EXHIBIT 10.24
FOURTH AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AMONG
AMERITRADE HOLDING CORPORATION,
FIRST NATIONAL BANK OF OMAHA,
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
LASALLE BANK NATIONAL ASSOCIATION, AND
FIRSTAR BANK, N. A.
DATED AS OF JANUARY 25, 2000
FOURTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT to AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(this "Fourth Amendment") entered into as of the 17th day of September, 2001
(the "Effective Date"), is intended to amend the terms of the Amended and
Restated Revolving Credit Agreement (the "Agreement") dated as of the 25th day
of January, 2000, as previously amended, among AMERITRADE HOLDING CORPORATION, a
Delaware corporation having its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Borrower"); FIRST NATIONAL BANK OF OMAHA, a
national banking association having its principal place of business at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Agent" or "FNB-O"); ▇▇▇▇▇▇ TRUST AND
SAVINGS BANK, an Illinois banking corporation having its principal place of
business at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇"); LASALLE
BANK NATIONAL ASSOCIATION, a national banking association having its principal
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("LaSalle"); and FIRSTAR BANK, N. A. (formerly known as FIRSTAR BANK MISSOURI,
NATIONAL ASSOCIATION, formerly known as MERCANTILE BANK NATIONAL ASSOCIATION), a
national banking association having its principal place of business at One
Firstar Center, 7th and Washington TRAM ▇▇-▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Firstar"). 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 the respective meanings prescribed
in the Agreement.
WHEREAS, the Borrower desires to amend its covenant regarding net income
before taxes for the fiscal quarter ending September 30, 2001; and
WHEREAS, the Revolving Lenders and the Borrower have agreed to reduce the
Base Revolving Credit Facility; and
WHEREAS, in consideration of such amendments and reduction, the Revolving
Lenders have specified, and the Borrower has agreed to, a change in the
Revolving Credit Rate and the payment of an amendment fee;
NOW, THEREFORE, the parties hereby agree that as of the Effective Date:
1. The second paragraph of Section 2.1 of the Agreement is hereby amended
to read as follows:
Such Advances shall be made on a pro rata basis by the Revolving
Lenders, based on the following maximum Advance limits and applicable
percentages for each Revolving Lender: (i) as to FNBO, $10,111,115
(28.8889%); (ii) as to ▇▇▇▇▇▇, $7,777,770 (22.2222%); (iii) as to
Firstar, $9,333,345 (26.6667%); (iv) as to LaSalle, $7,777,770
(22.2222%); provided, however, that each Revolving Lender's Commitment
is several and not joint or joint and several.
1
2. Section 2.3 of the Agreement is hereby amended to read as follows:
2.3 Interest on Revolving Credit. Interest shall accrue on the
Principal Loan Amount outstanding from time to time at a variable rate
per annum (the "Revolving Credit Rate") equal to the greater of (a)
the Base Rate, or (b) the LIBOR Rate plus 2.25%. Such rate shall
fluctuate monthly based on changes in such rates on the first business
day of each month. All interest under the Notes shall accrue based on
a year of 360 days, and for actual days elapsed. Interest shall be due
no later than the tenth day of each month. Notwithstanding anything to
the contrary elsewhere herein, after an Event of Default has occurred
and is continuing, interest shall accrue on the entire outstanding
balance of principal and interest on all indebtedness hereunder at a
fluctuating rate per annum equal to the Default Rate.
3. Section 2.7 of the Agreement is hereby amended to read as follows:
2.7 Letter of Credit Facility. Subject to and upon the terms and
conditions herein set forth, the Borrower may request and FNB-O on
behalf of the Revolving Lenders shall issue from time to time for the
account of the Borrower or one or more of its Subsidiaries letters of
credit (the "Letters of Credit"); provided, however, the Agent shall
have no obligation to issue any such Letter of Credit unless at such
time the Borrower meets all the conditions for an Advance under the
Base Revolving Credit Facility and, after such issuance, the aggregate
Letter of Credit Amount outstanding will not exceed $5,000,000 and the
Principal Loan Amount will not exceed the then available Base
Revolving Credit Facility, all as more specifically set forth in this
Agreement. The Revolving Lenders shall be obligated to fund pro rata
according to their respective pro rata percentages shown in Section
2.1 of this Agreement any draws on such Letters of Credit and shall be
entitled to share pro rata in the Letter of Credit Fees and
reimbursement amounts received in connection with such Letters of
Credit. The Letter of Credit Amount outstanding at any time shall
operate to reduce amounts available to be drawn under the Base
Revolving Credit Facility by such sum, and shall be deemed to be
outstanding for purposes of calculating the commitment fee under
Section 2.2 (a) of this Agreement. No Letter of Credit shall have a
maturity date occurring more than one year after the issue date
thereof, and in no event later than the Termination Date of this
Agreement; provided, however, FNB-O, upon five days prior written
notice to the other Revolving Lenders, may issue one or more Letters
of Credit in an aggregate amount not to exceed $1,000,000.00 in
Letters of Credit under this Agreement with a maturity occurring after
the Termination Date of this Agreement (a "Non-Conforming Letter of
Credit"), but no other Revolving Lender shall be obligated to fund any
draws on such Non-Conforming Letters of Credit and shall not be
entitled to share pro rata in the Letter of Credit Fees and
reimbursement amounts received in connection therewith unless such
Revolving Lender elects in writing to participate in such
Non-Conforming Letters of Credit after receipt of notice from FNB-O.
