PLEDGE AGREEMENT
Exhibit
10.2
THIS
PLEDGE AGREEMENT (this “Agreement”) is dated as of the
1st
day of August, 2008 by and between DYNAMICS RESEARCH CORPORATION,
a Massachusetts corporation (the “Pledgor”), and XXXXX BROTHERS XXXXXXXX &
CO., a New York general partnership with offices at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, for itself and as Administrative Agent for each of the
Lenders (defined below) which are and which may become parties to the Loan
Agreement (defined below) (the “Secured
Party”). The Secured Party, in its capacity as Agent for the
Lenders hereunder, is sometimes hereinafter referred to as the “Agent”, which term shall also
be deemed to include any other party acting as agent for the Lenders
hereunder.
Preliminary
Statement
WHEREAS,
the Pledgor and certain of its affiliates (such affiliates, together with the
Pledgor, being referred to herein singly as a “Borrower” or collectively, the
“Borrowers”) and the
Agent, TD Bank, N.A., as Documentation Agent and Bank of America, N.A., as
Syndication Agent (collectively, the “Lenders” and each a “Lender”) have entered into
that certain Forth Amended and Restated Loan Agreement of even date herewith (as
amended, modified, extended and/or supplemented from time to time, the “Loan Agreement”; capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Loan Agreement) pursuant to which the Lenders have agreed, subject to the
terms and conditions set forth therein, to make certain loans to the Borrowers
(collectively, the “Loans”); such Loans are
evidenced by the Borrowers’ Revolving Credit Notes and Term Notes of even date
herewith payable to the Lenders (as such Notes may be amended, modified,
supplemented and/or extended from time to time, singly and collectively, the
“Note”);
and
WHEREAS,
the obligation of the Agent and the Lenders to enter into the Loan Agreement and
make the Loans described therein is subject to the conditions, among others,
that the Pledgor shall execute and deliver this Agreement and grant to the
Secured Party the pledge and security interest hereinafter
described;
NOW,
THEREFORE, in consideration of the willingness of the Secured Party and the
Lenders to enter into the Loan Agreement and, subject to the terms and
conditions set forth therein, to make Loans to the Borrowers pursuant to the
Loan Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as
follows:
1. Security
Interest. The Pledgor hereby deposits with and pledges to the
Secured Party, for the benefit of the Lenders, (i) the shares of capital stock
(the “Pledged Stock”)
and (ii) the membership interests (the “Pledged Interests”), in each
case as listed in Schedule I attached hereto (collectively, with the Pledged
Stock and any additional securities or collateral now or hereafter pledged
hereunder, the “Pledged
Collateral”). The Pledgor hereby grants to the Secured Party,
for the benefit of the Lenders, a security interest in and lien on all of the
Pledged Collateral, together with all rights to distributions or other payments
arising therefrom or related thereto, and all options, rights, instruments and
other property or proceeds from time to time received, receivable or otherwise
distributable in respect of or in exchange for any or all of the Pledged
Collateral, as security for the due and punctual payment and
performance of the Secured Obligations described in Section 2
hereof. Simultaneously with the execution of this Agreement, the
Pledgor shall deliver to the Secured Party the original certificates evidencing
the Pledged
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Stock and
the Pledged interests (if certificated), together with stock powers executed in
blank. Notwithstanding any provision contained in this Agreement to
the contrary, upon the payment in full of the Secured Obligations (as defined
below), this Agreement and the security interest granted hereunder shall
immediately and automatically terminate and have no further force or
effect.
2. Secured
Obligations. The security interest hereby granted shall secure
the due and punctual payment and performance of the Liabilities (as defined in
the Loan Agreement) of the Pledgor (herein called the “Secured
Obligations”).
3. Special Warranties and
Covenants of the Pledgor. The Pledgor hereby warrants and
covenants to the Secured Party and each Lender that:
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a.
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The
Pledged Collateral is duly and validly pledged with the Secured Party, for
the benefit of the Lenders, in accordance with law and the Pledgor
warrants and will defend the Secured Party’s right, title and security
interest in and to the Pledged Collateral against the claims and demands
of all persons whomsoever.
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b.
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The
Pledgor has good title to the Pledged Collateral, free and clear of all
claims, mortgages, pledges, liens, security interests and other
encumbrances of every nature whatsoever except as created and granted
hereby or as may be expressly set forth and permitted under the Loan
Agreement.
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c.
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To
the knowledge of the Pledgor, all of the Pledged Stock has been duly and
validly issued and is fully paid and
nonassessable.
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The
Pledged Stock includes all of the presently issued and outstanding capital
stock of each subsidiary of the
Pledgor.
