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EXHIBIT 10.7
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement is made as of December 20, 1996, by BILLING
INFORMATION CONCEPTS CORP., a Delaware corporation (the "Pledgor"), in favor of
THE FROST NATIONAL BANK, a national banking association ("Frost"), and its
successors and assigns, as agent (the "Agent"), for the equal and ratable
benefit of the financial institutions which are now or hereafter parties to the
hereinafter described Credit Agreement (collectively, the "Banks").
RECITALS
The Pledgor is the owner of the shares (the "Pledged Shares") of stock
described in Schedule I hereto and issued by the corporation named therein (the
"Issuer"). The Agent, the Issuing Bank and the Banks have entered into a
Credit Agreement dated as of December 20, 1996 (as it may hereafter by amended
or otherwise modified from time to time, the "Credit Agreement"), with BILLING
INFORMATION CONCEPTS, INC., a Delaware corporation, ("Borrower") and Pledgor.
Borrower is a wholly owned Subsidiary of Pledgor. It is a condition precedent
to the effectiveness of the Credit Agreement that the Pledgor shall have
executed and delivered this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein and for other good and valuable consideration, the
adequacy, receipt and sufficiency of which are hereby acknowledged, and in
order to induce the Banks to make the Loans and issue the Letters of Credit
under the Credit Agreement, the Pledgor hereby agrees as follows:
SECTION 1. Defined Terms and Related Matters.
(a) The capitalized terms used herein which are defined in the
Credit Agreement and not otherwise defined herein shall have the
meanings specified therein.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement.
(c) Unless otherwise defined herein or in the Credit
Agreement, the terms defined in the Uniform Commercial Code as enacted
in the State of Texas, as amended from time to time (the "UCC") are used
herein as therein defined.
SECTION 2. Pledge. The Pledgor hereby pledges and delivers to the
Agent, for the equal and ratable benefit of the Banks, and hereby grants to the
Agent, for the equal and ratable benefit of the Banks, a security interest in
and a lien on, the property described in subsections (a) and (b) of this
Section 2 (the "Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, cash, instruments and other property
from time to
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time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares; and
(b) all additional shares of stock of the Issuer of the
Pledged Shares from time to time acquired by the Pledgor in any manner,
and the certificates representing such additional shares, and all
dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares.
The inclusion of proceeds in this Agreement does not authorize
the Pledgor to sell, dispose of or otherwise use the Pledged Collateral in any
manner not specifically authorized hereby.
SECTION 3. Security for Obligations. This Agreement secures the
prompt and complete (i) payment and performance of all obligations, covenants
and conditions of Pledgor under the Credit Agreement and the other Loan
Documents to which it is a party, whether such obligations, covenants and
conditions are now existing or hereafter arising, and all renewals, extensions,
amendments, supplements and rearrangements thereof, and (ii) payment and
performance of all obligations, covenants and conditions required to be paid or
performed by any other Loan Party under the Notes, the Credit Agreement and the
other Loan Documents; in each case whether for principal, interest, prepayment
premium, taxes, losses, compensation, reimbursements, fees, expenses or any
other amount payable to the Banks and the Agent under the Credit Agreement or
any other Loan Document (all such obligations, covenants and conditions
described in the foregoing clauses (i) and (ii) being hereinafter collectively
referred to as the "Obligations").
SECTION 4. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged Collateral have been
delivered to and held by or on behalf of the Agent pursuant hereto in suitable
form for transfer by delivery, or accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to the
Agent. The Agent shall have the right at any time to exchange certificates or
instruments representing or evidencing the Pledged Collateral in its possession
for certificates or instruments of smaller or larger denominations.
SECTION 5. Representations and Warranties. The Pledgor represents
and warrants as follows:
(a) This Agreement is, and all other documents and instruments
executed in connection herewith will be, legal, valid and binding
obligations of the Pledgor enforceable against the Pledgor in accordance
with their respective terms, except as enforceability may be (i) limited
by applicable Debtor Laws and (ii) subject to the general effect of
general principles of equity (regardless of whether such enforceability
is considered in a proceeding is equity or at law).
