loans
to be borrowed, (ii) the date of such Borrowing, which shall be a Business Day, (iii) in the case
of Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of
the initial Interest Period therefor and (iv) the location and number of the Borrower’s account to
which funds are to be disbursed, which shall comply with the requirements of Section 2.07. Any
Revolving Loans made on the Effective Date shall initially be Federal Funds Rate Loans.




If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be a Federal Funds Rate Borrowing. If no Interest Period is specified with respect
to any requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.




          SECTION 2.04. [Reserved].




          SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lenders severally agree to make Swingline Loans to the Borrower from time to
time during the Availability Period, in an aggregate principal amount at any time outstanding that
will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$180,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total
Commitments; provided that the Swingline Lenders shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline
Loans.







21









 








          (b) To request Swingline Loans, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by electronic communication in PDF format to
12012443660@tls.ldsprod.com or facsimile), not later than 4:00 p.m., New York City time, on the
day of the proposed Swingline Loans. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loans. The
Administrative Agent will promptly advise each Swingline Lender of any such notice received from
the Borrower. Each Swingline Lender shall make its portion of the requested Swingline Loans
(which portion shall be equal to 50% of the aggregate Swingline Loans requested on such date)
available to the Borrower by means of a credit to the general deposit account of the Borrower with
such Swingline Lender (or such other account as designated by the Borrower) by 5:00 p.m., New York
City time, on the requested date of such Swingline Loan.




          (c) Each Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lenders, such
Lender’s Applicable Percentage of such Swingline Loans. Each Lender acknowledges and agrees that
its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans
made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lenders, ratably as between them, the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Borrower of any participations in any Swingline Loans
acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loans
shall be made to the Administrative Agent and not to the Swingline Lenders. Any amounts received
by the Swingline Lenders from the Borrower (or other party on behalf of the Borrower) in respect
of Swingline Loans after receipt by the Swingline Lenders of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the
Lenders that shall have made their payments pursuant to this paragraph and to the Swingline
Lenders, as their interests may appear; provided that any such payment so remitted shall
be repaid to the Swingline Lenders or to the Administrative Agent, as applicable, if and to the
extent such payment is required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of
any default in the payment thereof.




          SECTION 2.06. [Reserved].







22









 








          SECTION 2.07. Funding of Loans. (a) Each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York City time, or, if later in the case of a Federal Funds Rate Borrowing, 60 minutes
after the Administrative Agent advises such Lender pursuant to the last sentence of Section 2.03,
of the details of a Borrowing Request made by the Borrower to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders; provided
that Swingline Loans shall be made as provided in Section 2.05. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so received, in like funds,
to an account of the Borrower maintained with the Administrative Agent in New York City or such
other account of the Borrower designated by the Borrower in the applicable Borrowing Request.




          (b) Unless the Administrative Agent shall have received notice from a Lender not later than
one (1) Business Day prior to the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i)
in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of the Borrower, the interest rate applicable to Federal Funds Rate Loans. If
such Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.




          SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.




          (b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or electronic communication or facsimile to the Administrative



23









 






Agent of a written Interest Election Request in a form approved by the Administrative Agent
and signed by the Borrower.




          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:





     (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be a Federal Funds Rate Borrowing or a
Eurodollar Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.




          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to a Federal Funds Rate Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event
of Default is continuing (i) no outstanding Revolving Borrowing may be converted to or continued
as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be
converted to a Federal Funds Rate Borrowing at the end of the Interest Period applicable thereto.




          SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.




          (b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount equal to
$1,000,000, or a whole multiple thereof and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in



24









 






accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed the
total Commitments.




          (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three (3) Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered
by the Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.




          SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of the Revolving Loans on the Maturity Date and (ii) to the Swingline
Lenders the then unpaid principal amount of the Swingline Loans on the earlier of the Maturity Date
and the first date after any Swingline Loans are made that is the 15th or last day of a calendar
month and is at least two (2) Business Days after such Swingline Loans are made; provided
that on each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans
then outstanding.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.




          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.




          (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.




          (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent.






25









 







Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).




          SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the right at any time
and from time to time up to 3:00 p.m., New York City time on any Business Day to prepay any Loan in
whole or in part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that interest will accrue on such amount being prepaid until the next business day
if such payment is received after 3:00 p.m., New York City time.




          (b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lenders) by telephone (confirmed by electronic communication or
facsimile) of any prepayment hereunder not later than 12:00 p.m., New York City time, on the date
of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and
the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if
a notice of prepayment is given in connection with a conditional notice of termination of the
Commitments as contemplated by Section 2.09, then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.09. Promptly following receipt of
any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in
an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same
Type as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13.




          SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at the Applicable Rate on the daily
amount of the unused Commitment of such Lender during the period from and including the Effective
Date to but excluding the date on which such Commitment terminates. Accrued commitment fees shall
be payable in arrears on the last day of March, June, September and December of each year and on
the date on which the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any commitment fees accruing after the date on which the
Commitments terminate shall be payable on demand. All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).




          (b) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.




          (c) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, in the case of commitment fees, to the
Lenders. Fees paid shall not be refundable under any circumstances.







26









 








          SECTION 2.13. Interest. (a) The Loans comprising each Federal Funds Rate Borrowing
(including each Swingline Loan) shall bear interest at the Federal Funds Rate plus the Applicable
Rate.




          (b) The Loans comprising each Eurodollar Borrowing shall bear interest (i) in the case of a
Eurodollar Revolving Loan, at the Eurodollar Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.




          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this
Section or (ii) in the case of any other amount, 2% plus the rate applicable to Federal Funds Rate
Loans as provided in paragraph (a) of this Section.




          (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of a Federal Funds Rate Revolving Loan prior to the end of the Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to
the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on
the effective date of such conversion.




          (e) All interest hereunder shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last
day). The applicable Federal Funds Rate or Eurodollar Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest error.




          SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:




          (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate or the Eurodollar Rate, as applicable, for such Interest Period; or




          (b) the Administrative Agent is advised by the Required Lenders that the Eurodollar Rate for
such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender)
of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest
Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or electronic communication or facsimile as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the circumstances



27









 






giving rise to such notice no longer exist, (i) any Interest Election Request that requests the
conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a
Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar
Revolving Borrowing, such Borrowing shall be made as a Federal Funds Rate Borrowing;
provided that if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.




          SECTION 2.15. Increased Costs. (a) If any Change in Law shall:





     (i) subject any Lender to any Taxes (other than (A) Indemnified Taxes and (B) Other
Connection Taxes on gross or net income, profits or revenue (including value-added or
similar Taxes)) on its loans, loan principal, letters of credit, commitments, or other
obligations, or its deposits, reserves, other liabilities or capital attributable thereto;




     (ii) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Eurodollar Rate); or




     (iii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) , or in
the case of (i) above, any Loan, or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such
Lender, as the case may be, such additional amount or amounts as will compensate such Lender, as
the case may be, for such additional costs incurred or reduction suffered.




          (b) If any Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s capital or on the capital of
such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by
such Lender to a level below that which such Lender or such Lender’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s policies and the
policies of such Lender’s holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender’s holding company for any such reduction suffered.




          (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate
such Lender or its holding company as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.




          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender



28









 






pursuant to this Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.




          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to
Section 2.11), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar
Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.11(b) and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed
to include an amount determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such event not occurred,
at the Eurodollar Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.




