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THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE PRIOR
PAYMENT IN FULL OF THE SENIOR OBLIGATIONS AS SUCH TERM IS DEFINED IN THE
SUBORDINATION AND INTERCREDITOR AGREEMENT DATED AS OF MAY 4, 1998 BY AND BETWEEN
BANK ONE, TEXAS, N.A. AND XXXXXX EQUITY INVESTORS III, L.P.
PLEDGE
This PLEDGE, dated as of May 4, 1998 (together with all amendments, if
any, from time to time hereto, this "AGREEMENT") between ATC Communications
Group, Inc., a Delaware corporation (the "PLEDGOR"), and Xxxxxx Equity Investors
III, L.P., a Delaware limited partnership ("XXXXXX").
W I T N E S S E T H:
WHEREAS, Xxxxxx has agreed to provide certain financial accommodations
to Pledgor and Advanced Telemarketing Corporation, a Nevada corporation
("Company") and Pledgor, Xxxxxx and Company have entered into that certain
Reimbursement and Indemnity Agreement dated May 4, 1998 (including all annexes,
exhibits and schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the "REIMBURSEMENT AGREEMENT");
WHEREAS, Pledgor is the record and beneficial owner of the shares of
stock listed in Part A of SCHEDULE I hereto and the owner of the promissory
notes and instruments listed in Part B of SCHEDULE I hereto;
WHEREAS, Pledgor benefits from certain financial accommodations
provided by Xxxxxx under the Reimbursement Agreement;
WHEREAS, in order to induce Xxxxxx to enter into the Reimbursement
Agreement and other Basic Documents, Pledgor has agreed to pledge the Pledged
Collateral to Xxxxxx in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Xxxxxx provided certain financial
accommodations under the Reimbursement Agreement, it is agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms
used in this Agreement shall have the meaning ascribed to such terms in the
Reimbursement Agreement and are used herein as therein defined, and the
following terms shall have (unless otherwise provided elsewhere in this
Agreement) the following respective meanings (such meanings being equally
applicable to both the singular and plural form of the terms defined):
"BANKRUPTCY CODE" means title 11, United States Code, as amended from
time to time, and any successor statute thereto.
"PLEDGED COLLATERAL" has the meaning assigned to such term in SECTION
2 hereof.
"PLEDGED ENTITY" means an issuer of Pledged Stock or Pledged
Indebtedness.
"PLEDGED INDEBTEDNESS" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of SCHEDULE I hereto;
"PLEDGED SHARES" means those shares listed on Part A of SCHEDULE I
hereto.
"SECURED OBLIGATIONS" has the meaning assigned to such term in SECTION
3 hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar statute then in effect.
2. PLEDGE. Pledgor hereby pledges to Xxxxxx, and grants to Xxxxxx
a security interest, subject to the Permitted Encumbrances, in all of the
following (collectively, the "PLEDGED COLLATERAL"):
(i) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, distributions, cash, instruments
and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of the Pledged Shares; and
(ii) such portion, as determined by Xxxxxx as provided in
SECTION 6(d) below, of any additional shares of stock of a Pledged
Entity from time to time acquired by Pledgor in any manner (which
shares shall be deemed to be part of the Pledged Shares), and the
certificates representing such additional shares, and all dividends,
distributions, cash, instruments and other property or proceeds from
time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such Stock; and
(iii) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of the
Pledged Indebtedness; and
(iv) all additional Indebtedness arising after the date hereof
and owing to Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and
all interest, cash, instruments and other property and assets from
time to time received, receivable or otherwise distributed in respect
of that Pledged Indebtedness.
3. SECURITY FOR OBLIGATIONS. This Agreement secures, and the
Pledged Collateral is security for, the prompt payment in full when due, whether
at stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Reimbursement Agreement
and the other Basic Documents and all obligations of Pledgor now or hereafter
existing under this Agreement including, without limitation, all fees, costs and
expenses whether in connection with collection actions hereunder or otherwise
(collectively, the "SECURED OBLIGATIONS").
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4. DELIVERY OF PLEDGED COLLATERAL. All certificates and all
promissory notes and instruments evidencing the Pledged Collateral shall be
delivered to Bank One, Texas, N.A., to hold in accordance with the Subordination
and Intercreditor Agreement, and thereafter to be held by or on behalf of Xxxxxx
pursuant hereto. All Pledged Shares shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Xxxxxx and all promissory notes or other instruments evidencing
the Pledged Indebtedness shall be endorsed by Pledgor.
5. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants
to Xxxxxx as of the date hereof, that:
(a) Pledgor is, and at the time of delivery of the Pledged Shares to
Xxxxxx will be, the sole holder of record and the sole beneficial owner of
such Pledged Collateral pledged by Pledgor free and clear of any Lien
thereon or affecting the title thereto, except for any Lien created by this
Agreement and Permitted Encumbrances; Pledgor is and at the time of
delivery of the Pledged Indebtedness to Xxxxxx will be, the sole owner of
such Pledged Collateral free and clear of any Lien thereon or affecting
title thereto, except for any Lien created by this Agreement and Permitted
Encumbrances;
(b) All of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness has
been duly authorized, authenticated or issued and delivered by, and is the
legal, valid and binding obligations of, the Pledged Entities, and no such
Pledged Entity is in default thereunder;
(c) Pledgor has the right and requisite authority to pledge, assign,
transfer, deliver, deposit and set over the Pledged Collateral pledged by
Pledgor to Xxxxxx as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness has been
issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e) All of the Pledged Shares are presently owned by Pledgor, and are
presently represented by the certificates listed on Part A of SCHEDULE I
hereto. As of the date hereof, there are no existing options, warrants,
calls or commitments of any character whatsoever relating to the Pledged
Shares and no options, warrants, calls or equity commitments whatsoever
relating to the Company except as set forth in the Merger Agreement;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any governmental authority or
any other Person is required (i) for the pledge by Pledgor of the Pledged
Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by Pledgor, or (ii) for the exercise by
Xxxxxx of the voting or other rights provided for in this Agreement or the
remedies in respect of the Pledged Collateral pursuant to this Agreement,
except as may be required in connection with such disposition by laws
affecting the offering and sale of securities generally and except for
filing financing statements and consents that have been obtained;
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(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid Lien on and a perfected
security interest in favor of Xxxxxx for the benefit of Xxxxxx, in the
Pledged Collateral and the proceeds thereof, securing the payment of the
Secured Obligations, subject to no other Lien except for the Permitted
Encumbrances;
(h) This Agreement has been duly authorized, executed and delivered
by Pledgor and constitutes a legal, valid and binding obligation of Pledgor
enforceable against Pledgor in accordance with its terms;
(i) The Pledged Shares constitute [98.94%] of the issued and
outstanding shares of Stock of the Company; and
(j) Except as disclosed on Part B of SCHEDULE I, and except for the
Subordination and Intercreditor Agreement, none of the Pledged Indebtedness
is subordinated in right of payment to other Indebtedness or subject to the
terms of an indenture.
The representations and warranties set forth in this SECTION 5 shall
survive the execution and delivery of this Agreement.
6. COVENANTS. Pledgor covenants and agrees that until the payment
in full of the Obligations:
(a) Without the prior written consent of Xxxxxx, Pledgor will not
sell, assign, transfer, pledge, or otherwise encumber any of its rights in
or to the Pledged Collateral, or any unpaid dividends, interest or other
distributions or payments with respect to the Pledged Collateral or xxxxx x
Xxxx in the Pledged Collateral, unless otherwise expressly permitted by the
Reimbursement Agreement;
(b) Pledgor will, at its expense, promptly execute, acknowledge and
deliver all such instruments and take all such actions as Xxxxxx from time
to time may request in order to ensure to Xxxxxx the benefits of the Liens
in and to the Pledged Collateral intended to be created by this Agreement,
including the filing of any necessary Code financing statements, which may
be filed by Xxxxxx with or (to the extent permitted by law) without the
signature of Pledgor, and will cooperate with Xxxxxx, at Pledgor's expense,
in obtaining all necessary approvals and making all necessary filings under
federal, state, local or foreign law in connection with such Liens or any
sale or transfer of the Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged Collateral
and the Liens of Xxxxxx in the Pledged Collateral against the claim of any
Person and will maintain and preserve such Liens subject to the Permitted
Encumbrances; and
(d) Pledgor will, upon obtaining ownership of any additional Stock or
promissory notes or instruments of a Pledged Entity or Stock or promissory
notes or instruments otherwise required to be pledged to Xxxxxx pursuant to
any of the Basic Documents, which stock, notes or instruments are not
already Pledged Collateral, promptly (and in any event within three (3)
Business Days) deliver to Xxxxxx a Pledge Amendment, duly executed by
Pledgor, in substantially the form of SCHEDULE II hereto (a "PLEDGE
AMENDMENT") in respect of any such additional stock, notes or instruments,
pursuant to which Pledgor shall pledge to Xxxxxx all
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of such additional stock, notes and instruments. Pledgor hereby authorizes
Xxxxxx to attach each Pledge Amendment to this Agreement and agrees that
all Pledged Shares and Pledged Indebtedness listed on any Pledge Amendment
delivered to Xxxxxx shall for all purposes hereunder be considered Pledged
Collateral.
