exv10w1






Exhibit 10.1





 





$300,000,000




CREDIT AGREEMENT



dated as of



June 28, 2011



among



TD AMERITRADE HOLDING CORPORATION,

as Borrower



TD AMERITRADE ONLINE HOLDINGS CORP.,

as Guarantor



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

	 	 	20	 
	SECTION 1.03. Terms Generally

	 	 	20	 
	SECTION 1.04. Accounting Terms; GAAP

	 	 	21	 
	SECTION 1.05. Pro Forma Calculations

	 	 	21	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	The Credits
	 	 	 	 
	SECTION 2.01. Commitments

	 	 	21	 
	SECTION 2.02. Loans and Borrowings

	 	 	22	 
	SECTION 2.03. Requests for Revolving Borrowings

	 	 	22	 
	SECTION 2.04. [Reserved]

	 	 	23	 
	SECTION 2.05. Swingline Loans

	 	 	23	 
	SECTION 2.06. [Reserved].

	 	 	24	 
	SECTION 2.07. Funding of Loans

	 	 	24	 
	SECTION 2.08. Interest Elections

	 	 	25	 
	SECTION 2.09. Termination and Reduction of Commitments

	 	 	26	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt

	 	 	26	 
	SECTION 2.11. Prepayment of Loans

	 	 	27	 
	SECTION 2.12. Fees

	 	 	27	 
	SECTION 2.13. Interest

	 	 	28	 
	SECTION 2.14. Alternate Rate of Interest

	 	 	29	 
	SECTION 2.15. Increased Costs

	 	 	29	 
	SECTION 2.16. Break Funding Payments

	 	 	30	 
	SECTION 2.17. Taxes

	 	 	31	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs

	 	 	34	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders

	 	 	35	 
	SECTION 2.20. Defaulting Lenders

	 	 	36	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Representations and Warranties
	 	 	 	 
	SECTION 3.01. Representations and Warranties of the Borrower

	 	 	37	 






i









 






	 	 	 	 	 
	 	 	Page
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Conditions
	 	 	 	 
	SECTION 4.01. Effective Date

	 	 	41
	 
	SECTION 4.02. Each Credit Event

	 	 	42	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Covenants of the Borrower
	 	 	 	 
	SECTION 5.01. Affirmative Covenants

	 	 	42	 
	SECTION 5.02. Negative Covenants

	 	 	45	 
	SECTION 5.03. Reporting Requirements

	 	 	49	 
	SECTION 5.04. Financial Covenants

	 	 	52	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	Events of Default
	 	 	 	 
	SECTION 6.01. Events of Default

	 	 	52	 
	 
	 	 	 	 
	 ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	Guaranty
	 	 	 	 
	SECTION 7.01. Guaranty; Limitation of Liability

	 	 	55	 
	SECTION 7.02. Guaranty Absolute

	 	 	56	 
	SECTION 7.03. Waivers and Acknowledgments

	 	 	57	 
	SECTION 7.04. Subrogation

	 	 	57	 
	SECTION 7.05. Guaranty Supplements

	 	 	58	 
	SECTION 7.06. Subordination

	 	 	58	 
	SECTION 7.07. Continuing Guaranty; Assignments

	 	 	59	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	The Administrative Agent, Syndication Agent and the Co-Documentation Agents
	 	 	 	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous
	 	 	 	 
	SECTION 9.01. Notices

	 	 	62	 
	SECTION 9.02. Waivers; Amendments

	 	 	62	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver

	 	 	63	 
	SECTION 9.04. Successors and Assigns

	 	 	65	 
	SECTION 9.05. Survival

	 	 	68	 
	SECTION 9.06. Counterparts; Integration; Effectiveness

	 	 	68	 
	 
	 	 	 	 





ii









 






	 	 	 	 	 
	 	 	Page
	SECTION 9.07. Severability

	 	 	68	 
	SECTION 9.08. Right of Setoff

	 	 	69	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process

	 	 	69	 
	SECTION 9.10. WAIVER OF JURY TRIAL

	 	 	69	 
	SECTION 9.11. Headings

	 	 	70	 
	SECTION 9.12. Confidentiality

	 	 	70	 
	SECTION 9.13. Interest Rate Limitation

	 	 	71	 
	SECTION 9.14. USA PATRIOT ACT

	 	 	71	 
	SECTION 9.15. No Fiduciary Duty

	 	 	71	 
	 
	 	 	 	 
	SCHEDULES:
	 	 	 	 
	 
	 	 	 	 
	Schedule II — Guarantors
	 	 	 	 
	Schedule 2.01  — Commitments
	 	 	 	 
	Schedule 3.01(b) — Subsidiaries
	 	 	 	 
	 
	 	 	 	 
	EXHIBITS:
	 	 	 	 
	 
	 	 	 	 
	Exhibit A — Form of Assignment and Assumption
	 	 	 	 
	Exhibit B — Leverage Ratio and Interest Coverage Ratio Computations
	 	 	 	 
	Exhibit C — Form of Guaranty Supplement
	 	 	 	 
	Exhibit D — Form of U.S. Tax Certificate
	 	 	 	 






iii









 




          CREDIT AGREEMENT dated as of June 28, 2011, among TD AMERITRADE HOLDING CORPORATION, a
Delaware corporation (the “Borrower”), TD AMERITRADE ONLINE HOLDINGS CORP., a Delaware
corporation and wholly-owned subsidiary of the Borrower, as a Guarantor, 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:


          “ABR” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate
in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and
(c) the Eurodollar Rate that would be calculated as of such day (or, if such day is not a Business
Day, as of the next preceding Business Day) in respect of a proposed Eurodollar Loan with a
one-month Interest Period plus 1.0%. Any change in the ABR due to a change in the Prime Rate, the
Federal Funds Effective Rate or such Eurodollar Rate shall be effective as of the opening of
business on the day of such change in the Prime Rate, the Federal Funds Effective Rate or such
Eurodollar Rate, respectively.