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e.
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The
Pledged Interests includes one hundred percent (100%) of the equity
interest of Kadix.
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f.
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If
Pledgor acquires any additional shares of capital stock (including,
without limitation, from the issuance of any additional shares of capital
stock of any subsidiary of the Pledgor), any additional membership
interests or any other investment property or securities, after the date
hereof, the same shall constitute Pledged Collateral and shall be
deposited and pledged with the Secured Party, for the benefit of the
Lenders, as provided in Section 1 hereof simultaneously with such
acquisition.
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g.
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The
Pledgor will not sell, convey or otherwise dispose of any of the Pledged
Collateral except to the extent permitted in the Loan Agreement, nor will
the Pledgor create, incur or permit to exist any pledge, mortgage, lien,
charge, encumbrance or any security interest whatsoever with respect to
any of the Pledged Collateral or the proceeds thereof, other than liens on
and security interests in the Pledged Collateral created hereby or which
are otherwise expressly permitted under the Loan
Agreement.
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h.
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Other
than the UCC financing statements delivered and filed by Agent and in
connection with securing the Collateral, there is no financing statement
(or similar statement or
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registration
under the laws of any jurisdiction) now on file or registered in any public
office covering any interest of Pledgor or any other Person in the Pledged
Collateral.
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i.
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The
statements contained in the Preliminary Statement of this Agreement are
true and correct.
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j.
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With
respect to the Pledged Interests, Pledgor represents and warrants that the
Lead Borrower has, and has caused the operating agreement of Kadix
Systems, LLC, a Virginia limited liability company (“Kadix”), to reflect,
that Kadix has opted into Article 8 of the UCC; provided, however, that
the Pledged Interests hereunder shall be deemed ‘securities’ solely for
purposes of UCC compliance and Pledgor acknowledges and agrees that the
act of opting into Article 8 of the UCC alone does not categorize said
Pledged Interests as “securities” under any federal investment company
laws or federal or state securities
laws.
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4. Distributions. Upon
the dissolution, winding up, liquidation or reorganization of any company whose
capital stock or membership interests are included in the Pledged Collateral,
whether in bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of any such company or otherwise, if any sum shall be paid or
any property shall be distributed upon or with respect to any of the Pledged
Collateral and an Event of Default shall have occurred and be continuing, then
such sum shall be paid over to the Secured Party to be held as collateral
security for the Secured Obligations. In case any dividend or
distribution shall be declared on any of the Pledged Collateral, or any share of
stock or fraction thereof shall be issued pursuant to any stock split involving
any of the Pledged Collateral, or any distribution of capital (including cash
dividends) shall be made on any of the Pledged Collateral, or any property shall
be distributed upon or with respect to the Pledged Collateral pursuant to a
recapitalization or reclassification, the shares or other property so
distributed shall be delivered to the Secured Party to be held as collateral
security for the Secured Obligations.
5. Rights and Remedies of
Secured Party. Upon the occurrence and continuance of any
Event of Default, such default not having previously been remedied or cured
within any applicable grace or cure periods, the Secured Party shall have the
following rights and remedies:
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a.
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All
rights and remedies provided by law, including, without limitation, those
provided by the Massachusetts Uniform Commercial
Code;
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b.
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All
rights and remedies provided in this Agreement;
and
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c.
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All
rights and remedies provided in the Loan Agreement, the Note, or in any
other Loan Document, and any other agreement, document or instrument
pertaining to the Secured
Obligations.
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6. Right to Transfer into Name
of Secured Party, etc. In case there shall exist an Event of
Default that shall be continuing after applicable grace and cure periods, but
subject to the provisions of the Uniform Commercial Code or other applicable
law, the Secured Party may cause all or any of the Pledged Collateral to be
transferred into its name or into the name of its nominee or
nominees. So long as no Event of Default shall exist and be
continuing, the Pledgor shall be entitled to exercise as the
Pledgor
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shall
deem fit, but in a manner not inconsistent with the terms hereof or of the
Secured Obligations, the voting power with respect to the Pledged
Collateral.
7. Right of Secured Party to
Exercise Voting Power, etc. In case there shall exist an Event
of Default, which shall not have been remedied or cured, the Secured Party,
until such Event of Default has been remedied or cured in accordance with the
Loan Agreement:
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a.