(b) The Pledged Shares have been duly authorized and validly
issued and are fully paid and nonassessable under the laws of the
jurisdiction of incorporation of the Issuer.
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(c) The Pledgor is the legal and beneficial owner of the
Pledged Collateral free and clear of any Lien, and the Pledgor has not
sold, granted any option with respect to, assigned, transferred or
otherwise disposed of any of its rights or interests in or to the
Pledged Collateral.
(d) This Agreement and the delivery of the Pledged Collateral
to the Agent create a valid first priority Lien in the Pledged
Collateral securing the payment of the Obligations.
(e) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority which has not been
received is required for (i) the pledge by the Pledgor of the Pledged
Collateral pursuant to this Agreement; (ii) the execution, delivery or
performance of this Agreement by the Pledgor; or (iii) except for
actions required by the UCC, the exercise by the Agent 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).
(f) The Pledged Shares constitute the percentage of the issued
and outstanding shares of stock of the Issuer thereof indicated on
Schedule I.
(g) The Pledgor has received, or will receive, direct or
indirect benefit from the making of this Agreement.
SECTION 6. Further Assurances. The Pledgor agrees that at any time
and from time to time, at the reasonable request of the Agent and at the
expense of the Pledgor, the Pledgor will promptly execute and deliver all
further instruments and documents, and take all further action that may be
reasonably necessary or desirable, or that the Agent may reasonably request, in
order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Agent to exercise and enforce the Banks' rights
and remedies hereunder with respect to any of the Pledged Collateral, and, to
the extent any of the Pledged Collateral is at any time in the custody of a
"clearing corporation" or of a "custodian bank" or a nominee of either subject
to the control of a clearing corporation, as defined in the UCC, then the
Pledgor shall cause a pledge of such Pledged Collateral to be effected
hereunder by causing appropriate entries to be made on the books of the
clearing corporation reducing the account of the Pledgor and increasing the
account of the Agent in the manner and with the effect provided in Section
8.320 of the UCC. The Pledgor and the Agent agree that a pledge effected by
the making of such entries shall have the effect of a delivery of such
securities pursuant to Section 8.313 of the UCC and the effect of a taking of
delivery by the Agent of such Pledged Collateral in accordance with Section
8.321 of the UCC.
SECTION 7. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
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(i) The Pledgor shall be entitled to exercise any and
all voting and other consensual rights (including, without
limitation, the right to give consents, waivers and notifications
in respect of the Pledged Collateral) pertaining to the Pledged
Collateral or any part thereof; provided, however, that no vote
shall be cast or consent, waiver or ratification given or action
taken which would be inconsistent with or violate any provision
of this Agreement or any other Loan Document; and provided
further that the Pledgor shall give the Agent at least 10 days'
written notice in the form of an officer's certificate of the
manner in which it intends to exercise, or the reasons for
refraining from exercising, any voting or other consensual rights
pertaining to the Pledged Collateral or any part thereof, which
might have a material adverse effect on the value of the Pledged
Collateral or any part thereof; and
(ii) The Pledgor shall be entitled to receive and retain
any and all dividends and interest paid in respect of the Pledged
Collateral; provided, however, that any and all
(1) dividends and interest paid or payable other
than in cash in respect of, and instruments and
other property received, receivable or otherwise
distributed in respect of, or in exchange for, any
Pledged Collateral,
(2) dividends and other distributions hereafter
paid or payable in cash in respect of any Pledged
Collateral in connection with a partial or total
liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-
surplus, and
(3) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Pledged
Collateral,
shall be, and shall be forthwith delivered to the Agent to hold
as, Pledged Collateral and shall, if received by the Pledgor be
received in trust for the benefit of the Agent, be segregated
from the other property or funds of the Pledgor and be forthwith
delivered to the Agent as Pledged Collateral in the same form as
so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) The Agent may, without notice to the Pledgor,
transfer or register in the name of the Agent or any of its
