Exhibit 99.3
EXECUTION COPY
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of January 31, 2001, made by Swift
Telecommunications, Inc., a New York corporation ("Swift") in favor of AT&T
Corp., a New York corporation ("Lender"). ------
WHEREAS, Swift is the beneficial owner and record holder of 100% of the
issued and outstanding shares of capital stock (the "Wholly-Owned Swift Pledged
Shares") of Swift EasyLink Co., Inc., a Delaware corporation ("SECI"), AT&T
EasyLink Services Ltd., a limited liability company organized and existing under
the laws of England and Wales ("ESL"), and Swift Comtext Limited, a limited
liability company organized and existing under the laws of England and Wales
("Comtext"; together with SECI and ESL, the "Wholly-Owned Companies");
WHEREAS Swift is the beneficial owner and record holder of 75% of the
issued and outstanding shares of capital stock (the "Other Pledged Shares"; and
together with the Wholly Owned Swift Pledged Shares, the "Pledged Shares") of
Xtreme Global Communication SDN BHD, a Malaysian company ("XGC1"), and Xtreme
Global Communication (S) PTE Ltd., a Malaysian company ("XGC2"; together with
XGC1 and the Wholly-Owned Companies, the "Companies");
WHEREAS, Lender and Swift have entered into an Asset Purchase
Agreement, dated December 13, 2000 (the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, Swift has issued to Lender
a promissory note in the original principal amount of $35,000,000 (the "Swift
Note"), and, pursuant to a Security Agreement of even date herewith (the "Swift
Security Agreement"), granted to Lender a first priority security interest in
the assets of Swift securing all of the obligations to Lender under the Swift
Note;
WHEREAS, Swift, ▇▇▇▇.▇▇▇, Inc., ML Acquisition Corp. and ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ have entered into an Agreement and Plan of Merger, dated as of January 31,
2001 (the "Merger Agreement"), contemplating the merger (the "Merger") of Swift
with and into ML Acquisition Corp. ("Acquisition Sub"), a wholly owned
subsidiary of ▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("▇▇▇▇.▇▇▇");
WHEREAS, contemporaneously herewith ▇▇▇▇.▇▇▇ is executing and
delivering to Lender (i) an Amended and Restated Promissory Note (the "▇▇▇▇.▇▇▇
Note"), which will supersede and replace the Swift Note in the event that Swift
merges into ▇▇▇▇.▇▇▇ or a subsidiary of ▇▇▇▇.▇▇▇ or is acquired by ▇▇▇▇.▇▇▇ or a
subsidiary of ▇▇▇▇.▇▇▇; and (ii) a Pledge Agreement (the "▇▇▇▇.▇▇▇ Pledge
Agreement");
WHEREAS, as a condition precedent to the obligations of Lender under
the Purchase Agreement, including, without limitation, its acceptance of the
Swift Note and the ▇▇▇▇.▇▇▇ Note, Lender requires Pledgor (as such term is
defined herein) to pledge, as security for the obligations owing to Lender under
the Swift Note and the ▇▇▇▇.▇▇▇ Note, pursuant to the terms set forth herein,
all of its shares of capital stock in the Companies (the "Pledged Shares") as
security therefor pursuant to the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and in order to induce
Lender to consummate the transactions contemplated by the Purchase Agreement,
including, without limitation, its acceptance of the Note, and in exchange for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Pledgor hereby agrees with Lender as follows:
1. Definitions
All capitalized terms used in this Agreement which are not otherwise
defined herein shall have the meanings ascribed to them in the Note or, if not
therein defined, Article 9 of the Uniform Commercial Code (the "Code") currently
in effect in the State of New York, as applicable.
"Note" means (i) prior to the consummation of the Merger, the Swift
Note, and (ii) upon the consummation of the Merger, the ▇▇▇▇.▇▇▇ Note.
"Pledgor" means (i) prior to the consummation of the Merger, Swift, and
(ii) upon the consummation of the Merger, Acquisition Sub.