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shall
be entitled to exercise the voting power with respect to the Pledged
Collateral, to receive and retain, as collateral security for the Secured
Obligations any and all dividends or other distributions at any time and
from time to time declared or made upon any of the Pledged Collateral, and
to exercise any and all rights of payment, conversion, exchange,
subscription or any other rights, privileges or options pertaining to the
Pledged Collateral as if it were the absolute owner thereof, including,
without limitation, the right to exchange, at its discretion, any and all
of the Pledged Collateral upon the merger, consolidation, reorganization,
recapitalization or other readjustment of the Pledgor or, upon the
exercise of any such right, privilege or option pertaining to the Pledged
Collateral, and in connection therewith, to deposit and deliver any and
all of the Pledged Collateral with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions
as the Secured Party may determine, all without liability except to
account for property actually received, but the Secured Party shall have
no duty to exercise any of the aforesaid rights, privileges or options and
shall not be responsible for any failure to do so or delay in so doing;
and
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b.
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whether
or not an Event of Default has occurred, with respect to any action,
decision, determination or election by Lead Borrower that the Pledged
Interests be, or cease to be a “security” as defined in Article 8 of the
UCC and all other matters related to any such action, decision,
determination or election (collectively, an “Article 8 Matter”),
shall be appointed as Pledgor’s true and lawful proxy, for and in
Pledgor’s name, place and stead to vote the Pledged Interests in Kadix by
Pledgor, whether directly or indirectly, beneficially or of record, now
owned or hereafter acquired, with respect to such Article 8
Matters. The proxy granted and appointed herein shall include
the right to sign Pledgor’s name (as a member of Kadix) to any consent,
certificate or other document relating to an Article 8 Matter and the
Pledged Interests that applicable law may permit or require, to cause the
Pledged Interests to be voted in accordance with the preceding
sentence. Pledgor hereby represents and warrants that there are
no other proxies and powers of attorney with respect to an Article 8
Matter and the Pledged Interests that Pledgor may have granted or
appointed. Pledgor will not give a subsequent proxy or power of
attorney or enter into any other voting agreement with respect to the
Pledged Interests with respect to any Article 8 Matter and any attempt to
do so with respect to an Article 8 Matter shall be void and of no
effect.
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8. Right of Secured Party to
Dispose of Collateral, etc. Upon the occurrence and during the
continuance of an Event of Default, such Event of Default not having previously
been remedied or cured within any applicable grace or cure periods, the Secured
Party shall have the right, unless the Event of Default shall have been remedied
or cured in accordance with the Loan Agreement prior to taking any such actions,
at any time or times thereafter to sell, resell, assign and deliver all or any
of the Pledged
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Collateral
in one or more parcels at any exchange or broker’s board or at public or private
sale. The Secured Party will give the Pledgor at least ten (10) days’
prior written notice in accordance with Section 17 hereof of the time and place
of any public sale thereof or of the time after which any private sale or any
other intended disposition thereof is to be made. Any such notice
shall be deemed to meet any requirement hereunder or under any applicable law
(including the Uniform Commercial Code) that reasonable notification be given of
the time and place of such sale or other disposition. Such notice may
be given without any demand of performance or other demand, all such demands
being hereby expressly waived by the Pledgor. All such sales shall be
conducted in a commercially reasonable manner and shall be at such commercially
reasonable price or prices as the Secured Party shall deem best and either for
cash or on credit or for future delivery (without assuming any responsibility
for credit risk). At any such sale or sales the Secured Party may
purchase any or all of the Pledged Collateral to be sold thereat upon such terms
as the Secured Party may deem best. Upon any such sale or sales the
Pledged Collateral so purchased shall be held by the purchaser absolutely free
from any claims or rights of whatsoever kind or nature, including any equity of
redemption and any similar rights, all such equity of redemption and any similar
rights being hereby expressly waived and released by the Pledgor. In
the event any consent, approval or authorization of any governmental agency will
be necessary to effectuate any such sale or sales, the Pledgor shall execute,
and hereby agree to cause the Pledgor to execute, all such applications or other
instruments as may be required. The proceeds of any such sale or
sales, together with any other additional collateral security at the time
received and held hereunder, shall be received and applied pursuant to Section
10-3 of the Loan Agreement.
The
Pledgor recognizes that the Secured Party may be unable to effect a public sale
of all or a part of the Pledged Collateral by reason of certain prohibitions
contained in the Securities Act of 1933, but may be compelled to resort to one
or more private sales to a restricted group of purchasers, each of whom will be
obligated to agree, among other things, to acquire such Pledged Collateral for
its own account, for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges that private sales so made
may be at prices and upon other terms less favorable to the seller than if such
Pledged Collateral were sold at public sales, and that the Secured Party has no
obligation to delay sale of any such Pledged Collateral for the period of time
necessary to permit such Pledged Collateral to be registered for public sale
under the Securities Act of 1933. The Pledgor agrees that any such
private sales shall not be deemed to have been made in a commercially
unreasonable manner solely because they shall have been made under the foregoing
circumstances.