nominees, for the equal and ratable benefit of the Banks, any or
all shares of the Pledged Collateral held by the Agent hereunder,
and the Agent or its nominee may thereafter, after delivery of
notice to the Pledgor (which notice must have been requested by
the Banks), exercise all voting and corporate rights at any
meeting of Issuer and any and all rights of conversion, exchange,
subscription or any other rights, privileges or options
pertaining to any shares of the Pledged Collateral as if it were
the absolute owner thereof,
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including, without limitation, the right to exchange at its
discretion any and all of the Pledged Collateral upon the merger,
consolidation, reorganization, recapitalization or other
readjustment of Issuer or upon the exercise by Issuer or the
Agent of any right, privilege or option pertaining to any shares
of the Pledged Collateral, and in connection therewith, to
deposit and deliver any and all of the Pledged Collateral with
any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as it may
determine, all without liability except to account for property
actually received by it, but the Agent shall have no duty to
exercise, and the Banks shall not have any duty to request the
exercise of any of the aforesaid rights, privileges or options,
and neither the Agent nor any Bank shall be responsible for any
failure to do so or delay in so doing.
(ii) All rights of the Pledgor to exercise the voting
and other consensual rights which it would otherwise be entitled
to exercise pursuant to Section 7(a)(i) and to receive the
dividends and interest payments which it would otherwise be
authorized to receive and retain pursuant to Section 7(a)(ii)
shall cease, and all such rights shall thereupon become vested in
the Agent which shall thereupon have the sole right to exercise
such voting and other consensual rights and to receive and hold
as Pledged Collateral such dividends and interest payments.
(iii) All dividends and interest payments which are
received by the Pledgor contrary to the provisions of Section
7(b)(ii) shall be received in trust for the benefit of the Agent,
shall be segregated from other funds of the Pledgor, and shall be
forthwith paid over to the Agent as Pledged Collateral in the
same form as so received (with any necessary endorsement).
(iv) The Pledgor shall execute and deliver (or cause to
be executed and delivered to the Agent) all such proxies and
other instruments as the Agent may reasonably request for the
purpose of enabling the Agent to exercise the voting and other
rights which it is entitled to exercise pursuant to Section
7(b)(ii) and to receive the dividends or interest payments which
it is entitled to receive and retain pursuant to Section
7(b)(iii).
SECTION 8. Transfers and Other Liens; Additional Shares; No
Amendment.
(a) Except for dispositions or Liens constituting Permitted
Liens, the Pledgor shall not sell, exchange or otherwise dispose of, or
grant any option with respect to, any of the Pledged Collateral or
create or permit to exist any Lien upon or with respect to any of the
Pledged Collateral.
(b) The Pledgor agrees that it will (i) cause the Issuer of
the Pledged Shares not to issue any stock or other securities in
addition to or in substitution for the Pledged Shares issued by the
Issuer, except to the Pledgor, and (ii) pledge hereunder, immediately
upon its acquisition (directly or indirectly) thereof, any
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and all additional shares of stock or other securities of the Issuer of
the Pledged Shares.
(c) The Pledgor shall not amend, and the Pledgor shall cause
the Issuer not to amend, the articles of incorporation (or equivalent
corporate documents) of the Issuer in a manner that would adversely
affect the rights and remedies of the Banks and the Agent under this
Agreement.
SECTION 9. Agent Appointed Attorney-in Fact. The Pledgor hereby
irrevocably appoints the Agent as the Pledgor's attorney-in-fact, effective
upon and during the continuance of an Event of Default, with full authority in
the place and stead of the Pledgor and in the name of the Pledgor, the Agent or
otherwise, from time to time in the Agent's discretion, to take any action and
to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation:
(a) to ask, demand, collect, xxx for, recover, compound,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Pledged Collateral;
(b) to receive, endorse and collect any drafts or other
instruments, documents and chattel paper in connection with Section
9(a); and
(c) to file any claims or take any action or institute any
proceedings which the Agent may deem necessary or desirable for the
collection of any of the Pledged Collateral or otherwise to enforce the
rights of the Banks and the Agent with respect to any of the Pledged
Collateral.
