PLEDGE AGREEMENT
EXHIBIT 10.13
This
Pledge Agreement (this “Agreement”) dated as of March 5, 2010 between PNC Bank,
National Association, having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX
00000, as agent for Lenders (as defined below) (in such capacity, “Agent”) and
Presstek Overseas Corp., a Delaware corporation, having an office at 00
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (“Pledgor”).
BACKGROUND TO THE
AGREEMENT
Pledgor
has executed and delivered to Agent a Guaranty dated as of the date hereof (as
amended, modified, restated or supplemented from time to time, the “Guaranty”)
pursuant to which Pledgor guaranteed to Agent and Lenders the payment and
performance of all of the obligations and indebtedness of Presstek, Inc., a
Delaware corporation and all other entities which become a borrower
(collectively, “Borrowers”) to Agent and Lenders under a Revolving Credit and
Security Agreement dated as of the date hereof among Borrowers, the financial
institutions named therein or which hereafter become a party thereto (each a
“Lender” and collectively, “Lenders”) and Agent (as amended, modified, restated
or supplemented from time to time, the “Loan Agreement”).
In order
to induce Agent and Lenders to provide or continue to provide the financial
accommodations to Borrowers described in the Loan Agreement, and to secure
Pledgor’s obligations to Agent and Lenders under the Guaranty, Pledgor has
agreed to pledge and grant a security interest to Agent for its benefit and for
the ratable benefit of Lenders in the Collateral (as hereinafter
defined).
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. All
capitalized terms used herein which are not defined shall have the meanings
given to them in the Loan Agreement.
2. Pledge and Grant of Security
Interest. To secure the full and punctual payment and
performance of the (a) Obligations and the obligations and liabilities of
Pledgor to Agent and Lenders under the Guaranty and (b) all other indebtedness,
obligations and liabilities of Borrowers and Pledgor to Agent and Lenders
whether now existing or hereafter arising, direct or indirect, liquidated or
unliquidated, absolute or contingent, due or not due and whether under, pursuant
to or evidenced by a note, agreement, guaranty, instrument or otherwise ((a) and
(b) collectively, the “Indebtedness”), Pledgor hereby pledges, assigns,
hypothecates, transfers and grants a security interest to Agent for its benefit
and for the ratable benefit of Lenders in all of the following (the
“Collateral”):
(a) the
shares of stock set forth on Schedule A annexed
hereto and expressly made a part hereof (the “Pledged Stock”), the certificates
representing the Pledged Stock and all dividends, cash, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Stock;
(b) all
additional shares of stock of any issuer of the Pledged Stock (the “Issuer”)
from time to time acquired by the Pledgor in any manner, including, without
limitation, stock dividends or a distribution in connection with any increase or
reduction of capital, reclassification, merger, consolidation, sale of assets,
combination of shares, stock split, spin-off or split-off (which shares shall be
deemed to be part of the Collateral), and the certificates representing such
additional shares, and all dividends, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares; and
(c) all
options and rights, whether as an addition to, in substitution of or in exchange
for any shares of the Pledged Stock.
3. Delivery of
Collateral. All certificates representing or evidencing the
Pledged Stock shall be delivered to and held by or on behalf of Agent pursuant
hereto and shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to
Agent. Pledgor hereby authorizes the Issuer upon demand by Agent to
deliver any certificates, instruments or other distributions issued in
connection with the Collateral directly to Agent, in each case to be held by
Agent, subject to the terms hereof. Following the occurrence and
during the continuance of an Event of Default, Agent shall have the right, at
any time in its discretion upon ten (10) days prior written notice to the
Pledgor, to transfer to or to register in the name of Agent or any of its
nominees any or all of the Pledged Stock. In addition, following the
occurrence and during the continuance of an Event of Default, Agent shall have
the right at any time to exchange certificates or instruments representing or
evidencing Pledged Stock for certificates or instruments of smaller or larger
denominations.
4. Representations and
Warranties of Pledgor. Pledgor represents and warrants to
Agent (which representations and warranties shall be deemed to continue to be
made until all of the Indebtedness has been paid in full and the Guaranty has
been irrevocably terminated) that:
(a) Pledgor
has the requisite power and authority to enter into this Agreement, to pledge
the Collateral for the purposes described herein and to carry out the
transactions contemplated by this Agreement.
(b) The
execution, delivery and performance by Pledgor of this Agreement and the pledge
of the Collateral hereunder have been duly and properly authorized and do not
and will not result in any violation of any material agreement, indenture,
instrument, license, judgment, decree, order, law, statute, ordinance or other
governmental rule or regulation applicable to Pledgor.