9. Collection of Amounts
Payable on Account of Pledged Collateral, etc. Upon the
occurrence and during the continuance of any Event of Default, the Secured Party
may, but without obligation to do so, demand, xxx for and/or collect any money
or property at any time due, payable or receivable, to which it may be entitled
hereunder, on account of or in exchange for any of the Pledged Collateral and
shall have the right, for and in the name, place and stead of the Pledgor, to
execute endorsements, assignments or other instruments of conveyance or transfer
with respect to all or any of the Pledged Collateral.
10. Care of Pledged Collateral
in Secured Party’s Possession. Beyond the exercise of
reasonable care to assure the safe custody of the Pledged Collateral while held
hereunder, the Secured Party shall have no duty or liability to collect any sums
due in respect thereof or to protect or preserve rights pertaining thereto, and
shall be relieved of all responsibility for the Pledged Collateral upon
surrendering the same to the Pledgor.
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11. Waivers,
etc. The Pledgor hereby waives presentment, demand, notice,
protest and, except as is otherwise provided herein, in the Loan Agreement or in
any other Loan Document, all other demands and notices in connection with this
Agreement or the enforcement of the Secured Party’s rights hereunder or in
connection with any Secured Obligations or any Pledged Collateral; consents to
and waives notice of the granting of renewals, extensions of time for payment or
other indulgences to the Pledgor, any other Borrower, or to any third party, or
substitution, release or surrender of any collateral security for any Secured
Obligation, the addition or release of persons primarily or secondarily liable
on any Secured Obligation or on any collateral security for any Secured
Obligation, the acceptance of partial payments on any Secured Obligation or on
any collateral security for any Secured Obligation and/or the settlement or
compromise thereof. No delay or omission on the part of the Secured
Party in exercising any right hereunder shall operate as a waiver of such right
or of any other right hereunder. Any waiver of any such right on any
one occasion shall not be construed as a bar to or waiver of any such right on
any future occasion. The Pledgor further waives any right it may have
under the constitution of The Commonwealth of Massachusetts (or under the
constitution of any other state in which any of the Pledged Collateral may be
located), or under the Constitution of the United States of America, to notice
(other than any requirement of notice provided herein) or to a judicial hearing
prior to the exercise of any right or remedy provided by this Agreement to the
Secured Party and waives its right, if any, to set aside or invalidate any sale
duly consummated in accordance with the foregoing provisions hereof on the
grounds (if such be the case) that the sale was consummated without a prior
judicial hearing. The Pledgor’s waivers under this Section have been
made voluntarily, intelligently and knowingly and after the Pledgor has been
apprised and counseled by its attorneys as to the nature thereof and its
possible alternative rights.
12. Termination; Assignment,
etc. This Agreement and the security interest in the Pledged
Collateral created hereby shall terminate when all of the Secured Obligations
have been paid and finally discharged in full in cash (provided that the Lenders
are no longer obligated to make Loans under the Loan Agreement). For
all purposes of this Agreement, no Event of Default shall be deemed to have been
cured or waived except as expressly provided in the Loan
Agreement. No waiver by the Secured Party or any Lender or by any
other holder of Secured Obligations of any default shall be effective unless in
writing nor operate as a waiver of any other default or of the same default on a
future occasion.
13. Reinstatement. Notwithstanding
the provisions of Section 13, this Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time any amount received by the
Lenders or the Secured Party in respect of the Secured Obligations is rescinded
or must otherwise be restored or returned by the Lenders or the Secured Party
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Pledgor or any other Borrower or upon the appointment of any intervenor or
conservator of, or trustee or similar official for, the Pledgor or any other
Borrower or any substantial part of their respective properties, or otherwise,
all as though such payments had not been made.
14. Governmental Approvals,
etc. Upon the exercise by the Secured Party of any power,
right, privilege or remedy pursuant to this Agreement which requires any
consent, approval, qualification or authorization of any governmental authority
or instrumentality, the Pledgor will execute and deliver, or will cause the
execution and delivery of, all applications, certificates, instruments and other
documents and papers that the Secured Party may be required to obtain for such
governmental consent, approval, qualification or authorization.
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15. Notices. Except
as otherwise provided herein, all notices to the Pledgor or to the Secured Party
shall be in writing and shall be deemed to have been sufficiently given or
served for all purposes hereof if given or served in the manner provided for in
the Loan Agreement.