SECTION 10. Agent May Perform. If the Pledgor fails to perform any
agreement contained herein (after the expiration of any applicable grace period
or opportunity to cure), the Agent may itself perform, or cause performance of,
such agreement, and the reasonable expenses of the Agent incurred in connection
therewith shall be payable by the Pledgor under Section 14(b).
SECTION 11. Possession; Reasonable Care. The Agent shall hold in its
possession all Pledged Collateral pledged, assigned or transferred hereunder
and from time to time constituting a portion of the Pledged Collateral, except
as from time to time any documents or instruments may be required for
recordation or for the purpose of enforcing or realizing upon any right or
value thereby represented. The Agent may, from time to time, in its sole
discretion, appoint one or more agents (which in no case shall be the Pledgor
or an affiliate of the Pledgor) to hold physical custody, for the account of
the Agent, of any or all of the Pledged Collateral. The Agent shall be deemed
to have exercised reasonable care in the custody and preservation of the
Pledged Collateral in its possession if the Pledged Collateral is accorded
treatment substantially equal to that which the Agent accords its own property,
it being understood that the Agent shall not have any responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Collateral,
whether or not the Agent has or is deemed
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to have knowledge of such matters, or (b) taking any necessary steps to
preserve rights against any parties with respect to any Pledged Collateral.
SECTION 12. Remedies. If any Event of Default shall have occurred and
be continuing:
(a) The Agent may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party upon default under the UCC (whether or not the UCC applies to the
affected Pledged Collateral), or under the laws of any other applicable
jurisdiction, and the Agent may also, without notice except as specified
below, sell the Pledged Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange, broker's board or at
any of the Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Agent may reasonably
deem commercially reasonable. The Pledgor agrees that, to the extent
notice of sale shall be required by law, at least 10 days' notice to the
Pledgor of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification.
The Agent shall not be obligated to make any sale of Pledged Collateral
regardless of notice of sale having been given. The Agent may adjourn
any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(b) Any cash held by the Agent as Pledged Collateral and all
cash proceeds received by the Agent in respect of any sale of,
collection from, or other realization upon all or any part of the
Pledged Collateral shall be applied in whole or in part by the Agent
against, the Obligations in such order as the Agent shall select. Any
surplus of such cash or cash proceeds and interest accrued thereon, if
any, held by the Agent and remaining after payment in full of all the
Obligations shall be paid over to the Pledgor or to whomsoever may be
lawfully entitled to receive such surplus; provided that the Agent shall
have no obligation to invest or otherwise pay interest on any amounts
held by it in connection with or pursuant to this Agreement.
(c) All rights and remedies of the Agent and the Banks
expressed herein are in addition to all other rights and remedies
possessed by the Agent and the Banks in the Loan Documents and any other
agreement or instrument relating to the Obligations.
SECTION 13. Registration Rights, Private Sales, Etc.