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


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


          “Additional Guarantor” has the meaning assigned to such term in Section 7.05.


          “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 any Credit Party or any of its



1









 







          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) such Credit
Party or 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 ABR 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 “ABR 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:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Index Debt Ratings:	 	ABR Spread	 	 	Eurodollar Spread	 	 	Commitment Fee Rate	 
	Category 1:
Index Debt Ratings of at least A
by S&P/A2 By Moody’s
	 	 	0.25	%	 	 	1.25	%	 	 	0.15	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 2:
Index Debt Ratings of at least A-
by S&P/A3 By Moody’s and not
Category 1
	 	 	0.50	%	 	 	1.50	%	 	 	0.20	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3:
Index Debt Ratings of at least
BBB+ by S&P/Baa1 by Moody’s and
not Category 1 or 2
	 	 	0.75	%	 	 	1.75	%	 	 	0.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 4:
Index Debt Ratings of at least BBB
by S&P/Baa2 by Moody’s and not
Category 1, 2 or 3
	 	 	1.00	%	 	 	2.00	%	 	 	0.30	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 5:
Index Debt Ratings below Category 4
	 	 	1.25	%	 	 	2.25	%	 	 	0.375	%





          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



2









 








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 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.



3









 




          “Broker-Dealer Subsidiary” means any Subsidiary of any Credit Party 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.


          “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



4









 





contract or arrangement that, upon consummation, will result in its or their acquisition of
control of, in either case, Voting Interests of the Borrower (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 Borrower, 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 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 Borrower (or other securities convertible into such Voting Interests) representing
more than 35% of the combined voting power of all Voting Interests of the Borrower; or (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 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 Borrower 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
Borrower 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



5









 





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 EBITDA” means, for any period and with respect to any Person,
Consolidated net income of such Person for such period, plus (a) without duplication and to the
extent deducted in determining such Consolidated net income, the sum of (i) Consolidated Interest
Expense of such Person for such period, (ii) Consolidated income tax expense of such Person for
such period, (iii) depreciation and amortization expense of such Person for such period, and (iv)
any other non-cash or extraordinary, unusual or nonrecurring deductions, losses or charges made in
determining Consolidated net income of such Person for such period (other than non-cash charges
resulting from mark-to-market adjustments of securities positions made in the ordinary course of
business and any deductions which require or represent the accrual of a reserve for the payment of
cash charges in any future period or amortization of a prepaid cash expense that was paid in a
prior period), minus (b) without duplication and to the extent included in determining such
Consolidated net income of such Person, any non-cash or extraordinary, unusual or nonrecurring
gains included in Consolidated net income of such Person for such period (other than non-cash gains
resulting from mark-to-market adjustments of securities positions made in the ordinary course of
business), minus (c) without duplication and to the extent included in determining such
Consolidated net income of such Person, any gains (or plus losses, charges or expenses) realized in
connection with any disposition of property of such Person during such period, all determined on a
Consolidated basis in accordance with GAAP.


          For the purposes of calculating Consolidated EBITDA for any Measurement Period pursuant to any
determination of the Leverage Ratio, (i) if at any time during such Measurement period the Borrower
or any Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such
Measurement Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive)
attributable to the property that is the subject of such Material Disposition for such Measurement
Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable
thereto for such Measurement Period and (ii) if during such Measurement Period the Borrower or any
Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for such Measurement Period
shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred
on the first day of such Measurement Period; provided that, in the case of a Material
Acquisition after the Effective Date, the Administrative Agent shall be furnished with audited
financial statements, or if audited financial statements are not available, other financial
statements reasonably acceptable to the Administrative Agent, of each entity being acquired (or if
the acquisition is of a division or branch of a larger business or a group of businesses, the
audited financial statements, or if audited financial statements are not available, other financial
statements reasonably acceptable to the Administrative Agent, of such larger business or group of
businesses, so long as the individual activities of the acquired entity are clearly reflected in
such financial statements), reasonably satisfactory to the Administrative Agent in all respects,
confirming such historical results. As used in this definition, “Material Acquisition”
means any acquisition of property or series of related acquisitions of property that (a)
constitutes assets comprising all or substantially all of an operating unit of a business or
constitutes all or substantially all of the Equity Interests



6









 





of a Person and (b) involves the payment of consideration by the Borrower and its Subsidiaries
in excess of $75,000,000; and “Material Disposition” means any sale, lease, transfer or
other disposition of any asset of the Borrower or any of its Subsidiaries that yields gross
proceeds to the Borrower or any of its Subsidiaries in excess of $75,000,000.



          “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.


          “Credit Parties” means the Borrower and the Guarantors.


          “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.


