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PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "PLEDGE AGREEMENT"), dated as of September 30,
1996, made by GENICOM CORPORATION, a Delaware corporation (the "BORROWER"), THE
GUARANTORS FROM TIME TO TIME PARTY HERETO (each a "GUARANTOR", and collectively
the "GUARANTORS", and together with the Borrower, each a "PLEDGOR", and
collectively the "PLEDGORS") and TEXAS INSTRUMENTS INCORPORATED, a Delaware
corporation ("LENDER").
RECITALS
WHEREAS, pursuant to the Subordinated Promissory Note dated as of the date
hereof (as amended, modified, extended, renewed or replaced from time to time,
the "NOTE") from the Borrower, Lender has provided to the Borrower a loan in an
original principal amount of $9,000,000; and
WHEREAS, Lender has required, as a condition precedent to making the loan
to the Borrower under the Note, that the Pledgors secure their respective
obligations under the Note and the other Loan Documents in accordance with the
terms of this Pledge Agreement.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein but not otherwise defined
shall have the meanings ascribed to such terms in the Note.
2. PLEDGE AND GRANT OF SECURITY INTEREST. To secure the prompt payment
and performance in full when due, whether by lapse of time or otherwise, of the
Secured Obligations (as defined in Section 3 hereof), each Pledgor hereby
pledges and assigns to Lender, and grants to Lender, a continuing security
interest in any and all right, title and interest of such Pledgor in and to the
following, whether now owned or existing or owned, acquired, or arising
hereafter (collectively, the "PLEDGED COLLATERAL"):
(a) Pledged Shares. All of the issued and outstanding shares of
capital stock of the Domestic Subsidiaries of such Pledgor set forth on
SCHEDULE 1 attached hereto (all certificates representing such shares and
all options and
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other rights, contractual or otherwise, with respect thereto, collectively
the "PLEDGED SHARES").
(b) Additional Shares. All of the issued and outstanding shares of
capital stock of any Domestic Subsidiary which is hereafter formed or
acquired by such Pledgor, including without limitation, the certificates
representing such shares.
(c) Other Equity Interests. Any and all other equity interests of
such Pledgor in any direct or indirect Subsidiary of the Borrower.
(d) Proceeds. All proceeds and products of the foregoing, however
and whenever acquired and in whatever form.
Without limiting the generality of the foregoing, it is hereby
specifically understood and agreed that a Pledgor may from time to time
hereafter deliver additional shares of stock to Lender as collateral security
for the Secured Obligations. Upon delivery to Lender, such additional shares
of stock shall be deemed to be part of the Pledged Collateral of such Pledgor
and shall be subject to the terms of this Pledge Agreement whether or not
SCHEDULE 1 is amended to refer to such additional shares.
3. SECURITY FOR SECURED OBLIGATIONS. The security interest created
hereby in the Pledged Collateral of each Pledgor constitutes continuing
collateral security for all of the following, whether now existing or hereafter
incurred (the "SECURED OBLIGATIONS"):
(a) (i) In the case of the Borrower, the prompt performance and
observance by the Borrower of all obligations of the Borrower under the
Note, this Pledge Agreement and the other Loan Documents to which the
Borrower is a party; or
(ii) In the case of any Pledgor which is a Guarantor, the prompt
performance and observance by such Guarantor of all obligations of such
Guarantor under this Pledge Agreement and the other Loan Documents to
which such Guarantor is a party, including, without limitation, its
guaranty obligations arising under Section 2 of the Guaranty and Security
Agreement; and
(b) All other indebtedness, liabilities and obligations of any kind
or nature, now existing or hereafter
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arising, owing from any Credit Party to Lender, arising under the Loan
Documents, whether primary, secondary, direct, contingent, or joint and
several.
4. DELIVERY OF THE PLEDGED COLLATERAL. Each Pledgor hereby agrees that:
(a) Certificates. Such Pledgor shall deliver to Lender (i)
simultaneously with or prior to the execution and delivery of this Pledge
Agreement, all certificates representing the Pledged Shares of such
Pledgor and (ii) promptly upon the receipt thereof by or on behalf of such
Pledgor, all other certificates and instruments constituting Pledged
Collateral of such Pledgor. Prior to delivery to Lender, all such
certificates and instruments constituting Pledged Collateral of such
Pledgor shall be held in trust by such Pledgor for the benefit of Lender
pursuant hereto. All such certificates shall be delivered in suitable
form for transfer by delivery or shall be accompanied by duly executed
instruments of transfer or assignment in blank, in the form provided in
SCHEDULE 2 attached hereto.