(a) If the Agent shall determine to exercise its and the
Banks' right to sell all or any of the Pledged Collateral pursuant to
Section 12, the Pledgor agrees that, upon request of the Agent, the
Pledgor will use its best efforts to cause the officers and directors of
the Issuer of the Pledged Shares, at Pledgor's expense, to cooperate
fully with the Agent in conformity with requirements imposed by law for
the availability of an exemption from registration under the Securities
Act of 1933, as amended from time to time (the "Securities Act") and
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in the Agent's determination that such exemption is not reasonably
available for such sale, the Pledgor shall use its best efforts to:
(i) execute and deliver, and cause the Issuer of the
Pledged Collateral contemplated to be sold and the directors and
officers thereof to execute and deliver, all such instruments and
documents, and to use its best efforts to do or cause to be done
all such other acts and things, as may be necessary in the
reasonable opinion of the Agent to effectively realize upon the
value of the Pledged Collateral, to register such Pledged
Collateral under the provisions of the Securities Act and to use
its best efforts to cause the registration statement relating
thereto to become effective and to remain effective for such
period as prospectuses are required by law to be furnished to
facilitate the sale or other disposition of the Pledged
Collateral, or that portion thereof to be sold, and to make all
amendments and supplements thereto and to the related
prospectuses which, in the reasonable opinion of the Agent, are
necessary or advisable, all in conformity with the requirements
of the Securities Act, and the rules and regulations of the
Securities Act, and the rules and regulations of the Securities
and Exchange Commission, applicable thereto or, where relevant,
the laws, rules and regulations of such other jurisdiction
applicable thereto;
(ii) use its best efforts to qualify the Pledged
Collateral under the state securities or "Blue Sky" laws, if
applicable thereto, and to obtain all necessary governmental
approvals for the sale of the Pledged Collateral, as reasonably
requested by the Agent; provided, however, that an Issuer will
not be required (1) to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this subparagraph, (2) to subject itself to taxation in
any such jurisdiction, or (3) to consent to general service of
process in any such jurisdiction;
(iii) cause the Issuer to make available to its security
holders, as soon as practicable, an earnings statement which will
satisfy the provisions of Section 11 (a) of the Securities Act;
and
(iv) do or cause to be done all such other acts and
things as may be necessary to make such sale of the Pledged
Collateral or any part thereof valid and binding and in
compliance with applicable law.
(b) The Pledgor recognizes that the Agent may be unable to
effect a public sale of any or all of the Pledged Collateral by reason
of certain prohibitions contained in the Securities Act and applicable
state securities laws, but may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire such Pledged Collateral
for their own account for investment and not with a view to the
distribution or resale thereof. The Pledgor acknowledges and agrees
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, to the extent
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permitted by law, be deemed to have been made in a commercially
reasonable manner. Neither the Agent nor the Banks shall be under any
obligation to delay a sale of any of the Pledged Collateral for the
period of time necessary to permit the Issuer of such securities to
register such securities under the Securities Act or under any
applicable state securities laws, even if the Issuer would agree to do
so.
(c) The Pledgor further agrees to do or cause to be done, to
the extent that the Pledgor may legally do so, all such other acts and
things as may be necessary to make such sales or resales of any portion
or all of the Pledged Collateral valid and binding and in compliance
with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction
over any such sale or sales, all at the Pledgor's expense. The Pledgor
further agrees that a breach of any of the covenants contained in this
Section 13 will cause irreparable injury to the Agent and the Banks, and
that the Agent and the Banks 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 13 shall be specifically enforceable
against the Pledgor, and the Pledgor hereby waives and agrees, to the
fullest extent permitted by law, not to assert as a defense against an
action for specific performance of such covenants that (i) the Pledgor's
failure to perform such covenants will not cause irreparable injury to
the Agent or the Banks, or (ii) the Agent or the Banks have an adequate
remedy at law in respect of such breach. The Pledgor further
acknowledges the impossibility of ascertaining the amount of damages
which would be suffered by the Agent and the Banks by reason of a breach
of any of the covenants contained in this Section 13 and, consequently,
agrees that, if the Pledgor shall breach any of such covenants and the
Agent or any Bank shall xxx for damages for such breach, the Pledgor
shall pay to the Agent or such Bank, as liquidated damages and not as a
penalty, an aggregate amount equal to the value of the Pledged
Collateral on the date the Agent or such Bank shall demand compliance
with this Section 13.
