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Exhibit 10.2
AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
THIS AMENDED AND RESTATED STOCK PLEDGE AGREEMENT (the "Stock Pledge
Agreement") is made as of January 25, 2000, 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, MERCANTILE BANK NATIONAL
ASSOCIATION , the revolving lenders (the "Revolving Lenders") under the Amended
and Restated Revolving Credit Agreement dated as of January 25, 2000 ( the
"Revolving Credit Agreement") and AMERITRADE HOLDING CORPORATION (the
"Borrower"). All terms not defined in this Stock 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:
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WHEREAS, the Agent, the Revolving Lenders and the Borrower are parties to
the Revolving Credit Agreement, which amends and restates the Existing
Agreement;
WHEREAS, the Borrower owns 100% of the stock of its Subsidiaries, including
without limitation, Advanced Clearing, Ameritrade (Inc.), and Accutrade, Inc.,
and certain shares of NITE Stock;
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 Stock Pledge Agreement dated as of
January 16, 1998 (the "Existing Stock Pledge 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 Revolving Credit Agreement and under the Notes given in
connection therewith, the Borrower desires to amend and restate the Existing
Stock Pledge Agreement;
WHEREAS, the Borrower and Revolving Lenders wish to have this Amended and
Restated Stock Pledge Agreement dated as of January 25, 2000, be the controlling
agreement with respect to the matters set forth herein, which shall supersede
the Existing Stock Pledge Agreement; and
WHEREAS, the Borrower and Revolving Lenders do not intend for this Amended
and Restated Stock Pledge Agreement to be deemed to extinguish any existing
obligations of the Borrower;
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NOW, THEREFORE, as additional consideration for the loans to the Borrower,
the Borrower and the Revolving Lenders hereby agree 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.
"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 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), of
the Borrower to the Agent and the Revolving Lenders.
"Permitted Encumbrance" means any and all encumbrances existing as of this
date which are listed on Schedule B attached hereto and the lien of any
financial intermediary of the Pledged NITE Stock arising through the Agent or
First National Bank of Omaha, as trustee.
"Pledged NITE Stock" shall mean the NITE Stock pledged by the Borrower to
the Agent under this Stock Pledge Agreement, as shown on Schedule A, including
such additional NITE Stock as shall be required in accordance with the
provisions of Section 4.3 of this Stock Pledge Agreement.
"Pledged Stock" means the Subsidiary Stock and the Pledged NITE Stock.
"Section" means a numbered section of this Stock Pledge Agreement, unless
another document is specifically referenced.
"Stock Rights" means any stock, any dividend or other distribution and any
other right or property, including any "securities entitlement," as defined in
Section 8-102 of the Uniform Commercial Code as adopted by the State of
Nebraska, 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.
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"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
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 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. The
Pledged Stock shall be delivered to the Agent for the Revolving Lenders together
with appropriate stock powers duly executed in blank; provided, however, that at
the request of the Borrower, the Agent in its sole discretion may permit the
Pledged NITE Stock to be held in book entry on the books of Depository Trust
Company in an account (the "Pledged Account") to be held in the name of and
under the sole control of the Agent, such account to be held on such terms and
conditions as the Agent shall require.
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 Stock Pledge Agreement and Permitted Encumbrances as
defined herein.
IV. COVENANTS
Section 4.1 Affirmative Covenants. From the date of this Stock Pledge
Agreement, and thereafter until this Stock 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 stock (including stock dividends) of any Subsidiary issued to the Borrower
and any additional shares of NITE Stock as shall be required to be pledged in
accordance with the provision of Section 4.3 of this Stock Pledge Agreement.
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(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 Stock Pledge
Agreement, and thereafter until this Stock Pledge Agreement is terminated
pursuant to Section 7.15, the Borrower shall not:
(a) Liens. Create, incur, or suffer to exist, any Lien on the
Collateral except the security interest created by this Stock Pledge
Agreement and Permitted Encumbrances as defined herein and Permitted Liens
as defined in the Revolving Credit Agreement.
(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 Subsidiary Stock to dissolve, liquidate, retire any of its
capital stock, reduce its capital or merge or consolidate with any other
entity, 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.
(d) Issuance of Additional Stock. (i) Permit or suffer the issuer of
any of the Subsidiary Stock to authorize or issue any additional stock, any
right to receive stock or any right to receive earnings, or (ii) vote any
of the Pledged Stock in favor of any of the foregoing, except as otherwise
permitted in writing by the Revolving Lenders.