16. Miscellaneous. This
Agreement shall inure to the benefit of and be binding upon the Secured Party,
the Lenders and the Pledgor and their respective successors and assigns
permitted under the Loan Agreement (provided that the Pledgor shall have no
right to assign its rights and duties hereunder), and the term “Lenders” shall
be deemed to include any other holder or holders of any of the Secured
Obligations and the term “Secured Party” shall be deemed to include any
successor agent for the Lenders. In case any provision in this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument.
17. Governing Law; Jurisdiction,
Waiver of Jury Trial.
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a.
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This
Agreement and all rights and obligations hereunder, including matters of
construction, validity, and performance, shall be governed by the law of
The Commonwealth of Massachusetts.
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b.
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Consent
to Jurisdiction.
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i.
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The
Pledgor agrees that any legal action, proceeding, case, or controversy
against the Pledgor with respect to this Agreement or any other Loan
Document may be brought in the Superior Court of Suffolk County
Massachusetts or in the United States District Court, District of
Massachusetts, sitting in Boston, Massachusetts, as the Agent may elect in
the Agent’s sole discretion. By execution and delivery of this
Agreement, the Pledgor, for itself and in respect of its property,
accepts, submits, and consents generally and unconditionally, to the
jurisdiction of the aforesaid
courts.
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ii.
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The
Pledgor WAIVES
personal service of any and all process upon it, and irrevocably consents
to the service of process out of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by certified
mail, postage prepaid, to the Pledgor at the Pledgor’s address for notices
as specified herein, such service to become effective five (5) Business
Days after such mailing.
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iii.
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The
Pledgor WAIVES
any objection based on forum non conveniens
and any objection to venue of any action or proceeding instituted under
this Agreement and consents to the granting of such legal or equitable
remedy as is deemed appropriate by the
Court.
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iv.
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Nothing
herein shall affect the right of the Agent to bring legal actions or
proceedings in any other competent
jurisdiction.
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v.
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The
Pledgor agrees that any action commenced by the Pledgor asserting any
claim arising under or in connection with this Agreement or any other Loan
Document shall be brought solely in the Superior Court of Suffolk County
Massachusetts or in the United States District Court, District of
Massachusetts, sitting in Boston, Massachusetts, and that such Courts
shall have exclusive jurisdiction with respect to any such
action.
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c.
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The
Pledgor makes the following waiver knowingly, voluntarily, and
intentionally, and understands that the Agent and the Lenders in the
establishment and maintenance of their respective relationships with the
Pledgor contemplated by the within Agreement, is relying
thereon. THE PLEDGOR, TO THE EXTENT ENTITLED THERETO, WAIVES
ANY PRESENT OR FUTURE RIGHT OF THE PLEDGOR, OR OF ANY GUARANTOR OR
ENDORSER OF THE PLEDGOR OR OF ANY OTHER PERSON LIABLE TO THE AGENT OR THE
LENDERS ON ACCOUNT OF OR IN RESPECT TO THE LIABILITIES, TO A TRIAL BY JURY
IN ANY CASE OR CONTROVERSY IN WHICH THE AGENT OR THE LENDERS IS OR BECOMES
A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE
AGENT OR ANY LENDER OR IN WHICH THE AGENT OR ANY LENDER IS JOINED AS A
PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT
TO, ANY RELATIONSHIP AMONGST OR BETWEEN THE PLEDGOR, ANY SUCH PERSON, THE
AGENT AND ANY LENDER (AND THE AGENT AND THE LENDERS LIKEWISE WAIVE THE
RIGHT TO A JURY IN ANY TRIAL OF ANY SUCH CASE OR
CONTROVERSY).
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{REMAINDER
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IN
WITNESS WHEREOF, the parties have executed this Agreement as a sealed instrument
as of the date first above written.
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XXXXX BROTHERS XXXXXXXX &
CO.,
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for
itself and as Agent for all Lenders
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By:
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/s/
Xxxxxx X. Head, Jr.
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Name:
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Xxxxxx
X. Head, Jr.
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Title:
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S.V.P.
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DYNAMICS
RESEARCH CORPORATON
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Senior
Vice President - Finance,
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CFO
and Treasurer
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SCHEDULE
I
(to
Pledge Agreement)
PLEDGED
STOCK
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Description
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No. of
Shares
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Percentage of
Ownership
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Certificate
No(s).
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DRC
International Corporation
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2500
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100%
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2
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X.X.
Xxxx Associates, Inc.
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61,656
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100%
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1
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Kadix
Systems, LLC
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100
Units
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100%
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3
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1098232.1
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