(d) To the fullest extent permitted by applicable law and
subject to the provisions of Section 10.8 of the Credit Agreement, the
Pledgor agrees to indemnify, protect and save harmless the Agent, the
Banks and any controlling persons thereof within the meaning of the
Securities Act from and against any and all liabilities, suits, claims,
costs and expenses (including counsel fees and disbursements) arising
under the Securities Act, the Securities and Exchange Act of 1934, as
amended, or at common law, or pursuant to any other applicable law in
connection with the aforesaid registration, insofar as such liabilities,
suits, claims, costs and expenses arise out of or are based upon, any
untrue statement or alleged untrue statement of a material fact
contained in the aforesaid registration statement, or the aforesaid
registration statement as amended or supplemented, or arises out of or
is based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Pledgor
shall not be liable in any such case to the extent that any such
liabilities, suits, claims, costs and expenses arise out of or are based
upon, the gross negligence or the wilful misconduct of the Agent or any
Bank or any untrue statement or
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alleged untrue statement or omission or alleged omission made in the
aforesaid registration statement or the aforesaid registration statement
as amended or supplemented, in reliance upon and in conformity with
written information furnished to the Pledgor by the Agent or such Bank
specifically for inclusion therein. The foregoing indemnity agreement is
in addition to any liability that the Pledgor may otherwise have to the
Agent and any such Bank, or any such controlling person.
SECTION 14. Indemnity, Expenses and Interest.
(a) To the fullest extent permitted by law and subject to the
provisions of Section 10.8 of the Credit Agreement, the Pledgor agrees
to indemnify the Agent and the Banks and their respective affiliates,
subsidiaries, parent companies and other related entities, and their
respective officers, directors employees, agents, attorneys and other
professionals and consultants, insurers and stockholders, and each of
them, in the manner set forth in Section 10.4 of the Credit Agreement.
(b) The Pledgor agrees to pay to the Agent and the Banks the
costs and expenses set forth in Section 10.3 of the Credit Agreement in
the manner set forth in Section 10.3 of the Credit Agreement.
(c) The Pledgor agrees to pay interest on any expenses or
other sums due to the Agent and the Banks hereunder that are not paid
when due at the Default Rate.
SECTION 15. Amendments, Etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by the Pledgor herefrom shall in
any event be effective unless the same shall be in writing and signed by the
Required Banks, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 16. Addresses for Notices. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telegraphic, telex, facsimile or cable
communication) and, if to the Pledgor, mailed, telegraphed, transmitted, cabled
or delivered to it, addressed to it at the address of the Pledgor specified on
the signature page hereof; if to the Agent or any Bank, mailed, telegraphed,
transmitted, cabled or delivered to it, addressed to it at the address of the
Agent or such Bank (as the case may be) specified in the Credit Agreement; or
as to each party at such other address as shall be designated by such party in
a written notice to each other party complying as to delivery with the terms of
this Section 16. All such notices and other communications shall, when mailed,
telegraphed, telexed, transmitted or cabled, respectively, be effective when
deposited in the mails, confirmed by telex answerback, transmitted by
telecopier or delivered to the cable company, respectively.
SECTION 17. Security Interest Absolute. All rights of the Agent and
the Banks, all obligations of the Pledgor hereunder and the security interest
hereunder shall, to the extent permitted by applicable law, be absolute and
unconditional, irrespective of:
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(a) any lack of validity or enforceability of the Credit
Agreement, the Notes, the Letters of Credit or any of the other Loan
Documents;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, the Notes, the Letters of Credit or any of the other Loan
Documents;
(c) any exchange, release or nonperfection 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 Obligations; or
(d) any other circumstance (other than payment in full of the
Obligations) which might otherwise constitute a defense available to, or
a discharge of, the Pledgor or any Loan Party in respect of the
Obligations.
