Exhibit 10.20
SECOND AMENDED AND RESTATED
PLEDGE AGREEMENT
This Amended and Restated Pledge Agreement, dated as of October 18, 2001
(the "Agreement"), executed by XXXXXXX X. XXXXX ("Pledgor") for the benefit of
OAO TECHNOLOGY SOLUTIONS, INC., a Delaware corporation ("Lender"), amends and
restates in its entirety the Amended and Restated Pledge Agreement dated as of
July 14, 1999 executed by Pledgor for the benefit of Lender (the "Original
Pledge Agreement").
For good and valuable consideration and intending to be legally bound,
Pledgor hereby assigns, pledges and grants to Lender a security interest in the
common units of Terrapin Partners Holding Company LLC, a Delaware limited
liability company (the "LLC"), received by Xxxxx on the date hereof as more
particularly described on Schedule A attached hereto and made a part hereof
(collectively, the "Securities"), and cash and non-cash proceeds, distributions,
additions, substitutions, exchanges, redemptions and replacements of, on or by
reason of any of the foregoing (collectively, the "Collateral"), as security for
the payment and performance of all indebtedness, liabilities and obligations of
Borrower (primary, secondary, direct, contingent, related, unrelated, sole,
joint or several) to Lender, whether for principal, interest, fees, expenses or
otherwise, (the "Obligations"), arising under that certain Second Amended and
Restated Term Note, dated as of the date hereof but effective as of July 14,
1999, made by Borrower in favor of Lender in the principal amount of $2,932,500
(the "Note"), all on the following terms and conditions.
A. Representations and Warranties. Pledgor represents and warrants that:
1. Pledgor has good title to the Securities free and clear of all
liens and encumbrances except the security interest created hereby.
2. Pledgor has delivered to Lender the certificates representing or
evidencing the Securities, accompanied by corresponding assignment or
transfer powers duly executed in blank by Pledgor, and this Agreement and
such powers have been duly and validly executed and are binding and
enforceable against Pledgor in accordance with their terms; and the pledge
of the Securities in accordance with the terms hereof creates a valid and
perfected first priority security interest in the Securities securing
payment of the Obligations.
3. No authorization, approval, consent, or other action by, and no
notice to or filing with, any governmental authority, regulatory body or
other person or entity is required either (i) for the pledge by Pledgor of
the Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by Pledgor, or (ii) for the exercise by
Lender of the voting or other rights provided for in this Agreement or the
remedies in respect of the Collateral pursuant to this Agreement (except as
may be required in connection with such disposition by laws affecting the
offering and sale of securities generally).
B. Negative Pledge. Pledgor agrees not to (i) sell or otherwise dispose of,
or grant any option with respect to, any of the Collateral, or (ii) create or
permit to exist any lien, security interest or other charge or encumbrance upon
or with respect to any of the Collateral, except the security interest under
this Agreement.
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C. Additional Collateral. Prior to the full payment and performance of the
Obligations, Pledgor shall pledge hereunder, as additional Collateral, and shall
forthwith transfer and deliver to Lender immediately upon acquisition (directly
or indirectly) thereof, any and all additional common units or other securities
of the LLC and any other property of any kind received, receivable, or otherwise
distributed or distributable on or by reason of the Collateral, whether in the
form of or by way of distributions, warrants, partial liquidation, conversion,
prepayments or redemptions (in whole or in part), liquidation or otherwise with
the sole exception of cash distributions paid in respect of the Collateral.
D. Pledgor's Rights in the Pledged Collateral Before Default. So long as no
event of default (as such term is used in the Note) shall have occurred and be
continuing and Pledgor is in full compliance with the terms hereof:
1. Pledgor shall be entitled to receive and retain any distributions
paid in respect of the Collateral, if such distributions are not prohibited
under the Note.
2. Pledgor may exercise all voting rights, if any, pertaining to the
Collateral for any purpose not inconsistent with the terms hereof or of the
Obligations or the Note. In the event any Collateral has been transferred
into the name of Lender or a nominee or nominees of Lender prior to the
occurrence of such event of default, Lender or its nominee shall execute
and deliver upon request of Pledgor an appropriate proxy in order to permit
Pledgor to vote, if applicable, the same.
E. Further Assurances. Pledgor shall from time to time promptly take all
actions (and execute, deliver and record all instruments and documents)
necessary or appropriate or requested by Lender, to continue the validity,
enforceability and perfected status of the pledge of the Collateral hereunder or
to enable Lender to exercise and enforce the rights and remedies hereunder with
respect to any of the Pledged Collateral.