(c) This
Agreement constitutes the legal, valid and binding obligation of Pledgor
enforceable against Pledgor in accordance with its terms, except as
enforceability may be limited by any applicable federal or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors’ rights generally.
(d) Pledgor
is the direct and beneficial owner of each share of the Pledged
Stock.
(e) All of
the shares of the Pledged Stock have been duly authorized, validly issued and
are fully paid and nonassessable.
(f) Upon
delivery of the Pledged Stock to Agent or an agent for Agent, this Agreement
creates and grants a valid first lien on and perfected security interest in the
Collateral and the proceeds thereof, subject to no prior security interest,
mortgage, pledge, claim, lien, charge, hypothecation, assignment, offset or
encumbrance whatsoever (collectively, “Liens”) or to any agreement purporting to
grant to any third party a Lien upon the property or assets of Pledgor which
would include the Collateral other than Permitted Encumbrances, it being
understood that enforcement thereof may be subject to the requirement of the
jurisdiction in which the issuer is located.
(g) There are
no restrictions on transfer of the Pledged Stock contained in the Certificate of
Incorporation or by-laws of the Issuer or otherwise which have not otherwise
been enforceably and legally waived by the necessary parties.
(h) None of
the Pledged Stock has been issued or transferred in violation of the securities
registration, securities disclosure or similar laws of any jurisdiction to which
such issuance or transfer may be subject.
(i) There are
no pending or, to the best of Pledgor’s knowledge, threatened actions or
proceedings before any court, judicial body, administrative agency or arbitrator
which may materially adversely affect the Collateral.
(j) No
consent, approval, authorization or other order of any Person and no consent,
authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required by the Pledgor either (i)
for the pledge of the Collateral pursuant to this Agreement or for the
execution, delivery or performance of this Agreement or (ii) for the exercise by
the Agent 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 or the laws of the jurisdiction to which the
issuer is located.
(k) No
notification of the pledge evidenced hereby to any Person is
required.
(l) The
Pledged Stock constitutes the indicated percentage of the issued and outstanding
shares of capital stock of the Issuers thereof set forth on Schedule A annexed
hereto.
(m) As of the
date hereof, there are no existing options, warrants, calls or commitments of
any such character whatsoever relating to any Pledged Stock and no indebtedness
or other security convertible into any Pledged Stock.
The
representations and warranties set forth in this Section 4 shall survive the
execution and delivery of this Agreement.
5. Covenants. Until
such time as all of the Indebtedness has been paid in full and the Guaranty has
been irrevocably terminated, Pledgor shall:
(a) Not sell,
assign, transfer, convey, or otherwise dispose of its rights in or to the
Collateral or any interest therein; nor create, incur or permit to exist any
Lien (other than Permitted Encumbrances) with respect to any of the Collateral
or the proceeds thereof other than that created hereby.
(b) At
Pledgor’s expense, defend Agent’s right, title and security interest in and to
the Collateral against the claims of any Person and keep the Collateral free
from all Liens, except for the Liens granted to Agent under this Agreement and
Permitted Encumbrances.
(c) At any
time, and from time to time, upon the written request of Agent, execute and
deliver such further documents and do such further acts and things as Agent may
reasonably request in order to effect the purposes of this Agreement including,
but without limitation, delivering to Agent upon the occurrence and continuance
of an Event of Default irrevocable proxies in respect of the Collateral in form
satisfactory to Agent. Until receipt thereof, this Agreement shall
constitute Pledgor’s proxy to Agent or its nominee to vote all shares of
Collateral then registered in Pledgor’s name.
(d) Within
two (2) Business Days of receipt thereof by Pledgor, deliver to Agent all
notices and statements relating to the Collateral received by
Pledgor.
(e) Not
consent to or approve the issuance of (i) any additional shares of any class of
capital stock of the Issuer; (ii) any securities convertible either voluntarily
by the holder thereof or automatically upon the occurrence or nonoccurrence of
any event or condition into, or any securities exchangeable for, any such
shares; or (iii) any warrants, options, contracts or other commitments entitling
any person to purchase or otherwise acquire any such shares.
(f) Not
create, incur, assume or suffer to exist any Lien or other encumbrance of any
kind (including the charge on property purchased under conditional sales or
other title retention agreements) upon any property or assets, whether now owned
or hereafter acquired, except for Permitted Encumbrances and other liens
incidental to the conduct of Pledgor’s business or the ownership of its assets
or properties not incurred in connection with the borrowing of money or the
acquisition of any asset, and which in the aggregate do not materially detract
from Pledgor’s operations, property or financial condition.
(g) Not
convey, sell, lease, transfer or otherwise dispose of in one or a series of
related transactions, all or any substantial part of its property, business or
assets.