(b) Additional Securities. If such Pledgor shall receive by virtue
of its being or having been the owner of any Pledged Collateral, any (i)
stock certificate, including without limitation, any certificate
representing a stock dividend or distribution in connection with any
increase or reduction of capital, reclassification, merger, consolidation,
sale of assets, combination of shares, stock splits, spin-off or
split-off, promissory notes or other instrument; (ii) option or right,
whether as an addition to, substitution for, or an exchange for, any
Pledged Collateral or otherwise; (iii) dividends payable in securities; or
(iv) distributions of securities in connection with a partial or total
liquidation, dissolution or reduction of capital, capital surplus or
paid-in surplus, then such Pledgor shall receive such stock certificate,
instrument, option, right or distribution in trust for the benefit of
Lender, shall segregate it from such Pledgor's other property and shall
deliver it forthwith to Lender in the exact form received together with
any necessary endorsement and/or appropriate stock power duly executed in
blank in the form provided in SCHEDULE 2, to be held by Lender as Pledged
Collateral and as further collateral security for the Secured Obligations.
(c) Financing Statements. Such Pledgor shall execute and deliver to
Lender such UCC financing statements as may
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be reasonably requested by Lender in order to perfect and protect the
security interest created hereby in the Pledged Collateral of such
Pledgor.
5. Representations and Warranties. Each Pledgor hereby represents and
warrants to Lender, that so long as any amounts remain payable under the Note
or under any other Loan Document:
(a) Authorization of Pledged Shares. The Pledged Shares of such
Pledgor are duly authorized and validly issued, are fully paid and
nonassessable and are not subject to the preemptive rights of any Person.
All other shares of stock constituting Pledged Collateral will be duly
authorized and validly issued, fully paid and nonassessable and not
subject to the preemptive rights of any Person.
(b) Title. Such Pledgor has good and indefeasible title to the
Pledged Collateral of such Pledgor and will at all times be the legal and
beneficial owner of such Pledged Collateral free and clear of any Lien,
except for the security interest created by this Pledge Agreement and
other Permitted Liens. There exists no "adverse claim" within the meaning
of Section 8.302 of the Uniform Commercial Code as in effect in the State
of Texas (the "UCC") with respect to the Pledged Shares of such Pledgor.
(c) Exercising of Rights. The exercise by Lender of its rights and
remedies hereunder will not violate any law or governmental regulation or
any material contractual restriction binding on or affecting such Pledgor
or any of its Property.
(d) Pledgor's Authority. No authorization, approval or action by,
and no notice or filing with any Governmental Authority or with the issuer
of any Pledged Stock of such Pledgor is required either (i) for the pledge
made by such Pledgor or for the granting of the security interest by such
Pledgor pursuant to this Pledge Agreement; or (ii) for the exercise by
Lender of its rights and remedies hereunder (except as may be required by
laws affecting the offering and sale of securities).
(e) Security Interest/Priority. This Pledge Agreement creates a
valid security interest in favor of Lender in the Pledged Collateral of
such Pledgor. The taking possession by Lender of the certificates
representing the Pledged Shares of such Pledgor and all other certificates
and instruments constituting Pledged Collateral of such Pledgor
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will perfect and establish the first priority of Lender's security
interest, subject to the subordination in favor of the Senior Lenders
pursuant to the subordination provisions contained herein, in the Pledged
Shares of such Pledgor and in all other Pledged Collateral of such Pledgor
represented by such Pledged Shares and instruments securing the Secured
Obligations. Except as set forth in this Section 5(e), no action is
necessary to perfect or otherwise protect such security interest.
6. COVENANTS. Each Pledgor hereby covenants, that so long as any
amounts remain payable under the Note or under any other Loan Document, it
shall:
(a) Books and Records. Xxxx its books and records (and shall cause
the issuer of the Pledged Shares of such Pledgor to xxxx its books and
records) to reflect the security interest granted to Lender, pursuant to
this Pledge Agreement.
