EXECUTION COPY AMENDED AND RESTATED PLEDGE AGREEMENT
EXHIBIT
10.5
EXECUTION
COPY
AMENDED
AND RESTATED PLEDGE
AGREEMENT
This
Amended and Restated Pledge Agreement (this “Pledge Agreement”) is executed as
of January 31, 2008 between Enterprise Informatics Inc., f/k/a Altris Software,
Inc., a California corporation (“Pledgor”) and ERP2 Holdings, LLC, a Delaware
limited liability company (the “Secured Party”).
WHEREAS,
on March 15, 2002, Pledgor executed and delivered a Secured Promissory Note
to
Spescom Ltd., a United Kingdom corporation (“Parent”) in the original principal
amount of $400,000 (the “March Note”);
WHEREAS,
concurrently therewith, in order to provide security for Pledgor’s payment
obligations under the March Note and subsequent notes executed by the Pledgor
in
favor of the Parent and its successors and assigns, Pledgor entered into a
Pledge Agreement (the “Original Pledge Agreement”) with Parent, pursuant to
which Pledgor pledged all of its interest in Enterprise Informatics
International Ltd., f/k/a Altris International Limited, a United Kingdom
corporation and Enterprise Informatics Ltd., f/k/a Spescom Software Limited,
a
United Kingdom Corporation (the “Shares”) to Parent;
WHEREAS,
concurrently therewith, in order to provide security for Pledgor’s payment
obligations under the March Note and subsequent notes executed by the Pledgor
in
favor of the Parent and its successors and assigns, Pledgor granted a security
interest in all its assets pursuant to a Security Agreement (the “Security
Agreement”);
WHEREAS,
on April 19, 2002, Pledgor executed and delivered a Secured Promissory Note
to
Parent, in the original principal amount of $500,000 (the “April Note” and,
together with the March Note, the “Old Notes”);
WHEREAS,
Parent assigned the Old Notes, the Security Agreement and the Original Pledge
Agreement to the Secured Party pursuant to the Securities Purchase Agreement,
dated as of September 30, 2007, by and between the Secured Party and Parent
(the
“Securities Purchase Agreement”);
WHEREAS,
concurrently herewith, Pledgor executed and delivered a Secured Promissory
Note
to the Secured Party, in the principal amount of up to $1,500,000 (the “New
Note” and, together with the Old Notes, collectively, the “Note”); and
WHEREAS,
Pledgor and the Secured Party desire to amend the Original Pledge Agreement
to
reflect the assignment of the Old Notes to the Secured Party and the execution
of the New Note.
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NOW
THEREFORE, in consideration of the agreements and obligations set forth herein,
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereby amend and restate the Original
Pledge Agreement to read in its entirety as follows:
1.
Grant
of Security
Interest. To secure Pledgor’s obligations to Secured Party
under the Note (“Obligations”), Pledgor pledges, assigns and grants to Secured
Party a security interest in (a) the Shares; and (b) all stock or cash
dividends, substitutions, and shares issued pursuant to any merger or
reorganization, or any other proceeds of such Shares as defined in Section
9-102(a)(64) of the New York Uniform Commercial Code.
2.
Delivery
of
Shares. Secured Party acknowledges that it has possession of
the Shares and agrees that it shall, on or before February 30, 2008, deliver
the
Shares to Pledgor for purposes of facilitating Pledgor’s performance of its
obligations under the following sentence. Pledgor shall, on or before
15 days following its receipt of the Shares from the Secured Party pursuant
to
the preceding sentence, validly endorse the Shares in blank and deliver the
Shares to the Secured Party, and agrees that the Shares shall concurrently
be
held in pledge by Secured Party hereunder to secure the Obligations.
3.
Terms
of
Pledge. The Shares shall be held by Secured Party in pledge
subject to the terms and conditions of this Pledge Agreement. As long as no
default exists as described in Paragraph 5 below, Pledgor shall have the right
at all times to vote such Shares on any and all matters.