2. Pledge
(a) As security for the prompt payment in full and performance of the
Obligations (as defined in Section 3) when due (whether at stated maturity, by
acceleration or otherwise), Pledgor hereby transfers, grants, bargains, sells,
conveys, hypothecates, pledges, sets over and delivers to Lender, its successors
and assigns, and hereby grants to Lender, its successors and assigns, a Lien and
charge upon and first priority security interest in the following, whether now
owned or hereafter created, acquired or reacquired (the "Collateral"):
(i) the Pledged Shares and any certificates representing the Pledged
Shares, and all dividends, cash, instruments, securities and other
property from time to time received, receivable or otherwise
distributed in respect of, in exchange for, or upon the conversion of
any or all of the Pledged Shares;
(ii) any and all additional shares of capital stock from time to time
acquired by Pledgor by purchase, stock dividend or otherwise;
(iii) all proceeds of any and all of the foregoing Collateral (including,
without limitation, proceeds that constitute property of the types
described above); and
(iv) all books, correspondence, credit files, records, invoices and other
papers, including, without limitation, all tapes, cards, computer runs
and other papers and documents relating to any of the foregoing in the
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possession or under the control of Pledgor or any entity from time to
time acting for Pledgor or the Companies.
(b) Pledgor agrees that the pledge hereunder shall continue to be effective or
shall be reinstated, as the case may be, if at any time any payment (in whole or
in part) of any of the Obligations is rescinded or must otherwise be restored by
Lender, including upon the insolvency, bankruptcy or reorganization of any of
the Companies, all as though such payment had not been made.
3. Security for Obligations
This Agreement and the security interest created hereby in the Pledged
Shares constitutes continuing collateral security for all of the following
obligations, whether now existing or hereafter incurred (the "Obligations"):
(a) the prompt payment by (i) Pledgor, as and when due and payable, of
all amounts from time to time owing by Pledgor in respect of the Swift Note,
this Agreement and the Swift Security Agreement, in each case, as the same may
be amended from time to time (ii) ▇▇▇▇.▇▇▇, as and when due and payable, of all
amounts from time to time owing by ▇▇▇▇.▇▇▇ in respect of the ▇▇▇▇.▇▇▇ Note and
the ▇▇▇▇.▇▇▇ Pledge Agreement, in each case, as the same may be amended from
time to time, (iii) SECI, as and when due and payable, of all amounts from time
to time owing by SECI in respect of the Security Agreement entered into as of
the date hereof between SECI and Lender; and (iv) Comtext, as and when due and
payable, of all amounts from time to time owing by Comtext in respect of the
Security Agreement entered into effective as of the date hereof between Comtext
and Lender (collectively, the "Loan Documents"), whether for principal,
interest, costs, fees, expenses, indemnifications, or otherwise as and when the
same shall become due and payable in accordance with the terms thereof, whether
at maturity or by prepayment, acceleration, declaration of default or otherwise;
and
(b) the due performance and observance by Pledgor of all of its
other obligations from time to time existing in respect of all Loan Documents.
Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts that constitute part of the Obligations,
including, without limitation, amounts that would be owed by Swift or ▇▇▇▇.▇▇▇
under the applicable Note but for the fact that they are unenforceable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
Swift or ▇▇▇▇.▇▇▇, as applicable.
4. Delivery of Collateral
All certificates or instruments from time to time representing or
evidencing the Collateral shall be delivered to and held by or on behalf of
Lender pursuant hereto and shall be in suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to Lender. Lender shall have
the right, at any time in its discretion and without notice to Pledgor, to
transfer to or to register in the name of Lender or any of its
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nominees any or all of the Collateral, subject only to the rights specified in
Section 7(a); provided, that notwithstanding the foregoing, until any transfer
of beneficial ownership with respect to the Collateral pursuant to any exercise
of remedies under Section 11, Pledgor shall continue to be the beneficial owner
of the Collateral. In addition, Lender shall have the right at any time to
exchange certificates or instruments representing or evidencing Collateral for
certificates or instruments of smaller or larger denominations. Pledgor will
promptly give to Lender copies of any notices or other communications received
by it with respect to the Collateral.
5. Representations and Warranties and Covenants
Pledgor represents, warrants and covenants to Lender as follows:
(a) Pledgor is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization and has all
requisite corporate power and lawful authority to carry on its business as it is
currently being conducted.