          “Debt for Borrowed Money” of any Person means, at any date of determination, without
duplication, the sum of (a) all items that, in accordance with GAAP, would be classified as
indebtedness on a Consolidated balance sheet of such Person at such date (including Obligations in
respect of non-contingent reimbursement obligations pursuant to letters of credit) and (b) all
Obligations of such Person under acceptance or similar facilities at such date;



7









 








provided that, with respect to the Borrower and its Subsidiaries, Debt for Borrowed
Money shall exclude, to the extent otherwise included in the items in clause (a) or (b) above, (i)
liabilities payable to brokers, dealers, clearing organizations, clients and correspondents, and
liabilities in respect of securities or commodities sold but not yet purchased, in each case
incurred in the ordinary course of the “broker-dealer” or “commodity futures trading” business of
the Broker-Dealer Subsidiaries, (ii) accounts payable and accrued liabilities in the ordinary
course of business of the Borrower and its Subsidiaries, (iii) to the extent constituting an
“effective” hedge in accordance with GAAP, prepaid variable forward derivative instruments and
prepaid variable forward contract obligations, (iv) notes, bills and checks presented in the
ordinary course of business by such Person to banks for collection or deposit, (v) 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 (vi) Debt of the type otherwise permitted
under clauses (vii), (viii) (to the extent contractually required to be settled in the Equity
Interests of the Borrower), (ix), (x) and (xiv) of Section 5.02(b); provided,
further that, with respect to Hedge Agreements, Debt for Borrowed Money shall include only
net payment Obligations of such Person in respect of Hedge Agreements valued at the Agreement
Value. For the purposes of calculating Debt for Borrowed Money pursuant to any determination of
the Leverage Ratio, Debt for Borrowed Money shall not include Debt incurred in the ordinary course
of business by or on behalf of Broker-Dealer Subsidiaries for working capital needs (but will not
exclude Debt for the purpose of funding regulatory capital reflected on a Consolidated balance
sheet).



          “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 any Credit Party 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 or any Credit
Party in writing, or has made a public statement to the effect, that it does not intend or expect
to comply with any of 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 a Credit Party, 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 such Credit
Party’s receipt of such certification in form and substance satisfactory to it, 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.



8









 







          “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 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.


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


          “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member
of the controlled group of any Credit Party, or under common control with any Credit Party, 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 any Credit Party or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by
any Credit Party 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



9









 





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.


          “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 any Credit Party under any
Credit Document, any of the following Taxes imposed on or with respect to a



10









 








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.


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


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


          “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



11









 





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 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 any Credit Party and any Hedge Bank.


          “Guaranteed Obligations” has the meaning specified in Section 7.01.


          “Guarantors” means the Subsidiaries of the Borrower listed on Schedule II1
hereto and each other Significant Subsidiary of the Borrower that shall be required to execute and
deliver a guaranty pursuant to Section 5.01(h) and each other Subsidiary of the Borrower that shall
have executed and delivered a Guaranty Supplement.


          “Guaranty” means the guaranty of the Guarantors set forth in Article VII, together
with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(h) and each
Guaranty Supplement, in each case as amended, amended and restated, modified or otherwise
supplemented.


          “Guaranty Supplement” has the meaning specified in Section 7.05.


          “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.





 




			
	1	 	TD Ameritrade Online Holdings to be listed on
the Schedule.




12









 









          “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 any Credit Party 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
Borrower 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 Coverage Ratio” means, for any Measurement Period, the ratio of (a)
Consolidated EBITDA of the Borrower and its Subsidiaries for such Measurement Period to (b)
Consolidated Interest Expense of the Borrower and its Subsidiaries for such Measurement Period.


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


          “Interest Expense” means, for any Measurement Period of any Person, interest payable
on all Debt for Borrowed Money of such Person during such period, in each case for or during such
Measurement Period to the extent added back in determining Consolidated EBITDA of such Person;
provided that the amortization of original issue discount, the amortization of deferred
financing, legal and accounting costs, unrealized gains and losses with respect to Hedge
Agreements, and any interest expense on deferred compensation arrangements shall be excluded from
the calculation of “Interest Expense” to the extent the same would have otherwise been
included therein.


          “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (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.



13









 







          “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”: 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.


          “Leverage Ratio” means, at any date of determination, the ratio of (a) Consolidated
Debt for Borrowed Money of the Borrower and its Subsidiaries at such date to (b) Consolidated
EBITDA of the Borrower and its Subsidiaries for the most recently completed Measurement Period.


          “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.


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



14









 







          “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 and the
Guarantors, 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.


          “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 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 any Credit Party 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 such Credit Party under any Credit Document
and (b) the obligation of such Credit Party 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 such
Credit Party.


          “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).



15









 







          “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)).


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


          “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;




16











 





          (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.




          “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.




          “Post-Petition Interest” has the meaning specified in Section 7.06(b).




          “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.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank as its prime rate in effect at its office located at 270 Park Avenue, New
York, New York; each change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.




          “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






17









 







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.




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




          “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 Securities and
Exchange Commission, 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 Securities and Exchange Commission; 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 any Credit Party or any ERISA Affiliate and no
Person other than the Credit Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Credit Party 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






18









 







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.




          “Subordinated Obligations” has the meaning specified in Section 7.06.