SECTION 18. Continuing Security Interest. This Agreement and the
delivery of the Pledged Collateral to the Agent shall create a continuing
security interest in the Pledged Collateral and shall (a) remain in full force
and effect until termination of the obligations of the Banks to make the Loans
and issue Letters of Credit under the Credit Agreement and the indefeasible
payment in full thereafter of the Obligations and the expiration and
termination of all Letters of Credit; (b) be binding upon the Pledgor and its
successors and assigns; and (c) inure to the benefit of the Agent, the Banks
and their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), the Agent and the Banks may assign or
otherwise transfer any of their respective rights under this Agreement to any
other Person, and such Person shall thereupon become vested with all the
benefits in respect thereof granted herein or otherwise to the Agent or the
Banks, as the case may be. Upon the termination of the obligations of the Banks
to make the Loans and the indefeasible payment in full thereafter of the
Obligations, the Pledgor shall be entitled to the return, upon its request and
at its expense, of such of the Pledged Collateral as shall not have been sold
or otherwise applied pursuant to the terms hereof.
SECTION 19. Waiver of Marshalling. All rights of marshalling of
assets of the Pledgor, including any such right with respect to the Pledged
Collateral, are hereby waived by the Pledgor.
SECTION 20. Limitation by Law. All rights, remedies and powers
provided in this Agreement may be exercised only to the extent that the
exercise thereof does not violate any applicable provision of law, and all the
provisions of this Agreement are intended to be subject to all applicable
mandatory provisions of law which may be controlling and to be limited to the
extent necessary so that they will not render this Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
SECTION 21. Separability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. Should
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any clause, sentence, paragraph, subsection or Section of this Agreement be
judicially declared to be invalid, unenforceable or void, such decision will
not have the effect of invalidating or voiding the remainder of this Agreement,
and the parties hereto agree that the part or parts of this Agreement so held
to be invalid, unenforceable or void will be deemed to have been stricken
herefrom by the parties hereto, and the remainder will have the same force and
effectiveness as if such stricken part or parts had never been included herein.
SECTION 22. Captions. The captions in this Agreement have been
inserted for convenience only and shall be given no substantive meaning or
significance whatever in construing the terms and provisions of this Agreement.
SECTION 23. No Waiver: Remedies. No failure on the part of the Agent
or any Bank to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 24. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 25. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement or made in writing
by or on behalf of the Pledgor in connection herewith, shall survive the
execution and delivery of this Agreement. Any investigation by the Agent or
any Bank shall not diminish in any respect whatsoever its right to rely on such
representations and warranties.
SECTION 26. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF TEXAS (WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES). THE
PARTIES EXPRESSLY ACKNOWLEDGE THAT (I) THEY INTEND THAT THIS AGREEMENT SHALL BE
GOVERNED BY THE PROVISIONS (INCLUDING, WITHOUT LIMITATION, THE RIGHT OF THE
PARTIES TO SELECT THE GOVERNING LAW) OF THE UNIFORM COMMERCIAL CODE AND NOT BY
COMMON LAW AND (II) THE STATE OF TEXAS BEARS A REASONABLE RELATIONSHIP TO THIS
TRANSACTION AND NO OTHER STATE HAS A MATERIALLY GREATER INTEREST IN THIS
TRANSACTION THAN THE STATE OF TEXAS. THE PLEDGOR HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF TEXAS AND OF ANY TEXAS STATE COURT SITTING IN TEXAS FOR PURPOSES OF
ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
[signatures on next page]
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IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
BILLING INFORMATION CONCEPTS CORP.
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------
Title: Senior Vice President and
-------------------------------
Chief Financial Officer
-------------------------------
Federal Employer Identification
Number: 00-0000000
ADDRESS:
0000 Xxx Xxxxx, Xxxxx 000
-------------------------------------
Xxx Xxxxxxx, Xxxxx 00000
Facsimile: (210) -
--- ----
Attention:
----------------------------
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SCHEDULE I
TO
STOCK PLEDGE AGREEMENT
Stock
-----
Class Certificate Number
----- ----------- ------
Name of Issuer of Stock Number Par Value of Shares Percentages
-------------- --------- ------ --------- --------- -----------
Billing Information Common C7 No Par 100,000 100%
Concepts, Inc. Value
Enhanced Services Common 2 $.01 1,000 100%
Billing, Inc.
Inter-Lata Aviation, Inc. Common 2 $.01 1,000 100%
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