EXHIBIT 10.15
AMENDED AND RESTATED PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (as amended, modified or restated from
time-to-time, this "Agreement") is dated as of October 15, 2003, and entered
into by and between XXXXXXXX.XXX, INC., a Delaware corporation ("Borrower"), and
XXXXXXXX FAMILY PARTNERSHIP, LTD., ("Lender").
PRELIMINARY STATEMENTS
A. Borrower and Lender have entered into an Amended and Restated Loan
and Security Agreement of even date herewith (as amended, restated, supplemented
or otherwise modified from time-to-time, being the "Loan Agreement"). Terms
defined in the Loan Agreement and not otherwise defined herein being used herein
as therein defined.
B. Borrower owns one hundred percent (100%) of the issued and
outstanding equity interests of the entities listed on Schedule I (each, a
"Company").
C. It is a condition precedent to the making of Loans by Lender under
the Loan Agreement that the Indebtedness thereunder and pursuant to this
Agreement, shall be secured by the equity interests of the Companies.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Loans under the Loan Agreement and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower hereby agrees with Lender as follows:
SECTION 1. Pledge of Security. Borrower hereby assigns and pledges to
Lender, and hereby grants to Lender, all of Borrower's right, title and interest
in and to the following (the "Pledged Collateral"):
(a) the equity interests described on Schedule I annexed
hereto (the "Pledged Interests") and any certificates representing the
Pledged Interests and any interest of Borrower in the entries on the
books of each Company and of any financial intermediary pertaining to
the Pledged Interests, and all dividends, distributions, cash,
warrants, rights, instruments and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the Pledged Interests;
(b) all additional securities of, and all securities
convertible into and warrants, options and other rights to purchase or
otherwise acquire, stock of any issuer of any of the Pledged Interests
that from time to time are acquired by Borrower in any manner (which
shares, securities, warrants, options and other rights shall be deemed
to be part of the Pledged Interests), the certificates or other
instruments representing such additional shares, securities, warrants,
options or other rights and any interest of Borrower in the entries on
the books of each Company and any financial intermediary pertaining to
such additional shares, securities, warrants, options and other rights,
and all dividends, distributions, cash, warrants, rights, instruments
and other property or proceeds from time to time received, receivable
or
PLEDGE AGREEMENT - Page 1
otherwise distributed in respect of or in exchange for any or all of
such additional shares, securities, warrants, options or other rights;
and
(c) to the extent not covered by clauses (a) through (b)
above, all general intangibles (including causes of action) relating
to, and all proceeds of, any or all of the foregoing Pledged
Collateral.
For purposes of this Agreement: (i) the term "proceeds" means and includes
whatever is receivable or received when Pledged Collateral or proceeds thereof
are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary, and includes, without limitation,
proceeds of any indemnity or guaranty payable to Borrower or Lender from time to
time with respect to any of the Pledged Collateral, and (ii) unless otherwise
defined herein or in the Loan Agreement, terms used in Article 9 of the Uniform
Commercial Code in the State of Texas are used herein as therein defined.
SECTION 2. Security for Secured Indebtedness. This Agreement secures,
and the Pledged Collateral is collateral security for, the prompt payment or
performance in full when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including the
payment of amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code), of:
(a) the Indebtedness (as defined in the Loan Agreement); and
(b) all Indebtedness of every nature of Borrower now or hereafter
existing under this Agreement and/or any other Loan Document
to which Borrower is a party;
the Indebtedness, together with all such Indebtedness of Borrower, being herein
called the "Secured Indebtedness".
SECTION 3. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged 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, as applicable, shall be accompanied by
Borrower's endorsement, where necessary, or duly executed instruments of
transfer or assignment in blank substantially in the form of Schedule III
annexed hereto, all in form and substance reasonably satisfactory to Lender.
Lender shall have the right, at any time, in its discretion and without notice
to Borrower, to transfer to or to register in the name of Lender or any of its
nominees any or all of the Pledged Collateral, subject only to the revocable
rights specified in Section 7(a) of this Agreement. In addition, Lender shall
have the right at any time to exchange certificates or instruments representing
or evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations.
SECTION 4. Representations and Warranties. Borrower represents and
warrants as follows:
(a) Capitalization. The authorized capitalization of each
Company is set forth on Schedule I attached hereto. Borrower is the
record owner of the Pledged Collateral.
