EXHIBIT 10.3
SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
THIS SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT (the "Pledge
Agreement") is made as of December 16, 2002, by and between FIRST NATIONAL BANK
OF OMAHA, a national banking association having its principal place of business
in Omaha, Nebraska as agent ("FNB-O" or the "Agent") for itself, LASALLE BANK
NATIONAL ASSOCIATION, M& I XXXXXXXX & XXXXXX BANK and such additional Revolving
Lenders as may from time to time enter the Second Amended and Restated Revolving
Credit Agreement (the "Revolving Credit Agreement"), dated as of December 16,
2002, as amended from time to time (collectively, the "Revolving Lenders"), and
AMERITRADE ONLINE HOLDINGS CORP., formerly Ameritrade Holding Corporation (the
"Guarantor"). All terms not defined in this Pledge Agreement shall have their
respective meanings as set forth in the Revolving Credit Agreement.
WITNESSETH:
WHEREAS, the Guarantor and the Agent are parties to an Amended and
Restated Stock Pledge Agreement, dated as of December 28, 2001, as amended as of
July 11, 2002 (the "Existing Pledge Agreement");
WHEREAS, the Agent, the Revolving Lenders and Ameritrade Holding
Corporation, formerly Arrow Stock Holding Corporation (the "Borrower"), are
parties to the Revolving Credit Agreement;
WHEREAS, in order to induce the Revolving Lenders to make extensions of
credit to the Borrower and in order to secure the Borrower's obligations due to
the Revolving Lenders under the Revolving Credit Agreement, and under the Notes
given in connection therewith, the Guarantor, a Subsidiary of the Borrower, has
agreed to act as guarantor of the Borrower's obligations under the Revolving
Credit Agreement pursuant to a Guaranty Agreement, dated as of the date hereof,
between the Guarantor and the Agent, as agent for the Revolving Lenders (the
"Guaranty Agreement");
WHEREAS, the Guarantor and the Revolving Lenders wish to amend and
restate the Existing Pledge Agreement;
WHEREAS, the Guarantor and the Revolving Lenders wish to have this
Pledge Agreement, dated as of December 16, 2002, be the controlling agreement
with respect to the matters set forth herein, which shall supersede the Existing
Pledge Agreement;
WHEREAS, the Guarantor and the Revolving Lenders do not intend for this
Pledge Agreement to be deemed to extinguish any existing obligations of the
Guarantor;
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WHEREAS, as of the date hereof, the Guarantor and the Agent, as agent
for the Revolving Lenders, are entering into the Second Amended and Restated
Security Agreement (the "Security Agreement");
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
I. DEFINITIONS
Section 1.1 Definitions. For purposes hereof, the following definitions
shall apply:
"Collateral" means the Pledged Stock and the Stock Rights, including
the proceeds of each.
"Guarantor Event of Default" means an event described in Section 5.
"Lien" means any security interest, mortgage, pledge, lien,
encumbrance, title retention agreement, or lessor's interest, in, of or on any
of the Collateral.
"Obligations" means any and all existing and future indebtedness,
obligations and liability of the Guarantor under the Guaranty Agreement, direct
or indirect, absolute or contingent (including all renewals, extensions and
modifications thereof and all attorneys' fees incurred by the Agent or the
Revolving Lenders in connection with the collection or enforcement thereof).
"Permitted Encumbrance" means any and all encumbrances existing as of
this date that are listed on Schedule B attached hereto.
"Pledged Stock" means the Subsidiary Stock.
"Section" means a numbered section of this Pledge Agreement, unless
another document is specifically referenced.
"Stock" means shares of stock in a corporation or other certificated
equity interest.