F. Lender's Duties Toward Collateral. Lender shall be under no obligation
to take any actions and shall have no liability (except for gross negligence or
willful misconduct) with respect to the preservation or protection of the
Collateral or any underlying interests represented thereby as against any prior
or other parties. In the event Pledgor requests that Lender take or omit to take
action(s) with respect to the Collateral, Lender may refuse so to do with
impunity if Pledgor does not, upon request of Lender, post sufficient,
creditworthy indemnities with Lender which, in Lender's sole discretion, are
sufficient to hold it harmless from any possible liability of any kind in
connection therewith.
G. Waivers by Pledgor. Pledgor agrees that Lender, at any time and without
affecting its rights in the Collateral and without notice to Pledgor, may grant
any extensions, releases or other modifications of any kind respecting the Note,
the Obligations and any Collateral. Pledgor, except as otherwise provided herein
or in the Note, waives all notices of any kind in connection with the
Obligations, the Note and any changes therein or defaults or enforcement
proceedings thereunder, whether against Pledgor or any other party. Pledgor
hereby waives any rights it has at equity or in law to require Lender to apply
any rights of marshalling or other equitable doctrines in such circumstances.
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H. Remedies Upon Default. After the occurrence of any event of default or
if any representation, warranty or agreement of Pledgor hereunder is breached or
proves to be false, erroneous or misleading in any material respect:
1. Lender may transfer or cause to be transferred any of the
Collateral into its own or a nominee's or nominees' names.
2. Lender shall be entitled to receive and apply in payment of the
Obligations any cash distributions or other payment on the Collateral.
3. Lender shall be entitled to exercise in Lender's discretion all
voting rights, if any, pertaining to the Collateral, and in connection
therewith and at the written request of Lender, Pledgor shall promptly
execute any appropriate dividend, payment or brokerage orders or proxies.
4. Pledgor shall promptly take any action necessary or required or
requested by Lender, in order to allow Lender fully to enforce the pledge
of the Collateral hereunder and realize thereon to the fullest possible
extent including, but not limited to, the filing of any claims with any
court, liquidator or trustee, custodian, receiver or other like person or
party.
5. Lender shall have all the rights and remedies granted or available
to it hereunder, under the Uniform Commercial Code as in effect from time
to time in Delaware, under any other statute or the common law, or under
the Note, including without limitation the right to sell the Collateral or
any portion thereof at one or more public or private sales upon ten (10)
days' written notice and to bid thereat or purchase any part or all thereof
in its own or a nominee's or nominees' names, free and clear of any equity
of redemption; and to apply the net proceeds of the sale, after deduction
for any expenses of sale, including without limitation the payment of all
Lender's reasonable attorneys' fees in connection with the Obligations and
the sale, to the payment of the Obligations in any manner or order which
Lender in its sole discretion may elect, without further notice to or
consent of Pledgor and without regard to any equitable principles of
marshalling or other like equitable doctrines.
6. Lender may increase, in its sole discretion, but shall not be
required to do so, the Obligations by making additional advances or
incurring expenses for the account of Pledgor deemed appropriate or
desirable by Lender in order to protect, enhance, preserve or otherwise
further the sale or disposition of the Collateral or any other property it
holds as security for the Obligations.
I. Dispositions of Collateral. Pledgor recognizes that Lender may be unable
to effect a sale to the public of all or part of the Collateral by reason of
certain prohibitions or restrictions in the federal or state securities laws and
regulations (collectively, the "Securities Laws"), or the provisions of other
federal and state laws, regulations or rulings, but may be compelled to resort
to one or more private sales to a restricted group of purchasers who will be
required to agree to acquire the Collateral for their own account, for
investment and not with a view to the further distribution or resale thereof
without restriction. Pledgor agrees that any sales(s) so made may be at prices
and on other terms less favorable to Pledgor than if the Collateral was sold to
the public, and that Lender has no obligation to delay sale of the Collateral
for period(s) of time necessary to permit the issuer thereof to register the
Collateral for sale to the public under any of the Securities Laws. Pledgor
agrees that negotiated sales
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whether for cash or credit made under the foregoing circumstances shall not be
deemed for that reason not to have been made in a commercially reasonable
manner. Pledgor shall cooperate with Lender and shall satisfy any requirements
under the Securities Laws applicable to the sale or transfer of the Collateral
by Lender.
