EXHIBIT 10.2
SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
THIS SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT (the "Pledge
Agreement") is made as of December 15, 2003, 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, XXXXX FARGO BANK, NATIONAL
ASSOCIATION and such additional Revolving Lenders as may from time to time enter
the Third Amended and Restated Revolving Credit Agreement (the "Revolving Credit
Agreement"), dated as of December 15, 2003, as amended from time to time
(collectively, the "Revolving Lenders"), and AMERITRADE HOLDING CORPORATION,
formerly Arrow Stock 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.
W I T N E S S E T H:
WHEREAS, the Agent, the Revolving Lenders and the Borrower are parties
to the Revolving Credit Agreement;
WHEREAS, the Borrower and the Agent, as agent for the Revolving
Lenders, are parties to the Second Amended and Restated Security Agreement,
dated as of December 15, 2003 (as the same may be amended, modified or
supplemented from time to time, the "Security Agreement");
WHEREAS, the Borrower and the Agent, as agent for the Revolving
Lenders, are parties to the Amended and Restated Stock Pledge Agreement, dated
as of December 16, 2002 (the "Existing Pledge Agreement");
WHEREAS, the Borrower and the Revolving Lenders wish to amend and
restate the Existing Pledge Agreement;
WHEREAS, the Borrower and the Revolving Lenders wish to have this
Pledge Agreement, dated as of December 15, 2003, be the controlling agreement
with respect to the matters set forth herein, which shall supersede the Existing
Pledge Agreement;
WHEREAS, the Borrower and the Revolving Lenders do not intend for this
Pledge Agreement to be deemed to extinguish any existing indebtedness of the
Borrower;
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:
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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.
"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 Borrower in connection with the Revolving
Credit 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 Stock of Ameritrade Online Holdings Corp.,
formerly Ameritrade Holding Corporation ("Ameritrade Online"), and Datek Online
Holdings Corp. ("Datek"), as described on Schedule A hereto.
"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 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.
"Subsidiary Stock" shall mean the pledged stock of the Borrower's
Subsidiaries as listed in Schedule A attached hereto, as amended from time to
time, and all additional stock issued to the Borrower 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
Borrower 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.
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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 Borrower 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 Borrower 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 Borrower 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 Borrower 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 Borrower.
(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 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 Borrower shall not:
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(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 Borrower, if any, may consolidate if (x) the
Borrower provides the Agent with prior notice of the consolidation, (y)
there are no Events of Default under the Revolving Credit Agreement 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 Borrower
to fulfill its obligations under this Pledge Agreement or the Security
Agreement, if such failure continues beyond the applicable cure period, if any,
shall constitute an Event of Default hereunder.
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 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 an Event of Default described in Section 6.1(h)(1) or (2)
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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 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 an Event of Default occurs and is
continuing, any dividends payable in connection with the Pledged Stock may be
payable to the Borrower.
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 Borrower 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 an Event of
Default and 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 an 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 Borrower may exercise such rights.
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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 Borrower, 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 Borrower 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 Borrower. No course of dealing
between the Borrower 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.
Section 7.8 Specific Performance of Certain Covenants. The Borrower
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
Borrower contained in this Pledge Agreement, that the covenants of the Borrower
contained in the Sections referred to in this Section 7.8 shall be specifically
enforceable against the Borrower.
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.
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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 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 Pledge Agreement, without the prior
written consent of all the Revolving Lenders.
Section 7.11 Survival of Representations. All representations and
warranties of the Borrower contained in this Pledge Agreement shall survive the
execution and delivery of this Pledge Agreement.
Section 7.12 Taxes and Expenses. The Borrower 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 Borrower to
perform or observe any of the provisions hereof or 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 Borrower has received written notice from the
Revolving Lenders electing to terminate this 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 Borrower all certificates and documents in its possession representing
Collateral hereunder and execute and deliver to Borrower such releases and
documents as Borrower 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.
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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 Borrower:
AMERITRADE HOLDING CORPORATION
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: Xxxx X. Xxxxxxx
IX. WAIVERS
Section 9.1 Waivers. By execution of this Pledge Agreement, the
Borrower 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 Event
of Default.
It shall not be necessary to procure the consent of the Borrower 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 Borrower, any other guarantor or any other interested person,
by operation of law or otherwise; (ii) any acceptance of partial payments from
the Borrower; (iii) any impairment, release, collection or liquidation of any
collateral for the Obligations; (iv) any acceptance of new or additional
documents, instruments or agreements in satisfaction or substitution of the
Obligations; (v) 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 (vi) any other failure of the Agent or the
Revolving Lenders to exercise or enforce any of their rights against the
Borrower.
The Borrower 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
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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 Borrower and the Agent have executed this
Pledge Agreement as of the date first above written.
AMERITRADE HOLDING CORPORATION,
formerly Arrow Stock Holding Corporation
By /s/ Xxxx X. XxxXxxxxx
------------------------------------------
Title
---------------------------------------
FIRST NATIONAL BANK OF OMAHA, as Agent
for itself and the other Revolving Lenders
By /s/ Xxxx X. Xxxxxxx
---------------------------------------
Title Vice President
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SCHEDULE A
PLEDGED STOCK
Owner Issuer No. of Shares Certificate No.(s)
----- ------ ------------- ------------------
Ameritrade Holding Ameritrade Online Holdings 100 1
Corporation Corp.
Ameritrade Holding Datek Online Holdings 100 1
Corporation Corp.
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SCHEDULE B
PERMITTED ENCUMBRANCES
NONE.
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