"Stock Rights" means any Stock, any dividend or other distribution and
any other right or property, including any "securities entitlement," (as defined
in Article 8 of the Uniform Commercial Code as adopted by the State of Nebraska,
as amended from time to time), which the Guarantor shall now or hereafter
receive or shall become entitled to receive for any reason whatsoever with
respect to, in substitution for or in exchange for any shares of the Pledged
Stock and any stock, any right to receive stock and any right to receive
earnings, in which the Guarantor now has or hereafter acquires any right, in
connection with the Pledged Stock.
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"Subsidiary Stock" shall mean the pledged Stock of the Guarantor's
Subsidiaries as listed in Schedule A attached hereto, as amended from time to
time, and all additional Stock issued to the Guarantor in connection with any
Material Subsidiary; provided, however, that Subsidiary Stock shall not include
any investment property or equity securities issued by any Subsidiary of the
Guarantor that is organized under the laws of any jurisdiction other than the
United States of America (or any state thereof) in excess of sixty-five percent
(65%) of the total voting power of all equity securities of such Subsidiary.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
II. SECURITY INTEREST
Section 2.1 Grant of Security Interest. The Guarantor hereby
grants to the Agent for the benefit of the Revolving Lenders a security interest
in the Pledged Stock and all related Stock Rights to secure payment and
performance of the Obligations, including, without limitation, payment of the
Notes. All stock certificates representing the Pledged Stock shall be delivered
to the Agent for the Revolving Lenders together with appropriate stock powers
duly executed in blank.
III. REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties. The Guarantor
represents and warrants to the Agent and the Revolving Lenders that each share
of the Pledged Stock has been duly and validly issued, is fully paid and
non-assessable and is owned by the Guarantor free and clear of any Lien, other
than the security interest created by this Pledge Agreement, the Existing Pledge
Agreement, the Security Agreement and Permitted Encumbrances
IV. COVENANTS
Section 4.1 Affirmative Covenants. From the date of this Pledge
Agreement, and thereafter until this Pledge Agreement is terminated pursuant to
Section 7.15, the Guarantor shall:
(a) Delivery of Certain Items. Deliver to the Agent any
stock certificate or instrument evidencing or constituting Collateral,
including subsequent shares of Subsidiary Stock (including stock
dividends) issued to the Guarantor.
(b) Taxes. Pay when due all taxes, assessments and
governmental charges and levies upon the Collateral, except those being
contested in good faith by appropriate proceedings and with respect to
which no Lien exists.
(c) Financing Statements and Other Actions. Execute and
deliver to the Agent all stock powers, financing statements and other
documents and do such other things from time to time requested by the
Agent or the Revolving Lenders in order to maintain a first
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perfected security interest in the Collateral in favor of the Agent for
the Revolving Lenders and to effect a transfer of the Collateral, or
any part thereof.
(d) Reports. Furnish to the Agent such reports relating
to the Collateral as the Agent or Revolving Lenders may from time to
time request.
Section 4.2 Negative Covenants. From the date of this Pledge
Agreement, and thereafter until this Pledge Agreement is terminated pursuant to
Section 7.15, the Guarantor shall not:
(a) Liens. Create, incur or suffer to exist, any Lien on
the Collateral except the security interest created by this Pledge
Agreement, the Existing Pledge Agreement, the Security Agreement and
Permitted Encumbrances.
(b) Disposition of Collateral. Sell or otherwise dispose
of all or any part of the Collateral, except as permitted in writing by
the Requisite Revolving Lenders or as expressly permitted under Section
4.2 of the Revolving Credit Agreement.
(c) Changes in Capital Structure of Issuers. (i) Permit
or suffer any issuer of Pledged Stock to dissolve, liquidate, retire
any of its capital stock, reduce its capital or merge or consolidate
with any other entity (other than as permitted by Section 4.2 of the
Revolving Credit Agreement), or (ii) vote any of the Pledged Stock in
favor of any of the foregoing, except as otherwise permitted in writing
by the Requisite Revolving Lenders; provided that the broker-dealer
Subsidiaries of the Guarantor may consolidate if (x) the Guarantor
provides the Agent with prior notice of the consolidation, (y) there
are no Guarantor Events of Default and (z) all stock of the entity or
entities remaining after consolidation of the broker-dealer
Subsidiaries will have been delivered as collateral to the Agent.