(b) Pledgor has all requisite corporate power and authority to execute
and deliver this Agreement and to perform fully its obligations hereunder. The
execution, delivery and performance of this Agreement by Pledgor have been duly
authorized by all necessary corporate action of Pledgor, and no other board of
directors, shareholder or other corporate proceeding by or on behalf of Pledgor
is necessary to authorize the execution, delivery or performance of this Pledge.
(c) This Agreement constitutes the valid and legally binding obligation
of Pledgor, enforceable against Pledgor in accordance with its terms, subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally; and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(d) The execution, delivery and performance of this Agreement by
Pledgor will not: (i) violate or conflict with any provision of the certificate
of incorporation or by-laws of Pledgor or any of the Companies, each as amended;
(ii) violate any of the terms, conditions or provisions of any Applicable Law
(as defined in the Purchase Agreement); or (iii) conflict with or result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default under any of the terms, conditions or provisions of any
agreement, arrangement or understanding to which Pledgor is a party. No
authorization, approval, order, license, permit, franchise or consent of, and no
registration, declaration or filing with, any Governmental Authority, is
required in connection with Pledgor's execution, delivery and performance of
this Agreement.
(e) Pledgor is, and will at all times continue to be, the legal and
beneficial owner of the presently existing Collateral pledged by Pledgor
hereunder, free and clear of any prior or pari passu Lien except for the
security interest created by this Agreement. Pledgor will make no assignment,
pledge, hypothecation or transfer of, or create or permit to exist any prior or
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pari passu security interest in, or other prior or pari passu Lien on, the
Collateral, other than pursuant hereto; provided that nothing contained herein
shall prohibit Pledgor from merging into Acquisition Sub pursuant to the Merger
Agreement.
(f) The pledge of the Pledged Shares pursuant to this Agreement,
together with the delivery of the Pledged Shares pursuant to Section 4, creates,
and will continue to create, a valid and perfected first priority Lien upon and
security interest in the Collateral, in favor of Lender and securing the payment
of the Obligations, enforceable as such against all creditors of Pledgor and any
persons purporting to purchase or otherwise acquire any capital stock of the
Companies from Pledgor. Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will defend its
title or interest thereto or therein against any and all Liens (other than the
Lien created by this Agreement), however arising.
(g) No consent of any other Person (including, without limitation,
stockholders or creditors of Pledgor) and no consent, authorization, approval,
or other action by, and no notice to or filing with, any Governmental Authority
is or was required (i) for the pledge by it of the Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement by it,
(ii) for the perfection or maintenance of the security interest created hereby
(including the first priority nature of such security interest) or (iii) for the
exercise by Lender of the voting or other rights provided for in this Agreement
or the remedies in respect of the Collateral pursuant to this Agreement (except
as may be required in connection with any disposition of the Pledged Shares by
laws affecting the offering and sale of securities generally).
(h) The Pledged Shares represent all of the issued and outstanding
shares of capital stock of each of the Wholly-Owned Companies and seventy-five
percent of the issued and outstanding shares of capital stock of the XCG1 and
XCG2. There are no (i) securities convertible into or exchangeable for any
shares of capital stock of any of the Companies, or any options, warrants,
rights, calls, rights or exchange, conversion rights or other commitments
entitling any person to purchase or otherwise acquire any shares of capital
stock of any of the Companies, issued and outstanding; (ii) restrictions on the
transferability of the Collateral to Lender or with respect to the foreclosure,
transfer or disposition thereof by Lender (other than any applicable Federal or
state securities laws); or (iii) shareholders agreements, voting trusts, proxy
agreements or other agreements or understandings which affect or relate to the
voting or giving of written consents with respect to any of the Collateral.
(i) All of the Pledged Shares have been duly authorized and validly
issued and are fully paid and nonassessable, and all information set forth
herein relating to the Pledged Shares is accurate and complete in all material
respects as of the date hereof.