(b) Defense of Title. Warrant and defend title to and ownership of
the Pledged Collateral of such Pledgor at its own expense against the
claims and demands of all other parties claiming an interest therein, keep
the Pledged Collateral of such Pledgor free from all Liens, except for
those created hereunder and the security interest created hereby and
except for Permitted Liens, and not sell, exchange, transfer, assign,
lease or otherwise dispose of Pledged Collateral of such Pledgor or any
interest therein, except as permitted under the Note.
(c) Further Assurances. Promptly execute and deliver at its expense
all further instruments and documents and take all further action that may
be necessary and desirable or which Lender may reasonably request in order
to (i) perfect and protect the security interest created hereby in the
Pledged Collateral of such Pledgor; (ii) enable Lender to exercise and
enforce its rights and remedies hereunder in respect of the Pledged
Collateral of such Pledgor; and (iii) otherwise effect the purposes of
this Pledge Agreement, including, without limitation and if requested by
Lender, delivering to Lender irrevocable proxies in respect of the Pledged
Collateral of such Pledgor.
(d) Amendments. Not make or consent to any amendment or other
modification or waiver with respect to any of the Pledged Collateral of
such Pledgor or enter into any agreement or allow to exist any restriction
with respect to
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any of the Pledged Collateral of such Pledgor other than pursuant hereto
or as may be permitted under the Note.
(e) Compliance with Securities Laws. File all reports and other
information now or hereafter required to be filed by such Pledgor with the
United States Securities and Exchange Commission and any other state,
federal or foreign agency in connection with the ownership of the Pledged
Collateral of such Pledgor.
7. RIGHTS OF LENDER.
(a) Power of Attorney. In addition to other powers of attorney
contained herein, each Pledgor hereby designates and appoints Lender and
each of its designees or agents as attorney-in-fact of such Pledgor,
irrevocably and with power of substitution, with authority to take any or
all of the following actions upon the occurrence and during the
continuance of an Event of Default (as hereinafter defined):
(i) to demand, collect, settle, compromise, adjust, and
give discharges and releases, all as Lender may reasonably determine;
(ii) to commence and prosecute any actions at any court for
the purposes of collecting any of the Pledged Collateral of such
Pledgor and enforcing any other right in respect thereof;
(iii) to defend, settle or compromise any action
brought and, in connection therewith, give such discharge or release
as Lender may deem reasonably appropriate;
(iv) to pay or discharge taxes, liens, security interests,
or other encumbrances levied or placed on or threatened against the
Pledged Collateral of such Pledgor;
(v) to direct any parties liable for any payment under any
of the Pledged Collateral of such Pledgor to make payment of any and
all monies due and to become due thereunder directly to Lender or as
Lender shall direct;
(vi) to receive payment of and take receipt for any and all
monies, claims, and other amounts due and to become due at any time
and from time to time in
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respect of or arising out of any Pledged Collateral of such Pledgor;
(vii) to sign and endorse any drafts, assignments,
proxies, stock powers, verifications, notices and other documents
relating to the Pledged Collateral of such Pledgor;
(viii) to settle, compromise or adjust any suit, action
or proceeding described above and, in connection therewith, to give
such discharges or releases as Lender may deem reasonably
appropriate;
(ix) to exchange any of the Pledged Collateral of such
Pledgor or other property upon any merger, consolidation,
reorganization, recapitalization or other readjustment of the issuer
thereof and in connection therewith, deposit any of the Pledged
Collateral of such Pledgor with any depository, transfer agent,
registrar or other designated agency upon such terms as Lender may
determine; and
(x) to do and perform all such other acts and things as
Lender may reasonably deem to be necessary, proper or convenient in
connection with the Pledged Collateral of such Pledgor.
This power of attorney is a power coupled with an interest and shall be
irrevocable. Lender shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or
implicitly granted to Lender in this Pledge Agreement, and shall not be liable
for any failure to do so or any delay in doing so. Lender shall not be liable
for any act or omission or for any error of judgment or any mistake of fact or
law in its individual capacity or its capacity as attorney-in-fact except acts
or omissions resulting from its negligence or willful misconduct. This power
of attorney is conferred on Lender solely to protect, preserve and realize upon
its security interest in Pledged Collateral.
(b) Performance by Lender of Pledgor's Obligations. If any Pledgor
fails to perform any agreement or obligation contained herein, after the
occurrence and during the continuance of an Event of Default, Lender itself may
perform, or cause performance of, such agreement or obligation, and the
expenses of Lender incurred in
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connection therewith shall be payable by the Pledgors on a joint and several
basis pursuant to Section 11 hereof.