(d) Issuance of Additional Stock. (i) Permit or suffer
the issuer of any of the Pledged Stock to authorize or issue any
additional Stock, any right to receive Stock or any right to receive
earnings, unless the same shall be pledged to the Agent hereunder, or
(ii) vote any of the Pledged Stock in favor of any of the foregoing,
except as otherwise permitted in writing by the Requisite Revolving
Lenders.
V. DEFAULTS AND REMEDIES
Section 5.1 Events of Default. The occurrence of any one or more
Events of Default under the Revolving Credit Agreement or the failure of the
Guarantor to fulfill its Obligations under this Pledge Agreement, the Guaranty
Agreement or the Security Agreement, if such failure continues beyond the
applicable cure period, if any, shall constitute a Guarantor Event of Default
hereunder.
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Section 5.2 Acceleration and Remedies. If any Guarantor Event of
Default occurs and is continuing, and upon the expiration of any applicable cure
period, if any, upon the election of the Requisite Revolving Lenders, the
Obligations, including accrued interest, shall immediately become due and
payable without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived, and the Agent, or if the Agent refuses to act upon
the direction of Requisite Revolving Lenders, the Revolving Lenders may (i)
exercise all rights set forth in Sections 7.2, 7.3 and 7.4, and (ii) may
exercise any or all of the rights and remedies provided (x) in this Pledge
Agreement, (y) in the Nebraska Uniform Commercial Code (the "Nebraska UCC") and
in the Delaware Uniform Commercial Code (the "Delaware UCC") to a secured party
when a debtor is in default under a security agreement and (z) by any other
applicable law. Upon the occurrence of a Guarantor Event of Default described in
Section 6.1(h)(1) or (2) of the Revolving Credit Agreement, acceleration under
this Section 5.2 shall occur automatically without the election, declaration,
notice or other act on the part of any of the Revolving Lenders.
VI. WAIVERS, AMENDMENTS AND REMEDIES
Section 6.1 Waivers, Amendments and Remedies. No delay or
omission of the Agent or Revolving Lenders to exercise any right or remedy
granted under this Pledge Agreement shall impair such right or remedy or be
construed to be a waiver of any Guarantor Event of Default or an acquiescence
therein, and any single or partial exercise of any such right or remedy shall
not preclude other or further exercise thereof or the exercise of any other
right or remedy, and no waiver, amendment or other variation of the terms,
conditions or provisions of this Pledge Agreement whatsoever shall be valid
unless in writing signed by the Agent, and then only to the extent in such
writing specifically set forth. All rights and remedies contained in this Pledge
Agreement or by law afforded shall be cumulative and all shall be available to
the Agent and the Revolving Lenders until the Obligations have been paid and
performed in full.
VII. GENERAL PROVISIONS
Section 7.1 Dividends. Unless a Guarantor Event of Default occurs
and is continuing, any dividends payable in connection with the Pledged Stock
may be payable to the Guarantor.
Section 7.2 Special Collateral Account. Subject to the provisions
of Section 7.1, all cash received by the Agent or the Revolving Lenders, if any,
with respect to the Collateral shall be deposited in a special collateral
account with the Agent for the Revolving Lenders and shall be held by the Agent
as security for the Obligations. The Guarantor shall have no control whatsoever
over said special collateral account. The Agent may, but is not required to, at
any time and from time to time, in its sole discretion, apply any part of the
credit balance in said special collateral account to the payment of the
Obligations, in accordance with the Revolving Credit Agreement, whether or not
the Obligations shall be then due.
Section 7.3 Registration of Pledged Stock. At the option of the
Agent, any registerable Collateral may at any time after the occurrence of a
Guarantor Event of Default and
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upon the expiration of any applicable cure period, if any, be registered in the
name of FNB-O or its nominee as agent for the Revolving Lenders.