6. Voting Rights and
Dividends. In addition to Agent’s rights and remedies set
forth in Section 8 hereof, in case an Event of Default shall have occurred and
is then continuing and such Event of Default has been declared in writing to
Pledgor by Agent, Agent shall (i) vote the Collateral, (ii) be entitled to give
consents, waivers and ratifications in respect of the Collateral (Pledgor hereby
irrevocably constituting and appointing Agent, with full power of substitution,
the proxy and attorney-in-fact of Pledgor for such purposes) and (iii) be
entitled to collect and receive for its own use cash dividends paid on the
Collateral. Pledgor shall not be permitted to exercise or refrain
from exercising any voting rights or other powers if, in the reasonable judgment
of Agent, such action would have a material adverse effect on the value of the
Collateral or any part thereof; and, provided, further, that Pledgor
shall give at least five (5) days’ written notice of the manner in which Pledgor
intends to exercise, or the reasons for refraining from exercising, any voting
rights or other powers other than with respect to any election of directors and
voting with respect to any incidental matters. At any time in which
an Event of Default exists, all dividends and all other distributions in respect
of any of the Collateral, whenever paid or made, shall be delivered to Agent to
hold as Collateral and shall, if received by the Pledgor, be received in trust
for the benefit of Agent, be segregated from the other property or funds of the
Pledgor, and be forthwith delivered to Agent as Collateral in the same form as
so received (with any necessary endorsement).
7. Events of
Default. The term “Event of Default” wherever used herein
shall mean the occurrence of any one of the following events:
(a) An Event
of Default shall occur under the Loan Agreement or Pledgor or the Issuer shall
default in the payment of any Obligation or any default shall have occurred
under the Guaranty;
(b) Pledgor
shall default in the performance of any of its undertakings or obligations under
any agreement among Pledgor, Agent and/or any Lender, including, without
limitation, this Agreement and such default is not remedied within ten (10)
days;
(c) Any
representation, warranty, statement or covenant made or furnished to Agent by or
on behalf of Pledgor proves to have been false in any material respect when made
or furnished or is breached, violated or not complied with; or
(d) The
Collateral is subjected to levy of execution, attachment, distraint or other
judicial process; or the Collateral is the subject of a claim (other than by
Agent) of a Lien or other right or interest in or to the Collateral other than
those claims set forth in subsections (a), (b), (c) and (f) of the definition of
Permitted Encumbrances. Solely for the purposes of this subsection
7(d), all references to “Borrowers” in the definition of Permitted Encumbrances
shall be deemed to refer to the Pledgor.
(e) Pledgor
or any Borrower shall (i) apply for, consent to, or suffer to exist the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
liquidator or other fiduciary of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of creditors, (iii)
commence a voluntary case under any state or federal bankruptcy laws (as now or
hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a
petition seeking to take advantage of any other law providing for the relief of
debtors, (vi) acquiesce to, or fail to have dismissed, within thirty (30) days,
any petition filed against it in any involuntary case under such bankruptcy
laws, or (vii) take any action for the purpose of effecting any of the
foregoing.
8. Remedies. Upon
ten (10) days prior written notice to Pledgor of the occurrence and continuance
of an Event of Default, Agent may:
(a) Demand,
collect, receipt for, settle, compromise, adjust, xxx for, foreclose or realize
upon the Collateral (or any part thereof), as Agent may determine in its sole
discretion;
(b) Transfer
any or all of the Collateral into its name, or into the name of its nominee or
nominees;
(c) Exercise
all rights with respect to the Collateral including, without limitation, all
rights of conversion, exchange, subscription or any other rights, privileges or
options pertaining to any shares of the Collateral as if it were the absolute
owner thereof, including, but without limitation, the right to exchange, at its
discretion, any or all of the Collateral upon the merger, consolidation,
reorganization, recapitalization or other readjustment of the Issuer thereof, or
upon the exercise by the Issuer of any right, privilege or option pertaining to
any of the Collateral, and, in connection therewith, to deposit and deliver any
and all of the Collateral with any committee, depository, transfer agent,
registrar or other designated agent upon such terms and conditions as it may
determine, all without liability except to account for property actually
received by it;
(d) Subject
to the requirements of applicable law, sell, assign and deliver the whole or,
from time to time, any part of the Collateral at the time held by Agent, at any
private or public sale or auction, with or without demand, advertisement or
notice of the time or place of sale or adjournment thereof or otherwise (all of
which are hereby waived, except such notice as is required by applicable law and
cannot be waived), for cash or credit or for other property for immediate or
future delivery, and for such price or prices and on such terms as Agent in its
sole discretion may determine, or as may be required by applicable
law.