(c) Assignment by the Lender. Lender may from time to time assign
the Pledged Collateral and any portion thereof, and the assignee shall be
entitled to all of the rights and remedies of Lender under this Pledge
Agreement in relation thereto.
(d) Lender's Duty of Care. Other than the exercise of reasonable
care to assure the safe custody of the Pledged Collateral while being held by
Lender hereunder, Lender shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that each Pledgor shall be
responsible for preservation of all rights in the Pledged Collateral of such
Pledgor, and Lender shall be relieved of all responsibility for Pledged
Collateral upon surrendering it or tendering the surrender of it to such
Pledgor. Lender shall be deemed to have exercised reasonable care in the
custody and preservation of the Pledged Collateral in its possession if such
Pledged Collateral is accorded treatment substantially equal to that which
Lender accords its own property, it being understood that Lender shall not have
responsibility for (i) 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; or (ii) taking any necessary steps to preserve rights against any
parties with respect to any Pledged Collateral.
(e) Voting Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have occurred and
be continuing, to the extent permitted by law, each Pledgor may
exercise any and all voting and other consensual rights pertaining to
the Pledged Collateral of such Pledgor or any part thereof for any
purpose not inconsistent with the terms of this Pledge Agreement or
the Note;
(ii) Upon the occurrence and during the continuance of an
Event of Default, upon written notice from Lender, all rights of a
Pledgor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant to paragraph (i) of
this Section 7 shall cease and all such rights
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shall thereupon become vested in Lender which shall thereupon have
the sole right to exercise such voting and other consensual rights.
(f) Dividend Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have occurred and
be continuing and subject to Section 4(b) hereof, each Pledgor may
receive and retain any and all dividends (other than stock dividends
and other dividends constituting Pledged Collateral of such Pledgor
which are addressed hereinabove) or interest paid in respect of the
Pledged Collateral of such Pledgor to the extent they are allowed
under the Note.
(ii) Upon the occurrence and during the continuance of an
Event of Default:
(A) all rights of a Pledgor to receive the dividends
and interest payments which it would otherwise be authorized to
receive and retain pursuant to paragraph (i) of this Section 7(f)
shall cease and all such rights shall thereupon be vested in Lender
which shall thereupon have the sole right to receive and hold as
Pledged Collateral such dividends and interest payments; and
(B) all dividends and interest payments which are
received by such Pledgor contrary to the provisions of paragraph (A)
of this Section 7(f)(ii) shall be received in trust for the benefit
of Lender, shall be segregated from other property or funds of such
Pledgor, and shall be forthwith paid over to Lender as Pledged
Collateral in the exact form received, to be held by Lender as
Pledged Collateral and as further collateral security for the Secured
Obligations.
(g) Release of Pledged Collateral. Lender may release any of the
Pledged Collateral from this Pledge Agreement or may substitute any of the
Pledged Collateral for other Pledged Collateral without altering, varying or
diminishing in any way the force, effect, lien, pledge or security interest of
this Pledge Agreement as to any Pledged Collateral not expressly released or
substituted, and this Pledge Agreement shall continue as a first priority lien,
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security interest, pledge and charge on all Pledged Collateral not
expressly released or substituted when any of the Secured Obligations
remain outstanding with respect to the Lender, subject to the
subordination in favor of the Senior Lenders pursuant to the subordination
provisions contained herein.
8. ADVANCES BY LENDER. On failure of any Pledgor to perform any of the
covenants and agreements contained herein, Lender may, at its sole option and
in its sole discretion, perform the same and in so doing may expend such sums
as Lender may reasonably deem advisable in the performance thereof, including,
without limitation, the payment of any taxes, a payment to obtain a release of
a Lien or potential Lien, expenditures made in defending against any adverse
claim and all other expenditures which Lender may make for the protection of
the security hereof or which Lender may be compelled to make by operation of
law. All such sums and amounts so expended shall be repayable by the Pledgors
on a joint and several basis promptly upon notice thereof and demand therefor,
shall constitute additional Secured Obligations and shall bear interest from
the date said amounts are expended at the default rate provided for in Section
2.3 of the Note. No such performance of any covenant or agreement by Lender on
behalf of any Pledgor, and no such advance or expenditure therefor, shall
relieve the Pledgors of any default under the terms of this Pledge Agreement or
the other Loan Documents. Lender may make any payment hereby authorized in
accordance with any xxxx, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into the
accuracy of such xxxx, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien, title or claim except to the extent
such payment is being contested in good faith by a Pledgor in appropriate
proceedings and against which adequate reserves are being maintained in
accordance with GAAP.