          SECTION 2.17. Taxes. (a) Each payment by the Borrower under any Credit Document
shall be made without withholding for any Taxes, unless such withholding is required by any law.
If any Withholding Agent determines, in its sole discretion exercised in good faith, that it is so
required to withhold Taxes, then such Withholding Agent may so withhold and shall timely pay the
full amount of withheld Taxes to the relevant Governmental Authority in accordance with applicable
law. If such Taxes are Indemnified Taxes, then the amount payable by the Borrower shall be
increased as necessary so that, net of such withholding (including such withholding applicable to
additional amounts payable under this Section), the applicable Recipient receives the amount it
would have received had no such withholding been made.




          (b) The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.




          (c) As soon as practicable after any payment of Indemnified Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing



29









 






such payment, a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.



          (d) The Borrower shall jointly and severally indemnify each Recipient for any Indemnified
Taxes that are paid or payable by such Recipient in connection with any Credit Document (including
amounts paid or payable under this Section 2.17(d)) and any reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. The indemnity under this Section 2.17(d)
shall be paid within twenty (20) days after the Recipient delivers to the Borrower a certificate
stating the amount of any Indemnified Taxes so paid or payable by such Recipient and describing
the basis for the indemnification claim. Such certificate shall be conclusive of the amount so
paid or payable absent manifest error. Such Recipient shall deliver a copy of such certificate to
the Administrative Agent.



          (e) Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the
case of any Indemnified Taxes, only to the extent that the Borrower has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the
Borrower to do so) attributable to such Lender that are paid or payable by the Administrative
Agent in connection with any Credit Document and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. The indemnity under this Section 2.17(e) shall be paid within
twenty (20) days after the Administrative Agent delivers to the applicable Lender a certificate
stating the amount of Taxes so paid or payable by the Administrative Agent. Such certificate
shall be conclusive of the amount so paid or payable absent manifest error.



          (f) (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable
withholding Tax with respect to any payments under any Credit Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed and executed documentation reasonably
requested by the Borrower or the Administrative Agent as will permit such payments to be made
without, or at a reduced rate of, withholding. In addition, any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or
the Administrative Agent to determine whether or not such Lender is subject to any withholding
(including backup withholding) or information reporting requirements. Notwithstanding anything to
the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in Sections 2.17(f)(ii)(A) through (E) and
Section 2.17(f)(iii) below) shall not be required if in the Lender’s reasonable judgment such
completion, execution or submission would subject such Lender to any material unreimbursed cost or
expense (or, in the case of a Change in Law, any incremental material unreimbursed cost or
expense) or would materially prejudice the legal or commercial position of such Lender. Upon the
reasonable request of such Borrower or the Administrative Agent, any Lender shall update any form
or certification previously delivered pursuant to this Section 2.17(f). If any form or
certification previously delivered pursuant to this Section expires or becomes obsolete or
inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any event
within 10 days



30









 






after such expiration, obsolescence or inaccuracy) notify such Borrower and the
Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form
or certification if it is legally eligible to do so.





     (ii) Without limiting the generality of the foregoing, any Lender with respect to such
Borrower shall, if it is legally eligible to do so, deliver to such Borrower and the
Administrative Agent (in such number of copies reasonably requested by such Borrower and the
Administrative Agent) on or prior to the date on which such Lender becomes a party hereto,
duly completed and executed copies of whichever of the following is applicable:




     (A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that
such Lender is exempt from U.S. Federal backup withholding tax;




     (B) in the case of a Non-U.S. Lender claiming the benefits of an income tax
treaty to which the United States is a party (1) with respect to payments of
interest under any Credit Document, IRS Form W-8BEN establishing an exemption from,
or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of
such tax treaty and (2) with respect to any other applicable payments under any
Credit Document, IRS Form W-8BEN establishing an exemption from, or reduction of,
U.S. Federal withholding Tax pursuant to the “business profits” or “other income”
article of such tax treaty;




     (C) in the case of a Non-U.S. Lender for whom payments under any Credit
Document constitute income that is effectively connected with such Lender’s conduct
of a trade or business in the United States, IRS Form W-8ECI;




     (D) in the case of a Non-U.S. Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN and (2)
a certificate substantially in the form of Exhibit C (a “U.S. Tax
Certificate”) to the effect that such Lender is not (a) a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code (c) a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Code and (d)
conducting a trade or business in the United States with which the relevant interest
payments are effectively connected;




     (E) in the case of a Non-U.S. Lender that is not the beneficial owner of
payments made under any Credit Document (including a partnership or a participating
Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms
prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (f)(ii) that
would be required of each such beneficial owner or partner of such partnership if
such beneficial owner or partner were a Lender; provided, however,
that if the Lender is a partnership and one or more of its partners are claiming the
exemption for portfolio interest under Section 881(c) of the Code, such Lender may
provide a U.S. Tax Certificate on behalf of such partners; or



31









 






     (F) any other form prescribed by law as a basis for claiming exemption from, or
a reduction of, U.S. Federal withholding Tax together with such supplementary
documentation necessary to enable the Borrower or the Administrative Agent to
determine the amount of Tax (if any) required by law to be withheld.




     (iii) If a payment made to a Lender under any Credit Document would be subject to U.S.
Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the Withholding Agent, at
the time or times prescribed by law and at such time or times reasonably requested by the
Withholding Agent, such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Withholding Agent as may be necessary for the Withholding Agent to comply
with its obligations under FATCA, to determine that such Lender has or has not complied with
such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this Section 2.17(f)(iii), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.



          (g) If any Lender determines, in its sole discretion exercised in good faith, that it has
received a refund in respect of any Indemnified Taxes or Other Taxes as to which indemnification or
additional amounts have been paid to it by the Borrower pursuant to this Section 2.17, it shall
remit such refund (but only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section 2.17 with respect to the Indemnified Taxes or Other Taxes giving
rise to such refund plus any interest included in such refund (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) by the relevant Governmental
Authority attributable thereto) to the Borrower, net of all out-of-pocket expenses of such Lender
and without interest (other than any interest paid by the relevant Governmental Authority with
respect to such refund); provided that the Borrower, upon the request of such Lender agrees
promptly to return such refund to such party in the event such party is required to repay such
refund to the relevant Governmental Authority. Nothing herein contained shall interfere with the
right of a Lender to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender
to claim any tax refund or to make available its tax returns or disclose any information relating
to its tax affairs or any computations in respect thereof or any other confidential information or
require any Lender to do anything that would prejudice its ability to benefit from any other
refunds, credits, reliefs, remissions or repayments to which it may be entitled. Notwithstanding
anything to the contrary in this Section 2.17(g), in no event will any Lender be required to pay
any amount to any indemnifying party pursuant to this Section 2.17(g) if such payment would place
such Lender in a less favorable position (on a net after-Tax basis) than such Lender would have
been in if the indemnification payments or additional amounts giving rise to such refund had never
been paid.




          SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available funds,






32









 







without set off or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York, except payments to be
made directly to the Swingline Lenders as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall
be extended to the next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments hereunder shall
be made in dollars.




          (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to such parties.




          (c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
Swingline Loans resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest
on their respective Revolving Loans and Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or participant, other
than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct creditor of the Borrower in
the amount of such participation.




          (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in



33









 






accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the
amount due. In such event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.




          (e) If any Lender shall fail to make any Loan or payment required to be made by it pursuant
to Section 2.02, 2.05(c), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its
discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or
(ii) hold any such amounts in a segregated account as cash collateral for, and application to, any
future funding obligations of such Lender under any such Section, in the case of each of clauses
(i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.




          SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or
2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.




