EXHIBIT 10.15.12
AMENDMENT NO. 1 TO
PLEDGE AGREEMENT
This Amendment No. 1 to Pledge Agreement (this "AMENDMENT"), dated as
of July 29, 2005, is made by EASYLINK SERVICES USA, INC., a Delaware corporation
(the "PLEDGOR"), and XXXXX FARGO FOOTHILL, INC., a California corporation
(the"PLEDGEE").
R E C I T A L S
A. The Pledgor and the Pledgee are parties to that certain Pledge
Agreement dated as of December 9, 2004 (the "ORIGINAL PLEDGE AGREEMENT").
B. The parties hereto desire to amend certain of the terms and
provisions of the Original Pledge Agreement (as the Original Pledge Agreement is
amended by this Amendment, and as the Original Pledge Agreement may be further
amended, modified or restated from time, collectively the "PLEDGE AGREEMENT") as
provided herein.
NOW, THEREFORE, in consideration of the premises herein contained, and
for other good and valuable consideration (the receipt, sufficiency and adequacy
of which are hereby acknowledged), the parties hereto (intending to be legally
bound) hereby agree as follows:
1. Definitions. Terms capitalized herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Pledge Agreement.
2. Amendment to Original Pledge Agreement. Subject to the terms and
conditions contained herein, the parties hereto hereby amend the Original Pledge
Agreement as follows:
Annex A attached to the Original Pledge Agreement is hereby deleted in
its entirety and replaced and amended and restated with Annex A
attached to this Amendment as Exhibit A.
3. Conditions Precedent. The amendment contained in Section 2 above
is subject to, and contingent upon, the prior or contemporaneous satisfaction of
each of the following conditions precedent, each in form and substance
satisfactory to the Pledgee:
(i) The Pledgor and the Pledgee shall have executed and
delivered to each other this Amendment; and
(ii) The Pledgor shall have delivered to the Pledgee the
Pledged Collateral together with stock powers executed in blank.
4. Reference to and Effect on the Pledge Agreement. Except as
expressly provided herein, the Pledge Agreement shall remain unmodified and
continue in full force and effect and is hereby ratified and confirmed. The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of: (i) any right, power or remedy of the Pledgee under the Pledge
Agreement, or (ii) any Default or Event of Default under the Pledge Agreement.
5. Representations and Warranties of the Pledgor. The Pledgor hereby
represents and warrants to the Pledgee, which representations and warranties
shall survive the execution and delivery of this Amendment, that on and as of
the date hereof and after giving effect to this Amendment:
(a) The Pledged Interests and the Pledged Collateral described in
Annex A attached hereto is, and all other Pledged Collateral in which
the Pledgor shall hereafter xxxxx x xxxx or security interest pursuant
to Section 3 of the Pledge Agreement will be, duly authorized, validly
issued, and fully paid, and, none of such Pledged Collateral is or will
be subject to any legal or contractual restriction. The Pledged
Collateral is, as of the date hereof, and shall be at all times
hereafter during the term of the Pledge Agreement, freely transferable
without restriction or limitation (except as limited by the terms of
the Pledge Agreement).
(b) The Pledged Interests and the Pledged Collateral described in
Annex A hereto constitutes all of the issued and outstanding securities
and investment property legally and beneficially owned by the Pledgor
on the date hereof in or relating to Issuers.
(c) The representations and warranties of the Pledgor set forth in
the Pledge Agreement is true, correct and complete on and as of the
date hereof; provided, that the references to the Pledge Agreement
therein shall be deemed to include the Pledge Agreement as amended by
this Amendment.
(d) The Pledgor acknowledges that the Pledgee is specifically
relying upon the representations, warranties and agreements contained
in this Amendment and that such representations, warranties and
agreements constitute a material inducement to the Pledgee in entering
into this Amendment.
6. Successors and Assigns; Amendment. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, Pledgor may not assign this Amendment
or any of its rights hereunder without the Pledgee's prior written consent. Any
prohibited assignment of this Amendment shall be absolutely null and void. This
Amendment may only be amended or modified by a writing signed by the Pledgee and
the Pledgor.
7. Severability; Construction. Wherever possible, each provision of
this Amendment shall be interpreted in such a manner so as to be effective and
valid under applicable law, but if any provision of this Amendment is held to be
prohibited by or invalid under applicable law, such provision or provisions
shall be ineffective only to the extent of such provision and invalidity,
without invalidating the remainder of this Amendment. Neither this Amendment nor
any uncertainty or ambiguity herein shall be construed or resolved against
Pledgee, whether under any rule of construction or otherwise. On the contrary,
this Amendment has been reviewed by all parties hereto and shall be construed
and interpreted according to the ordinary meaning of the words used so as to
fairly accomplish the purposes and intentions of the parties hereto.
8. Counterparts; Facsimile. This Amendment may be executed in one or
more counterparts, each of which taken together shall constitute one and the
same instrument. Delivery of an executed counterpart of this Amendment by
telefacsimile shall be equally as effective as delivery of a manually executed
counterpart of this Amendment. Any party delivering an executed counterpart of
this Amendment by telefacsimile shall also deliver a manually executed
counterpart of this Amendment, but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability or binding effect of
this Amendment.
9. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
(a) THE VALIDITY OF THIS AMENDMENT, THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE
PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR
RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS AMENDMENT SHALL BE TRIED AND LITIGATED ONLY IN
THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK,
STATE OF NEW YORK, PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY PLEDGED COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT PLEDGEE'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE THE PLEDGED
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. PLEDGOR AND PLEDGEE
WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH
MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT
TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH
THIS SECTION 9(b).
(c) PLEDGOR AND PLEDGEE HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND
ALL OTHER COMMON LAW OR STATUTORY CLAIMS. PLEDGOR AND PLEDGEE
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH
LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AMENDMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
duly executed and delivered as of the date first above written.
EASYLINK SERVICES USA, INC.
By: /s/Xxxxxxx X. Xxxxx
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Its: Vice President and Chief Financial Officer
XXXXX FARGO FOOTHILL, INC.
By: /s/Xxxxxx X. Xxxx
-----------------
Its: V.P.
ACKNOWLEDGED AND AGREED:
-----------------------
The undersigned hereby (i) acknowledges the pledge of the Pledged
Collateral described above pursuant to the terms of the Original Pledge
Agreement, as amended by this Amendment and agrees to register such pledge in
its books and records, and (ii) agrees, upon receipt of notice from the Pledgee
of the occurrence and during the continuance of an Event of Default, to comply
with the written instructions originated by the Pledgee, without further consent
of the registered holder of the Pledged Collateral, including, without
limitation, instructions to pay and remit to the Pledgee all distributions and
other amounts payable to the Pledgor (upon redemption, termination and
dissolution of the undersigned or otherwise in respect of the Pledged
Interests), and to transfer to, and register the Pledged Collateral in the name
of, the Pledgee or its nominee, and (iii) agrees to promptly honor its payment
obligations contained in the Original Pledge Agreement, as amended by this
Amendment including pursuant to Sections 10 and 19 of the Original Pledge
Agreement, as amended by this Amendment
QUICKSTREAM SOFTWARE, INC.
By: /s/Xxxxxxx X. Xxxxx
-------------------
Its: Vice President and Chief Financial Officer
