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EXHIBIT 10.3
SECOND AMENDMENT TO THE
AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
THIS SECOND AMENDMENT to the AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
(the "Second Amendment") entered into as of this 10th day of May, 2001, is
intended to amend the terms of the Amended and Restated Stock Pledge Agreement
dated as of January 25, 2000, as previously amended (the "Pledge Agreement") 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 and XXXXXX TRUST AND SAVINGS BANK, LASALLE BANK NATIONAL
ASSOCIATION, FIRSTAR BANK, N.A., the revolving lenders (the "Revolving Lenders")
under the Amended and Restated Revolving Credit Agreement dated as of January
25, 2000, as amended, ( the "Revolving Credit Agreement") and AMERITRADE HOLDING
CORPORATION (the "Borrower"). All terms not defined in this Pledge Agreement
shall have their respective meanings as set forth in the Revolving Credit
Agreement. All terms and conditions of the Pledge 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 Pledge Agreement or the Revolving Credit Agreement.
WHEREAS, in order to induce the Revolving Lenders to make the loan to the
Borrower and in order to secure the borrower's obligations due to the Revolving
Lenders under the Existing Agreement, and under the notes given in connection
therewith, the Borrower entered into the Amended and Restated Stock Pledge
Agreement dated as of January 25, 2000, as previously amended (the "Existing
Stock Pledge Agreement");
WHEREAS, in order to induce the Revolving Lenders to grant a waiver to
certain covenants in the Revolving Credit Agreement, as set forth more
specifically in the Waiver Agreement (the "Waiver") dated as of April 30, 2001,
among the Company, the Agent and the Revolving Lenders, the Borrower has agreed
to amend the Existing Stock Pledge Agreement;
NOW, THEREFORE, as additional consideration for the Waiver, the Borrower
and the Revolving Lenders hereby agree as follows:
1. The following definitions in Section 1.1 of the Existing Stock
Pledge Agreement are hereby amended to read as follows:
"Pledged NITE Stock" means the NITE Stock pledged by the Borrower to
the Agent under this Stock Pledge Agreement, as shown on Schedule A,
including any additional NITE Stock pledged to the Agent, including without
limitation, additional NITE Stock pledged in accordance with the provisions
of Section 4.3 of this Stock Pledge Agreement.
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"Stock Rights" means any stock, any dividend or other distribution and
any other right or property, including any "securities entitlement" (as
defined in Articles 8 and 9 of the Uniform Commercial Code as adopted by
the State of Nebraska, as amended from time to time, the meaning to be
ascribed thereto with respect to securities entitlements shall be that
under the more encompassing of the two definitions), which the Borrower
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 Borrower now has or
hereafter acquires any right, in connection with the Pledged Stock.
2. Clause (ii) of Section 4.2 of the Existing Stock Pledge Agreement
shall be amended to read as follows:
(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.
3. Section 4.3 of the Existing Stock Pledge Agreement is hereby
amended to read as follows:
Section 4.3 NITE Stock Covenants. In connection with the NITE
Stock, the Borrower agrees as follows:
(a) Xxxx to Market. The Borrower represents and
warrants that the current Pledged NITE Stock on the
date hereof has a market value of at least
$85,715,000. The Pledged NITE Stock shall be marked
to market daily to determine the fair market value of
such Collateral. The Borrower shall provide to the
Agent weekly a report showing the current fair market
value of the Pledged NITE Stock. Such report will be
delivered by 5 p.m. on the first Business Day of each
week showing the fair market value of the Pledged
NITE stock as of the close of the last Business Day
of the preceding week.
(b) Additional Pledged NITE Stock. In the event that
the fair market value of the Pledged NITE Stock
(including any additional Pledged NITE Stock
delivered to the Agent pursuant to this Stock Pledge
Agreement) on any day is less than $85,715,000 or if,
on any day, the Principal Loan Amount exceeds 70% of
the fair market value of the Pledged NITE Stock on
such day, the Borrower shall give notice of such
deficiency to the Agent as soon as practicable, but
in no event later than three Business Days after the
occurrence of such event(s). If, on any day, the
Principal Loan Amount then outstanding exceeds 80% of
the fair market value of the Pledged NITE Stock on
such day, the Borrower shall, within two Business
Days, pay down the Notes or deliver to the Agent, or
transfer into the Pledged Account, as applicable,
additional NITE Stock such that
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the Principal Loan Amount then outstanding shall not
exceed 70% of the then current fair market value of
the Pledged NITE Stock. In the event that the
Borrower fails to remedy the collateral deficiency
described in the preceding sentence within two
Business Days, the Agent on behalf of the Revolving
Lenders may require the sale of the Pledged NITE
Stock in an amount such that the net proceeds from
such sale will be sufficient to reduce the Principal
Loan Amount outstanding to an amount not exceeding
70% of the fair market value of the remaining Pledged
NITE Stock. The Pledged NITE Stock to be sold will be
delivered pursuant to a trust receipt to consummate a
sale arranged by the Borrower with the net proceeds
of such sale to be paid in immediately available
funds to the Agent no later than the third Business
Day following the release of such stock.
4. Section 5.2 of the Existing Stock Pledge Agreement shall be
amended to read as follows:
Section 5.2. Acceleration and Remedies. If any 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 the
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 Stock Pledge
Agreement, (y) in the Nebraska Uniform Commercial Code 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 an Event of Default
described in Section 6.1(h)(1) or (2) of the 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.
5. Section 7.10 of the Existing Stock Pledge Agreement shall be
amended to read as follows:
Section 7.10 Benefit of Agreement. The terms and provisions of
this Stock Pledge Agreement shall be binding upon and inure to the
benefit of the Borrower, the Agent and the Revolving Lenders and their
respective successors and assignees, except that the Borrower shall not
have the right to assign its rights nor delegate its duties under this
Stock Pledge Agreement, without the prior written consent of all the
Revolving Lenders.
6. Schedule A to the Existing Stock Pledge Agreement shall be
amended to read as shown on Attachment A to this Second Amendment.
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7. This Second Amendment may be executed in several counterparts
and such counterparts together shall constitute one and the same instrument.
8. Any references herein to the Pledge Agreement shall mean this
amendment and the Amended and Restated Stock Pledge Agreement dated as of
January 25, 2000, as amended from time to time (including this Second
Amendment), and any references herein to the Revolving Credit Agreement shall
mean the Amended and Restated Revolving Credit Agreement dated January 25, 2000,
as amended from time to time.
9. This Second Amendment shall be effective as of May __, 2001
(the "Effective Date").
IN WITNESS WHEREOF, the Borrower and the Revolving Lenders have caused
this Second Amendment to Amended and Restated Stock Pledge 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/ Xxxx X. XxxXxxxxx
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Title Chief Financial Officer
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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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