Section 7.4 Exercise of Rights in Pledged Stock. After a
Guarantor Event of Default occurs and is continuing, and upon the expiration of
any applicable cure period, if any, the Agent or its nominee as agent for the
Revolving Lenders may at any time and from time to time, without notice,
exercise all voting and corporate rights relating to the Collateral, including,
without limitation, exchange, subscription or any other rights, privileges, or
options pertaining to any shares of the Pledged Stock and the Stock Rights as if
it were the absolute owner thereof. At all other times, the Guarantor may
exercise such rights.
Section 7.5 Notice of Disposition of Pledged Stock. Notice of the
time and place of any public sale or the time after which any private sale or
other disposition of all or any part of the Collateral may be made shall be
reasonable if sent to the Guarantor, addressed as set forth in Article VIII, at
least ten (10) days prior to any such public sale or the time after which any
such private sale or other disposition may be made.
Section 7.6 Terms of Disposition. The Guarantor agrees that the
private sale or other private disposition of Collateral consisting of securities
shall be commercially reasonable notwithstanding the possibility that a
substantially higher price might be realized if such sale or other disposition
were public and deferred until after registration under the Securities Act of
1933, as amended, or compliance with any other applicable securities laws.
Section 7.7 Possession of Collateral; Disclaimer. Beyond the
exercise of reasonable care to assure the safe custody of the Collateral in the
physical possession of the Agent pursuant hereto, neither the Agent nor the
Revolving Lenders shall have any duty or liability to collect any sums due in
respect thereof or to protect, preserve or exercise any rights pertaining
thereto, and the Agent and each Revolving Lender shall be relieved of all
responsibility for the Collateral upon surrendering it to the Guarantor. No
course of dealing between the Guarantor and the Agent or the Revolving Lenders,
nor any failure to exercise nor any delay in exercising, on the part of the
Agent or the Revolving Lenders, any right, power or privilege hereunder or with
respect to the Obligations shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or
thereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided and
provided in all other agreements, instruments and documents delivered, or to be
delivered, pursuant to or in connection with or to evidence any of the
Obligations are cumulative and are in addition to, and not exclusive of, any
rights and remedies of a secured party under the Nebraska UCC or the Delaware
UCC. The provisions of this Pledge Agreement are severable and if any clause or
provision thereof shall be held invalid or unenforceable in whole or in part,
then such invalidity or unenforceability shall attach only to such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision in this
Pledge Agreement or any jurisdiction.
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Section 7.8 Specific Performance of Certain Covenants. The
Guarantor acknowledges and agrees that a breach of any of the covenants
contained in Sections 4.1(a), 4.1(d) or 4.2 will cause irreparable injury to the
Revolving Lenders, that the Revolving Lenders have no adequate remedy at law in
respect of such breaches and therefore agrees, without limiting the right of the
Revolving Lenders to seek and obtain specific performance of other obligations
of the Guarantor contained in this Pledge Agreement, that the covenants of the
Guarantor contained in the Sections referred to in this Section 7.8 shall be
specifically enforceable against the Guarantor.
Section 7.9 Definition of Certain Terms. Terms defined in the
Nebraska UCC which are not otherwise defined in this Pledge Agreement are used
in this Pledge Agreement as defined in the Nebraska UCC as in effect on the date
hereof.
Section 7.10 Benefit of Agreement. The terms and provisions of
this Pledge Agreement shall be binding upon and inure to the benefit of the
Guarantor, the Agent and the Revolving Lenders and their respective successors
and assignees, except that the Guarantor shall not have the right to assign its
rights nor delegate its duties under this Pledge Agreement, without the prior
written consent of all the Revolving Lenders.
Section 7.11 Survival of Representations. All representations and
warranties of the Guarantor contained in this Pledge Agreement shall survive the
execution and delivery of this Pledge Agreement.