PLEDGE AGREEMENT - Page 2
(b) Due Authorization, etc. of Pledged Interests. All of the
Pledged Interests have been duly authorized and validly issued and are
fully paid and non-assessable. There are no outstanding options,
subscriptions, warrants or agreements by which either Company is bound
calling for the issuance of shares of any class of its capital stock or
for the issuance of any securities, convertible or exchangeable,
actually or contingently, into shares of its capital stock.
(c) Ownership of Pledged Collateral. Borrower is the legal,
record and beneficial owner of the Pledged Collateral free and clear of
any Lien except for the security interest created by this Agreement.
(d) Perfection; Name; Locations. The pledge of the Pledged
Collateral pursuant to this Agreement creates a valid and enforceable
security interest in the Pledged Collateral, securing the payment of
the Secured Indebtedness, except to the extent the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles regardless of whether
enforceability is sought in equity or at law. Upon the delivery to
Lender of certificates representing the Pledged Interests and the
filing of a UCC-1 Financing Statement naming Borrower as debtor and
Lender as Lender covering the Pledged Collateral in the office of the
Department of State of Texas, the security interest created hereby
shall constitute a perfected, first priority security interest upon the
Pledged Collateral which shall be superior and prior to the rights of
all third Persons now existing or hereafter arising.
(e) Description of Pledged Interests. The Pledged Interests
constitute all of the issued and outstanding shares of stock of the
Companies and there are no outstanding warrants, options or other
rights to purchase, or other agreements outstanding with respect to, or
property that is now or hereafter convertible into, or that requires
the issuance or sale of, any Pledged Interests.
(f) Margin Regulations. The pledge of the Pledged Collateral
pursuant to this Agreement does not violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
(g) Other Information. All information heretofore, herein or
hereafter supplied to Lender by or on behalf of Borrower with respect
to Borrower or the Pledged Collateral is accurate and complete in all
material respects.
SECTION 5. Transfers and Other Liens; Additional Pledged Collateral,
etc. Borrower shall:
(a) not, without the prior written consent of Lender, (i)
sell, assign (by operation of law or otherwise) or otherwise dispose
of, or grant any option with respect to, any of the Pledged Collateral,
(ii) create or suffer to exist any Lien upon or with respect to any of
the Pledged Collateral, except for the security interest under this
Agreement, or (iii) permit any issuer of Pledged Interests to merge or
consolidate;
PLEDGE AGREEMENT - Page 3
(b) (i) cause each issuer of Pledged Interests not to issue
any stock or other securities in addition to or in substitution for the
Pledged Interests issued by such issuer, except to Borrower, and (ii)
pledge hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all additional shares of stock or other
securities of each issuer of Pledged Interests and any certificates or
other instruments hereafter delivered which are described in Section
1(b) of this Agreement;
(c) promptly deliver to Lender all written notices received by
it with respect to the Pledged Collateral; and
(d) pay promptly when due all taxes, assessments and
governmental charges or levies imposed upon, and all claims against,
the Pledged Collateral, except to the extent the validity thereof is
being contested in good faith and adequate reserves therefor have been
established in accordance with generally accepted accounting
principles; provided that Borrower shall in any event pay such taxes,
assessments, charges, levies or claims not later than five days prior
to the date of any proposed sale under any judgment, writ or warrant of
attachment entered or filed against Borrower or any of the Pledged
Collateral as a result of the failure to make such payment.
SECTION 6. Further Assurances; Pledge Amendments; Covenants.
(a) Borrower agrees that from time to time, at the expense of
Borrower, Borrower will promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or desirable, or that Lender may request, in order to perfect
and protect any security interest granted or purported to be granted
hereby or to enable Lender to exercise and enforce its rights and
remedies hereunder with respect to any Pledged Collateral. Without
limiting the generality of the foregoing, Borrower will: (i) execute
and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as Lender may request, in order to perfect and preserve
the security interests granted or purported to be granted hereby and
(ii) at Lender's request, appear in and defend any action or proceeding
that may affect Borrower's title to or Lender's security interest in
all or any part of the Pledged Collateral.