4.
Negative
Covenants. Until all obligations secured by this Pledge
Agreement shall have been fully and finally performed, Pledgor shall not without
the prior written consent of Secured Party: (a) create or suffer to exist any
further security interest the Shares; or (b) sell or otherwise dispose of the
Shares. Secured Party shall retain the Shares to secure Pledgor’s obligations to
Secured Party under this Pledge Agreement.
5.
Events
of
Default. There shall be a default under this Pledge Agreement
if Pledgor causes or suffers an Event of Default under the Note or the Security
Agreement.
6.
Rights
of Secured Party Upon
Default. In the event of an uncured default of an Obligation,
Secured Party shall have the rights of a secured party under the New York
Uniform Commercial Code except for the right to seek a deficiency following
sale
or other disposition of the Shares, it being understood that Secured Party’s
sole and only recourse shall be to the Shares.
7.
Duties
of Secured
Party.
7.1.
Unless
a
default has occurred which remains uncured, the Secured Party’s sole duty shall
be to hold the Shares until such time as the Obligation has been paid in full.
The Secured Party is directed to deliver the Shares to Pledgor at such time
as
the Obligation has been paid in full or otherwise satisfied or released. At
that
time, Pledgeholder shall return the Shares and the certificate representing
the
Shares to Pledgor, and all Shares shall be deemed released from this
pledge.
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7.2.
In
performing
obligations hereunder including any performance hereunder in the event of a
dispute, the Secured Party shall be reimbursed for any costs and expenses of
performance hereunder.
8.
Representations
and
Warranties of Secured Party. Secured Party represents and
warrants to Pledgor that except for the security interest created by this Pledge
Agreement, no person or entity has any right, title, interest, or claim in
or to
the Shares or any part of the Shares.
9.
Governing
Law. This Pledge Agreement is governed by and construed in
accordance with the laws of the State of New York, irrespective of New York’s
choice-of-law principles. For purposes of venue and jurisdiction, this Pledge
Agreement shall be deemed made and to be performed in the City of New York,
New
York.
10.
Further
Assurances. Each party to this Pledge Agreement shall execute
and deliver all instruments and documents id take all actions as may be
reasonably required or appropriate to carry out the purposes of this Pledge
Agreement.
11.
Counterparts
and
Exhibits. This Pledge Agreement may be executed in
counterparts, each of which is deemed an original and all of which together
constitute one document. All exhibits attached to and referenced in this Pledge
Agreement are incorporated into this Pledge Agreement.
12.
Modification. This
Pledge Agreement may be modified only by a contract in writing executed by
the
party to this Pledge Agreement against whom enforcement of the modification
is
sought.
13.
Headings. The
paragraph headings in this Pledge Agreement: (a) are included only for
convenience, (b) do not in any manner modify or limit any of the provisions
of
this Pledge Agreement, and (c) may not be used in the interpretation of this
Pledge Agreement.
14.
Prior
Understandings. This Pledge Agreement and all documents
specifically referred to and executed in connection with this Pledge Agreement:
(a) contain the entire and final agreement of the parties to this Pledge
Agreement with respect to the subject matter of this Pledge Agreement, and
(b)
supersede all negotiations, stipulations, understandings, agreements,
representations ad warranties, if any, with respect to such subject matter,
which precede or accompany the execution of this Pledge Agreement.
15.
Interpretation. Wherever
the context of this Pledge Agreement requires, all words used in the singular
shall be construed to have been used in the plural, and vice versa, and the
use
of any gender specific pronoun shall include any other appropriate ender. The
conjunctive ‘or” shall mean “and/or” unless otherwise required by the context in
which the conjunctive “or” issued. Pledgor and Secured Party have each had the
opportunity to be represented by legal counsel and hereby waive any benefit
under any rule of law or legal decision that would require interpretation of
any
ambiguities in this Pledge Agreement against the party drafting. The
provisions of this Pledge Agreement shall be interpreted in a reasonable manner
to effect the purposes of the parties and this Pledge Agreement.