6. Further Assurances
Pledgor agrees that at any time and from time to time, at its expense,
it will promptly execute and deliver all further instruments and documents, and
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take all further action, that may be necessary, or that Lender may at any time
reasonably request, in order to more fully perfect and protect any security
interest granted or purported to be granted hereby or to preserve and defend
against any Person its title to the Collateral and the rights purported to be
granted therein by this Agreement to Lender or to enable Lender to exercise and
enforce its rights and remedies hereunder with respect to any Collateral,
including, without limitation, all rights and remedies action specified in
Section 11. In addition, Pledgor covenants that it will not, by action or
omission, cause or permit any of the Companies to violate any of the provisions
of the Loan Documents and that it will take all actions, including, without
limitation, the voting of its shares of capital stock in each of the Companies,
or refrain from taking any action, as the case may be, so as to effect the
provisions of the Loan Documents.
7. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default under the Note has occurred and is
continuing, upon notice from Lender:
(i) Pledgor shall be entitled to exercise or refrain from exercising
any and all voting and other consensual rights pertaining to the
Collateral or any part thereof for any purpose not inconsistent with the
terms of this Agreement or the other Loan Documents; provided, however,
that Pledgor will not be entitled to exercise any such right if such
exercise could materially and adversely affect the rights inuring to a
holder of the Pledged Shares or the rights and remedies of Lender under
this Agreement or the ability of Lender to exercise the same; and
(ii) Pledgor shall be entitled to receive and retain any and all
cash dividends and interest, cash, instruments and other property paid
in respect of the Collateral, to the extent and only to the extent that
such are permitted by, and otherwise paid in accordance with, the terms
and conditions of the Loan Documents and applicable laws, and provided
that any and all
(A) 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
Collateral,
(B) dividends and other distributions paid or payable in cash in
respect of any Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of
capital, return of capital, capital surplus or paid-in-surplus,
(C) cash paid, payable or otherwise distributed in respect of
principal of, or in redemption of, or in exchange for, any
Collateral, and
(D) other distributions made on or in respect of the Pledged
Shares, whether paid or payable in cash or otherwise, whether
resulting from a subdivision, combination or reclassification of the
outstanding capital stock of any of the Companies or received in
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exchange for Pledged Shares or any part thereof, or in redemption
thereof, or as a result of any merger, consolidation, acquisition or
other exchange of assets to which any of the Companies may be a
party or otherwise,
shall be, and shall be forthwith delivered to Lender to hold as,
Collateral in accordance with Section 4 and shall, if received by
Pledgor, be received in trust for the benefit of Lender, be segregated
from the other property or funds of Pledgor, and be forthwith delivered
to Lender as Collateral in the same form as so received (with any
necessary endorsement or assignment) in accordance with Section 4.
(b) In the event that an Event of Default under the Note shall have
occurred and be continuing, upon notice from Lender:
(i) All rights of Pledgor with respect to the Pledged Shares to
exercise or refrain from exercising the voting and other consensual
rights which Pledgor would otherwise be entitled to exercise pursuant to
Section 7(a)(i), and to receive the cash dividends, interest, cash,
instruments and other property 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 Lender, who shall thereupon
have the sole right to exercise or refrain from exercising such voting
and other consensual rights and to receive and hold as Collateral such
cash dividends and interest payments; and
(ii) All dividends and interest payments received by Pledgor
contrary to Section 7(b)(i) shall be received in trust for the benefit
of Lender, shall be segregated from other funds of Pledgor and shall be
forthwith paid over to Lender as Collateral in the same form as so
received (with any necessary endorsement or assignment).
(c) Pledgor shall execute and deliver (or cause to be executed and
delivered) to Lender all such proxies and other instruments as Lender may
reasonably request for the purpose of enabling Lender to exercise the voting and
other rights which it is entitled to exercise pursuant to Section 7(b)(i) and to
receive the cash dividends or interest payments that it is authorized to receive
and retain pursuant to Sections 7(a)(ii) and 7(b)(ii).