(b) Borrower further agrees that it will, upon obtaining any
additional shares of stock or other securities required to be pledged
hereunder as provided in Section 5(b) of this Agreement, promptly (and
in any event within five Business Days) deliver to Lender a Pledge
Amendment, duly executed by Borrower, in substantially the form of
Schedule II annexed hereto (a "Pledge Amendment"), in respect of the
additional certificates or instruments to be pledged pursuant to this
Agreement. Borrower hereby authorizes Lender to attach each Pledge
Amendment to this Agreement and agrees that all certificates or
instruments listed on any Pledge Amendment delivered to Lender shall
for all purposes hereunder be considered Pledged Collateral; provided
that the failure of Borrower to execute a Pledge Amendment with respect
to any additional certificates or instruments pledged pursuant to this
Agreement shall not impair the security interest of Lender therein or
otherwise adversely affect the rights and remedies of Lender hereunder
with respect thereto.
PLEDGE AGREEMENT - Page 4
(c) Borrower will give Lender thirty (30) days prior written
notice of any change in Borrower's name, identity or corporate
structure.
(d) Borrower will give Lender thirty (30) days prior written
notice of any change in the location of its chief executive office and
will execute such documentation and take such actions as Lender deems
necessary to perfect and protect the security interests granted hereby.
SECTION 7. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Borrower shall be entitled to exercise any and all voting
and other rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this
Agreement or the Loan Agreement; provided, however, that Borrower shall
not exercise or refrain from exercising any such right if Lender shall
have notified Borrower that, in Lender's reasonable judgment, such
action would have a material adverse effect on the value of the Pledged
Collateral or any part thereof. It is understood, however, that neither
(A) the voting by Borrower of any Pledged Interests for or Borrower' s
consent to the election of directors at a regularly scheduled annual or
other meeting of stockholders or with respect to incidental matters at
any such meeting nor (B) Borrower's consent to or approval of any
action otherwise permitted under this Agreement and under the Loan
Agreement shall be deemed inconsistent with the terms of this Agreement
within the meaning of this Section 7(a)(i), and no notice of any such
voting or consent need be given to Lender.
(ii) Borrower shall be entitled to receive and retain, and to
utilize free and clear of the lien of this Agreement, any and all
dividends, distributions, interest or other amounts paid in respect of
the Pledged Collateral; provided, however, that any and all
(A) dividends, distributions, interest or other
amounts paid or payable other than in express compliance with
the provisions of the Loan Agreement in respect of any Pledged
Collateral,
(B) dividends, distributions, interest and other
amounts 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,
(C) dividends and other distributions paid or payable
in cash and/or in property 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
(D) cash or property paid, payable or otherwise
distributed in respect of principal of or in redemption of or
in exchange for any Pledged Collateral,
PLEDGE AGREEMENT - Page 5
in each case shall be, and shall forthwith be delivered to Lender to
hold as, Pledged Collateral and shall, if received by Borrower, be
received in trust for the benefit of Lender, be segregated from the
other property or funds of Borrower and be forthwith delivered to
Lender as Pledged Collateral in the same form as so received (with all
necessary endorsements).
(iii) Lender shall promptly execute and deliver (or cause to
be executed and delivered) to Borrower all such proxies, dividend
payment orders and other instruments as Borrower may from time to time
reasonably request for the purpose of enabling Borrower to exercise the
voting and other rights which it is entitled to exercise pursuant to
paragraph (i) above and to receive the dividends, distributions,
principal, interest or other payments which it is authorized to receive
and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuation of an
Event of Default:
(i) Upon written notice from Lender to Borrower, all rights of
Borrower to exercise the voting and other rights which it would
otherwise be entitled to exercise pursuant to Section 7(a)(i) of this
Agreement shall cease, and all such rights shall thereupon become
vested in Lender who shall thereupon have the sole right to exercise
such voting and other rights.
(ii) All rights of Borrower to receive the payments which it
would otherwise be authorized to receive and retain pursuant to Section
7(a)(ii) of this Agreement shall cease, and all such rights shall
thereupon become vested in Lender who shall thereupon have the sole
right to receive and hold as Pledged Collateral such payments.
(iii) All dividends, distributions, principal, interest and
other payments which are received by Borrower contrary to the
provisions of paragraph (ii) of this Section 7(b) shall be received in
trust for the benefit of Lender, shall be segregated from other funds
of Borrower and shall forthwith be paid over to Lender as Pledged
Collateral in the same form as so received (with any necessary
endorsements).
(c) In order to permit Lender to exercise the voting and other
rights which it may be entitled to exercise pursuant to Section 7(b)(i)
of this Agreement and to receive all dividends and other distributions
which it may be entitled to receive under Section 7(a)(ii) of this
Agreement or Section 7(b)(ii) of this Agreement, Borrower shall
promptly execute and deliver (or cause to be executed and delivered) to
Lender all such proxies, dividend payment orders and other
documentation as Lender may from time to time reasonably request.