9. EVENTS OF DEFAULT. The occurrence of an Event of Default under and
as defined in the Note shall be an Event of Default hereunder ("EVENT OF
DEFAULT").
10. REMEDIES UPON DEFAULT. If any Event of Default shall have occurred
and be continuing:
(a) Rights and Remedies. Lender may exercise in respect of the
Pledged Collateral of any Pledgor, in addition to other rights and
remedies provided for herein or otherwise available to it, all rights and
remedies of a
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secured party upon default under the UCC or any other applicable law.
(b) Sale of Pledged Collateral. Without limiting the generality of
this Section and without notice (except as provided below), Lender may, in
its sole discretion, sell or otherwise dispose of or realize upon 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 elsewhere, at such
price or prices and on such other terms as Lender may deem commercially
reasonable, for cash, credit or for future delivery or otherwise in
accordance with applicable law. To the extent permitted by law, Lender
may in such event, bid for the purchase of such securities. Each Pledgor
agrees that any requirement of reasonable notice shall be met if notice,
specifying the place of any public sale or the time after which any
private sale is to be made, shall be personally served on or mailed,
postage prepaid, to such Pledgor in accordance with the notice provisions
of Section 15 of the Note at least 10 days before time of such sale.
Lender shall not be obligated to make any sale of Pledged Collateral of
such Pledgor 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.
(c) Private Sale. The Pledgors recognize that Lender may deem it
impracticable to effect a public sale of all or any part of the Pledged
Shares or any of the securities constituting Pledged Collateral and that
Lender may, therefore, determine to make one or more private sales of any
such securities to a restricted group of purchasers who will be obligated
to agree, among other things, to acquire such securities for their own
account, for investment and not with a view to the distribution or resale
thereof. Each Pledgor acknowledges that any such private sale may be at
prices and on terms less favorable to the seller than the prices and other
terms which might have been obtained at a public sale and, notwithstanding
the foregoing, agrees that such private sale per se shall not be deemed to
have been made in a commercially unreasonable manner and that Lender shall
have no obligation to delay sale of any such securities for the period of
time necessary to permit the issuer of such securities to register such
securities for public sale under the Securities Act of 1933. Each Pledgor
further acknowledges and agrees that any offer to sell such
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securities which has been publicly advertised on a bona fide basis in a
newspaper or other publication of general circulation in the financial
community of New York, New York (to the extent that such offer may be
advertised without prior registration under the Securities Act of 1933)
shall be deemed to involve a "public sale" under the UCC, notwithstanding
that such sale may not constitute a "public offering" under the Securities
Act of 1933, and Lender may, in such event, bid for the purchase of such
securities.
(d) Retention of Pledged Collateral. Lender may, after providing
the notices required by Section 9.505(b) of the UCC or otherwise complying
with the requirements of applicable law of the relevant jurisdiction,
retain all or any portion of the Pledged Collateral in satisfaction of the
Secured Obligations. Unless and until Lender shall have provided such
notices, however, Lender shall not be deemed to have retained any Pledged
Collateral in satisfaction of any Secured Obligations for any reason.
(e) Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, any payments in respect of the Secured
Obligations and any proceeds of any Pledged Collateral, when received by
Lender in cash or its equivalent, will be applied in reduction of the
Secured Obligations in such order and manner as set forth in Section 11 of
the Guaranty and Security Agreement, and each Pledgor irrevocably waives
the right to direct the application of such payments and proceeds and
acknowledges and agrees that Lender shall have the continuing and
exclusive right to apply and reapply any and all such payments and
proceeds notwithstanding any entry to the contrary upon any of its books
and records. The Pledgors shall remain liable to Lender for any
deficiency.
(f) Deficiency. In the event that the proceeds of any sale,
collection or realization are insufficient to pay all amounts to which
Lender is legally entitled, the Pledgors shall be jointly and severally
liable for the deficiency, together with interest thereon at the default
rate provided in Section 2.3 of the Note, together with the costs of
collection and the reasonable fees of any attorneys employed by Lender to
collect such deficiency. Any surplus remaining after the full payment and
satisfaction of the Secured Obligations shall be returned to the
appropriate Pledgors or to whomsoever a court of competent jurisdiction
shall determine to be entitled thereto.