8. Lender Appointed Attorney-in-Fact
If at any time Pledgor shall fail to pay in full when due or otherwise
timely perform any of the Obligations, Lender shall automatically and without
further action become Pledgor's attorney-in-fact, with full authority in the
place and stead of Pledgor and in the name of Pledgor or otherwise, from time to
time in the discretion of Lender to take any action and to execute any
instrument which Lender deems to be necessary or advisable for accomplishing the
purposes of this Agreement (subject to the rights of Pledgor under Section 7),
including, without limitation, to receive, endorse, collect, ask for, demand,
and ▇▇▇ for all moneys due or to become due or instruments made payable to
Pledgor representing any dividend, interest payment or other distribution in
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respect of the Collateral or any part thereof and to give full discharge for the
same, to settle, compromise, prosecute or defend any action, claim or proceeding
with respect thereto, and to sell, assign, endorse, pledge, transfer and to make
any agreement respecting, or otherwise deal with, the same. All acts of such
attorney or designee are hereby ratified and approved, and such attorney or
designee shall not be liable for any acts of omission or commission (other than
acts or omissions constituting gross negligence or willful misconduct as
determined by a final judgment or a court of competent jurisdiction). This power
is coupled with an interest and is irrevocable until all of the Obligations are
paid in full.
9. Lender May Perform
If Pledgor fails to perform any agreement or obligation contained
herein, Lender may (without obligation to do so and without releasing Pledgor
from its obligation to do so) itself perform, or cause performance of, such
agreement or obligation, in the name of Pledgor or Lender, and the expenses of
Lender incurred in connection therewith, together with interest on such amounts
from the date of payment or incurrence, at a rate of interest per annum equal to
the interest then in effect under the Note, shall constitute additional
Obligations secured by this Agreement and shall be payable by Pledgor under
Section 12, including, without limitation, any costs or expenses of litigation
associated therewith.
10. Lender's Duties
The powers conferred on Lender hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Lender shall have no duty as to any Collateral, as to ascertaining
or taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Collateral, whether or not Lender has
or is deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral. Lender has no obligation to perform any of the
obligations or duties of Pledgor as a shareholder of the Companies.
11. Remedies Upon Default
In the event that an Event of Default under the Note shall have
occurred and be continuing:
(a) Lender may (but shall not be obligated to) exercise in respect of
the Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all of the rights and remedies of a secured party in
default under the Uniform Commercial Code in effect in the State of New York (or
such other applicable jurisdiction as Lender may determine) at that time (the
"Code"), and may also, without demand of performance or other demand,
advertisement or notice except as specified below (all of which demands,
advertisements, and/or notices are hereby expressly waived by Pledgor), sell the
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 Lender's offices or elsewhere, for
cash, on credit or for future delivery, and upon such other terms as Lender may
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deem appropriate. Lender shall be authorized at any such sale (if it deems
advisable to do so) to restrict the prospective bidders or purchasers to persons
who will represent and agree that they are purchasing the Collateral for their
own account for investment and not with a view to distribution or sale thereof,
and upon consummation of any such sale Lender shall have the right to assign,
transfer and deliver to the purchaser or purchasers thereof the Collateral so
sold. Each such purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of Pledgor, and, to the
extent permitted by applicable law, the Pledgor hereby waives all rights of
redemption, stay, valuation and appraisal Pledgor now has or may at any time in
the future have under any rule of law or statute now existing or hereinafter
enacted. Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten days' notice to 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. Lender shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. Lender 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 Lender as Collateral and all cash proceeds
received by Lender in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral after payment from such
proceeds of Lender's out-of-pocket costs and expenses in connection with such
sale, including, without limitation, reasonable attorneys' fees and expenses,
may, in the discretion of Lender, be held by Lender as collateral for, and/or
then or at any time thereafter be applied in whole or in part by Lender against,
all or any part of the Obligations in such manner as Lender may elect in its
sole discretion.
(c) In the event that the proceeds of any such sale, collection or
realization are insufficient to pay all amounts to which Lender is legally
entitled, Pledgor shall be liable for, and shall promptly pay, the deficiency,
together with interest thereon at the applicable interest rate under the Note or
such other rate as shall be fixed by applicable law, together with the costs of
collection and the reasonable fees, costs, expenses and other client charges of
any attorneys employed by Lender to collect such deficiency. In the event that
the proceeds of any such sale, collection or realization are sufficient to pay
all amounts to which Lender is legally entitled, Pledgor shall be entitled to
receive any such proceeds over and above such amounts.