Section 7.12 Taxes and Expenses. The Guarantor will upon demand
pay to the Agent (i) any taxes (excluding income taxes) payable or ruled payable
by federal or state authority in respect of this Pledge Agreement, together with
interest and penalties, if any, and (ii) all reasonable expenses, including the
reasonable and documented fees and expenses of counsel for the Agent and the
Revolving Lenders (which may be employees of the Agent or another Revolving
Lender) and of any experts and agents that the Revolving Lenders may incur in
connection with (a) the administration of this Pledge Agreement, (b) the custody
or preservation of, or the sale of, collection from, or other realization upon,
any of the Pledged Stock, (c) the exercise or enforcement of any of the rights
of the Revolving Lenders hereunder, or (d) the failure of the Guarantor to
perform or observe any of the provisions hereof or the failure of the Borrower
to perform or observe any of the provisions of the Revolving Credit Agreement.
Section 7.13 Choice of Law. This Pledge Agreement shall be
construed in accordance with the laws of the State of Nebraska.
Section 7.14 Headings. The title of and section headings in this
Pledge Agreement are for convenience of reference only, and shall not govern the
interpretation of any of the terms and provisions of this Pledge Agreement.
Section 7.15 Termination. This Pledge Agreement shall continue in
effect (notwithstanding the fact that from time to time there may be no
Obligations outstanding) until the Guarantor has received written notice from
the Revolving Lenders electing to terminate this
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Pledge Agreement or the Revolving Credit Agreement is terminated and there are
no Obligations outstanding (other than contingent obligations which, by their
terms, survive termination of the Revolving Credit Agreement). Upon such
termination, the Agent shall promptly return to the Guarantor all certificates
and documents in its possession representing Collateral hereunder and execute
and deliver to the Guarantor such releases and documents as the Guarantor shall
reasonably request to evidence such termination.
Section 7.16 Counterparts. This Pledge Agreement may be executed
in several counterparts and such counterparts together shall constitute one and
the same instrument.
VIII. NOTICES
Section 8.1 Sending Notices. Any notice required or permitted to
be given under this Pledge Agreement may be, and shall be deemed, given and sent
when deposited in the United States mail, postage prepaid, or by telegraph or
telex when delivered to the appropriate office for transmission, charges
prepaid, addressed:
To the Guarantor:
AMERITRADE ONLINE HOLDINGS CORP.
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. XxxXxxxxx
To the Agent and the Revolving Lenders:
FIRST NATIONAL BANK OF OMAHA
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
IX. WAIVERS
Section 9.1 Waivers. By execution of this Pledge Agreement, the
Guarantor intends that the Collateral shall be absolutely and unconditionally
available to secure the prompt payment when due of all Obligations, irrespective
of the unenforceability, illegality or invalidity of such obligations or the
unenforceability, illegality, invalidity or insufficiency of any security
therefor, together with all reasonable and documented costs, expenses and
attorneys' fees incurred by the Revolving Lenders in connection with any
Guarantor Event of Default.
It shall not be necessary to procure the consent of the Guarantor or to
give any notice in reference to: (i) any settlement, renewal, extension,
modification, release, waiver, discharge or variation of terms of any of the
obligations of the Guarantor, any other guarantor or any other interested
person, by operation of law or otherwise; (ii) any impairment, release,
collection or liquidation of any collateral for the Obligations; (iii) any
acceptance of new or additional
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documents, instruments or agreements in satisfaction or substitution of the
Obligations; (iv) any failure to file, record or register any security document,
to preserve or protect the collateral obtained thereby, or to perfect the
security interest therein; or (v) any other failure of the Agent or the
Revolving Lenders to exercise or enforce any of their rights against the
Guarantor.
The Guarantor hereby expressly waives and dispenses with notice of
acceptance of this Pledge Agreement, notices of non-payment, default,
non-performance or protest, notice of the amount of indebtedness outstanding at
any time, presentments, protests, demands, prosecution of collection,
foreclosure and possessory remedies, all exemption and homestead laws, and all
setoffs and counterclaims.
