Exhibit 10.36
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this “
Agreement ”) dated as of October 24, 2003 is among
TELETECH HOLDINGS, INC., a Delaware corporation (the “
Company ”), each subsidiary of the Company listed on
the signature pages hereof, such other subsidiaries of the Company
as from time to time become parties hereto (collectively, including
the Company, the “ Pledgors ” and each
individually a “ Pledgor ”) and BANK OF AMERICA,
N.A. (“ Bank of America ”), in its capacity as
collateral agent (in such capacity, the “ Collateral
Agent ”) under the Intercreditor Agreement referred to
below.
W I T N E S
S E T H :
WHEREAS, the Company, various
financial institutions (the “ Lenders ”) and
Bank of America, as administrative agent (in such capacity, the
“ Administrative Agent ”), have entered into a
Credit Agreement dated as of October 29, 2002 (as amended, restated
or otherwise modified from time to time, the “ Credit
Agreement ”);
WHEREAS, the Company is a party to a
Note Agreement dated as of October 1, 2001 (as amended by the First
Amendment to Note Purchase Agreement dated as of February 1, 2003,
the Waiver and Second Amendment to Note Purchase Agreement dated as
of August 1, 2003 and the Third Amendment to Note Purchase
Agreement dated as of September 30, 2003, and as further amended,
restated or otherwise modified from time to time, the “
Note Agreement ”) with each of the purchasers listed
on Schedule A thereto (the “ Purchasers ”; the
Purchasers together with each other holder of a Note (as defined in
the Intercreditor Agreement referred to below), collectively, the
“ Noteholders ” and individually each a “
Noteholder ”);
WHEREAS, each of the Pledgors (other
than the Company) has guaranteed all obligations of the Company
under the Credit Agreement, the Note Agreement and certain other
financing arrangements;
WHEREAS, pursuant to an
Intercreditor Agreement dated as of the date hereof (as amended,
restated or otherwise modified from time to time, the “
Intercreditor Agreement ”), the Administrative Agent,
on behalf of itself and the Lenders, the Purchasers and the
Collateral Agent have agreed that (i) the Benefited Obligations (as
defined in the Intercreditor Agreement) shall be secured and
guaranteed pari passu and (ii) Bank of America shall act as
collateral agent for the Benefited Parties (as defined in the
Intercreditor Agreement); and
WHEREAS, the Benefited Obligations
of each Pledgor are to be secured pursuant to this
Agreement;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1. Definitions .
When used herein, (a) the terms Benefited Obligations ,
Benefited Parties , Event of Default , Financing
Agreement , Note and Person shall have the
respective meanings assigned thereto in the Intercreditor
Agreement; (b) references to agreements (including this Agreement)
and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but only to
the extent such amendments and other
modifications are not prohibited by
the terms of any Financing Agreement; and (c) the following terms
have the following meanings (such meanings to be applicable to both
the singular and plural forms of such terms):
Administrative Agent
- see the Recitals
.
Agreement - see the Preamble .
Bank of America
- see the Preamble
.
Collateral
- see Section 2 .
Collateral Agent
- see the Preamble
.
Company - see the Preamble .
Credit Agreement
- see the Recitals
.
Default means the occurrence of any of the following
events: (a) any Unmatured Event of Default under Section 8.01 (f)
or (g) of the Credit Agreement or Section 11(i) or (j) of the Note
Agreement or (b) any Event of Default.
Intercreditor
Agreement - see the
Recitals .
Issuer means the issuer of any of the shares of stock
or other securities representing all or any portion of the
Collateral.
Lenders - see the Recitals .
Liabilities
means, as to each Pledgor, all
Benefited Obligations of such Pledgor.
Note Agreement
- see the Recitals
.
Noteholders
- see the Recitals
.
Pledgor - see the Preamble .
Unmatured Event of
Default means any event
which if it continues uncured will, with lapse of time or notice or
both, constitute an Event of Default.
2.
Pledge . As security for the payment of all
Liabilities, each Pledgor hereby pledges to the Collateral Agent
for the benefit of the Benefited Parties, and grants to the
Collateral Agent for the benefit of the Benefited Parties a
continuing security interest in, all of the following:
A.
All of the shares of stock or other
securities set forth under such Pledgor’s name on Schedule
I hereto, all of the certificates and/or instruments
representing such shares of stock and other securities, and all
cash, securities, dividends, rights and other
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property at any time and from time
to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of such shares or other
securities;
B.