12. Expenses
Without limiting the generality of the foregoing, Pledgor will upon
demand pay to Lender the amount of any and all costs and expenses, including the
fees, costs, expenses and other client charges of counsel for Lender and of any
experts and agents (including, without limitation, any Person which may act as
agent of Lender), that Lender may incur in connection with (i) the
administration of this Agreement, (ii) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights of Lender hereunder or
(iv) the failure by Pledgor to perform or observe any of the provisions hereof.
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Any amounts payable under this Section 12 shall be included in the Obligations
and shall bear interest from the payment of such costs or expenses at a rate
equal to the lower of 18% per annum or the highest interest rate permitted under
applicable law.
13. Continuing Security Interest; Termination
(a) All rights of Lender hereunder, the grant of a security interest in
the Collateral and all obligations of Pledgor hereunder, shall be absolute and
unconditional irrespective of (i) any agreement with respect to any of the
Obligations or any instrument relating to the foregoing, (ii) 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 any Loan Document or any other agreement or instrument relating to any of
the foregoing, (iii) any exchange, release or nonperfection of any other
collateral, or any release or amendment or waiver of or consent to or departure
from any guaranty, for all or any of the Obligations or (iv) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, Pledgor in respect of the Obligations or in respect of this
Agreement.
(b) This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until the earlier of
(A) the date Swift or ▇▇▇▇.▇▇▇, as applicable, has indefeasibly paid in full in
cash all of the Obligations or (B) the date the Pledged Shares have been
transferred to Lender or its designee, (ii) be binding upon Pledgor and its
heirs, successors and assigns, and (iii) inure, together with the rights and
remedies of Lender hereunder, to the benefit of, and be enforceable by, Lender
and its successors and assigns. Pledgor agrees that the security interest in the
Collateral shall continue to be effective or shall be reinstated, as the case
may be, if at any time any payment (in whole or in part) of any of the
Obligations is rescinded or must otherwise be restored by Lender for any reason,
all as though such payment had not been made. Subject to the foregoing, upon the
satisfaction in full of the Obligations, the Agreement and the security interest
granted hereby shall terminate and all rights to the Collateral shall revert to
Pledgor. Upon any such termination, Lender will, at Pledgor's request and
expense, release to Pledgor all Collateral then held by it and execute and
deliver to Pledgor such documents as Pledgor shall reasonably request to
evidence such termination. Any execution and delivery of documents pursuant to
this Section 13 shall be without recourse to or warranty by Lender.
14. Amendments, Etc.
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No amendment or waiver of any provision of this Agreement, and no
consent to any departure by Pledgor herefrom, shall in any event be effective
unless the same shall be in writing and signed by Pledgor and Lender, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
15. Notices
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All notices and other communications under this Agreement shall be in
writing and shall be deemed given when delivered personally, mailed by
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registered or certified mail, return receipt requested, sent by recognized
overnight delivery service (signature of receipt requested) or, to the extent
receipt is confirmed, by telecopy or telefax (provided that such party also
sends a copy by personal delivery or registered or certified mail, return
receipt requested, or recognized overnight delivery service, signature of
receipt requested), to the following addresses (or to such other address as a
party may have specified by notice given to the other party pursuant to this
provision):
Pledgor:
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
President
Swift Telecommunications, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
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Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Lender:
AT&T Corp.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
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General Attorney
AT&T Corp.
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Room 3235C2
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Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
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16. Governing Law, Choice Of Forum, No Trial By Jury
------------------------------------------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CONFLICT OF LAWS PRINCIPLES, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW
AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST CREATED HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
(b) ANY LEGAL ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT LOCATED IN NEW
YORK COUNTY, STATE OF NEW YORK, AND EACH PARTY AGREES NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH ACTION, SUIT OR PROCEEDING, ANY
CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF SUCH COURTS, THAT
ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE ACTION,
SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE
ACTION, SUIT OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT, AND HEREBY WAIVES ANY
OFFSETS IN ANY SUCH ACTION, SUIT OR PROCEEDING. EACH PARTY FURTHER IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH ACTION, SUIT OR
PROCEEDING. ANY AND ALL SERVICE OF PROCESS AND ANY OTHER NOTICE IN ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE AGAINST ANY PARTY IF GIVEN
PERSONALLY OR BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY
ANY OTHER MEANS OF MAIL THAT REQUIRES A SIGNED RECEIPT, POSTAGE PREPAID, MAILED
TO SUCH PARTY AS HEREIN PROVIDED, OR BY PERSONAL SERVICE ON SUCH PARTY WITH A
COPY OF SUCH PROCESS MAILED TO SUCH PARTY BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, POSTAGE PREPAID. NOTHING HEREIN CONTAINED SHALL BE
DEEMED TO AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY MANNER PERMITTED
BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OTHER
PARTY IN ANY JURISDICTION OTHER THAN NEW YORK IN CONNECTION WITH ACTIONS
INITIATED BY THIRD PARTIES IN SUCH OTHER JURISDICTIONS.