PLEDGE AGREEMENT - Page 6
SECTION 8. Lender Appointed Attorney-in-Fact. Borrower hereby
irrevocably appoints Lender as Borrower' s attorney-in-fact, with full authority
in the place and stead of Borrower and in the name of Borrower, Lender or
otherwise, from time to time in Lender's discretion to take any action and to
execute any instrument that Lender may deem necessary or advisable to accomplish
the purposes of this Agreement, including without limitation:
(a) to file one or more financing or continuation statements,
or amendments thereto, relative to all or any part of the Pledged
Collateral without the signature of Borrower;
(b) after the occurrence and during the continuance of an
Event of Default, 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 which are of
the type described in Sections 7(a)(ii)(A) through (D) of this
Agreement, and to ask, demand, collect, xxx for, recover, compound,
receive and give acquittance and receipts for any other type of money
due and to become due under or in respect of any of the Pledged
Collateral;
(c) after the occurrence and during the continuance of an
Event of Default, to receive, endorse, and collect any instruments made
payable to Borrower representing any dividend, distribution, principal,
interest or other payment or distribution in respect of the Pledged
Collateral of the type described in Sections 7(a)(ii)(A) through (D) of
this Agreement, or any part thereof, and to give full discharge for the
same and to receive, endorse and collect any instruments made payable
to Borrower representing any other type of dividend, distribution,
principal, interest or other payment or distribution in respect of the
Pledged Collateral or any part thereof and to give full discharge for
the same; and
(d) after the occurrence and during the continuance of an
Event of Default, to file any other claims or take any other action or
institute any other proceedings that Lender may deem necessary or
desirable for the collection of any of the Pledged Collateral or
otherwise to enforce the rights of Lender with respect to any of the
Pledged Collateral.
SECTION 9. Lender May Perform. If Borrower fails to perform any
agreement contained herein, Lender may itself perform, or cause performance of,
such agreement, and the expenses of Lender incurred in connection therewith
shall be payable by Borrower under Section 13(b) of this Agreement.
SECTION 10. Standard of Care. The powers conferred on Lender hereunder
are solely to protect its interest in the Pledged Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the exercise of
reasonable care in the custody of any Pledged Collateral in its possession and
the accounting for moneys actually received by it hereunder, Lender shall have
no duty as to any Pledged Collateral, it being understood that Lender shall have
no responsibility for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to any
Pledged Collateral, whether or not Lender has or is deemed to have knowledge of
such matters, (b) taking any necessary steps (other than steps taken in
accordance with the standard of care set forth above to maintain possession of
the Pledged Collateral) to preserve rights against any parties with respect to
any Pledged Collateral, (c) taking any necessary steps to
PLEDGE AGREEMENT - Page 7
collect or realize upon the Secured Indebtedness or any guarantee therefor, or
any part thereof, or any of the Pledged Collateral, or (d) initiating any action
to protect the Pledged Collateral against the possibility of a decline in market
value. Lender shall be deemed to have exercised reasonable care in the custody
and preservation of Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equal to that which Lender
accords its own property of a similar nature.
SECTION 11. Remedies.
(a) If any Event of Default shall have occurred and be
continuing, Lender may exercise in respect of the Pledged Collateral,
in addition to all other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a Lender on
default under the Uniform Commercial Code as in effect in any relevant
jurisdiction (the "Code") (whether or not the Code applies to the
affected Pledged Collateral), and Lender may also in its sole
discretion, 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 or broker's board or at any of Lender's
offices or elsewhere, for cash, on credit or for future delivery, at
such time or times and at such price or prices and upon such other
terms as Lender may deem commercially reasonable, irrespective of the
impact of any such sales on the market price of the Pledged Collateral.
Lender may be the purchaser of any or all of the Pledged Collateral at
any such sale and shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any
portion of the Pledged Collateral sold at any such public sale, to use
and apply any of the Secured Indebtedness as a credit on account of the
purchase price for any Pledged Collateral payable by Lender at such
sale. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of Borrower, and
Borrower hereby waives (to the extent permitted by applicable law) all
rights of redemption, stay and/or appraisal which it now has or may at
any time in the future have under any rule of law or statute now
existing or hereafter enacted. Borrower agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to
Borrower 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 Pledged
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.