          “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
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 Debt
described in clauses (i), (ii), (iv) and (v) of the first proviso to the definition of “Debt
for Borrowed Money” 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.







19









 








          “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 ABR.




          “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.




          “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 any Credit Party 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






20









 







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. 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.







21









 








          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 ABR
Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan
shall be an ABR 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 ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $1,000,000; provided that an ABR
Revolving Borrowing may be in an aggregate 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 an ABR 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 ABR Loans.







22









 







If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR 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.




          (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




23









 







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].




          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 an ABR 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 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 ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.







24









 








          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 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 an ABR 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.







25









 








          (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 an ABR 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 an ABR
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 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.







26









 








          (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. 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






27









 







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.




          SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the ABR 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 ABR 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 an ABR 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, except that
interest computed by reference to the ABR at times when the ABR is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day). The applicable ABR or Eurodollar Rate shall be





28









 







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 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 an ABR 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.







29









 








          (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 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






30









 







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 any Credit Party 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 such Credit Party 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 any Credit Party to a
Governmental Authority, such Credit Party shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.




          (d) The Credit Parties 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
any Credit Party 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 any Credit Party has not already
indemnified the Administrative Agent for such Indemnified Taxes and without limiting the
obligation of the Credit Parties 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




31









 







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 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;



32









 






     (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 D (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




     (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






33









 







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, 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




34









 







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 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






35









 







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 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:





36












 






     (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 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) Each Credit Party 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.







37









 








          (b) Set forth on Schedule 3.01(b) hereto is a complete and accurate list of all Subsidiaries
of each Credit Party 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 such Credit Party 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 each Credit Party’s Subsidiaries have been
validly issued, are fully paid and non-assessable and are owned by such Credit Party or one or
more of its Subsidiaries free and clear of all Liens, except Permitted Encumbrances.




          (c) The execution, delivery and performance by each Credit Party 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 such Credit Party’s corporate, limited
liability company or limited partnership (as applicable) powers, have been duly authorized by all
necessary corporate, limited liability company or limited partnership (as applicable) action, and
do not (i) contravene such Credit Party’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 material contract or
instrument binding on or affecting any Credit Party, 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 any Credit Party 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 any Credit Party 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 each Credit Party party thereto. This Agreement is, and
each other Credit Document when delivered hereunder will be, the legal, valid and binding
obligation of each Credit Party party thereto, enforceable against such Credit Party in accordance
with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors’ rights generally and subject to





38









 







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 any Credit Party or any of its
Subsidiaries, including any Environmental Action, pending or, to the knowledge of any Credit
Party, 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 unaudited Consolidated
balance sheet of the Borrower and its Subsidiaries as at December 31, 2010, and the related
unaudited Consolidated statement of income and unaudited Consolidated statement of cash flows of
the Borrower and its Subsidiaries for the fiscal quarter then ended 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 (subject to normal year end audit adjustments), all in accordance with GAAP
applied on a consistent basis. The unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 2011, and the related unaudited Consolidated statement of income and
unaudited Consolidated statement of cash flows of the Borrower and its Subsidiaries for the fiscal
quarter then ended 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 (subject to normal year end
audit adjustments), all in accordance with GAAP applied on a consistent basis. All such financial
statements, including the related schedules and notes thereto, have been prepared in accordance
with GAAP applied consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). Since September 30, 2010, there has
been no Material Adverse Effect.




          (h) The Consolidated forecasted balance sheets, statements of income and statements of cash
flows of the Borrower and its Subsidiaries made available to each Lender electing to receive the
same pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were reasonably believed to be reasonable in light of the conditions
existing at the time such forecasts were made available to each such Lender, and represented, at
the time of such forecasts were made available to each such Lender, the Borrower’s best estimate
of its future financial performance (it being understood that any such projected financial
information is subject to significant uncertainties and contingencies, many of which are beyond
the control of the Borrower, that the Borrower




39









 







gives no assurance that such future financial performance will be realized and that actual
results may differ from that in the forecasted financial information and such differences may be
material).




          (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 Securities and Exchange Commission), 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) No Credit Party is, nor is any Credit Party 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 Securities and Exchange Commission 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 any Credit Party nor any ERISA Affiliate has incurred or to the
knowledge of any Credit Party 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 any Credit Party 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,



40









 






and, to the knowledge of any Credit Party 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 each Credit Party 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 any Credit Party or any of its Subsidiaries or any of their properties that could
reasonably be expected to have a Material Adverse Effect.




          (o) Each Credit Party 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 such Credit Party 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.




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, 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 opinion.




          (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 and each Guarantor, the authorization of the Transactions and
any other legal matters relating to the Borrower and each Guarantor, this Agreement or the
Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and
its counsel.




          (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,





41









 







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 Administrative Agent shall have received reasonably satisfactory evidence that the
Credit Agreement, dated as of January 23, 2006 among the Borrower, certain subsidiaries thereof,
The Bank of New York Mellon, as administrative agent and the other agents and lenders from time to
time parties thereto, as amended and restated on November 5, 2009, shall have been terminated and
all amounts thereunder shall have been paid in full.




          (g) The Lenders shall have received satisfactory projections through 2014.