All additional shares of stock of
any of the Issuers listed in Schedule I hereto at any time
and from time to time acquired by such Pledger in any manner, all
of the certificates representing such additional shares, and all
cash, securities, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such
shares;
C.
All other property hereafter
delivered to the Collateral Agent in substitution for or in
addition to any of the foregoing, all certificates and instruments
representing or evidencing such property, and all cash, securities,
interest, dividends, rights and other property at any time and from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof; and
D.
All products and proceeds of all of
the foregoing.
All of the foregoing are herein
collectively called the “ Collateral
”.
Each Pledgor agrees to deliver to
the Collateral Agent, promptly upon receipt and in due form for
transfer (i.e., endorsed in blank or accompanied by stock or bond
powers executed in blank), any Collateral (other than dividends
which such Pledgor is entitled to receive and retain pursuant to
Section 5 hereof) which may at any time or from time to time
be in or come into the possession or control of such Pledgor; and
prior to the delivery thereof to the Collateral Agent, such
Collateral shall be held by such Pledgor separate and apart from
its other property and in express trust for the Collateral Agent
and for the benefit of the Benefited Parties.
3.
Warranties; Further
Assurances . Each
Pledgor warrants to the Collateral Agent for the benefit of each
Benefited Party that: (a) such Pledgor is (or at the time of any
future delivery, pledge, assignment or transfer thereof will be)
the legal and equitable owner of such Pledgor’s Collateral
free and clear of all liens, security interests and encumbrances of
every description whatsoever other than the security interest
hereunder; (b) the pledge and delivery of such Pledgor’s
Collateral to the Collateral Agent pursuant to this Agreement will
create a valid first priority perfected security interest in such
Collateral in favor of the Collateral Agent for the benefit of the
Benefited Parties; (c) all shares of stock or other securities
pledged by such Pledgor referred to in Schedule I hereto are
duly authorized, validly issued, fully paid and non assessable; (d)
as to each Issuer whose name appears in Schedule I hereto,
such Pledgor’s Collateral represents on the date hereof not
less than the applicable percentage (as shown in Schedule I
hereto) of the total shares of capital stock issued and outstanding
of such Issuer; and (e) the information contained in Schedule
I hereto with respect to such Pledgor is true and accurate in
all respects.
So long as any of the Liabilities
shall be outstanding or any commitment shall exist on the part of
any Benefited Party with respect to the creation of any
Liabilities, each Pledgor (i) shall deliver such financing
statements and other documents (and pay the costs of filing and
recording the same in all public offices reasonably deemed
necessary or appropriate by the Collateral Agent) and do such other
acts and things, all as the Collateral Agent may from time
to
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time reasonably request, to
establish and maintain avalid, perfected security interest in the
Collateral (free of all other liens, claims and rights of third
parties whatsoever, other than the security interest hereunder) to
secure the performance and payment of the Liabilities; (ii) will
execute and deliver to the Collateral Agent such stock powers and
similar documents relating to such Pledgor’s Collateral,
satisfactory in form and substance to the Collateral Agent, as the
Collateral Agent may reasonably request; and (iii) will furnish
each Benefited Party such information concerning such
Pledgor’s Collateral as such Benefited Party may from time to
time reasonably request, and will permit any Benefited Party or any
designee of a Benefited Party, from time to time at reasonable
times and on reasonable notice, to inspect, audit and make copies
of and extracts from all records and other papers in the possession
of such Pledgor which pertain to the Collateral, and will, upon the
reasonable request of the Collateral Agent, deliver to the
Collateral Agent all of such records and papers.
4.
Holding in Name of Collateral
Agent, etc . The
Collateral Agent may from time to time during the existence of a
Default, without notice to any Pledgor, take all or any of the
following actions: (a) transfer all or any part of such
Pledgor’s Collateral into the name of the Collateral Agent or
any nominee or sub-agent for the Collateral Agent, with or without
disclosing that such Collateral is subject to the lien and security
interest hereunder; (b) notify the parties obligated on any of the
Collateral to make payment to the Collateral Agent of any amounts
due or to become due thereunder; (c) endorse any checks, drafts or
other writings in the name of the applicable Pledgor to allow
collection of the Collateral; (d) enforce collection of any of the
Collateral by suit or otherwise, and surrender, release or exchange
all or any part thereof, or compromise or renew for any period
(whether or not longer than the original peri