Borrower hereby waives any claims against Lender arising by reason of
the fact that the price at which any Pledged Collateral may have been
sold at such a private sale was less than the price which might have
been obtained at a public sale, even if Lender accepts the first offer
received and does not offer such Pledged Collateral to more than one
offeree. If the proceeds of any sale or other disposition of the
Pledged Collateral are insufficient to pay all the Secured
Indebtedness, Borrower shall be liable for the deficiency and the
reasonable fees of any attorneys employed by Lender to collect such
deficiency.
(b) Borrower recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as from time to
time amended (the "Securities Act"), and applicable state securities
laws, Lender may be compelled, with respect to any sale of all or any
part of
PLEDGE AGREEMENT - Page 8
the Pledged Interests conducted without prior registration or
qualification of such Pledged Interests under the Securities Act and/or
such state securities laws, to limit purchasers to those who will
agree, among other things, to acquire the Pledged Interests for their
own account, for investment and not with a view to the distribution or
resale thereof. Borrower acknowledges that any such private sales may
be at prices and on terms less favorable to Lender than those
obtainable through a public sale without such restrictions (including,
without limitation, a public offering made pursuant to a registration
statement under the Securities Act) and, notwithstanding such
circumstances, Borrower agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner and that
Lender shall have no obligation to engage in public sales and no
obligation to delay the sale of any Pledged Interests for the period of
time necessary to permit the issuer thereof to register it for a form
of public sale requiring registration under the Securities Act or under
applicable state securities laws, even if such issuer would, or should,
agree to so register it.
(c) If Lender determines to exercise its right to sell any or
all of the Pledged Interests, upon written request, Borrower shall and
shall cause each issuer of any Pledged Interests to be sold hereunder
from time to time to furnish to Lender all such information as Lender
may reasonably request in order to determine the number of shares and
other instruments included in the Pledged Interests which may be sold
by Lender in exempt transactions under the Securities Act and the rules
and regulations of the Securities and Exchange Commission thereunder,
as the same are from time to time in effect.
SECTION 12. Application of Proceeds. Except as expressly provided
elsewhere in this Agreement, all proceeds received by Lender in respect of any
sale of, collection from, or other realization upon all or any part of the
Pledged Collateral shall be applied by Lender in accordance with the provisions
of the Loan Agreement.
SECTION 13. Indemnity and Expenses.
(a) BORROWER AGREES TO INDEMNIFY LENDER FROM AND AGAINST ANY
AND ALL CLAIMS, LOSSES AND LIABILITIES IN ANY WAY RELATING TO, GROWING
OUT OF OR RESULTING FROM THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, ENFORCEMENT OF THIS
AGREEMENT), EXCEPT TO THE EXTENT SUCH CLAIMS, LOSSES OR LIABILITIES
RESULT SOLELY FROM LENDER'S NEGLIGENCE, WILLFUL MISCONDUCT OR BREACH OF
THE TERMS HEREOF AS FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION.
(b) BORROWER WILL PAY TO LENDER UPON DEMAND THE AMOUNT OF ANY
AND ALL COSTS AND EXPENSES, INCLUDING THE REASONABLE FEES AND EXPENSES
OF ITS COUNSEL AND OF ANY EXPERTS AND AGENTS, 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 PLEDGED COLLATERAL, (III) THE EXERCISE OR
ENFORCEMENT OF ANY OF THE RIGHTS
PLEDGE AGREEMENT - Page 9
OF LENDER HEREUNDER, OR (IV) THE FAILURE BY BORROWER TO PERFORM OR
OBSERVE ANY OF THE PROVISIONS HEREOF.
SECTION 14. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (a) remain in
full force and effect until the indefeasible payment in full of all Secured
Indebtedness and the cancellation or termination of the commitment of Lender to
make Loan, (b) be binding upon Borrower, its successors and assigns, and (c)
inure, together with the rights and remedies of Lender hereunder, to the benefit
of Lender and its successors, transferees and assigns. Upon the indefeasible
payment in full of all Secured Indebtedness and the cancellation or termination
of the Commitments, the security interest granted hereby shall terminate and all
rights to the Pledged Collateral shall revert to Borrower. Upon any such
termination Lender will, at Borrower' s expense, execute and deliver to Borrower
such documents as Borrower shall reasonably request to evidence such termination
and Borrower shall be entitled to the return, upon its request and at its
expense, against receipt and without recourse to Lender, of so much of the
Pledged Collateral as shall not have been sold or otherwise applied pursuant to
the terms hereof.