7. PLEDGOR'S RIGHTS. As long as no Event of Default shall have
occurred and be continuing and until written notice shall be given to Pledgor in
accordance with SECTION 8(a) hereof:
(a) Pledgor shall have the right, from time to time, to vote and give
consents with respect to the Pledged Collateral, or any part thereof for
all purposes not inconsistent with the provisions of this Agreement, the
Reimbursement Agreement or any other Basic Document; PROVIDED, HOWEVER,
that no vote shall be cast, and no consent shall be given or action taken,
which would have the effect of impairing the position or interest of Xxxxxx
in respect of the Pledged Collateral or which would authorize, effect or
consent to (unless and to the extent expressly permitted by the
Reimbursement Agreement):
(i) the dissolution or liquidation, in whole or in part, of a
Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with any
other Person, other than pursuant to the Merger Agreement;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for
Permitted Encumbrances;
(iv) any change in the authorized number of shares, the stated
capital or the authorized share capital of a Pledged Entity or the
issuance of any additional shares of its stock; or
(v) the alteration of the voting rights with respect to the
stock of a Pledged Entity; and
(b)(i) Pledgor shall be entitled, from time to time, to collect and
receive for its own use all cash dividends and interest paid in respect of
the Pledged Shares and Pledged Indebtedness to the extent not in violation
of the Reimbursement Agreement OTHER THAN any and all: (A) dividends and
interest paid or payable other than in cash in respect of any Pledged
Collateral, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any Pledged
Collateral; (B) dividends and other distributions paid or payable in cash
in respect of any Pledged Shares in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in capital of a Pledged Entity; and (C) cash paid,
payable or otherwise distributed, in respect of principal of, or in
redemption of, or in exchange for, any Pledged Collateral; PROVIDED,
HOWEVER, that until actually paid all rights to such distributions shall
remain subject to the Lien created by this Agreement; and
(ii) all dividends and interest (other than such cash dividends
and interest as are permitted to be paid to Pledgor in accordance with
CLAUSE (i) above) and all other distributions in respect of any of the
Pledged Shares or Pledged Indebtedness, whenever paid or made, shall,
subject to the
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Subordination and Intercreditor Agreement, be delivered to Xxxxxx to
hold as Pledged Collateral and shall, if received by Pledgor, be
received in trust for the benefit of Xxxxxx, be segregated from the
other property or funds of Pledgor, and be forthwith delivered to
Xxxxxx as Pledged Collateral in the same form as so received (with
any necessary indorsement).
8. DEFAULTS AND REMEDIES.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written notice
to Pledgor, subject to the Subordination and Intercreditor Agreement,
Xxxxxx is hereby authorized and empowered to transfer and register in its
name or in the name of its nominee the whole or any part of the Pledged
Collateral, to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations, to exercise the voting and all other rights as a
holder with respect thereto, to collect and receive all cash dividends,
interest, principal and other distributions made thereon, to sell in one or
more sales after ten (10) days' notice of the time and place of any public
sale or of the time at which a private sale is to take place (which notice
Pledgor agrees is commercially reasonable) the whole or any part of the
Pledged Collateral and to otherwise act with respect to the Pledged
Collateral as though Xxxxxx was the outright owner thereof, Pledgor hereby
irrevocably constituting and appointing Xxxxxx as the proxy and
attorney-in-fact of Pledgor, with full power of substitution to do so, and
which appointment shall remain in effect until the Obligations have been
fully paid; PROVIDED, HOWEVER, Xxxxxx shall not have any duty to exercise
any such right or to preserve the same and shall not be liable for any
failure to do so or for any delay in doing so. Any sale shall be made at a
public or private sale at Xxxxxx'x place of business, or at any place to be
named in the notice of sale, either for cash or upon credit or for future
delivery at such price as Xxxxxx may xxxx fair, and Xxxxxx may be the
purchaser of the whole or any part of the Pledged Collateral so sold and
hold the same thereafter in its own right free from any claim of Pledgor or
any right of redemption. Each sale shall be made to the highest bidder,
but Xxxxxx reserves the right to reject any and all bids at such sale
which, in its discretion, it shall deem inadequate. Demands of
performance, except as otherwise herein specifically provided for, notices
of sale, advertisements and the presence of property at sale are hereby
waived and any sale hereunder may be conducted by an auctioneer or any
officer or agent of Xxxxxx.