Section 4.3 NITE Stock Covenants. In connection with the NITE Stock,
the Borrower agrees as follows:
1. Xxxx to Market. The Borrower represents and warrants
that the original Pledged NITE Stock has a market
value of at least $50,000,000. The Pledged NITE Stock
shall be marked to market weekly 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.
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2. Addional Pledged NITE Stock. In the event that the fair
market value of the Pledged NITE Stock at any time is
less than $36,000,000, the Borrower shall give notice
of such deficiency to the Agent and, within three
Business Days after the determination of the
deficiency, deliver to the Agent, or transfer into the
Pledged Account, as applicable, additional NITE Stock
such that the fair market value of the Pledged NITE
Stock again shall be at least $50,000,000. Prior to the
provision of such additional Pledged NITE Stock, the
Base Revolving Credit Facility shall be reduced
immediately to an amount equal to the sum of (a) 1.5
times Annualized Modified Cash Flow, plus (b)70% of the
fair market value of the Pledged NITE Stock (as to (a)
---- and (b) together, the "Maximum Loan
Availability"). Failure to provide such additional
Pledged NITE Stock within three Business Days shall
constitute a default under this Stock Pledge Agreement
unless the total amount outstanding under the Notes
does not exceed the Maximum Loan Availability.
(c) Release of Pledged NITE Stock. The Agent shall release
the Pledged NITE Stock and return all interest therein
to the Borrower upon satisfaction of all of the
following conditions:
(i) the Base Revolving Credit Facility has been reduced to
$75,000,000 or less;
(ii) the aggregate amounts outstanding under the Notes and
the Revolving Credit Agreement do not exceed the
product of l.5 times Annualized Modified Cash Flow; and
(iii) no Event of Default nor any event or occurrence which
with the passage of time, or notice, or both, would
constitute an Event of Default, has occurred and is
continuing.
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 Stock Pledge Agreement 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
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Revolving Lenders holding two-thirds of the then outstanding aggregate total
Indebtedness of the Borrower to the 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 Revolving Lenders holding 2/3 of the Principal Loan Amount then
outstanding (or, if there is no Principal Loan Amount outstanding, upon the
direction of Revolving Lenders representing 2/3 of the Commitments in effect at
such time), 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.
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
Stock 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
Stock 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 Stock 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 permitted under the Loan Agreement and 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 Agreement, whether or not the Obligations
shall be then due.
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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. This right is in addition to any rights the Agent may have as to
Pledged NITE Stock held in the Pledged Account.
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.
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
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 Uniform Commercial Code. The provisions of this Stock
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,
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and shall not in any manner affect such clause or provision in any other
jurisdiction or any other clause or provision in this Stock 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 Stock 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
Uniform Commercial Code which are not otherwise defined in this Stock Pledge
Agreement are used in this Stock Pledge Agreement as defined in the Nebraska
Uniform Commercial Code as in effect on the date hereof.
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 the Revolving Lenders.
Section 7.11 Survival of Representations. All representations and
warranties of the Borrower contained in this Stock Pledge Agreement shall
survive the execution and delivery of this Stock 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 Stock 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 Stock 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 Stock Pledge Agreement shall be construed
in accordance with the laws of the State of Nebraska.
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Section 7.14 Headings. The title of and section headings in this Stock
Pledge Agreement are for convenience of reference only, and shall not govern the
interpretation of any of the terms and provisions of this Stock Pledge
Agreement.
Section 7.15 Termination. This Stock 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 Stock 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 Stock 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 Stock 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: Chief Financial Officer
To the Agent and the Revolving Lenders:
FIRST NATIONAL BANK OF OMAHA
One First National Center
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
IX. WAIVERS
Section 9.1 Waivers. By execution of this Stock Pledge Agreement, the
Borrower intends that the Collateral shall be absolutely and unconditionally
available to secure the prompt
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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 Stock 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 Stock 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.
The Borrower by its signature below, does hereby waive for purposes of the
security interest granted by this Stock Pledge Agreement (including, without
limitation, for purposes of any necessary enforcement thereof) any transfer
restrictions set forth within the Borrower's Articles of Incorporation.
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IN WITNESS WHEREOF, the Borrower and the Agent have executed this Stock
Pledge Agreement as of the date first above written.
AMERITRADE HOLDING CORPORATION
By /s/ Xxxxxx X. Xxxxx
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Title Co-Chief Executive Officer
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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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