SECTION 15. Amendments; Etc. No amendment or waiver of any provision of
this Agreement, or consent to any departure by Borrower herefrom, shall in any
event be effective unless the same shall be in writing and signed by Lender, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which it was given.
SECTION 16. Notices. Any notice or other communication herein required
or permitted to be given shall be in writing and given in accordance with the
provisions of the Loan Agreement.
SECTION 17. Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of Lender in the exercise of any power, right or
privilege hereunder shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude any other or
further exercise thereof or of any other power, right or privilege. All rights
and remedies existing under this Agreement are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
SECTION 18. Action or Omission by Lender. Borrower hereby agrees that
the Liens of this Agreement are and shall remain in full force and effect until
payment in full of the Secured Indebtedness as fully and completely as if
Borrower had been the maker of the Notes irrespective of any circumstance or
occurrence which, if for any reason Borrower is deemed to be a surety or
guarantor of or with respect to all or any portion of the Secured Indebtedness,
might otherwise constitute a legal or equitable discharge of a surety or a
guarantor. Without limiting the generality of the foregoing, it is expressly
agreed by Borrower that Lender and/or any one or more of the Lenders may, in its
or their sole discretion, at any time and from time to time, with or without
consideration, and without notice to or authorization or consent from or
knowledge of Borrower, do or refrain from doing any one or more of the
following, in each case without releasing, diminishing, impairing, reducing or
in any way affecting the liability and the Indebtedness of Borrower hereunder:
(a) Extend the time for payment of all or any part of the
Secured Indebtedness or renew all or any part of the Secured
Indebtedness;
PLEDGE AGREEMENT - Page 10
(b) Assign all or any part of the Secured Indebtedness;
(c) Extend the time for the performance of or compliance with
any covenant or agreement contained in any of the Loan Documents or in
any other instrument, document or of writing at any time securing
payment of the Notes or any of the Secured Indebtedness, or any part
thereof, or waive or modify such performance or compliance;
(d) Accept other security for the payment of all or any
portion of the Secured Indebtedness;
(e) Accept the guarantee of and/or the assumption or agreement
to pay all or any portion of the Secured Indebtedness by any Person;
(f) Accelerate the maturity of the Secured Indebtedness, or
any part thereof as provided herein or in any of the other Loan
Documents;
(g) Modify, exchange, release, surrender, subordinate, allow
substitution for, allow release of or otherwise deal with all or any
part of any real property or tangible or intangible personal property
at any time securing the payment or performance of all or any part of
the Secured Indebtedness;
(h) Release or discharge any Person at any time so obligated
from the obligation to pay all or any portion of the Secured
Indebtedness or to perform any covenant or agreement under any of the
Loan Documents or any other instrument, document or writing at any time
evidencing, securing and/or guaranteeing the payment of all or any part
of the Secured Indebtedness;
(i) Compromise, compound or settle with any Person at any time
obligated to pay all or any portion of the Secured Indebtedness or to
perform any covenant or agreement under any of the Loan Documents or
any other instrument, document or writing at any time evidencing,
securing and/or guaranteeing the payment of all or any part of the
Secured Indebtedness on such terms as it may, in its sole discretion,
determine;
(j) Enforce any and all of the rights or remedies of Lender
under any of the Loan Documents or any other instrument, document,
agreement or writing at any time evidencing, securing and/or
guaranteeing payment of all or any part of the Secured Indebtedness, or
otherwise existing at law or in equity, against all or any portion of
any real property or tangible or intangible personal property at any
time securing all or any portion of the Secured Indebtedness, or
against Borrower or any other Person at any time obligated to pay all
or any portion of the Secured Indebtedness or to perform any covenant
or agreement under any of the Loan Documents or any other instrument,
document or other writing at any time evidencing, securing and/or
guaranteeing the payment of all or any portion of the Secured
Indebtedness, or any one or more of the foregoing, jointly, severally
or individually;
PLEDGE AGREEMENT - Page 11
(k) Modify, amend, alter, supplement, change or terminate any
of the Loan Documents or any other instrument, document or writing at
any time evidencing, securing and/or guaranteeing the payment of all or
any portion of the Secured Indebtedness, or any one or more of the
provisions thereof, including the time, manner and place of payment of
the indebtedness evidenced by the Notes, the rate of interest from time
to time accruing thereon, and the amount of any installment payable
thereunder; and
(l) Apply any moneys received, whether from Borrower or
others, or from any collateral securing payment of all or any portion
of the Secured Indebtedness, in payment of any part of the Secured
Indebtedness in such manner upon the Secured Indebtedness (whether then
due or not), as Lenders may, in their sole and exclusive discretion,
determine, without in any way being required to xxxxxxxx collateral or
to apply all or any part of such moneys upon any particular part of the
Secured Indebtedness;
it being expressly agreed that the Indebtedness of Borrower hereunder and the
Liens granted or created hereby are and shall be unconditional and absolute and
are and shall remain in full force and effect until payment in full of the
Secured Indebtedness. Nothing contained herein or in any of the Loan Documents
or in any other instrument, document or other writing at any time securing or
guaranteeing payment of the Secured Indebtedness, or any part thereof, and no
action taken or omitted to be taken by the Lender and/or any one or more of the
Lenders hereunder or otherwise taken or omitted to be taken by Lender and/or any
one or more of the Lenders shall in any way release, impair, diminish or affect
Indebtedness and liabilities of Borrower under this Agreement.