(c) BY ITS EXECUTION AND DELIVERY OF THIS AGREEMENT, PLEDGOR HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR
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IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PLEDGOR OR
LENDER IN CONNECTION HEREWITH OR THEREWITH. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDER TO MAKE ADVANCES UNDER THE NOTE.
17. Waiver
------
Pledgor hereby waives promptness, diligence, notice of acceptance and
any other notice with respect to any Obligations or the Pledgor's obligations
hereunder and any requirement that Lender protect, secure, perfect or insure any
security interest or Lien, or any property subject thereto, or exhaust any right
or take any action against the Pledgor or any other Person.
18. Rights Cumulative
-----------------
No failure on the part of Lender to exercise, and no delay in
exercising, any right or power hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right or power preclude any
other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of Lender provided herein are cumulative and are in
addition to, and not exclusive of, any rights or remedies provided by law. No
provision for a specific remedy shall be deemed to limit Lender's remedies at
law or in equity. The rights of Lender hereunder are not conditional or
contingent on any attempt by Lender to exercise any of its rights under any
other document against Pledgor or against any other Person.
19. Assignment
----------
This Agreement shall be binding on Pledgor and its successors and
permitted assigns (including any trustee succeeding to the rights of Pledgor
pursuant to Chapter 11 of the Bankruptcy Code or pursuant to any conversion to a
case or cases under Chapter 7 of the Bankruptcy Code), and shall inure, together
with all rights and remedies of Lender hereunder, to the benefit of Lender and
its successors and assigns, provided that Pledgor may not assign any of its
rights or obligations hereunder without the prior written consent of Lender and
any purported assignment without such consent shall be null and void. Lender may
without notice to Pledgor transfer its rights under this Agreement only to an
Affiliate. Any reference to any Loan Party within this Agreement shall be deemed
to include any permitted assignee of such Loan Party and any reference to any
Loan Document shall include any amendment thereto.
20. Survival of Representations and Warranties
-------------------------------------------
All representations and warranties of Pledgor contained herein or made
in connection herewith shall survive the making of and shall not be waived by
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the execution and delivery of this Agreement or any other Loan Document or any
investigation by Lender. All covenants and agreements of Pledgor contained
herein shall continue in full force and effect from and after the date hereof
until the indefeasible payment in full of the Obligations (subject to Section
2(b) hereof).
21. Severability
Whenever possible each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by, illegal, unenforceable or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition, illegality, uneforceability or invalidity under such law,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
22. Interpretation
Pledgor and Lender have participated jointly in the negotiation and
drafting of this Agreement. In the event that any ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of authorship of any provisions of
this Agreement.
23. Headings
Section headings in this Agreement are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
24. Counterparts
This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which, when taken together, shall constitute a single
contract. Delivery of an executed counterpart of a signature page to this
Agreement by telecopy shall be as effective as delivery of a manually executed
counterpart of this Agreement.
25. Entire Agreement
This Agreement and the other Loan Documents (together with any
schedules and exhibits hereto and thereto) embody the entire agreement between
the parties hereto and thereto relating to the transactions provided for herein
and therein and supersede all prior understandings and agreements, whether
written or oral, between the parties hereto and thereto with respect to such
transactions.
[Signature page follows]
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IN WITNESS WHEREOF, Pledgor has executed this Agreement in favor of
Lender as of the date first above written.
SWIFT TELECOMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Title: President & CEO
ACCEPTED AND AGREED:
AT&T CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: ADIS Vice President