If a claim is made upon the Agent or the Revolving Lenders for
repayment or recovery of any amount(s) or other value received by the Agent or
the Revolving Lenders, from any source, in payment of or on account of the
Obligations and the Agent or the Revolving Lenders pay or otherwise become
liable for such claim by reason of any judgment, decree or order or by reason of
any compromise or settlement of such claim, this Pledge Agreement shall remain
in full force and effect to the same extent as if such amount has never been
received by the Agent or the Revolving Lenders, notwithstanding any termination
hereof or the cancellation of any note or other agreement evidencing the
Obligations.
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IN WITNESS WHEREOF, the Guarantor and the Agent have executed this
Pledge Agreement as of the date first above written.
AMERITRADE ONLINE HOLDINGS CORP.,
formerly Ameritrade Holding Corporation
By /s/ Xxxx X. XxxXxxxxx
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Title EVP, CFO and Treasurer
FIRST NATIONAL BANK OF OMAHA, as Agent
for itself and the other Revolving Lenders
By /s/ Xxxxx X. Xxxxxx
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Title Vice President
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SCHEDULE A
PLEDGED STOCK
Owner Issuer No. of Shares Certificate No.(s)
----- ------ ------------- ------------------
World Securities, Inc.(1) First National Brokerage Services, 5,000 2
Inc.(2)
Ameritrade Holding Advanced Clearing, Inc.(7) 7,559 20
Corporation
Ameritrade Holding Ameritrade (Inc.)(8) 6,000 3
Corporation
Ameritrade Holding The X. X. Xxxxxx Group, Inc.(6) 1,250 12
Corporation
Ameritrade Holding X. Xxxxxxxxx & Company, Inc.(3) 25 6
Corporation
American Holding All American Brokers, Inc.(4) 100,000 8
Corporation
Ameritrade Holding OnMoney, Inc.(5) 1,000 2
Corporation
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(1) World Securities, Inc. changed its name to TransTerra Co. on November
18, 1987. Trans Terra Co. merged with Ameritrade Holding Corporation on
September 27, 1996 with Ameritrade Holding Corporation being the
surviving entity.
(2) First National Brokerage Services, Inc. changed its name to Accutrade,
Inc. on May 24, 1983.
(3) K. Aufthauser & Company, Inc. changed its name to Xxxxxxxxx.xxx, Inc.
on January 10, 2000.
(4) All American Brokers, Inc. changed its name to AmeriVest, Inc. on
November 18, 1997.
(5) OnMoney, Inc. was merged with OnMoney Financial Services Corporation on
May 24, 1997.
(6) The X.X. Xxxxxx Group, Inc. changed its name to Ameritrade
Institutional Services, Inc as of ___________, 2001.
(7) Advanced Clearing, Inc. changed its name to Ameritrade, Inc. as of
_____________, 2002.
(8) Ameritrade (Inc.) changed its name to J.P. Securities, Inc. as of
____________, 2002.
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Owner Issuer No. of Shares Certificate No.(s)
----- ------ ------------- ------------------
Ameritrade Holding TradeCast, Inc. 1,000 1
Corporation
OnMoney Financial Services Financial Passport, Inc. 1,000 00254
Corporation
Ameritrade Holding Nebraska Xxxxxx Company,
Corporation Inc.
Ameritrade Holding Ten Bagger Incorporated
Corporation
Ameritrade Holding Ameritrade Canada, Inc.
Corporation
Ameritrade Holding Ameritrade Services
Corporation Company
Ameritrade Holding Ameritrade IP Company
Corporation
Ameritrade Holding Ameritrade Development
Corporation Company
Ameritrade Holding Ameritrade International
Corporation Company, Inc.
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SCHEDULE B
PERMITTED ENCUMBRANCES
NONE.
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