SECTION 19. Express Waivers. Borrower hereby expressly waives, to the
fullest extent permitted by applicable law:
(a) Presentment for payment, demand for payment of all or any
portion of the Secured Indebtedness or any installment thereof, protest
and all notices (whether of demand, dishonor, non-payment,
acceleration, intent to accelerate, or otherwise), with respect to the
Secured Indebtedness;
(b) Diligence in collecting or in attempting to collect all or
any part of the Secured Indebtedness and in the bringing of any suit or
in the enforcing of any remedy;
(c) Notice of acceptance of this Agreement, notice of the
incurring by Borrower or any other Person of all or any portion of the
Secured Indebtedness, or of the failure of Borrower or any other Person
to pay any of the Secured Indebtedness as they mature, or of any other
occurrence or state of facts of any nature whatsoever;
(d) All rights to require Lender and/or any one or more of the
Lenders (i) to proceed against Borrower or any other Person, (ii) to
proceed against or exhaust any collateral at any time securing all or
any part of the Secured Indebtedness, or (iii) to initiate or pursue
any right or remedy it may now or hereinafter have against Borrower or
any other Person;
PLEDGE AGREEMENT - Page 12
(e) All defenses to sureties or guarantors at law or in equity
other than the actual payment of indebtedness; and
(f) All defenses based upon questions as to the authenticity,
validity, enforceability or legality of any of the Loan Documents or
any instrument, document or other writing at any time evidencing or
securing or guaranteeing all or any part of the Secured Indebtedness.
SECTION 20. Regarding Collateral. It is specifically agreed that
neither Lender nor any Lender is or shall be required to retain, hold, protect,
exercise due care with respect to, perfect Liens or security interests in or
otherwise assure or safeguard any collateral or security of or for the Secured
Indebtedness. No exercise or nonexercise by Lender and/or any one or more of the
Lenders of any right or remedy of Lender and/or any one or more of the Lenders
shall in any way affect any of Borrower's Indebtedness hereunder or Lien of this
Agreement or give Borrower any recourse against Lender and/or any one or more of
the Lenders.
SECTION 21. Dissolution, etc. The Indebtedness of Borrower hereunder
and the Liens of this Agreement shall continue notwithstanding the incapacity,
death, disability, dissolution or termination of any other Person. The failure
by Lender and/or any one or more of the Lenders to file or enforce a claim
against the estate (either in probate, administration, bankruptcy or other
proceeding) of such other Person shall not affect the liability of Borrower
hereunder nor shall Borrower be released from liability if recovery from any
other Person becomes barred by any statute of limitations or is otherwise
prevented.
SECTION 22. Direct Recourse. Neither Lender nor any Lender shall be
required to pursue any other remedy before invoking the benefits of this
Agreement, and specifically neither Lender nor any Lender shall be required to
exhaust its remedies against any other Person or to proceed against any security
now or hereafter existing for the payment of any of the Secured Indebtedness. If
judicial action is instituted under this Agreement, such action may be
maintained by Lender and/or any one or more of the Lenders whether or not any
other Person is joined therein and whether or not separate action is brought
against any other Person liable for payment of all or any portion of the Secured
Indebtedness.
SECTION 23. Ultra Xxxxx. If all or any portion of the Secured
Indebtedness exceeds any amount permitted by law, or should any Person not be
liable for the payment of all or any portion of the Secured Indebtedness because
the creation of all or any portion of the Secured Indebtedness is ultra xxxxx or
the officers creating the same acted in excess of their authority and for these
reasons all or any portion of the Secured Indebtedness cannot be enforced
against such Person, such facts shall in no manner affect the Indebtedness of
Borrower hereunder or the Liens of this Agreement.
