EXHIBIT 10.30
FIRST AMENDMENT TO THE
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AMONG
AMERITRADE HOLDING CORPORATION
AND
FIRST NATIONAL BANK OF OMAHA,
DATED AS OF DECEMBER 28, 2001
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT to the AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "First Amendment") entered into as of this 11th day of July,
2002 (the "Effective Date"), is intended to amend the terms of the Amended and
Restated Revolving Credit Agreement (the "Agreement"), dated as of the 28th day
of December, 2001, among AMERITRADE HOLDING CORPORATION, a Delaware corporation
having its principal place of business at 0000 Xxxxx 000xx Xxxxxx, Xxxxx,
Xxxxxxxx 00000 (the "Borrower"), such lenders as may become Revolving Lenders
under the Agreement after December 28, 2001 (the "Revolving Lenders"), and FIRST
NATIONAL BANK OF OMAHA, a national banking association having its principal
place of business at Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("Agent"
or "FNB-O"). All terms and conditions of the Agreement shall remain in full
force and effect except as expressly amended herein. All capitalized terms used
but not otherwise defined herein shall have their respective meanings prescribed
in the Agreement.
WHEREAS, the Borrower has requested that the Revolving Lenders release
their lien on the NITE Stock that is currently pledged to the Revolving Lenders
as collateral under the Agreement; and
WHEREAS, the Borrower has requested that, after the Revolving Lenders
release the NITE Stock that is currently pledged as collateral under the
Agreement, it be permitted to sell any and all of its shares of NITE Stock with
the proceeds of such sale to be used for general corporate purposes to the
extent permitted under the Agreement; and
WHEREAS, the Revolving Lenders have agreed to release the lien on the NITE
Stock currently pledged as collateral and have agreed to permit the Borrower to
sell any and all of its shares of NITE Stock with the proceeds of such sale to
be used for general corporate purposes to the extent permitted under the
Agreement, on the terms and conditions specified below;
NOW, THEREFORE, the parties hereby agree that as of the date hereof:
1. The following definition in Section I of the Agreement is hereby deleted
in its entirety:
Pledged NITE Stock: The NITE Stock pledged to the Revolving Lenders under
the Pledge Agreement.
2. The following definitions in Section I of the Agreement are hereby amended
to read as follows:
Collateral: All personal property of the Borrower described in the
Security Agreement and the Pledge Agreement, whether now
owned or hereafter acquired, including, without
limitation:
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(a) all of the Borrower's stock in any present or
future subsidiary, including, without limitation, Advanced
Clearing, Inc., Ameritrade, Inc. and Accutrade, Inc.;
(b) all of the Borrower's accounts, accounts
receivable, chattel paper, documents, instruments and other
securities (excluding NITE Stock), goods, inventory, letter of
credit rights, equipment, furniture and fixtures, general
intangibles, contract rights, computer, data processing,
hardware and software licenses, books and records; and
(c) all proceeds and products of the foregoing.
Other Credit
Facility: Indebtedness of the Borrower under any credit, margin
stock, or put and/or call agreement secured by or
covering any portion of the NITE Stock.
2. Section 2.1 of the Agreement is hereby amended to read as follows:
2.1 Revolving Credit. Until December 27, 2002, the Revolving Lenders
severally agree to advance funds for general corporate purposes not to exceed
the amount shown on Appendix I attached hereto, as amended from time to time
(the "Base Revolving Credit Facility"), to the Borrower on a revolving credit
basis.
Such Advances shall be made on a pro rata basis by the Revolving Lenders,
based on the maximum Advance limits and applicable percentages for each
Revolving Lender as shown on Appendix I attached hereto, as amended from time to
time; provided, however, that each Revolving Lender's Commitment is several and
not joint or joint and several.
The Borrower shall not be entitled to any Advance hereunder if, after the
making of such Advance, the Principal Loan Amount would exceed the least of (x)
the then current Base Revolving Credit Facility, or (y) one and one-half (1
-1/2) times the Borrower's Annualized Modified Cash Flow, or (z) the number of
Core Retail Accounts times $200, determined in each case after giving effect to
the requested Advance. Nor shall the Borrower be entitled to any further
Advances hereunder after the occurrence and during the continuation of any Event
of Default or any event which with the passage of time or the giving of notice
or both would constitute an Event of Default, or if the Borrower's
representations and warranties cease to be true and correct in all material
respects at the time of the requested Advance. Advances shall be made, on the
terms and conditions of this Agreement, upon the Borrower's request. Requests
shall be made by 12:00 noon Omaha time on the Business Day prior to the
requested date of the Advance. Requests shall be made by presentation to FNB-O
of a drawing certificate in the form of Exhibit B. The Borrower's obligation to
make payments of principal and interest on the foregoing revolving credit
indebtedness shall be further evidenced by the Notes.
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3. Clause (c) of Section 4.2 of the Agreement is hereby amended to read as
follows:
(c) The Borrower shall not sell any assets, other than in the ordinary
course of business, in an aggregate amount greater than one million dollars
($1,000,000), except (i) items that are obsolete or no longer necessary for
operation of the business, (ii) the Borrower's interest in Comprehensive
Software Systems, Ltd. and (iii) the Borrower's interest in the NITE Stock. The
Revolving Lenders shall be entitled to receive as a prepayment on the Notes the
net cash proceeds of any sale of assets of the Borrower which are prohibited by
the preceding sentence. Notwithstanding the foregoing prepayment requirements,
any such prohibited sale shall remain a violation of this Agreement. For
purposes of this Section 4.2 (c), "net cash proceeds" shall mean the amount in
cash or cash equivalents received from the sale after taxes and after payment of
all costs and expenses incurred in connection with the sale, including brokerage
or similar fees.
4. Clause (b) of Section 4.7 of the Agreement is hereby amended to read as
follows:
(b) The Borrower shall not purchase, redeem, or otherwise retire any
shares of its capital stock or warrants of its capital stock other than
purchases not to exceed the aggregate amount of $40 million.
5. Section 4.24 of the Agreement is hereby deleted in its entirety.
6. Clause (l) of Section 6.1 of the Agreement is hereby deleted in its
entirety.
7. The drawing certificate attached as Exhibit B to the Agreement is amended
to read as shown on Attachment A to this First Amendment.
8. The compliance certificate attached as Exhibit C to the Agreement is
amended to read as shown on Attachment B to this First Amendment.
9. Advanced Clearing, Inc. has changed its name to Ameritrade, Inc. All
references in the Agreement to Advanced Clearing, Inc. shall be deemed to be
references to Ameritrade, Inc.
10. This First Amendment may be executed in several counterparts and such
counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Borrower and the Revolving Lenders have caused
this First Amendment to the Amended and Restated Revolving Credit Agreement to
be executed by their duly authorized corporate officers as of the day and year
first above written.
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AMERITRADE HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Managing Director of Finance
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FIRST NATIONAL BANK OF OMAHA
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
/s/ WJG
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Borrower
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