          (b) If (x) any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, (y) in connection with any proposed amendment, waiver or
consent to this Agreement or any other Credit Document requiring the consent of “each Lender” or
“each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the
consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but
not obtained being referred to herein as a “Non-Consenting Lender”) or (z) any Lender
becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender or Non-Consenting Lender, as applicable, and the Administrative Agent, require such
Lender or such Non-Consenting Lender, as applicable, to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that
(i) the Borrower shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender or such Non-Consenting Lender, as
applicable, shall have received payment of an amount equal to the outstanding principal of its
Loans and



34









 






participations in Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.17, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.




          SECTION 2.20. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:




          (a) fees shall cease to accrue on the unused Commitment of such Defaulting Lender pursuant to
Section 2.12(a);




          (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be
included in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant to Section 9.02);
provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the
case of an amendment, waiver or other modification requiring the consent of such Lender or each
Lender affected thereby;




          (c) if any Swingline Exposure exists at the time such Lender becomes a Defaulting Lender
then:





     (i) all or any part of the Swingline Exposure of such Defaulting Lender shall be
reallocated among the non-Defaulting Lenders in accordance with their respective Commitments
but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit
Exposures plus such Defaulting Lender’s Swingline Exposure does not exceed the total of all
non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Sections 4.01 and
4.02 are satisfied at such time; and




     (ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within one (1) Business Day following notice by the
Administrative Agent prepay such Swingline Exposure; and



          (d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to
fund any Swingline Loan, unless it is satisfied that the related exposure will be 100% covered by
the Commitments of the non-Defaulting Lenders and participating interests in any newly made
Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section
2.20(c)(i) (and such Defaulting Lender shall not participate therein).




          In the event that the Administrative Agent, the Borrower and the Swingline Lenders each agree
that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a
Defaulting Lender, then the Swingline Exposure of the Lenders shall be






35









 







readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender
shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the
Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans
in accordance with its Applicable Percentage.




ARTICLE III




Representations and Warranties



          SECTION 3.01. Representations and Warranties of the Borrower. The Borrower represents
and warrants as follows:




          (a) The Borrower and each of its Subsidiaries (i) is a corporation, limited liability company
or limited partnership duly organized, validly existing and (to the extent applicable in the
jurisdiction of its formation) in good standing under the laws of the jurisdiction of its
formation, (ii) except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, is duly qualified and in good standing
as a foreign corporation or company in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be licensed and (iii) has all
requisite corporate, limited liability company or partnership (as applicable) power and authority
(including, without limitation, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect, all Governmental
Authorizations) to own or lease and operate its properties and to carry on its business as now
conducted.




          (b) Set forth on Schedule 3.01(b) hereto is a complete and accurate list of all Subsidiaries
of the Borrower as of the date hereof, showing as of the date hereof (as to each such Subsidiary)
the jurisdiction of its formation, the number of shares, membership interests or partnership
interests (as applicable) of each class of its Equity Interests authorized, and the number
outstanding, on the date hereof and the percentage of each such class of its Equity Interests
owned (directly or indirectly) by the Borrower and the number of shares covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of
the outstanding Equity Interests in the Borrower’s Subsidiaries have been validly issued, are
fully paid and non-assessable and are owned by the Bororwer or one or more of its Subsidiaries
free and clear of all Liens, except Permitted Encumbrances.




          (c) The execution, delivery and performance by the Borrower of each Credit Document to which
it is or is to be a party, and the consummation of the financing transactions evidenced by each
Credit Document to which it is a party, are within the Borrower’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 the Borrower’s charter, bylaws, 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



36









 






material contract or instrument binding on or affecting the Borrower, any of its Subsidiaries
or any of their properties or (iv) result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of the Borrower or any of its Subsidiaries.




          (d) No Governmental Authorization, and no notice to or filing with, any Governmental
Authority or any other third party is required for (i) the due execution, delivery, recordation,
filing or performance by the Borrower of any Credit Document to which it is or is to be a party,
or for the consummation of the financing transactions described herein or (ii) the exercise by the
Administrative Agent or any Lender of its rights under the Credit Documents, except 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 the Financial Industry Regulatory
Authority’s NASD Rule 1017 or any similar rule under the Commodities Exchange Act.




          (e) This Agreement has been, and each other Credit Document when delivered hereunder will
have been, duly executed and delivered by the Borrower party thereto. This Agreement is, and each
other Credit Document when delivered hereunder will be, the legal, valid and binding obligation of
the Borrower party thereto, enforceable against the Borrower in accordance with its 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.




          (f) Except as set forth in the financial statements referred to in Section 3.01(h), there is
no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its
Subsidiaries, including any Environmental Action, pending or, to the knowledge of the Borrower,
threatened before any Governmental Authority or arbitrator that (i) could reasonably be expected
to have a Material Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of any Credit Document or the consummation of the financing transactions evidenced
hereby and by the other Credit Documents.




          (g) The audited Consolidated balance sheet of the Borrower and its Subsidiaries as at
September 30, 2010, and the related audited Consolidated statement of income and audited
Consolidated statement of cash flows of the Borrower and its Subsidiaries for the Fiscal Year then
ended, accompanied by an unqualified opinion of Ernst & Young LLP, independent public accountants,
copies of which have been made available to each Lender, fairly present in all material respects
the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the
Consolidated results of operations of the Borrower and its Subsidiaries for the period ended on
such date, all in accordance with GAAP applied on a consistent basis. The Borrower’s FOCUS-II
Report for the fiscal quarter ended December 30, 2010 is true and complete in all material
respects. The Borrower’s FOCUS-II Report for the fiscal quarter ended March 31, 2011 is true and
complete in all material respects. All such audited financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved





37












 




(except as approved by the aforementioned firm of accountants and disclosed therein).
Since September 30, 2010, there has been no Material Adverse Effect.




          (h) [Reserved].




          (i) Neither the Information Memorandum nor any of the other reports, financial statements,
certificates or other written information, other than forward-looking information (including any
projections) and information of a general economic or general industry nature, furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered or made available hereunder (as modified or
supplemented by other information so furnished, and all filings of the Borrower or any of its
Subsidies that have been made with the SEC), taken as a whole, when furnished contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which such statements were made, not materially
misleading.




          (j) No proceeds of any Loan will 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, as in effect from time to time.




          (k) The Borrower is not, nor is it required to be, registered as an “investment company”
under the Investment Company Act of 1940, as amended. Neither the making of any Loans, nor the
application of the proceeds or repayment thereof by the Borrower, nor the consummation of the
other transactions contemplated by the Credit Documents, will violate any provision of any such
Act or any rule, regulation or order of the SEC thereunder.




          (l) As of the Effective Date, the Borrower and its Subsidiaries are, taken as a whole,
Solvent.




          (m) (i) No ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan which could reasonably be expected to result in a Material Adverse Effect.





     (ii) Schedule B (Actuarial Information) to the most recent annual report (Form
5500 Series) for each Single Employer Plan, copies of which have been filed with the
Internal Revenue Service and will be made available to the Lenders upon a written
request to the Borrower, is complete and accurate in all material respects and
fairly presents the funding status of such Single Employer Plan.




     (iii) Neither the Borrower nor any ERISA Affiliate has incurred or to the
knowledge of the Borrower or ERISA Affiliate, is reasonably expected to incur any
Withdrawal Liability to any Multiemployer Plan which could reasonably be expected to
result in a Material Adverse Effect.




     (iv) Neither the Borrower nor any ERISA Affiliate has been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA,



38









 







and, to the knowledge of the Borrower or ERISA Affiliate, no such Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA.



          (n) The operations and properties of the Borrower and each of its Subsidiaries comply in all
material respects with all applicable Environmental Laws and Environmental Permits, and, to the
Borrower’s knowledge, no circumstances exist that could form the basis of an Environmental Action
against the Borrower or any of its Subsidiaries or any of their properties that could reasonably
be expected to have a Material Adverse Effect.