          (h) 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
any Credit Party under any Credit Document shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will:







42









 








          (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 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 that are not Credit Parties, 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





43









 







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
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) Covenant to Guarantee Obligations. Upon any Subsidiary of the Borrower (other
than any CFC or Broker-Dealer Subsidiary or any direct or indirect Subsidiary of a CFC or
Broker-Dealer Subsidiary) becoming a Significant Subsidiary after the Effective Date (whether as a
result of the formation or acquisition of any new direct or indirect Significant Subsidiaries by
any Credit Party or otherwise), then in each case at the Borrower’s expense and within the time
period specified below (or such longer time period as the Administrative Agent may agree):





     (i) within 60 days after such Subsidiary becoming a Significant Subsidiary after the
Effective Date, cause each such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it has not already done so and provided such parent is not a CFC or a
Broker-Dealer Subsidiary or any direct or indirect Subsidiary of a CFC or Broker-Dealer
Subsidiary), to duly execute and deliver to the Administrative Agent a guaranty or guaranty
supplement, in form and substance reasonably satisfactory to the Administrative Agent,
guaranteeing the Guaranteed Obligations,




     (ii) within 60 days after such Subsidiary becoming a Significant Subsidiary after the
Effective Date, deliver to the Administrative Agent, upon the request of the Administrative
Agent in its sole discretion, (A) a signed copy of a favorable opinion, addressed to the
Administrative Agent and the other Lenders, of counsel for such Subsidiary (and if
applicable, its direct and indirect parents) acceptable to the Administrative Agent (which
counsel may be in-house counsel) as to (i) such guaranties and guaranty supplements being
legal, valid and binding obligations of each Subsidiary party thereto enforceable in
accordance with their terms, and (ii) such other matters as the Administrative Agent may
reasonably request, and (B) such documents and certificates relating to the organization,
existence and good standing of such Subsidiary as shall be reasonably requested by the
Administrative Agent.




     (iii) at any time and from time to time, cause each such Subsidiary, and cause each
direct and indirect parent of such Subsidiary (if it has not already done so and provided
such parent is not a CFC or a Broker-Dealer Subsidiary or any direct or indirect Subsidiary
of a CFC or Broker-Dealer Subsidiary), to promptly execute and deliver any and all further
instruments and documents and take all such other action as the Administrative Agent may
reasonably deem necessary or desirable in obtaining the full benefits of such guaranties and
assignments.



44









 





          (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, including the financing of acquisitions (other than hostile
acquisitions).




          SECTION 5.02. Negative Covenants. So long as any Loan or any other Obligation of any
Credit Party 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 by any Broker-Dealer
Subsidiary in the ordinary course of business upon assets owned by such Broker-Dealer
Subsidiary or as to which such Broker-Dealer 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;




     (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); and




     (v) Liens securing Debt and other liabilities of the Borrower or any of its
Subsidiaries to finance the construction or acquisition of real estate or any refinancing



45









 






thereof; provided that (i) such Liens do not at any time encumber any property
other than the property financed by such Debt or other liabilities (and proceeds thereof and
accessions and after-acquired property affixed or incorporated into the property covered by
such Lien), (ii) such Liens shall be created on or prior to or within 90 days following the
date of completion of such construction or acquisition of such real estate and (ii) the
amount of Debt or other liabilities secured thereby in any refinancing is not increased
(other than by an amount not in excess of fees and expenses, including premiums, associated
therewith).



          (b) Debt. Permit any of its Subsidiaries (other than Broker-Dealer 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 no Credit Party or Subsidiary of a Credit
Party shall 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 Credit Parties 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



46









 






connection therewith, are otherwise permitted by the Credit Documents; provided
further 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 no Credit Party or Subsidiary of a
Credit Party shall 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 Credit Parties 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) 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;




     (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;



47









 






     (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 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 and (if a Guarantor is a party to such merger or
consolidation) a Guarantor;




     (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 and (if a
Guarantor is a party to such merger or consolidation) a Guarantor;




     (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.




48












 





          (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 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.




          (f) Transactions with Affiliates. Conduct, or permit any of its Subsidiaries to
conduct, any transaction with any of its Affiliates except (i) on terms that are fair and
reasonable and at least as favorable to the Borrower or such Subsidiary as it would obtain in a
comparable arm’s length transaction with a Person that is not an Affiliate of the Borrower or such
Subsidiary, (ii) any Affiliate who is an individual may serve as director, officer, employee or
consultant of the Borrower or any of its Subsidiaries and may receive reasonable compensation and
indemnification for his or her services in such capacity, (iii) nonexclusive licenses of patents,
copyrights, trademarks, trade secrets and other intellectual property by the Borrower or any of
its Subsidiaries to the Borrower or any of its Subsidiaries and (iv) any transaction between or
among the Borrower and/or any of its Subsidiaries not involving any other Affiliate of the
Borrower.




          SECTION 5.03. Reporting Requirements. So long as any Loan or any other Obligation of
any Credit Party 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





49









 







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 Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such quarter and a Consolidated statement of
income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal quarter and ending with the end of such fiscal
quarter and a Consolidated statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and
ending with the end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding Fiscal Year, all in
reasonable detail and duly certified (subject to normal year-end audit adjustments) by a Financial
Officer of the Borrower as having been prepared in accordance with GAAP, 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.




          (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 any
Credit Party 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) any Credit Party 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 such Credit Party 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 any Credit Party 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.