(b) If, at the original time or times appointed for the sale of the
whole or any part of the Pledged Collateral, the highest bid, if there be
but one sale, shall be inadequate to discharge in full all the Secured
Obligations, or if the Pledged Collateral be offered for sale in lots, if
at any of such sales, the highest bid for the lot offered for sale would
indicate to Xxxxxx, in their discretion, that the proceeds of the sales of
the whole of the Pledged Collateral would be unlikely to be sufficient to
discharge all the Secured Obligations, Xxxxxx may, on one or more occasions
and in its discretion, postpone any of said sales by public announcement at
the time of sale or the time of previous postponement of sale, and no other
notice of such postponement or postponements of sale need be given, any
other notice being hereby waived; PROVIDED, HOWEVER, that any sale or sales
made after such postponement shall be after five (5) days' notice to
Pledgor.
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(c) If, at any time when Xxxxxx shall determine to exercise its right
to sell the whole or any part of the Pledged Collateral hereunder, such
Pledged Collateral or the part thereof to be sold shall not, for any reason
whatsoever, be effectively registered under the Securities Act, as amended
(or any similar statute then in effect), Xxxxxx may, in its discretion
(subject only to applicable requirements of law), sell such Pledged
Collateral or part thereof by private sale in such manner and under such
circumstances as Xxxxxx may deem necessary or advisable, but subject to the
other requirements of this SECTION 8, and shall not be required to effect
such registration or to cause the same to be effected. Without limiting
the generality of the foregoing, in any such event, Xxxxxx in its
discretion (x) may, in accordance with applicable securities laws, proceed
to make such private sale notwithstanding that a registration statement for
the purpose of registering such Pledged Collateral or part thereof could be
or shall have been filed under said Securities Act (or similar statute),
(y) may approach and negotiate with a single possible purchaser to effect
such sale, and (z) may restrict such sale to a purchaser who is an
accredited investor under the Securities Act and who will represent and
agree that such purchaser is purchasing for its own account, for investment
and not with a view to the distribution or sale of such Pledged Collateral
or any part thereof. In addition to a private sale as provided above in
this SECTION 8, if any of the Pledged Collateral shall not be freely
distributable to the public without registration under the Securities Act
(or similar statute) at the time of any proposed sale pursuant to this
SECTION 8, then Xxxxxx shall not be required to effect such registration or
cause the same to be effected but, in its discretion (subject only to
applicable requirements of law), may require that any sale hereunder
(including a sale at auction) be conducted subject to restrictions:
(i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates representing the Pledged Collateral sold in such sale,
including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's
access to financial information about Pledgor and such Person's
intentions as to the holding of the Pledged Collateral so sold for
investment for its own account and not with a view to the distribution
thereof; and
(iv) as to such other matters as Xxxxxx may, in its discretion,
deem necessary or appropriate in order that such sale (notwithstanding
any failure so to register) may be effected in compliance with the
Bankruptcy Code and other laws affecting the enforcement of creditors'
rights and the Securities Act and all applicable state securities
laws.
(d) Pledgor recognizes that Xxxxxx may be unable to effect a public
sale of any or all the Pledged Collateral and may be compelled to resort to
one or more private sales thereof in accordance with CLAUSE (c) above.
Pledgor also acknowledges that any such private sale may result in prices
and other terms less favorable to the seller than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any such
private sale shall not be deemed to have been made in a commercially
unreasonable manner solely by virtue of such sale being private. Xxxxxx
shall not be under any obligation to delay a sale of any of
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the Pledged Collateral for the period of time necessary to permit the
Pledged Entity to register such securities for public sale under the
Securities Act, or under applicable state securities laws, even if Pledgor
and the Pledged Entity would agree to do so.