          (o) The Borrower and each of its Subsidiaries and Affiliates has filed, has caused to be
filed or has been included in all Federal and State and other material Tax returns required to be
filed by it and has paid all Taxes due, except (i) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set
aside on its books adequate reserves or (ii) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.




          (p) The Borrower (i) is a broker and dealer subject to the provisions of Regulation T of the
Board, (ii) maintains procedures and internal controls reasonably designed to ensure compliance
with the provisions of Regulation T, (iii) is a member in good standing of FINRA and (iv) is duly
registered as a broker dealer with the SEC and in each state where the conduct of a material
portion of its business requires such registration.




ARTICLE IV




Conditions



          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans hereunder
shall not become effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):




          (a) The Administrative Agent (or its counsel) shall have received from each party hereto a
counterpart of this Agreement signed on behalf of such party.




          (b) The Administrative Agent shall have received a favorable written opinion (addressed to
the Administrative Agent and the Lenders and dated the Effective Date) of Sidley Austin LLP,
counsel for the Borrower, and of Kutak Rock LLP, Nebraska counsel for the Borrower, each covering
such matters relating to the Borrower, this Agreement or the Transactions as the Administrative
Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such
opinions.




          (c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrower, the authorization of the Transactions and any other legal
matters relating to the Borrower, this Agreement or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.







39









 








          (d) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.




          (e) The Lenders, Administrative Agent and the Lead Arrangers shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced
not less than two (2) Business Days prior to the Effective Date, reimbursement or payment of all
out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.




          (f) The Lenders shall have received Patriot Act and “know your customer” / anti-money
laundering documentation and information reasonably requested by the Lenders in writing at least
two (2) Business Days prior to the Effective Date.




          The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and
such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions
is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
June 28, 2011 (and, in the event such conditions are not so satisfied or waived, the Commitments
shall terminate at such time).




          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Loan is subject to the satisfaction or waiver of the following conditions:




          (a) The representations and warranties of the Borrower set forth in this Agreement or any
other Credit Document shall be true and correct in all material respects on and as of such date
(other than the representations and warranties contained in Section 3.01(f) and in the last
sentence of Section 3.01(g) and those only made as of the Effective Date).




          (b) At the time of and immediately after giving effect to such Loan, no Default or Event of
Default shall have occurred and be continuing.



Each borrowing of Loans (but excluding, for the avoidance of doubt, any conversion or continuation
of Loans) shall be deemed to constitute a representation and warranty by the Borrower on the date
thereof as to the matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Covenants of the Borrower



          SECTION 5.01. Affirmative Covenants. So long as any Loan or any other Obligation of
the Borrower under any Credit Document shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will:




          (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply,
in all material respects, with all applicable laws, rules, regulations and orders that




40









 







are material to the conduct of the business of the Borrower and its Subsidiaries taken as a
whole, such compliance to include, without limitation, compliance with Environmental Laws and
ERISA.




          (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to
pay and discharge, before the same shall become delinquent, (i) all material Taxes imposed upon it
or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon
its property; provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to pay or discharge any such Tax or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are being maintained.




          (c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to
maintain, insurance in such amounts and covering such risks, and with such deductibles or
self-insurance retentions, as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower or such Subsidiary
operates.




          (d) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause each
of its Subsidiaries to preserve and maintain (i) its legal existence and legal structure and (ii)
to the extent material to the conduct of the business of the Borrower and its Subsidiaries taken
as a whole, its rights (charter and statutory), permits, licenses, approvals, privileges and
franchises except, in the case of its Subsidiaries, to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect; provided, however, that the
Borrower and its Subsidiaries may consummate any merger, consolidation, liquidation or dissolution
permitted under Section 5.02(d) or any sale, transfer or other disposition permitted under Section
5.02(e).




          (e) Visitation Rights. At any reasonable time and from time to time, upon reasonable
prior notice, permit the Administrative Agent or any of the Lenders, or any agents or
representatives thereof, to examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of its Subsidiaries with any of their
officers and with their independent certified public accountants; provided that
representatives of the Borrower shall have the opportunity to be present at any meeting with its
independent accountants; provided further that unless (x) a Default has occurred
and is continuing or (y) the Administrative Agent reasonably believes an event has occurred that
has a Material Adverse Effect, (i) the Lenders shall coordinate the exercise of their visitation
and inspection rights under this Section 5.01(e) through the Administrative Agent and limit the
exercise of such rights to one time per Fiscal Year, and (ii) neither the Borrower nor any of its
Subsidiaries shall be required to pay or reimburse any costs and expenses incurred by any Lender
in connection with the exercise of such rights.




          (f) Keeping of Books. (i) Keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which true and correct entries shall be made of all material
financial transactions and the assets and business of the Borrower and each such Subsidiary and
(ii) maintain, and cause each of its Subsidiaries to maintain, a system of



41









 






accounting established and maintained in conformity, in all material respects, with generally
accepted accounting principles in effect from time to time.




          (g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of its
Subsidiaries to maintain and preserve, all of its properties that are used or useful in the
conduct of its business in good working order and condition, ordinary wear and tear excepted
except to the extent that the failure to do so could not reasonably be expected to have a Material
Adverse Effect.




          (h) [Reserved].




          (i) Further Assurances. (i) Promptly upon request by the Administrative Agent, or
any Lender through the Administrative Agent, correct, and cause each of its Subsidiaries promptly
to correct, any material defect or error that may be discovered in any Credit Document to which it
is a party or in the execution or acknowledgment thereof, and




          (ii) Promptly upon request by the Administrative Agent, or any Lender through the
Administrative Agent, do, execute, acknowledge, deliver, any and all such further acts and other
instruments as the Administrative Agent, or the Required Lenders through the Administrative Agent,
may reasonably require from time to time in order to carry out more effectively the purposes of the
Credit Documents, and cause each of its Subsidiaries to do so.




          (j) Use of Proceeds. The proceeds of the Loans shall be available (and the Borrower
agrees that it shall use such proceeds) solely to fund working capital needs and for general
corporate purposes of the Borrower.




          SECTION 5.02. Negative Covenants. So long as any Loan or any other Obligation of the
Borrower under any Credit Document shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will not, at any time:




          (a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with respect to any of
its properties of any character (including, without limitation, accounts) whether now owned or
hereafter acquired or, except to the extent otherwise permitted under Section 5.02(e), assign, or
permit any of its Subsidiaries to assign, any accounts or other right to receive income, except:





     (i) Liens created under the Credit Documents;




     (ii) Permitted Encumbrances;




     (iii) Liens created, incurred, assumed or suffered to exist in the ordinary course of
business upon assets owned by the Borrower or any Subsidiary or as to which the Borrower or
any Subsidiary has rights to create Liens thereon or held for its account to secure
liabilities or obligations, actual or contingent, incurred in the ordinary course of
business, including Liens in favor of clearing houses, clearing brokers or other entities
providing clearing services and borrowings collateralized by client assets in the ordinary
course of business; and



42









 






     (iv) Liens securing Debt and other liabilities of the Borrower or any of its
Subsidiaries in an aggregate outstanding amount not to exceed at any time (x) 15% of
shareholders’ equity of the Borrower determined in accordance with GAAP, as shown on the
most recent Consolidated balance sheet of the Borrower and its Subsidiaries delivered
pursuant to Section 5.03(b) or (c), minus (y) the aggregate principal amount of any Debt
(other than Debt secured by such Liens permitted under this clause (iv)) of any such
Subsidiaries then outstanding under Section 5.02(b)(xv);



          (b) Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries
to create, incur, assume or suffer to exist, any Debt, except:





     (i) Debt under the Credit Documents;




     (ii) Surviving Debt and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, such Debt; provided that the terms of any such
extending, refunding or refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are otherwise permitted by the Credit Documents;
provided further that the principal amount of any Surviving Debt shall not
be increased above the principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing plus accrued interest thereon and reasonable expenses
and fees incurred in connection therewith, and the Borrower or any Subsidiary shall not be
added as an additional direct or contingent obligor with respect thereto, as a result of or
in connection with such extension, refunding or refinancing; and provided
further that the terms relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other material terms taken as a whole,
of any such extending, refunding or refinancing Debt, and of any agreement entered into and
of any instrument issued in connection therewith, are no less favorable in any material
respect to the Borrower or the Lenders than the terms of any agreement or instrument
governing any Surviving Debt being extended, refunded or refinanced and the interest rate
applicable to any such extending, refunding or refinancing Debt does not exceed the then
applicable market interest rate;




     (iii) Debt in respect of Hedge Agreements designed to hedge against fluctuations in
interest rates and exchange rates incurred in the ordinary course of business and consistent
with prudent business practice;




     (iv) Debt owed to the Borrower or a wholly owned Subsidiary of the Borrower;




     (v) Debt of any Person that becomes a Subsidiary of the Borrower after the date hereof
not in contravention of this Agreement, which Debt is existing at the time such Person
becomes a Subsidiary of the Borrower (other than Debt incurred solely in contemplation of
such Person becoming a Subsidiary of the Borrower), and any Debt extending the maturity of,
or refunding or refinancing, in whole or in part, any such Debt under this clause (v);
provided that the terms of any such extending, refunding or refinancing
Debt, and of any agreement entered into and of any instrument issued in connection
therewith, are otherwise permitted by the Credit Documents; provided further



43









 







that the principal amount of the Debt being extended, refunded or refinanced shall not
be increased above the principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing plus accrued interest thereon and reasonable expenses
and fees incurred in connection therewith, and the Borrower or any Subsidiary shall not be
added as an additional direct or contingent obligor with respect thereto, as a result of or
in connection with such extension, refunding or refinancing; and provided
further that the terms relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other material terms taken as a whole,
of any such extending, refunding or refinancing Debt, and of any agreement entered into and
of any instrument issued in connection therewith, are no less favorable in any material
respect to the Borrower or the Lenders than the terms of any agreement or instrument
governing the Debt being extended, refunded or refinanced and the interest rate applicable
to any such extending, refunding or refinancing Debt does not exceed the then applicable
market interest rate;




     (vi) [Reserved];




     (vii) Debt under performance bonds, surety bonds and letter of credit obligations to
provide security for worker’s compensation claims and Debt in respect of bank overdrafts not
more than two days overdue, in each case, incurred in the ordinary course of business;




     (viii) to the extent the same constitutes Debt, obligations in respect of working
capital adjustments and/or earn-out arrangements in connection with any purchase or
acquisition;




     (ix) Ordinary Course Operating Debt;




     (x) to the extent constituting Guaranteed Debt, indemnification obligations and other
similar obligations of the Borrower and its Subsidiaries in favor of directors, officers,
employees, consultants or agents of the Borrower or any of its Subsidiaries extended in the
ordinary course of business;




     (xi) (A) unsecured Guaranteed Debt of any Subsidiary with respect to unsecured payment
Obligations of the Borrower and (B) Guaranteed Debt with respect to payment Obligations of
any Subsidiary; provided, that the underlying obligation related to such Guaranteed
Debt in this clause (B) is permitted under Section 5.02(b)(iii), (vii), (viii), (xiv) or
(xvi);




     (xii) Guaranteed Debt with respect to leases in respect of real property entered into
by any Broker-Dealer Subsidiary in the ordinary course of business;




     (xiii) contingent liabilities arising out of endorsements of checks and other
negotiable instruments for deposit or collection in the ordinary course of business;




     (xiv) Debt owing to insurance companies to finance insurance premiums incurred in the
ordinary course of business; provided that each insurance company financing such
insurance premiums agrees to give the Administrative Agent not less than



44









 







30 days’ prior written notice before termination of any insurance policy for which
premiums are being financed; and




     (xv) other Debt not otherwise permitted under this Section 5.02(b) in an aggregate
outstanding principal amount not to exceed at any time (x) 15% of shareholders’ equity of
the Borrower determined in accordance with GAAP, as shown on the most recent Consolidated
balance sheet of the Borrower and its Subsidiaries delivered pursuant to Section 5.03(b) or
(c), minus (y) the aggregate outstanding principal amount of any Debt (other than Debt
permitted under this clause (xv)) and other liabilities secured by Liens then existing and
permitted under Section 5.02(a)(iv).



          (c) Change in Nature of Business. Engage or permit any of its Subsidiaries to engage
in any material line of business substantially different from those lines of business conducted by
the Borrower and its Subsidiaries on the date hereof or any business substantially related,
incidental or ancillary thereto.




          (d) Mergers, Etc. Merge into or consolidate with any Person or permit any Person to
merge into it, or permit any of its Subsidiaries to do so, except that:





     (i) any Subsidiary of the Borrower may merge into or consolidate with the Borrower or
any other Subsidiary of the Borrower; provided that (A) in the case of any such
merger or consolidation to which the Borrower is a party, the Borrower shall be the
surviving entity and (B) in the case of any such merger or consolidation in which the
Borrower is not a party, the Person formed by such merger or consolidation shall be a wholly
owned Subsidiary of the Borrower;




     (ii) the Borrower or any Subsidiary of the Borrower may merge into or consolidate with
any other Person or permit any other Person to merge into or consolidate with it;
provided that (A) in the case of any such merger or consolidation to which the
Borrower is a party, the Borrower shall be the surviving entity and (B) in the case of any
such merger or consolidation in which the Borrower is not a party, the Person formed by such
merger or consolidation shall be a wholly owned Subsidiary of the Borrower;




     (iii) as part of any sale or other disposition permitted under Section 5.02(e), any
Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any
other Person to merge into or consolidate with it; and




     (iv) any Subsidiary of the Borrower may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best interest of the
Borrower and is not materially disadvantageous to the Lenders; provided,
however, that in each case, immediately before and after giving effect thereto, no
Default shall have occurred and be continuing.



          (e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit
any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, all or substantially all
of the assets of the Borrower and its Subsidiaries, taken as a whole, or grant any option or other
right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant




45









 







any option or other right to purchase, lease or otherwise acquire, all or substantially all
of the assets of the Borrower and its Subsidiaries, taken as a whole.




          SECTION 5.03. Reporting Requirements. So long as any Loan or any other Obligation of
the Borrower under any Credit Document shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will furnish to the Administrative Agent for prompt distribution to each
Lender electing to receive the same:




          (a) Default Notice. As soon as possible and in any event within two (2) Business Days
after any Financial Officer of the Borrower becomes aware of the occurrence of each Default or any
event, development or occurrence that could reasonably be expected to have a Material Adverse
Effect continuing on the date of such statement, a statement of the Financial Officer of the
Borrower setting forth details of such Default or event, development or occurrence and the action
that the Borrower has taken and proposes to take with respect thereto.