50









 






     (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 any Credit Party 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 such Credit Party 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, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its shareholders generally, as the case may
be. Filing of any such report, proxy statement or other material on the Securities and Exchange
Commission’s EDGAR system (or any successor thereto) or any other publicly available database
maintained by the Securities and Exchange Commission 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 any Credit Party 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 Securities and Exchange
Commission) 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 Borrower files such documents on the Securities and
Exchange Commission’s EDGAR system (or any successor thereto) or any other publicly available
database maintained by the Securities and Exchange Commission, or provides a link thereto on the
Borrower’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






51









 







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 any
Credit Party under any Credit Document shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will:




          (a) Leverage Ratio. Maintain as of the end of the last day of each Measurement Period
a Leverage Ratio of not more than 3:00:1:00.




          (b) Regulatory Net Capital.





     (i) Cause each Broker-Dealer Subsidiary of the type described in clause (a) of the
definition of “Broker-Dealer Subsidiary” to maintain at all times Regulatory Net Capital in
compliance with applicable law but in no event less than (A) five percent (5%) of its
aggregate debit items calculated using the alternative standard for net capital calculation
or (B) the greater of (x) 150% of the required minimum net capital of such Subsidiary and
(y) 8 1/3% of the aggregate indebtedness of such Broker-Dealer Subsidiary using the
aggregate indebtedness standard for net capital calculation.




     (ii) Cause each Broker-Dealer Subsidiary of the type described in clause (b) of the
definition of “Broker-Dealer Subsidiary” to maintain at all times Regulatory Net Capital in
compliance with applicable law but in no event less than 150% of the required minimum net
capital of such Broker-Dealer Subsidiary.



          (c) Interest Coverage Ratio. Maintain for each Measurement Period an Interest
Coverage Ratio of not less than 4.00:1.00.




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 any Credit
Party shall fail to make any other payment under any Credit Document, in 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 any Credit Party (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







52









 








          (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 or any Guarantor), (e),
(h) or (j), 5.02, 5.03 or 5.04(a) or (c); or




          (d) (i) any Credit Party 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) any Credit Party 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) any Credit Party 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 such Credit Party 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 such Credit Parties 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 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,






53









 







(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 any Credit Party 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 such Credit Party 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 any Credit
Party party to it, or any such Credit Party shall so state in writing except to the extent such
Credit Party 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 any Credit Party and/or any ERISA Affiliate in an
amount that could reasonably be expected to have a Material Adverse Effect; or




          (k) any Credit Party 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 Credit Parties 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) any Credit Party 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 termination the
aggregate annual contributions of the Credit Parties 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;







54









 







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



Guaranty



          SECTION 7.01. Guaranty; Limitation of Liability. (a) Each Guarantor, jointly and
severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required prepayment or by acceleration,
demand or otherwise, of all Obligations of each other Credit Party now or hereafter existing under
or in respect of the Guaranteed Hedge Agreements and the Credit Documents (including, without
limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of
the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for
principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such Obligations being the “Guaranteed Obligations”), and agrees to pay any and
all expenses (including, without limitation, fees and expenses of counsel) incurred by the
Administrative Agent or any other Lender in enforcing any rights under this Guaranty or any other
Credit Document. Without limiting the generality of the foregoing, each Guarantor’s liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any
other Credit Party to any Lender under or in respect of the Guaranteed Hedge Agreements and the
Credit Documents but for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Credit Party.




          (b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each
other Lender, hereby confirms that it is the intention of all such Persons that this Guaranty and
the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the
Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Administrative
Agent, the other Lenders and each Guarantor hereby irrevocably agree that the Obligations of each
Guarantor under this Guaranty





55









 







at any time shall be limited to the maximum amount as will result in the Obligations of such
Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.




          SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Credit Documents, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of any Lender with respect thereto. The Obligations of each Guarantor
under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of any other Credit Party under or in respect of the Credit Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Borrower or any other Credit Party or
whether the Borrower or any other Credit Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following (other than payment in full
of the Guaranteed Obligations):




          (a) any lack of validity or enforceability of any Credit Document or any agreement or
instrument relating thereto;




          (b) any change in the time, manner or place of payment of, or in any other term of, all or
any of the Guaranteed Obligations or any other Obligations of any other Credit Party under or in
respect of the Credit Documents, or any other amendment or waiver of or any consent to departure
from any Credit Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any Credit Party or any of its
Subsidiaries or otherwise;




          (c) any taking, exchange, release or non-perfection of any collateral, or any taking, release
or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;




          (d) any manner of application of any collateral, or proceeds thereof, to all or any of the
Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or
any of the Guaranteed Obligations or any other Obligations of any Credit Party under the Credit
Documents or any other assets of any Credit Party or any of its Subsidiaries;




          (e) any change, restructuring or termination of the corporate structure or existence of any
Credit Party or any of its Subsidiaries;




          (f) any failure of any Lender to disclose to any Credit Party any information relating to the
business, condition (financial or otherwise), operations, performance, properties or prospects of
any other Credit Party now or hereafter known to such Lender (each Guarantor waiving any duty on
the part of the Lenders to disclose such information);




          (g) the failure of any other Person to execute or deliver this Agreement, any Guaranty
Supplement or any other guaranty or agreement or the release or reduction of liability of each
Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or







56









 








          (h) any other circumstance (including, without limitation, any statute of limitations) or any
existence of or reliance on any representation by any Lender that might otherwise constitute a
defense available to, or a discharge of, any Credit Party or any other guarantor or surety.