SECTION 24. Severability. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
Indebtedness, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
PLEDGE AGREEMENT - Page 13
SECTION 25. Headings. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
SECTION 26. Governing Law; Terms. THIS AGREEMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF TEXAS EXCEPT AS REQUIRED BY MANDATORY PROVISION OF LAW AND EXCEPT TO
THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER,
OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS.
SECTION 27. Counterparts. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
PLEDGE AGREEMENT - Page 14
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
DEBTOR:
XXXXXXXX.XXX, INC.,
a Delaware corporation
By: _________________________
Name:________________________
Title:_______________________
LENDER:
XXXXXXXX FAMILY PARTNERSHIP, LTD.
By: _________________________
Name: X.X. Xxxxxxxx, Xx.
Title: General Partner
SCHEDULE I
PLEDGED INTERESTS
Class of Par Certificate Number of
Issuer of Shares Stock Value/Share No(s). Shares
---------------- ----- ----------- ------ ------
OSPREY TECHNOLOGIES, INC. COMMON
VIDEOWARE, INC. COMMON
VIEWPOINT SYSTEMS, INC. COMMON
DELTA COMPUTEC, INC. COMMON 0.001 2 1,000
SCHEDULE I TO PLEDGE AGREEMENT
SCHEDULE II
PLEDGE AMENDMENT
THIS PLEDGE AMENDMENT, dated _________, __, is delivered pursuant to
Section 6(b) of the AMENDED AND RESTATED PLEDGE AGREEMENT referred to below. The
undersigned hereby agrees that this Pledge Amendment may be attached to the
Amended and Restated Pledge Agreement dated as of June 30, 2003, between
XXXXXXXX.XXX, INC., as Borrower ("Borrower"), and XXXXXXXX FAMILY PARTNERSHIP,
LTD. ("Lender"), the "Pledge Agreement", with capitalized terms defined therein
being used herein as defined therein, unless otherwise defined herein.
Upon and subject to the terms and provisions of, and for the
consideration set forth in, and to comply with the covenants and agreements of
Borrower set forth in, the Pledge Agreement, Borrower hereby assigns and pledges
to Lender and hereby grants to Lender a security interest in all of Borrower's
right, title and interest in and to the Additional Pledged Interests (herein so
called) listed in Exhibit A attached to this Pledge Amendment (and all proceeds
thereof), as fully and completely as if the Additional Pledged Interests had
been described in Schedule I annexed to the Pledge Agreement at the time of
execution thereof. Borrower acknowledges and agrees with Lender and the Lenders
(a) that the Additional Pledged Interests listed in Exhibit A attached to this
Pledge Amendment are and shall be deemed to be part of the Pledged Interests,
are and shall be included within, and comprise a part of, the Pledged
Collateral, and shall secure all Secured Indebtedness, (b) that Lender shall
have all rights and remedies with respect to the Additional Pledged Interests as
are available to Lender with respect to the Pledged Interests under the Pledge
Agreement, or otherwise available to Lender at law or in equity, including,
without limitation, all rights and remedies available to secured parties under
the Code, all of such rights and remedies being cumulative with, and not
exclusive of, any other rights or remedies otherwise available to Lender.
EXECUTED as of the date first written above.
XXXXXXXX.XXX, INC.
By: _________________________
Name:________________________
Title:_______________________
EXHIBIT A
TO
PLEDGE AMENDMENT
ADDITIONAL PLEDGED INTERESTS
Class of Par Number of
Issuer of Shares Stock Value/Share Certificate No. Shares
---------------- ----- ----------- --------------- ------
SCHEDULE III
IRREVOCABLE STOCK POWER
For Value Received, I/we hereby sell, assign and transfer to ________,__________
(___________________) shares of the capital stock of _________, a ______________
corporation, standing in my/our name on the books of the corporation,
represented by Certificate No. __________, and I do hereby irrevocably
constitute and appoint _________________________ my true and lawful
attorney-in-fact, with full power of substitution, to transfer this stock on the
books of the corporation.
XXXXXXXX.XXX, INC.,
a Delaware corporation
By: _________________________
Name:________________________
Title:_______________________
Dated: _____________.
In the presence of:
______________________________