          (b) Annual Financials. As soon as available and in any event within 90 days after the
end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and its
Subsidiaries, including therein a Consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such Fiscal Year and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in each case
accompanied by (i) an opinion as to such audit report of Ernst & Young LLP or other independent
public accountants of nationally recognized standing and (ii) if prepared, a report of such
independent public accountants as to the Borrower’s internal controls required under Section 404
of the Sarbanes-Oxley Act of 2002, in each case certified by such accountants without a “going
concern” or like qualification or exception and without any qualification or exception as to the
scope of such audit, provided that to the extent different components of such consolidated
financial statements are separately audited by different independent public accounting firms, the
audit report of any such accounting firm may contain a qualification or exception as to scope of
such consolidated financial statements; together with (x) a certificate of a Financial Officer of
the Borrower stating that no Default has occurred and is continuing or, if a Default has occurred
and is continuing, a statement as to the nature thereof and the action that the Borrower has taken
and proposes to take with respect thereto and (y) a schedule in substantially the form of Exhibit
B of the computations used by a Financial Officer of the Borrower in determining, as of the end of
such Fiscal Year, compliance with the covenants contained in Section 5.04.




          (c) Quarterly Financials. As soon as available and in any event within 45 days after
the end of each of the first three quarters of each Fiscal Year, a copy of the Borrower’s FOCUS-II
Report for such quarter, which report shall be true and complete in all material respects, and
duly certified by a Financial Officer of the Borrower, together with (i) a certificate of said
officer stating that no Default has occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto and (ii) a schedule in substantially the form of Exhibit B
of the computations used by the Borrower in determining compliance with the covenants contained in
Section 5.04.







46









 








          (d) [Reserved].




          (e) Litigation. Promptly after the commencement thereof, notice of the commencement
of any action, suit, litigation or proceeding before any Governmental Authority affecting the
Borrower or any of its Subsidiaries, including any Environmental Action, that (i) could reasonably
be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of any Credit Document or the consummation of the financing transactions evidenced
hereby and by the other Credit Documents.




          (f) ERISA. (i) ERISA Events and ERISA Reports. Promptly and in any event
within 10 days after (A) the Borrower or any ERISA Affiliate knows or has reason to know that any
ERISA Event has occurred, which could reasonably be expected to result in a Material Adverse
Effect, a statement of a Financial Officer of the Borrower describing such ERISA Event and the
action, if any, that the Borrower or such ERISA Affiliate has taken and proposes to take with
respect thereto and (B) any Lender makes a written request to the Borrower for any records,
documents or other information furnished to the PBGC with respect to any Plan pursuant to Section
4010 of ERISA, a copy of such records, documents and information.





     (ii) Plan Terminations. Promptly and in any event within ten (10) Business Days
after receipt thereof by the Borrower or any ERISA Affiliate, copies of each notice from the
PBGC stating its intention to terminate any Plan or to have a trustee appointed to
administer any Plan under Section 4042 of ERISA.




     (iii) Plan Annual Reports. Promptly and in any event within thirty (30) days
after the written request by any Lender to the Borrower, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal
Revenue Service with respect to each Single Employer Plan.




     (iv) Multiemployer Plan Notices. Promptly and in any event within ten (10)
Business Days after receipt thereof by the Borrower or any ERISA Affiliate from the sponsor
of a Multiemployer Plan, copies of each notice concerning (A) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the amount of liability
incurred, or that may be incurred, by the Borrower or any ERISA Affiliate in connection with
any event described in clause (A) or (B), but only if such liability under (A), (B) or (C)
could reasonably be expected to result in a Material Adverse Effect.



          (g) Ratings. Promptly after Moody’s or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt, written notice of such
rating change.




          (h) Publicly Available Information. Promptly after the same become publicly
available, copies of all periodic and other reports, and other materials filed by the Borrower or
any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, as the case




47









 







may be. Filing of any such report or other material on the SEC’s EDGAR system (or any
successor thereto) or any other publicly available database maintained by the SEC shall be deemed
to satisfy the requirements of this Section 5.03(h).




          (i) Other Information. Such other information respecting the business, financial
condition or results of operations of the Borrower or any of its Subsidiaries as the
Administrative Agent, or any Lender through the Administrative Agent, may from time to time
reasonably request.




          Financial statements required to be delivered pursuant to Section 5.03(b) or (c) (to the extent any
such documents are included in materials otherwise filed with the SEC) or 5.03(h) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which
the Parent or the Borrower files such documents on the SEC’s EDGAR system (or any successor
thereto) or any other publicly available database maintained by the SEC, or provides a link thereto
on the Parent’s website on the Internet, to which each Lender and the Administrative Agent have
access; or (ii) on which such documents are posted on the Borrower’s behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that upon the written request of the Administrative
Agent or any Lender, the Borrower shall deliver paper copies of such documents to the
Administrative Agent or such Lender, as the case may be. The Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the financial statements referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower with any
such request for delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.




          SECTION 5.04. Financial Covenants. So long as any Loan or any other Obligation of the
Borrower under any Credit Document shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will:




          (a) Minimum Consolidated Tangible Net Worth. Maintain at all times a Consolidated
Tangible Net Worth of not less than the Minimum TNW.




          (b) Regulatory Net Capital. Maintain at all times Regulatory Net Capital in
compliance with applicable law but in no event less than five percent (5%) of its aggregate debit
items calculated using the alternative standard for net capital calculation.




ARTICLE VI




Events of Default



          SECTION 6.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:




          (a) (i) the Borrower shall fail to pay any principal of any Loan when the same shall become
due and payable or (ii) the Borrower shall fail to pay any interest on any Loan, or the Borrower
shall fail to make any other payment under any Credit Document, in




48









 





each case under this clause (ii) within three (3) Business Days after the same shall become
due and payable; or




          (b) any representation or warranty made by the Borrower (or any of its officers) under or in
connection with any Credit Document shall prove to have been incorrect in any material respect
when made; or




          (c) the Borrower shall fail to perform or observe any term, covenant or agreement contained
in Section 5.01(d) (solely with respect to the existence of the Borrower), (e), (h) or (j), 5.02,
5.03 or 5.04(a) or (c); or




          (d) (i) the Borrower shall fail to perform or observe any other term, covenant or agreement
contained in Section 5.04(b) and such failure shall remain unremedied for five (5) Business Days
or (ii) the Borrower shall fail to perform or observe any other term, covenant or agreement
contained in any Credit Document (other than described in Section 6.01(a), (b), (c) or (d)(i)) on
its part to be performed or observed if such failure shall remain unremedied for 30 days after the
earlier of the date on which (A) any Financial Officer becomes aware of such failure or (B)
written notice thereof shall have been given to the Borrower by the Administrative Agent or any
Lender; or




          (e) the Borrower or any of its Subsidiaries shall fail to pay any principal of, premium or
interest on or any other amount payable in respect of any Debt of the Borrower or such Subsidiary
(as the case may be) that is outstanding in a principal amount (or, in the case of any Hedge
Agreement, an Agreement Value) of at least $75,000,000 either individually or in the aggregate for
all the Borrower and Subsidiaries (but excluding Debt outstanding hereunder), when the same
becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause, such Debt
to mature; or any such Debt shall be declared to be due and payable or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or




          (f) (i) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (A) liquidation, reorganization or other relief in respect of the Borrower or any
Significant Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or
(B) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Significant Subsidiary or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be entered or (ii) the Borrower
or any Significant Subsidiary shall (A) voluntarily commence



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any proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter
in effect, (B) consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (f)(i) of this Article, (C) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Significant Subsidiary or for a substantial part of its assets,
(D) file an answer admitting the material allegations of a petition filed against it in any such
proceeding, (E) make a general assignment for the benefit of creditors or (F) take any corporate
board action to authorize any of the foregoing; or