(e) Pledgor agrees to the maximum extent permitted by applicable law
that following the occurrence and during the continuance of an Event of
Default it will not at any time plead, claim or take the benefit of any
appraisal, valuation, stay, extension, moratorium or redemption law now or
hereafter in force in order to prevent or delay the enforcement of this
Agreement, or the absolute sale of the whole or any part of the Pledged
Collateral or the possession thereof by any purchaser at any sale
hereunder, and Pledgor waives the benefit of all such laws to the extent it
lawfully may do so. Pledgor agrees that it will not interfere with any
right, power and remedy of Xxxxxx provided for in this Agreement or now or
hereafter existing at law or in equity or by statute or otherwise, or the
exercise or beginning of the exercise by Xxxxxx of any one or more of such
rights, powers or remedies. No failure or delay on the part of Xxxxxx to
exercise any such right, power or remedy and no notice or demand which may
be given to or made upon Pledgor by Xxxxxx with respect to any such
remedies shall operate as a waiver thereof, or limit or impair Xxxxxx'x
right to take any action or to exercise any power or remedy hereunder,
without notice or demand, or prejudice its rights as against Pledgor in any
respect.
(f) Pledgor further agrees that a breach of any of the covenants
contained in this SECTION 8 will cause irreparable injury to Xxxxxx, that
Xxxxxx shall have no adequate remedy at law in respect of such breach and,
as a consequence, agrees that each and every covenant contained in this
SECTION 8 shall be specifically enforceable against Pledgor, and Pledgor
hereby waives and agrees not to assert any defenses against an action for
specific performance of such covenants except for a defense that the
Secured Obligations are not then due and payable in accordance with the
Reimbursement Agreement and instruments governing and evidencing such
obligations.
9. WAIVER. No delay on Xxxxxx'x part in exercising any power of
sale, Lien, option or other right hereunder, and no notice or demand which may
be given to or made upon Pledgor by Xxxxxx with respect to any power of sale,
Lien, option or other right hereunder, shall constitute a waiver thereof, or
limit or impair Xxxxxx'x right to take any action or to exercise any power of
sale, Lien, option, or any other right hereunder, without notice or demand, or
prejudice Xxxxxx'x rights as against Pledgor in any respect.
10. ASSIGNMENT. Xxxxxx may assign, indorse or transfer any
instrument evidencing all or any part of the Secured Obligations as provided in,
and in accordance with, the Reimbursement Agreement, and the holder of such
instrument shall be entitled to the benefits of this Agreement.
11. TERMINATION. Immediately following payment in full of the
Obligations, Xxxxxx shall deliver to either Pledgor or to such other party as
may be entitled to receive the Pledged Collateral pledged by Pledgor at the time
subject to this Agreement or other agreement executed by both Xxxxxx and Pledgor
and all instruments of assignment executed in connection therewith, free and
clear of the Liens hereof and, except as otherwise provided herein, all of
Pledgor's obligations hereunder shall at such time terminate.
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12. LIEN ABSOLUTE. All rights of Xxxxxx hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Agreement, any
other Basic Document or any other agreement or instrument governing or
evidencing any Secured Obligations;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the
Reimbursement Agreement, any other Basic Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other Collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Secured Obligations;
(d) the insolvency of Company or Pledgor; or
(e) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Pledgor.
13. RELEASE. Pledgor consents and agrees that Xxxxxx may at any
time, or from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the manner,
place or terms of payment of all or any part of the Secured Obligations;
and
(b) exchange, release and/or surrender all or any of the Collateral
(including the Pledged Collateral), or any part thereof, by whomsoever
deposited, which is now or may hereafter be held by Xxxxxx in connection
with all or any of the Secured Obligations; all in such manner and upon
such terms as Xxxxxx may deem proper, and without notice to or further
assent from Pledgor, it being hereby agreed that Pledgor shall be and
remain bound upon this Agreement, irrespective of the value or condition of
any of the Collateral, and notwithstanding any such change, exchange,
settlement, compromise, surrender, release, renewal or extension, and
notwithstanding also that the Secured Obligations may, at any time, exceed
the aggregate principal amount thereof set forth in the Reimbursement
Agreement, or any other agreement governing any Secured Obligations.
Pledgor hereby waives notice of acceptance of this Agreement, and also
presentment, demand, protest and notice of dishonor of any and all of the
Secured Obligations, and promptness in commencing suit against any party
hereto or liable hereon, and in giving any notice to or of making any claim
or demand hereunder upon Pledgor. No act or omission of any kind on
Xxxxxx'x part shall in any event affect or impair this Agreement.