In connection with any sale or disposition of the Collateral, Lender is
authorized to comply with any limitation or restriction as it may be advised by
its counsel is necessary or desirable in order to avoid any violation of
applicable law or to obtain any required approval of the purchaser(s) by any
governmental regulatory body or officer and it is agreed that such compliance
shall not result in such sale being considered not to have been made in a
commercially reasonable manner nor shall Lender be liable or accountable by
reason of the fact that the proceeds obtained at such sale(s) are less than
might otherwise have been obtained.
Lender may elect to obtain the advice of any independent nationally-known
investment banking firm, which is a member firm of the New York Stock Exchange,
with respect to the method and manner of sale or other disposition of any of the
Collateral, the best price reasonably obtainable therefor, the consideration of
cash and/or credit terms, or any other details concerning such sale or
disposition. Lender, in its sole discretion, may elect to sell on such credit
terms which it deems reasonable.
J. Lender's Expenses. Pledgor shall pay Lender on demand all costs and
expenses incurred by Lender (including, without limitation, reasonable counsel
fees and expenses) in connection with (i) the preparation, negotiation, and
closing of this Agreement, and any modifications hereto, (ii) the custody,
preservation, sale or collection or realization of the Collateral, and (iii) the
exercise or enforcement of Lender's rights hereunder.
K. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns and shall be governed as to its
validity, interpretation and effect by the laws of the State of Delaware; and
any terms used herein which are defined in the Uniform Commercial Code as
enacted in Delaware shall have the meanings therein set forth.
L. Amendments and Waivers. No amendment or waiver of any provision of this
Agreement nor consent to any departure by Pledgor herefrom shall in any event be
effective unless the same shall be in writing and signed by Lender, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No failure or delay on
the part of Lender in the exercise of any right, power, or remedy under this
Agreement or the Note shall under any circumstances constitute or be deemed to
be a waiver thereof, or prevent the exercise thereof in that or any other
instance.
M. Attorney-in-Fact. Pledgor hereby irrevocably appoints Lender as its
attorney-in-fact, in the name of Pledgor or otherwise, from time to time in
Lender's discretion and at Pledgor's expense, to take any action and to execute,
deliver and record any instruments or documents in connection with the
Collateral which Lender may deem necessary or advisable to accomplish the
purposes of this Agreement including, without limitation, to receive, endorse,
and collect all instruments made payable to Pledgor representing any
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same. Lender shall not, in its capacity as
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such attorney-in-fact, be liable for any acts or omissions, nor for any error of
judgment or mistake of fact or law, but only for gross negligence or willful
misconduct.
N. Entire Agreement. This Agreement, and all agreements and instruments to
be delivered by the parties pursuant hereto or in connection herewith, represent
the entire understanding of the parties with respect to the subject matter
hereof. Except as otherwise indicated, all agreements defined herein refer to
the same as from time to time amended or supplemented or the terms thereof
waived or modified in accordance herewith and therewith. Any provision hereof
found to be illegal, invalid or unenforceable for any reason whatsoever shall
not affect the legality, validity or enforceability of the remainder hereof.
P. Joint and Several Obligations. If more than one Pledgor signs this
Agreement, all references herein to Pledgor shall include all such Pledgors and
each shall be jointly and severally bound by the terms and provisions hereof.
Q. Notices. All notices, demands or other communications required or
permitted hereunder shall be in writing and shall be given as provided in the
Note, using Pledgor's address as indicated below.
R. Partial Releases; Termination. Any of the Collateral may be released
from this Agreement without altering, varying, or diminishing in any way this
Agreement or the security interest granted hereby as to the Collateral not
expressly released, and this Agreement and such security interest shall continue
in full force and effect as to all of the Collateral not expressly released.
This Agreement and Lender's rights in the Collateral shall cease, terminate and
be void upon the repayment in full of the Obligations. Upon such repayment and
termination, Lender shall execute such documents as may reasonably be required
by Pledgor to release Lender's security interest in the Collateral.
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IN WITNESS WHEREOF, Pledgor has executed this Second Amended and Restated
Pledge Agreement as of the ______ day of October, 2001.
WITNESS OR ATTEST: PLEDGOR:
--------------------- --------------------------
Name: Xxxxxxx X. Xxxxx
Address: Xxxxx Xxxx Blvd.
Apt. 3106
Xxxxx, XX 00000
Fax No.: 000-000-0000
Pursuant to Paragraph L. of the Original Pledge Agreement, the undersigned
hereby agrees as of this ____ day of October, 2001 to this Second Amended and
Restated Pledge Agreement.
OAO TECHNOLOGY SOLUTIONS, INC.
By:________________________________
Name:
Title:
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