          (g) any judgments or orders, either individually or in the aggregate, for the payment of
money in excess of $75,000,000 shall be rendered against the Borrower or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 10 consecutive days during which the
payment for such judgment or order shall remain unsatisfied and a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such amount shall be calculated after deducting from
the sum so payable any amount of such judgment or order that is covered by a valid and binding
policy of insurance in favor of the Borrower or Subsidiary from an insurer that is rated at least
“A” by A.M. Best Company, which policy covers full payment thereof and which insurer has been
notified, and has not disputed the claim made for payment, of such amount of such judgment or
order; or




          (h) any provision of any Credit Document after delivery thereof pursuant to Section 4.01 or
5.01(h) shall for any reason cease to be valid and binding on or enforceable against the Borrower
party to it, or the Borrower shall so state in writing except to the extent the Borrower has been
released from its obligations thereunder in accordance with this Agreement or such other Credit
Document or such Credit Document has expired or terminated in accordance with its terms; or




          (i) a Change of Control shall occur; or




          (j) any ERISA Event shall have occurred with respect to a Single Employer Plan which could
reasonably be expected to result in liability to the Borrower and/or any ERISA Affiliate in an
amount that could reasonably be expected to have a Material Adverse Effect; or




          (k) the Borrower or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an
amount that, when aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower and the ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), could reasonably be expected to have a Material Adverse Effect; or




          (l) the Borrower or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, and as a result of such reorganization or



50









 






termination the aggregate annual contributions of the Borrower and the ERISA Affiliates to
all Multiemployer Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such reorganization or
termination occurs by an amount that could reasonably be expected to have a Material Adverse
Effect;



then, and in every such event (other than an event with respect to the Borrower described in clause
(f) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or further notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (f) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.




ARTICLE VII




[Reserved]



ARTICLE VIII



The Administrative Agent, Syndication Agent and Co-Documentation Agents




          Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.




          The bank serving as the Administrative Agent, the bank serving as Syndication Agent hereunder
and the banks serving as Co-Documentation Agents shall have the same rights and powers in their
capacities as Lenders as any other Lender and may exercise the same as though it were not the
Administrative Agent, the Syndication Agent or a Co-Documentation Agent, and such banks and their
Affiliates may accept deposits from, lend money to and generally engage in any kind of business
with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent, the Syndication Agent or a Co-Documentation Agent hereunder.







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          The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Neither the Syndication Agent nor the Co-Documentation Agents shall have any duties
or responsibilities hereunder in their respective capacities as such. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing as directed by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth herein, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained
by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent, the Syndication Agent and the Co-Documentation Agents shall not be liable for
any action taken or not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent, the Syndication Agent and the Co-Documentation Agents shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.




          The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.




          The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as the activities as Administrative Agent.





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          Subject to the appointment and acceptance of a successor Administrative Agent as provided
in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent
of the Borrower, which consent shall not be unreasonably withheld or delayed and shall not be
required if any Event of Default shall be continuing) to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to
a successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while it was acting
as Administrative Agent.



          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent, the Syndication Agent, the Co-Documentation Agents or any other Lender and
based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Syndication Agent, the
Co-Documentation Agents or any other Lender and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any related agreement or any document furnished
hereunder or thereunder.



ARTICLE IX




Miscellaneous



          SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:




     (i) if to the Borrower, to it at TD AMERITRADE Clearing, Inc. 4211 So. 102nd Street,
Omaha, NE 68127, Attention: Managing Director, Treasury, Fax: 402-827-8663, E-mail
Address: James.Powell@tdameritrade.com, with a copy to TD AMERITRADE Clearing, Inc., 6940
Columbia Gateway Drive, Suite 200, Columbia, Maryland 21046, Attention: Deputy General
Counsel, Fax: 443-539-2209, E-mail Address: David.Lambert@tdameritrade.com;



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     (ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention: Siraz Maknojia,
Fax: 713-374-4312, Email Address: Siraz.x.maknojia@jpmorgan.com, with a copy to Carla
Kinney, Fax: 713-374-4312, Email Address: Carla.m.kinney@chase.com; and




     (iii) if to any other Lender, to it at its address (or facsimile number) set forth in
its Administrative Questionnaire.



          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent and the
Borrower; provided that the foregoing shall not apply to notices pursuant to Article II
unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or communications.



          (c) Any party hereto may change its address or electronic communication or facsimile number
for notices and other communications hereunder by notice to the other parties hereto. All notices
and other communications given to any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of receipt.



          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default
at the time.



          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount
of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of



54









 




each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would alter
the pro rata sharing of payments required thereby, without the written consent of each Lender
adversely affected thereby, (v) change Section 2.20 without the consent of the Swingline Lenders
or (vi) change any of the provisions of this Section or reduce any number or percentage set forth
in the definition of “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or the Swingline Lenders hereunder without the
prior written consent of the Administrative Agent or the Swingline Lenders, as the case may be.




          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable out of pocket expenses incurred by the Administrative Agent, the Lead Arrangers and each
of their respective Affiliates, including the reasonable fees, charges and disbursements of one law
firm acting as primary counsel for the Administrative Agent and the Lead Arrangers and any
additional special counsel to the Administrative Agent and the Lead Arrangers engaged after
consultation with the Borrower, in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the transactions contemplated
hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the reasonable and documented fees, charges and
disbursements of one law firm acting as primary counsel for the Administrative Agent and the
Lenders and any additional special counsel to the Administrative Agent and the Lenders engaged
after consultation with the Borrower, in connection with the enforcement or protection of its
rights in connection with this Agreement, including its rights under this Section, or in connection
with the Loans made hereunder, including all such out-of pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans and (iii) any charges of
IntraLinks/IntraAgency or other relevant website or CUSIP charges.



          (b) The Borrower shall indemnify the Administrative Agent, the Syndication Agent, the
Co-Documentation Agents, the Lead Arrangers and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations hereunder or the consummation of
the Transactions or any other transactions contemplated hereby, (ii) any Loan or the use of the
proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Action relating in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that



55









 




such losses, claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee, or the breach in bad faith of any of such
Indemnitee’s express obligations hereunder, and provided further, that this
Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses
or damages arising from any non-Tax claim.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Swingline Lenders under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent or the Swingline Lenders, as the case
may be, such Lender’s Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Administrative Agent or the Swingline Lenders
in their capacities as such.



          (d) To the extent permitted by applicable law, no party hereto shall assert, and hereby
waives, any claim against the Borrower or any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof; provided that
this shall not limit the Borrower’s indemnification obligations pursuant to Section 9.03(b).



          (e) All amounts due under this Section shall be payable promptly after written demand
therefor.



          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to
the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.



          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld) of:




               (A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved



56









 




Fund or, if an Event of Default has occurred and is continuing, any other
assignee; and





               (B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any Commitment to an
assignee that is a Lender with a Commitment immediately prior to giving effect to
such assignment.



          (ii) Assignments shall be subject to the following additional conditions:




               (A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, provided that no such consent of the Borrower shall
be required if an Event of Default has occurred and is continuing;




               (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans;




               (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; and




               (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more Credit Contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and its
related parties or their respective securities) will be made available and who may
receive such information in accordance with the assignee’s compliance procedures and
applicable laws, including Federal and state securities laws.



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:



          “Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



57









 





          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue, to the extent permitted by applicable
law, to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of this Section.



          (iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be conclusive, and
the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.



          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning Lender
or the assignee shall have failed to make any payment required to be made by it pursuant to Section
2.05(c), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to accept
such Assignment and Assumption and record the information therein in the Register unless and until
such payment shall have been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.



