Contract
Exhbit 10.11
This
Control Agreement Regarding Limited Liability Company Interests (as amended,
modified, restated and/or supplemented from time to time, this "Agreement"), dated as
of March 28, 2008, among GSE Systems, Inc., a Delaware corporation (the "Pledgor"), Bank of
America, N.A., a national banking association (the "Pledgee"), and GSE
Services Company, LLC, a Delaware limited liability company, as the issuer of
the Limited Liability Company Interests (as defined below) (the "Issuer").
W I T N E
S S E T H :
WHEREAS,
the Pledgor, certain subsidiaries of the Pledgor and the Pledgee have entered
into a Pledge Agreement, of even date herewith (as amended, modified, restated
and/or supplemented from time to time, the "Pledge Agreement"),
under which, among other things, in order to secure the payment of the Secured
Obligations (as defined in the Pledge Agreement), the Pledgor has or will pledge
to the Pledgee, and grant a security interest in favor of the Pledgee in, all of
the right, title and interest of the Pledgor in and to any and all equity
interests (including, without limitation, limited liability company interests
and membership interests) from time to time issued by the Issuer (collectively,
the "Limited Liability
Company Interests"), whether now existing or hereafter from time to time
acquired by the Pledgor (with all of such Limited Liability Company Interests
being herein collectively called the "Issuer Pledged
Interests"); and
WHEREAS, the Pledgor desires the Issuer
to enter into this Agreement in order to perfect the security interest of the
Pledgee under the Pledge Agreement in the Issuer Pledged Interests,
to vest in the Pledgee control of the Issuer Pledge Interests and to provide for
the rights of the parties under this Agreement;
NOW THEREFORE, in consideration of the
premises and the mutual promises and agreements contained herein, and for other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The
Pledgor hereby irrevocably authorizes and directs the Issuer, and the Issuer
hereby agrees, to comply with any and all instructions and orders originated by
the Pledgee (and its successors and assigns) regarding any and all of the Issuer
Pledged Interests without the further consent by the registered owner (including
the Pledgor), and, following its receipt of a notice from the Pledgee stating
that the Pledgee is exercising exclusive control of the Issuer Pledged Interests
in accordance with the Pledge Agreement, not to comply with any instructions or
orders regarding any or all of the Issuer Pledged Interests originated by any
person or entity other than the Pledgee (and its successors and assigns) or a
court of competent jurisdiction.
2. The
Issuer hereby certifies that (i) no notice of any security interest, lien or
other encumbrance or claim affecting the Issuer Pledged Interests (other than
the security interest of the Pledgee) has been received by it, and (ii) the
security interest of the Pledgee in the Issuer Pledged Interests has been
registered in the books and records of the Issuer.
3. The
Issuer hereby represents and warrants that the pledge by the Pledgor of, and the
granting by the Pledgor of a security interest in, the Issuer Pledged Interests
to the Pledgee, does not violate any agreement governing the Issuer or the
Issuer Pledged Interests.
4. All
notices, statements of accounts, reports, prospectuses, financial statements and
other communications to be sent to the Pledgor by the Issuer in respect of the
Issuer will also be sent to the Pledgee at the following address:
Bank of
America, N.A.
000 Xxxxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Facsimile:
5. Following
its receipt of a notice from the Pledgee stating that the Pledgee is exercising
exclusive control of the Issuer Pledged Interests (pursuant to the notice
requirements in Section 1 above) and until the Pledgee shall have delivered
written notice to the Issuer that all of the Obligations have been paid in full
and this Agreement is terminated, the Issuer will send any and all redemptions,
distributions, interest or other payments in respect of the Issuer Pledged
Interests from the Issuer for the account of the Pledgee only by wire transfers
to such account as the Pledgee shall instruct.
6. Except
as expressly provided otherwise in Sections 4 and 5, all notices, instructions,
orders and communications hereunder shall be sent or delivered by mail,
facsimile or overnight courier service and all such notices and communications
shall, when mailed, faxed or sent by overnight courier, be effective when
deposited in the mails or delivered to overnight courier, prepaid and properly
addressed for delivery on such or the next Business Day, or sent by facsimile,
except that notices and communications to the Pledgee or the Issuer shall not be
effective until received. All notices and other communications shall
be in writing and addressed as follows:
(a) if to the Pledgor, at:
GSE
Systems, Inc.
Attn:
Xxxxxxx X. Xxxxx
0000
Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
With a
copy to:
Kalbian
Xxxxxxx LLP
Attn:
Xxxxx X. Xxxxxxx, Esq.
000 00xx
Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx,
X.X. 00000
Facsimile:
(000) 000-0000
(b) if to the Pledgee, at the address
given in Section 4 hereof;
(c) if to the Issuer, at:
GSE
Services Company, LLC
Attn:
Xxxxxxx X. Xxxxx 0000
Xxxxxxxxxx
Xxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
or at
such other address as shall have been furnished in writing by any party
described above to the party required to give notice hereunder. As
used in this Section 6, "Business Day" means any day other than a Saturday,
Sunday, or other day in which banks in Maryland are authorized to remain
closed.
7. This
Agreement shall be binding upon the successors and assigns of the Pledgor and
the Issuer and shall inure to the benefit of and be enforceable by the Pledgee
and its successors and assigns. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto. None of the terms and
conditions of this Agreement may be changed, waived, modified or varied in any
manner whatsoever except in writing signed by the Pledgee, the Issuer and the
Pledgor.
8. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Maryland, without regard to its principles of conflict of
laws.
IN WITNESS WHEREOF, the Pledgor, the
Pledgee and the Issuer have caused this Agreement to be executed by their duly
elected officers duly authorized as of the date first above written, intending
to create an instrument executed under seal.
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"PLEDGEE"
BANK
OF AMERICA, N.A.
By: /s/ Xxxxx
Xxxxx
Xxxxx
Xxxxx
Senior
Vice President
|
"PLEDGOR"
GSE
SYSTEMS, INC., a Delaware corporation
By: /s/ Xxxxxxx
Xxxxx (Seal)
Xxxxxxx
Xxxxx
Chief
Financial Officer
|
|
"ISSUER"
GSE
SERVICES COMPANY LLC, a Delaware limited liability company
By: /s/ Xxxxxxx
Xxxxx (Seal)
Xxxxxxx
Xxxxx
Chief
Financial Officer
|