Except as provided in the preceding sentence, any such Non-Conforming
Letters of Credit shall in all other respects be deemed a
2
"Letter of Credit" under this Agreement. Any reference in this
Agreement (including without limitation Articles VII and VIII) to a
"loan" or "loans" made under this Agreement shall include the Letters
of Credit.
4. Section 4.24 of the Agreement is hereby amended to read as follows:
4.24 Cumulative Pre-Tax Earnings (Losses). The Borrower shall not
incur net income prior to taxes less than (or net losses prior to
taxes more than) the amounts shown below, such income (or losses) to
be calculated for the quarters ending on or before March 31, 2001, on
a cumulative basis during the Borrower's fiscal year, and for the
quarters ending after March 31, 2001, for the respective fiscal
quarter on a stand-alone (i.e., non-cumulative) basis as indicated:
Fiscal Year Ending Fiscal Quarter Ending Net Income (or Loss) Before Taxes
------------------ --------------------- ---------------------------------
09/30/00 12/31/99 ($ 80,000,000) (cumulative)
03/31/00 ($115,000,000) (cumulative)
06/30/00 ($ 75,000,000) (cumulative)
09/30/00 ($ 60,000,000) (cumulative)
9/30/01 12/31/00 ($ 35,000,000) (waived)
03/31/01 ($ 20,000,000) (waived)
06/30/01 ($ 500,000) (single quarter)
09/30/01 ($ 25,000,000) (single quarter as a
result of taking into
account the one-
time charges
previously
discussed with the
Revolving Lenders)
in each case as tested at the end of each fiscal quarter.
5. Simultaneously with the execution and delivery of this Fourth
Amendment, the Borrower shall:
(a) reduce the Principal Loan Amount to an amount not exceeding
maximum amount available under Section 2.1 of the Agreement as
amended by this Fourth Amendment;
(b) pay all other amounts then due and outstanding to the Revolving
Lenders immediately preceding the Effective Date, plus the
amendment fee specified in Paragraph 7 below; and
(c) execute and deliver to each of the remaining Revolving Lenders a
Note, substantially in the form of Attachment A to this Fourth
Amendment, which will reflect the revised commitment of such
Revolving Lender.
3
Upon receipt of such amounts and, as to the remaining Revolving Lenders its
new Note, each Revolving Lender will cancel and return to the Agent for
distribution to the Borrower the cancelled prior Note.
6. The compliance certificate attached as Exhibit C to the Agreement is
amended to read as shown on Attachment B to this Fourth Amendment.
7. In consideration of the Lenders' entering into this Fourth Amendment,
the Borrower agrees to pay to the Agent on or before the Effective Date an
amendment fee equal to the product of four basis points (.0004) and the revised
aggregate commitment set forth in Section 1 of this Fourth Amendment ($14,000),
such fee to be distributed pro rata amongst the banks who consent to this Fourth
Amendment.
8. This Fourth Amendment may be executed in several counterparts and such
counterparts together shall constitute one and the same instrument.
9. On or prior to the Effective Date, the Borrower shall deliver to the
Agent:
(a) the revised Notes specified in Paragraph 5 above;
(b) a certificate of the director of finance of the Borrower dated as
of the Effective Date affirming as of such Effective Date (i) the
representations and warranties of the Borrower set forth in the
Operative Documents, and (ii) that no Default or Event of
Default has occurred and is continuing;
(c) a certificate of the secretary or assistant secretary of the
Borrower that this Fourth Amendment has been duly authorized,
executed and delivered by the Borrower, such certificate to include
a copy of the corporate resolution of the Borrower authorizing the
execution of this Fourth Amendment; and
(d) such other documents and certificates as shall be requested by the
Agent to effect the intent of this Fourth Amendment.
10. From the Effective Date, all references in the Operative Agreements to
the Amended and Restated Credit Agreement, dated as of January 25, 2000, shall
mean such Agreement, as previously amended and as amended by this Fourth
Amendment.
IN WITNESS WHEREOF, the Borrower and the Revolving Lenders have caused this
Fourth Amendment to Amended and Restated Revolving Credit Agreement to be
executed by their duly authorized corporate officers as of the day and year
first above written.
4
AMERITRADE HOLDING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ Gerber_________________
Title: Director of Finance____________
FIRST NATIONAL BANK OF OMAHA
By: /s/ JP Bonham_____________________
Title: Vice President_________________
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
----------
Borrower
5
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ Lemkau_________________
Title: First Vice President____________
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
----------
Borrower
6
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By:____________________________________
Title:_________________________________
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:
----------
Borrower
7
FIRSTAR BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.__________
Title: Vice President _________________
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
----------
Borrower
8
