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EXHIBIT 10.1
AMENDMENT AND WAIVER NO. 2 TO THE
LOAN DOCUMENTS
Dated as of December 11, 2006
AMENDMENT AND WAIVER NO. 2 TO THE LOAN DOCUMENTS (the
"Amendment")
among TD Ameritrade Holding Corporation (formerly, Ameritrade
Holding
Corporation), a Delaware corporation (the "Borrower"), the banks,
financial
institutions and other institutional lenders parties to the Credit
Agreement
referred to below (collectively, the "Lenders") and The Bank of New
York, as
administrative agent (in such capacity, the "Agent") for the
Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Guarantors, the Lenders and the Agent
have
entered into a Credit Agreement dated as of January 23, 2006 (as
heretofore
amended, the "Credit Agreement"). Capitalized terms not otherwise
defined in
this Amendment have the same meanings as specified in the Credit
Agreement.
(2) TD Ameritrade Online Holdings Corp. (formerly Ameritrade
Online
Holdings Corp.), TD Ameritrade IP Company, Inc. (formerly
Ameritrade IP Company,
Inc) and TD Ameritrade Services Company, Inc. (Ameritrade Services
Company,
Inc.) are Guarantors (collectively, the "Specified Guarantors")
whose legal
names changed in April, 2006 (collectively, the "Name
Changes").
(3) The Borrower has requested that (a) the requirements under
the
Loan Documents to give the Collateral Agent 30 days' prior written
notice of the
Name Changes and any related default be waived and (b) the Loan
Documents be
amended as hereinafter set forth.
(4) The Required Lenders are, on the terms and conditions
stated
below, willing to grant the request of the Borrower and the
Borrower and the
Required Lenders have agreed to amend the Loan Documents as
hereinafter set
forth.
SECTION 1. Amendments to Loan Documents. The Loan Documents
are,
effective as of the date hereof and subject to the satisfaction of
the
conditions precedent set forth in Section 3, hereby amended as
follows:
(a) The definition of "Maximum Amount" in Section 1.01 of the
Credit
Agreement is hereby amended by replacing "1.00:1.00" with
"1.75:1.00" in clause
(a) thereof.
(b) The definition of "Test Period" in Section 1.01 of the
Credit
Agreement is hereby amended in full to read as follows:
"TEST PERIOD" means, with respect to any Fiscal Year, the period
that
(a)
begins on (but excluding) the last day of the Test Period with
respect
to
the Prior Fiscal Year and (b) ends on (and including) the earlier
of (i)
the
120th day following the end of such Fiscal Year and (ii) the later
of
(A)
the date on which the Borrower's financial statements for such
Fiscal
Year
are filed on Form 10-K and (B) to the extent any prepayment is
required under Section 2.06(b)(i), the date on which the Advances
are
prepaid with the applicable percentage of the Excess Cash Flow
for
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2
such
Fiscal Year in accordance with Section 2.06(b)(i). "PRIOR FISCAL
YEAR"
shall mean the Fiscal Year immediately preceding such Fiscal
Year.
(c) Schedule V to the Security Agreement is hereby amended by
(i)
replacing "Ameritrade Online Holdings Corp." with "TD Ameritrade
Online Holdings
Corp.", "Ameritrade IP Company, Inc." with "TD Ameritrade IP
Company, Inc." and
"Ameritrade Services Company, Inc." with "TD Ameritrade Services
Company, Inc."
and (ii) deleting each row listing "Datek Online Holdings Corp." or
"TD
Waterhouse Group, Inc." as a Grantor.
SECTION 2. Waiver. Subject to the satisfaction of the
conditions
precedent set forth in Section 3, the requirements under Section
11(a) of the
Security Agreement for the Specified Guarantors to give the
Collateral Agent 30
days' prior written notice of the Name Changes and any Default or
Event of
Default that has arisen or shall arise from the Specified
Guarantors' failure to
satisfy such requirements in respect of the Name Changes are hereby
waived.
SECTION 3. Conditions of Effectiveness. This Amendment shall
become
effective as of the date first above written when, and only when,
the Agent
shall have received (a) counterparts of this Amendment executed by
the Borrower
and the Required Lenders or, as to any of the Lenders, advice
satisfactory to
the Agent that such Lender has executed this Amendment and the
consent attached
hereto (the "Consent") executed by each Guarantor, (b) a complete
report as of a
recent date of all effective financing statements filed in the
State of Delaware
that name any Specified Guarantor as debtor, in form and substance
reasonably
satisfactory to the Agent, and evidence that all actions that the
Agent may deem
necessary or desirable in order to perfect and protect the first
priority liens
and security interests created under the Security Agreement in
respect of the
Collateral pledged by the Specified Guarantors have been taken and
(c)
confirmation of the payment of a fee to each Lender which has
approved this
Amendment on or prior to 5:00 P.M. (Eastern Time) on December 11,
2006 in an
amount equal to 0.05% of (i) the aggregate principal amount of
Advances (other
than Letter of Credit Advances and Swing Line Advances)
attributable to such
Lender, plus, (ii) if such Lender is also a Revolving Credit
Lender, such
Lender's Unused Revolving Credit Commitment and its Pro Rata Share
of the
aggregate Available Amount of all Letters of Credit and the
aggregate principal
amount of all Letter of Credit Advances and Swing Line Advances
outstanding at
such time. This Amendment is subject to the provisions of Section
9.01 of the
Credit Agreement.
SECTION 4. Rep