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16.
Representation. This
Pledge Agreement has been prepared by Stroock & Stroock & Xxxxx LLP
(“Stroock”), as counsel for Secured Party. By this provision, Stroock affirms
that it represents no other party in this transaction and suggests the
advisability of all other parties obtaining the advice and representation of
independent counsel.
17.
Partial
Invalidity. Each provision of this Pledge Agreement is valid
and enforceable to the fullest extent permitted by law. If any
provision of this Pledge Agreement (or the application of such provision to
any
person or circumstance) is or becomes invalid or unenforceable, the remainder
of
this Pledge Agreement, and the application of such provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
are not affected by such invalidity or unenforceability.
18.
Notices. Each
notice and other communication required or permitted to be given under this
Pledge Agreement “Notice”) must be in writing. Notice is duly given to another
party upon: (a) hand delivery to the other party, (b) receipt by the other
party
when sent by facsimile or electronic mail to the facsimile number or email
address for such party set forth below, (c) three business days after the Notice
has been deposited with the United States postal service as first class
certified mail, return receipt requested, postage prepaid, and addressed to
the
party as set forth below, or (d) the next business day after the Notice has
been
deposited with a reputable overnight delivery service, postage prepaid,
addressed to the party as set forth below with next-business-day delivery
guaranteed, provided that the sending party receives a confirmation of delivery
from the delivery-service-provider.
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To
Pledgor:
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00000
Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Attention: Xxxx
Xxx
Fax: (000)
000-0000
Email: xxxx@xxxxxxxxxxxxxxxxxxxxx.xxx
|
|
Copy
to:
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Xxxxxx,
Xxxx & Xxxxxxxx LLP
0000
Xxxx Xxxx Xxxx
Xxxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. Xxxxxx
Fax: (000)
000-0000
Email:
xxxxxxx@xxxxxxxxxx.xxx
|
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To
Secured Party:
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ERP2
Holdings, LLC
c/o
Xxxxxxx Xxxxxxx
000
Xxxx Xxxxxx
Xxx
Xxxxxx, XX 00000
Attention: Board
of Managers
Fax: (000)
000-0000
Email: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
|
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Copy
to:
|
Stroock
& Stroock & Xxxxx LLP
000
Xxxxxx Xxxx
Xxx
Xxxx, XX 00000
Attention: Xxxxx
Xxxxxxxx
Fax: (000)
000-0000
Email: xxxxxxxxx@xxxxxxx.xxx
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Each
party shall make a reasonable, good faith effort to ensure that it will accept
or receive Notices to it that are given in accordance with this paragraph.
A
party may change its address for purposes of this paragraph by giving the other
party written notice of a new address in the manner set forth above.
19.
Waiver. Any
waiver of a default or provision under this Pledge Agreement must be in writing.
No such waiver constitutes a waiver of any other default or provision concerning
the same or any other provision of this Pledge Agreement. No delay or omission
by a party in the exercise of any of its rights or remedies constitutes a waiver
of (or otherwise impairs) such right or remedy. A consent to or approval of
an
act does not waive or render unnecessary the consent to or approval of any
other
or subsequent act.
20.
Fees
and
Expenses. The Debtor shall pay all reasonable fees and
expenses of the Secured Party in connection with the negotiation, execution
and
delivery of this Pledge Agreement.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, Pledgor and the Secured Party have each caused this Agreement
to be executed by its duly authorized representative as of the day and year
first written above.
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PLEDGOR:
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By:
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/s/ Xxxx
X. Low
|
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Name: Xxxx
X. Low
|
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Title: Chief
Financial Officer
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SECURED
PARTY:
|
ERP2
HOLDINGS, LLC
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By:
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/s/
Xxxxx Xxxxx
|
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Name:
Xxxxx Xxxxx
|
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Title: Majority
Manager
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