          (vi) Any Lender may, without the consent of the Borrower, the Administrative Agent or the
Swingline Lenders, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this



58









 




Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. The Borrower agrees that, to the extent permitted
by applicable law, each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and
2.17 (subject to the requirements and limitations therein, including the requirements under Section
2.17(f) (it being understood that the documentation required under Section 2.17(f) shall be
delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section; provided that such
Participant (A) agrees to be subject to the provisions of Sections 2.15 and 2.17 as if it were an
assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater
payment under Sections 2.15 or 2.17, with respect to any participation, than its participating
Lender would have been entitled to receive, except to the extent such entitlement to receive a
greater payment results from an adoption of or any Change in Law made subsequent to the date hereof
that occurs after the Participant acquired the applicable participation. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of
the Borrower, maintain a register on which it enters the name and address of each Participant and
the principal amounts (and stated interest) of each Participant’s interest in the Loans or other
obligations under this Agreement (the “Participant Register”); provided that no
Lender shall have any obligation to disclose all or any portion of the Participant Register to any
Person (including the identity of any Participant or any information relating to a Participant’s
interest in any Commitments, Loans or its other obligations under any Credit Document) except to
the extent that such disclosure is necessary to establish that such Commitment, Loan or other
obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and
such Lender shall treat each person whose name is recorded in the Participant Register as the owner
of such participation for all purposes of this Agreement notwithstanding any notice to the
contrary.




          (c) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice or



59









 




knowledge of any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans and the Commitments or the termination of this Agreement or any provision
hereof.




          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by email or facsimile transmission shall
be effective as delivery of a manually executed counterpart of this Agreement.



          SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time owing by such
Lender to or for the credit or the account of the Borrower against any of and all the obligations
of the Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender may have.



          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.



          (b) The parties hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding



60









 




arising out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement against the Borrower
or its properties in the courts of any jurisdiction.




          (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.



          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.



          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



          SECTION 9.12. Confidentiality. (a) Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (ii) to the extent requested by
any regulatory authority, (iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iv) to any other party to this Agreement, (v) in connection



61









 




with the exercise of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder (with respect to litigation brought by any Person
other than the Administrative Agent, the Borrower or any Lender Party, after the Borrower shall
have had notice thereof and the opportunity to seek a protective order or other appropriate remedy
with respect thereto), (vi) subject to an agreement containing provisions no less restrictive than
those of this Section to (A) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (B) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (vii) with the consent of the Borrower or (vii) to the extent such
Information (A) becomes publicly available other than as a result of a breach of this Section or
(B) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a
source other than the Borrower. For the purposes of this Section, “Information” means all
information received from the Borrower relating to the Borrower or its business, other than any
such information that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.




          (b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.



          (c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER
OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO
THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE
QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.



          SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively



62









 




the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”)
which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan
in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by
such Lender.




          SECTION 9.14. USA PATRIOT ACT. Each Lender hereby notifies the Borrower that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender to identify the Borrower in accordance with the
Patriot Act.



          SECTION 9.15. No Fiduciary Duty. Neither the Administrative Agent nor any Lender has
any fiduciary relationship with or duty to the Borrower or its Affiliates arising out of or in
connection with this Agreement or any of the other Credit Document, and the relationship between
Administrative Agent and Lenders, on one hand, and the Borrower or its Affiliates, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor.



63









 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	TD AMERITRADE CLEARING, INC.,

as Borrower

 	 
	 	By:  	/s/
William J. Gerber	 
	 	 	Name:  	William J. Gerber	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	JPMORGAN CHASE BANK, N.A., as 

Administrative Agent,Swingline Lender and as a 

Lender

 	 
	 	By:  	/s/
Catherine Grossman	 
	 	 	Name:  	Catherine Grossman	 
	 	 	Title:  	Vice President	 
	 
	 	BANK OF AMERICA, N.A., as Syndication Agent,

Swingline Lender and as a Lender

 	 
	 	By:  	/s/
Sherman M. Wong	 
	 	 	Name:  	Sherman M. Wong	 
	 	 	Title:  	Director	 
	 
	 	BARCLAYS BANK PLC,
 as a Lender

 	 
	 	By:  	/s/
Alicia Borys	 
	 	 	Name:  	Alicia Borys	 
	 	 	Title:  	Vice President	 
	 
	 	CITIBANK, N.A., as a Co-Documentation Agent 

and as a Lender

 	 
	 	By:  	/s/
William Mandaro	 
	 	 	Name:  	William Mandaro	 
	 	 	Title:  	Director	 
	 



[Signature Page to the TD Ameritrade Clearing, Inc. Credit Agreement]





 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as a Co-Documentation Agent and
as a Lender

 	 
	 	By:  	/s/
Michael H. Wheeler 	 
	 	 	Name:  	Michael H. Wheeler 	 
	 	 	Title:  	Vice President	 
	 
	 	 
	 	BANKERS TRUST COMPANY, as a
Lender


 	 
	 	By:  	/s/
Joe M. DeJong	 
	 	 	Name:  	Joe M. DeJong	 
	 	 	Title:  	Vice President	 
	 
	 	 
	 	CHANG HWA COMMERCIAL BANK,
LTD.,
LOS ANGELES BRANCH, as a Lender


 	 
	 	By:  	/s/
Beverley Chen	 
	 	 	Name:  	Beverley Chen	 
	 	 	Title:  	VP & General Manager	 
	 
	 	 
	 	E. SUN COMMERCIAL BANK, LTD., 

LOS ANGELES BRANCH, as a Lender

 	 
	 	By:  	/s/
Edward Chen	 
	 	 	Name:  	Edward Chen	 
	 	 	Title:  	VP & General Manager	 
	 
	 	 
	 	FIFTH THIRD BANK, as a Lender

 	 
	 	By:  	/s/
Lynn Hebel	 
	 	 	Name:  	Lynn Hebel	 
	 	 	Title:  	Vice President	 
	 
	 	 
	 	FIRST COMMERCIAL BANK NEW YORK,
as a Lender

 	 
	 	By:  	/s/
Jason Lee
	 
	 	 	Name:  	Jason Lee	 
	 	 	Title:  	General Manager	 
	 
	 	 
	 	FIRST NATIONAL BANK OMAHA,


as a Lender

 	 
	 	By:  	/s/
Steven R. Knapp
	 
	 	 	Name:  	Steven R. Knapp	 
	 	 	Title:  	Senior Vice President & Group Manager	 
	 
	 	 
	 	HUA NAN COMMERCIAL BANK, LTD., 

NEW YORK AGENCY,
as a Lender

 	 
	 	By:  	/s/
Henry Hsieh	 
	 	 	Name:  	Henry Hsieh	 
	 	 	Title:  	Assistant Vice President	 
	 
	 	 
	 	MEGA INTERNATIONAL COMMERCIAL BANK
CO., LTD. NEW YORK BRANCH,
as a Lender

 	 
	 	By:  	/s/
Priscilla Hsing	 
	 	 	Name:  	Priscilla Hsing	 
	 	 	Title:  	VP & DGM	 
	 
	 	 
	 	THE BANK OF NEW YORK MELLON,
as a Lender

 	 
	 	By:  	/s/
Steven J. Correll	 
	 	 	Name:  	Steven J. Correll	 
	 	 	Title:  	Managing Director	 
	 
	 	 
	 	THE PRIVATE BANK,
as a Lender

 	 
	 	By:  	/s/
John Mickelson	 
	 	 	Name:  	John Mickelson	 
	 	 	Title:  	Associate Managing Director	 
	 
	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,
as a Lender

 	 
	 	By:  	/s/
Charles Howes	 
	 	 	Name:  	Charles Howes	 
	 	 	Title:  	Vice President	 



[Signature Page to the TD Ameritrade Clearing, Inc. Credit Agreement]