FIRST AMENDMENT TO
PLEDGE AGREEMENT
THIS FIRST AMENDMENT TO PLEDGE AGREEMENT (this "AMENDMENT"), dated as of
May 4, 1998, is made and entered into between ATC COMMUNICATIONS GROUP, INC., a
Delaware corporation (hereinafter called "PLEDGOR"), and BANK ONE, TEXAS,
NATIONAL ASSOCIATION ("BANK"), as agent for itself and BANK ONE LEASING
CORPORATION.
RECITALS
A. Bank and Pledgor entered into that certain Pledge Agreement, dated
March 31, 1998 (the "PLEDGE AGREEMENT").
B. Bank and Pledgor desire to amend the Pledge Agreement as herein set
forth.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same definitions
assigned to such terms in the Pledge Agreement, as amended hereby.
ARTICLE II
AMENDMENTS TO THE PLEDGE AGREEMENT
Section 2.01 AMENDMENT TO SCHEDULE "A". From and after the date hereof
Schedule "A" to the Pledge Agreement shall be deleted in its entirety and in
place thereof shall be a new Schedule "A" in the form attached hereto. The
purpose of amending Schedule "A" is that Pledgor desires to, and does hereby,
pledge and grant a security interest to Bank in 98.94% of all of the outstanding
capital stock of Advanced Telemarketing Corporation, a Nevada corporation, in
accordance with the terms and provisions of the Pledge Agreement, as amended
hereby.
Section 2.02 AMENDMENT TO SECTION 5. From and after the date hereof
Section 5 of the Pledge Agreement is amended by adding thereto at the end
thereof the following:
"Pledgor has, with the consent of Secured Party, granted to Xxxxxx Equity
Investors III, L.P. ("XXXXXX"), a security intererst, junior in priority
to the security interest therein of
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Secured Party, in the Collateral consisting of shares of common stock of
Borrower (the "PLEDGED STOCK"). Xxxxxx and Secured Party have entered
into a Subordination and Intercreditor Agreement dated on or about
April 30, 1998 (the "SUBORDINATION AGREEMENT") with respect to indebtedness
owed by Borrower to, and liens and security interests granted to, Xxxxxx
and Secured Party. The Subordination Agreement contains terms providing
that Secured Party will hold the Pledged Stock for itself as a secured
creditor and for Xxxxxx but only for purposes of perfecting the security
interests of Xxxxxx in the Pledged Stock and that Secured Party will
deliver the Pledged Stock to Xxxxxx upon the occurrence of certain events
and other terms relating to the Pledged Stock. Pledgor has consented to
the terms and provisions contained in the Subordination Agreement relating
to the Pledged Stock, and if there is any conflict or inconsistency between
any terms in this Pledge Agreement and the terms and provisions of the
Subordination Agreement relating to the Pledged Stock, the terms and
provisions of the Subordination Agreement shall control."
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. CONDITIONS PRECEDENT. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by Bank:
(a) Pledgor shall have executed this Amendment and delivered the
same to Bank.
(b) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to Bank and its legal counsel in their sole discretion.
ARTICLE IV
RATIFICATIONS, REPRESENTATIONS, AND WARRANTIES
Section 4.01. RATIFICATIONS BY PLEDGOR. The terms and provisions set
forth in this Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Pledge Agreement and, except as expressly modified
and superseded by this Amendment, the terms and provisions of the Pledge
Agreement are ratified and confirmed and shall continue in full force and
effect. The Pledge Agreement as amended by this Amendment shall continue to be
legal, valid, binding and enforceable in accordance with its terms.
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Section 4.02. RENEWAL AND EXTENSION OF SECURITY INTERESTS AND LIENS.
Pledgor hereby renews and affirms the liens and security interests created and
granted in the Pledge Agreement, as amended hereby.
Section 4.03. REPRESENTATIONS AND WARRANTIES. Pledgor represents and
warrants to Bank that the execution, delivery and performance of this Amendment
have been authorized by all requisite corporate action on the part of Pledgor
and will not violate the articles or bylaws of Pledgor or any agreement to which
Pledgor is a party.
ARTICLE V
MISCELLANEOUS
Section 5.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in the Pledge Agreement shall survive the
execution and delivery of this Amendment, and no investigation by Bank or any
closing shall affect such representations and warranties or the right of Bank to
rely thereon.
Section 5.02. SEVERABILITY. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
SECTION 5.04. APPLICABLE LAW. THIS AMENDMENT SHALL BE DEEMED TO HAVE BEEN
MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section 5.04. SUCCESSORS AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, assigns, heirs, executors, and legal representatives, except that
none of the parties hereto other than Bank may assign or transfer any of its
rights or obligations hereunder without the prior written consent of Bank.
Section 5.05. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
EXECUTED as of the date first written above.
BANK ONE, TEXAS, N.A.
By:
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Xxxxxxxx X. Xxxxxxxxx, Senior Vice President
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ATC COMMUNICATIONS GROUP, INC.
By:
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Its:
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SCHEDULE "A"
TO
PLEDGE AGREEMENT
DATED XXXXX 00, 0000
XX AND BETWEEN
BANK ONE, TEXAS, NATIONAL ASSOCIATION
AND
ATC COMMUNICATIONS GROUP, INC.
The following property is a part of the Collateral as defined in Subsection
1(c):
Promissory Note dated September 16, 1997, executed by Xxxxxxx Xxxxxx and
payable to the order of Pledgor in the original principal amount of
$3,661,505.39.
98.94% of all outstanding capital stock of Advanced Telemarketing
Corporation, as evidenced by Certificate No. 257 for 3,388,764 shares
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