          This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by
any Lender or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or
any other Credit Party or otherwise, all as though such payment had not been made.




          SECTION 7.03. Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally
and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or dishonor and any other
notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that
any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust
any right or take any action against any Credit Party or any other Person or any collateral.




          (b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.




          (c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by any Lender that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of each Guarantor or other rights of each
Guarantor to proceed against any of the other Credit Parties or any other Person or any collateral
and (ii) any defense based on any right of set-off or counterclaim against or in respect of the
Obligations of each Guarantor hereunder.




          (d) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any
Lender to disclose to each Guarantor any matter, fact or thing relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects of any other Credit
Party or any of its Subsidiaries now or hereafter known by such Lender.




          (e) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Credit Documents and that the waivers set
forth in Section 7.02 and this Section 7.03 are knowingly made in contemplation of such benefits.




          SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower,
any other Credit Party that arise from the existence, payment, performance or enforcement of each
of the Guarantor’s Obligations under or in respect of this Guaranty or any other Credit Document,
including, without limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy






57









 







of any Lender against the Borrower or any other Credit Party or any collateral, whether or not
such claim, remedy or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower or any other Credit Party,
directly or indirectly, in cash or other property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash,
all Guaranteed Hedge Agreements shall have expired or been terminated and the Commitments shall
have expired or been terminated. If any amount shall be paid to each Guarantor in violation of the
immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the Maturity
Date and (c) the latest date of expiration or termination of all Guaranteed Hedge Agreements, such
amount shall be received and held in trust for the benefit of the Lenders, shall be segregated from
other property and funds of each Guarantor and shall forthwith be paid or delivered to the
Administrative Agent in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and all other amounts payable under this
Guaranty, whether matured or unmatured, in accordance with the terms of the Credit Documents, or to
be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty
thereafter arising. If (i) each Guarantor shall make payment to any Lender of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable
under this Guaranty shall have been paid in full in cash, (iii) the Maturity Date shall have
occurred and (iv) all Guaranteed Hedge Agreements shall have expired or been terminated, the
Lenders will, at each Guarantor’s request and expense, execute and deliver to each Guarantor
appropriate documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to each Guarantor of an interest in the Guaranteed Obligations
resulting from such payment made by each Guarantor pursuant to this Guaranty.




          SECTION 7.05. Guaranty Supplements. Upon the execution and delivery by any Person of a
guaranty supplement in substantially the form of Exhibit C hereto (each, a “Guaranty
Supplement”), (a) such Person shall be referred to as an “Additional Guarantor” and
shall become and be a Guarantor hereunder, and each reference in this Guaranty to a “Guarantor”
shall also mean and be a reference to such Additional Guarantor, and each reference in any other
Credit Document to a “Guarantor” shall also mean and be a reference to such Additional Guarantor,
and (b) each reference herein to “this Guaranty,” “hereunder,” “hereof” or words of like import
referring to this Guaranty, and each reference in any other Credit Document to the “Guaranty,”
“thereunder,” “thereof” or words of like import referring to this Guaranty, shall mean and be a
reference to this Guaranty as supplemented by such Guaranty Supplement.




          SECTION 7.06. Subordination. Each Guarantor hereby subordinates any and all debts,
liabilities and other payment Obligations owed to such Guarantor by each other Credit Party (the
“Subordinated Obligations”) to the Guaranteed Obligations to the extent and in the manner
hereinafter set forth in this Section 7.06:





     (a) Prohibited Payments, Etc. Except during the continuance of any Event of
Default under Section 6.01(a) or (f), each Guarantor may receive regularly scheduled
payments from any other Credit Party on account of the Subordinated Obligations. After the
occurrence and during the continuance of any Event of Default under Section 6.01(a)



58









 






or (f), however, unless the Required Lenders otherwise agree, each Guarantor shall
demand, accept or take any action to collect any payment on account of the Subordinated
Obligations.




     (b) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to any other Credit Party, each Guarantor agrees that the Lenders
shall be entitled to receive payment in full in cash of all Guaranteed Obligations
(including all interest and expenses accruing after the commencement of a proceeding under
any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding
(“Post-Petition Interest”)) before each Guarantor receives payment of any
Subordinated Obligations.




     (c) Turn-Over. After the occurrence and during the continuance of any Event of
Default under Section 6.01(a) or (f), each Guarantor shall, if the Administrative Agent so
requests, collect, enforce and receive payments on account of the Subordinated Obligations
as trustee for the Lenders and deliver such payments to the Administrative Agent on account
of the Guaranteed Obligations (including all Post-Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without reducing or affecting
in any manner the liability of each Guarantor under the other provisions of this Guaranty.




     (d) Administrative Agent Authorization. After the occurrence and during the
continuance of any Event of Default under Section 6.01(a) or (f), the Administrative Agent
is authorized and empowered (but without any obligation to so do), in its discretion, (i) in
the name of each Guarantor, to collect and enforce, and to submit claims in respect of, the
Subordinated Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post-Petition Interest), and (ii) to require each
Guarantor (A) to collect and enforce, and to submit claims in respect of, the Subordinated
Obligations and (B) to pay any amounts received on such obligations to the Administrative
Agent for application to the Guaranteed Obligations (including any and all Post-Petition
Interest).