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11. COSTS OF COUNSEL. If at any time hereafter, after the occurrence and
during the continuance of an Event of Default or not, Lender employs counsel to
prepare or consider amendments, waivers or consents with respect to this Pledge
Agreement, or to take action or make a response in or with respect to any legal
or arbitral proceeding relating to this Pledge Agreement or relating to the
Pledged Collateral, or to protect the Pledged Collateral of any Pledgor or
exercise any rights or remedies under this Pledge Agreement or with respect to
any Pledged Collateral, then the Pledgors agree to promptly pay upon demand any
and all such reasonable costs and expenses of Lender, all of which costs and
expenses shall constitute Secured Obligations hereunder.
12. CONTINUING AGREEMENT. This Pledge Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect so long as
any amounts remain payable under the Note or under any other Loan Document.
Upon such termination of this Pledge Agreement, Lender shall, upon the request
and at the expense of the Obligors, forthwith release all of its liens and
security interests hereunder. Notwithstanding the foregoing, all releases and
indemnities provided hereunder shall survive termination of this Pledge
Agreement.
13. AMENDMENTS; WAIVERS; MODIFICATIONS. This Pledge Agreement and the
provisions hereof may not be amended, waived, modified, changed, discharged or
terminated except as set forth in Section 11 of the Note.
14. SUCCESSORS IN INTEREST. This Pledge Agreement shall create a
continuing security interest in the Collateral and shall be binding upon each
Pledgor, its successors and assigns and shall inure, together with the rights
and remedies of Lender hereunder, to the benefit of Lender and its successors
and assigns; provided, however, that none of the Pledgors may assign its rights
or delegate its duties hereunder without the prior written consent of Lender,
which may be withheld in Lender's sole and absolute discretion. To the fullest
extent permitted by law, each Pledgor hereby releases Lender, and its
successors and assigns, from any liability for any act or omission relating to
this Pledge Agreement or the Collateral, except for any liability arising from
the negligence or willful misconduct of Lender, or its officers, employees or
agents.
15. NOTICES. All notices required or permitted to be given under this
Pledge Agreement shall be in conformance with Section 15 of the Note.
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16. COUNTERPARTS. This Pledge Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Pledge Agreement to produce or
account for more than one such counterpart.
17. HEADINGS. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Pledge Agreement.
18. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. Any legal action or
proceeding with respect of this Pledge Agreement may be brought in the
courts of the State of Texas in Dallas County, or of the United States in
the District Court for the Northern District of Texas, and, by execution
and delivery of this Pledge Agreement, each of the Pledgors hereby
irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the nonexclusive jurisdiction of such courts. Each
of the Pledgors further 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 registered or certified mail, postage
prepaid, to it at the address set out for notices pursuant to Section 15
of the Note, such service to become effective 3 days after such mailing.
Nothing herein shall affect the right of Lender to serve process in any
other manner permitted by law or to commence legal proceedings or to
otherwise proceed against any Pledgor in any other jurisdiction.
(b) Each of the Pledgors hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Pledge Agreement brought in the courts referred to in subsection (a)
hereof and hereby further irrevocably waives and agrees not to plead or
claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
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(c) TO THE EXTENT PERMITTED BY LAW, LENDER AND EACH OF THE PLEDGORS
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS PLEDGE
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. SEVERABILITY. If any provision of any of the Pledge Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
20. ENTIRETY. This Pledge Agreement and the other Loan Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Loan Documents or the
transactions contemplated herein and therein.
21. SURVIVAL. All representations and warranties of the Pledgors
hereunder shall survive the execution and delivery of this Pledge Agreement and
the other Loan Documents, the delivery of the Note and the making of the loan
under the Note.
22. OTHER SECURITY. To the extent that any of the Secured Obligations
are now or hereafter secured by Property other than the Collateral (including,
without limitation, real property and securities owned by any Pledgor), or by a
guarantee, endorsement or Property of any other Person, then Lender shall have
the right to proceed against such other property, guarantee or endorsement upon
the occurrence of any Event of Default, and Lender has the right, in its sole
discretion, to determine which rights, security, liens, security interests or
remedies Lender shall at any time pursue, relinquish, subordinate, modify or
take with respect thereto, without in any way modifying or affecting any of
them or any of Lender's rights or the Secured Obligations under this Pledge
Agreement or under any other of the Loan Documents.