14. REINSTATEMENT. This Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
Pledgor or any Pledged Entity for liquidation or reorganization, should Pledgor
or any Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is,
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pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee of the Secured Obligations, whether as
a "voidable preference", "fraudulent conveyance", or otherwise, all as though
such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned,
the Secured Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
15. MISCELLANEOUS.
(a) Xxxxxx may execute any of its duties hereunder by or through its
agents or employees and shall be entitled to advice of counsel concerning
all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Xxxxxx for all fees, losses,
costs and expenses, including, without limitation, attorneys fees and
expenses incurred by Xxxxxx in connection with the administration and
enforcement of this Agreement.
(c) Neither Xxxxxx, nor any of its respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully taken
or omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS SUCCESSORS
AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF PLEDGOR), AND
SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY, XXXXXX AND ITS
SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THAT STATE, AND NONE OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT MAY BE WAIVED, ALTERED, MODIFIED OR AMENDED
EXCEPT IN WRITING DULY SIGNED FOR AND ON BEHALF OF XXXXXX AND PLEDGOR.
16. SEVERABILITY. If for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or effect those portions of
this Agreement which are valid.
17. NOTICES. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
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(a) If to Xxxxxx, at:
Xxxxxx Equity Investors III, L.P.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxxxxx
Fax No.: (000) 000-0000
With copies to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax No.: 000-000-0000
(b) If to Pledgor, at:
ATC Communications Group, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Fax No.: 000-000-0000/000-000-0000
With copies to:
Xxxxxx & Xxxx, LLP
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx, Esq.
Fax No.: 000-000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
SECTION 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to the persons
designated above to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication.
11
18. SECTION TITLES. The Section titles contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. BENEFIT OF XXXXXX. All security interests granted or contemplated
hereby shall be for the benefit of Xxxxxx, and all proceeds or payments realized
from the Pledged Collateral in accordance herewith shall be applied to the
Obligations in accordance with the terms of the Reimbursement Agreement.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
ATC COMMUNICATIONS GROUP, INC.
By: /s/ XXXXX X. XXXX, XX.
----------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President
XXXXXX EQUITY PARTNERS III, L.P.
By: /s/ XXXX X. XXXXXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Its Duly Authorized Signatory
13
SCHEDULE I
PART A
PLEDGED SHARES
--------------------------------------------------------------------------------------------
Class Stock Certificate Number Percentage of
Pledged Entity of Stock Number(s) of Shares Outstanding Shares
--------------------------------------------------------------------------------------------
Advanced Telemarketing Common 257 3,388,764 98.94%
Corporation
--------------------------------------------------------------------------------------------
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PART B
PLEDGED INDEBTEDNESS
--------------------------------------------------------------------------------------------
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
--------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxx $3,661,505.39 September 16, 1997 June 30, 1998 6%
--------------------------------------------------------------------------------------------
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SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is delivered
pursuant to SECTION 6(d) of the Pledge Agreement referred to below. All defined
terms herein shall have the meanings ascribed thereto or incorporated by
reference in the Pledge Agreement. The undersigned hereby certifies that the
representations and warranties in SECTION 5 of the Pledge Agreement are and
continue to be true and correct, both as to the promissory notes, instruments
and shares pledged prior to this Pledge Amendment and as to the promissory
notes, instruments and shares pledged pursuant to this Pledge Amendment. The
undersigned further agrees that this Pledge Amendment may be attached to that
certain Pledge Agreement, dated May 4, 1998, between undersigned, as Pledgor,
and Xxxxxx Equity Investors III, L.P., as Xxxxxx, (the "Pledge Agreement") and
that the Pledged Shares and Pledged Indebtedness listed on this Pledge Amendment
shall be and become a part of the Pledged Collateral referred to in said Pledge
Agreement and shall secure all Secured Obligations referred to in said Pledge
Agreement. The undersigned acknowledges that any promissory notes, instruments
or shares not included in the Pledged Collateral at the discretion of Xxxxxx may
not otherwise be pledged by Pledgor to any other Person or otherwise used as
security for any obligations other than the Secured Obligations.
ATC COMMUNICATIONS GROUP, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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Name and Class Certificate Number
Address of Pledgor Pledged Entity of Stock Number(s) of Shares
-------------------------------------------------------------------------------
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Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
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