          SECTION 7.07. Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty
and shall (a) remain in full force and effect until the latest of (i) the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty and (ii) the
Maturity Date, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Lenders and their successors, transferees and assigns. Without
limiting the generality of clause (c) of the immediately preceding sentence, any Lender may assign
or otherwise transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the Loans owing to it and
any Note or Notes held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender herein or otherwise, in each
case as and to the extent provided in Section 9.04. Except as expressly permitted hereunder, no
Guarantor shall have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.







59









 








ARTICLE VIII




The Administrative Agent, Syndication Agent and the 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 and the
banks serving as Co-Documentation Agents hereunder 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.




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Nether 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.







60









 








          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.




          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






61









 







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 Holding Corporation, 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 Holding Corporation,
6940 Columbia Gateway Drive, Suite 200, Columbia, Maryland 21046, Attention: Deputy
General Counsel, Fax: 443-539-2209, E-mail Address: David.Lambert@tdameritrade.com;




     (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






62









 







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 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) other than as expressly permitted
hereunder, release any Guarantor (or otherwise limit any Guarantor’s liability with respect to the
Obligations owing to Administrative Agent and the Lenders under the Guaranty), (vi) change Section
2.20 without the consent of the Swingline Lenders or (vii) 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






63









 







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 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 any Credit Party 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.







64









 








          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 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;




65












 






          (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, the Credit
Parties and their 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.



          (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.



66









 





          (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 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



67









 




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 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



68









 




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 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



69









 




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
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, any Credit Party 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



70









 




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 CREDIT
PARTIES AND THEIR 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 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.



71









 





          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 HOLDING CORPORATION, 

as Borrower

 	 
	 	By:  	/s/
William J. Gerber	 
	 	 	Name:  	William J. Gerber	 
	 	 	Title:  	EVP and Chief Financial Officer	 
	 
	 	TD AMERITRADE ONLINE HOLDINGS CORP., 

as a Guarantor

 	 
	 	By:  	/s/
William T. Yates	 
	 	 	Name:  	William T. Yates	 
	 	 	Title:  	Treasurer	 
	 
	 	JPMORGAN CHASE BANK, N.A., as 

Administrative Agent, Swingline Lender and as a
Lender

 	 
	 	By:  	/s/
Catherine Grossman	 
	 	 	Name:  	Catherine Grossman	 
	 	 	Title:  	V.P.	 
	 
	 	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	 
	 



[Signature Page to the TD Ameritrade Holding Corporation Credit Agreement]




 









 








	 	 	 	 	 	 	 	 
	 	 	 	 	CITIBANK, N.A., as a Co-Documentation Agent 

and as a Lender

 	 
	 	 	 	 	By:  	/s/
William Mandaro	 
	 	 	 	 	 	Name:  	William Mandaro	 
	 	 	 	 	 	Title:  	Director	 
	 	 	 	 
	 	 	 	 	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	 
	 	 	 	 
	Hua Nan Commercial Bank, Ltd.,

New York Agency, as a Lender

 	 	CHANG HWA COMMERCIAL BANK, LTD.,

LOS ANGELES BRANCH, as a Lender

 	 
	By: 	/s/
Henry Hsieh	 	By:  	/s/
Beverley Chen	 
	 	Name:  	Henry Hsieh	 	 	Name:  	Beverley Chen	 
	 	Title:  	Assistant Vice President	 	 	Title:  	VP & General Manager	 
	 	 	 	 
	Mega International Commercial Bank
Co., Ltd.,

New York Branch, as a Lender

 	 	E. Sun Commercial Bank, Ltd., 

Los Angeles Branch, as a Lender

 	 
	By: 	/s/
Priscilla Hsing	 	By:  	/s/
Edward Chen	 
	 	Name:  	Priscilla Hsing	 	 	Name:  	Edward Chen	 
	 	Title:  	VP & DGM	 	 	Title:  	VP & General Manager	 
	 	 	 	 
	The Bank of New York Mellon, as a
Lender

 	 	FIFTH THIRD BANK, as a Lender

 	 
	By: 	/s/
Steven J. Correll	 	By:  	/s/
Lynn Hebel	 
	 	Name:  	Steven J. Correll	 	 	Name:  	Lynn Hebel	 
	 	Title:  	Managing Director	 	 	Title:  	Vice President	 
	 	 	 	 
	The Private Bank, as a Lender

 	 	First Commercial Bank New York
Branch, as a Lender

 	 
	By: 	/s/
John Mickelson	 	By:  	/s/
Jason Lee	 
	 	Name:  	John Mickelson	 	 	Name:  	Jason Lee	 
	 	Title:  	Associate Managing Director	 	 	Title:  	General Manager	 
	 	 	 	 
	U.S. Bank National Association, as a
Lender

 	 	First National Bank Omaha, as a
Lender

 	 
	By: 	/s/
Charles Howes	 	By:  	/s/
Steven R. Knapp	 
	 	Name:  	Charles Howes	 	 	Name:  	Steven R. Knapp	 
	 	Title:  	Vice President	 	 	Title:  	Senior Vice President & Group Manager	 



[Signature Page to the TD Ameritrade Holding Corporation Credit Agreement]