23. JOINT AND SEVERAL OBLIGATIONS OF PLEDGORS. All payment obligations
of the Pledgors hereunder shall be joint and several.
24. INCORPORATION OF TERMS OF NOTE. Each Guarantor hereby agrees that
the representations and warranties set forth in Section 3 of the Note, the
affirmative covenants set forth in Section 4 of the Note and the negative
covenants set forth in Section 5 of the Note shall be incorporated into this
Pledge Agreement and hereby makes each such representation and warranty
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to be made by it as a Credit Party and hereby agrees to be bound by each
affirmative and negative covenant applicable to a Credit Party or to it as a
Subsidiary of the Borrower.
25. AGENT OF SENIOR LENDERS AS AGENT. Notwithstanding anything to the
contrary contained in this Pledge Agreement, Lender agrees that whenever the
Obligors are required to deliver Collateral to Lender and in which Collateral
Lender's security interests are subordinate to the Senior Lenders, delivery to
the Senior Lenders or the agent for the Senior Lenders under the Senior Debt
shall be deemed delivery to Lender and the Senior Lenders or the agent for the
Senior Lenders shall be the bailee to Lender for purposes of holding such
Collateral. The Obligors hereby instruct the Senior Lenders and the agent for
the Senior Lenders, upon payment in full of the Senior Debt, to deliver all
Collateral held by the Senior Lenders or the agent for the Senior Lenders as
security for the Senior Debt to Lender to be held hereunder.
26. SUBORDINATION OF LIENS. The Liens and security interests granted
under this Pledge Agreement are subordinate to the Liens and security interests
granted to the Senior Lenders under the Senior Debt on the terms and subject to
the conditions set forth in the Letter Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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17
Each of the Pledgors has caused a counterpart of this Pledge Agreement to
be duly executed and delivered as of the date first above written.
BORROWER:
GENICOM CORPORATION
By Xxxxx X. Xxxx
----------------------------
Name Xxxxx X. Xxxx
--------------------------
Title Senior VP Finance and CFO
-------------------------
GUARANTORS:
----------
GENICOM INTERNATIONAL HOLDINGS CORPORATION
By Xxxxx X. Xxxx
----------------------------
Name Xxxxx X. Xxxx
--------------------------
Title Senior VP Finance and CFO
-------------------------
GENICOM INTERNATIONAL SALES CORPORATION
By Xxxxx X. Xxxx
----------------------------
Name Xxxxx X. Xxxx
--------------------------
Title Senior VP Finance and CFO
-------------------------
DELMARVA TECHNOLOGIES CORPORATION
By Xxxxx X. Xxxx
----------------------------
Name Xxxxx X. Xxxx
--------------------------
Title Senior VP Finance and CFO
-------------------------
RASTEK CORPORATION
By Xxxxx X. Xxxx
----------------------------
Name Xxxxx X. Xxxx
--------------------------
Title Senior VP Finance and CFO
-------------------------
[Signatures continued]
17
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18
ENTERPRISING SERVICE SOLUTIONS CORPORATION
By Xxxxx X. Xxxx
----------------------------
Name Xxxxx X. Xxxx
--------------------------
Title Senior VP Finance and CFO
-------------------------
PRINTER SYSTEMS CORPORATION
By Xxxxx X. Xxxx
----------------------------
Name Xxxxx X. Xxxx
--------------------------
Title Senior VP Finance and CFO
-------------------------
THE PRINTER CONNECTION, INC.
By Xxxxx X. Xxxx
----------------------------
Name Xxxxx X. Xxxx
--------------------------
Title Senior VP Finance and CFO
-------------------------
PRINTER SYSTEMS INTERNATIONAL, LTD.
By Xxxxx X. Xxxx
----------------------------
Name Xxxxx X. Xxxx
--------------------------
Title Senior VP Finance and CFO
-------------------------
Accepted and agreed to as of the date first above written.
TEXAS INSTRUMENTS INCORPORATED
By Xxxxxx X. Xxxxxxxxxx
--------------------
Name Xxxxxx X. Xxxxxxxxxx
--------------------
Title Pres., Personal Productivity
-----------------------------
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