Pledgor
hereby waives and releases any and all right or equity of redemption, whether
before or after sale hereunder. At any such sale, unless prohibited
by applicable law, Agent may bid for and purchase the whole or any part of the
Collateral so sold free from any such right or equity of
redemption. All moneys received by Agent hereunder whether upon sale
of the Collateral or any part thereof or otherwise shall be held by Agent and
applied by it as provided in Section 11 hereof. No failure or delay
on the part of Agent in exercising any rights hereunder shall operate as a
waiver of any such rights nor shall any single or partial exercise of any such
rights preclude any other or future exercise thereof or the exercise of any
other rights hereunder. Agent shall have no duty as to the collection
or protection of the Collateral or any income thereon nor any duty as to
preservation of any rights pertaining thereto, except to apply the funds in
accordance with the requirements of Section 11 hereof. Agent may
exercise its rights with respect to property held hereunder without resort to
other security for or sources of reimbursement for the
Indebtedness. In addition to the foregoing, Agent shall have all of
the rights, remedies and privileges of a secured party under applicable law and
the Uniform Commercial Code of New York regardless of the jurisdiction in which
enforcement hereof is sought.
9. Registration. If
Agent shall exercise its right to sell all or any part of the Collateral, and
if, in the opinion of counsel for Agent, it is necessary to have the Collateral
being sold registered under the provisions of the Securities Act of 1933, as
amended (the “Securities Act”), Pledgor will use its best efforts to cause the
Issuer to execute and deliver, and to cause the directors and officers of the
Issuer to execute and deliver, all at Pledgor’s expense, all such instruments
and documents and to do or cause to be done all such other acts and things as
may be necessary to register the Collateral being sold under the provisions of
the Securities Act. Pledgor shall cause any such registration
statement to become effective and to remain effective for a period of one year
from the date of the first public offering of the Collateral being sold and to
make all amendments thereto and to related documents which, in the opinion of
Agent or its counsel, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Pledgor shall
also cause the Issuer to comply with the provisions of the “Blue Sky” law of any
jurisdiction which Agent shall designate in connection with any sale hereunder;
and to cause the Issuer to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) covering a period
of at least twelve months but not more than eighteen months, beginning with the
first month after the effective date of any such registration statement, which
earnings statement will satisfy the provisions of Section 11(a) of the
Securities Act. Pledgor acknowledges that a breach of any of the
covenants contained in this Section may cause irreparable injury to Agent, that
Agent will have no adequate remedy at law with respect to such breach and, as a
consequence, such covenants of Pledgor shall be specifically enforceable against
Pledgor.
10. Private
Sale. Notwithstanding anything contained in Section 9, Pledgor
recognizes that Agent may be unable to effect (or to do so only after delay
which would adversely affect the value that might be realized from the
Collateral) a public sale of all or part of the Collateral by reason of certain
prohibitions contained in the Securities Act, and may be compelled to resort to
one or more private sales to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire such Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. Pledgor agrees that any such private sale may be at prices
and on terms less favorable to the seller than if sold at public sales and that
such private sales shall be deemed to have been made in a commercially
reasonable manner. Pledgor agrees that Agent has no obligation
to delay sale of any Collateral for the period of time necessary to permit the
Issuer to register the Collateral for public sale under the Securities
Act.
11. Proceeds of
Sale. The proceeds of any collection, recovery, receipt,
appropriation, realization, disposition or sale of the Collateral shall be
applied by Agent in a manner consistent with Section 11.5 of the Loan
Agreement.
In the
event that the proceeds of any collection, recovery, receipt, appropriation,
realization or sale are insufficient to satisfy the Indebtedness, Pledgor shall
be liable for the deficiency together with interest thereon at the rate
prescribed in the Loan Agreement as the Default Rate plus the costs and fees of
any attorneys employed by Agent and/or Lenders to collect such
deficiency.
Agent, in
its sole and absolute discretion, with or without notice to Pledgor, may deposit
any proceeds of any collection, recovery, receipt, appropriation, realization,
disposition or sale of the Collateral in a non-interest bearing cash collateral
deposit account to be maintained as security for the Indebtedness.
12. Waiver of
Marshaling. Pledgor hereby waives any right to compel any
marshaling of any of the Collateral.
13. Agent Appointed
Attorney-In-Fact and Performance by Agent. Upon the occurrence
and during the continuance of an Event of Default, Pledgor hereby irrevocably
constitutes and appoints Agent as Pledgor’s true and lawful attorney-in-fact,
with full power of substitution, to execute, acknowledge and deliver any
instruments and to do in Pledgor’s name, place and stead, all such acts, things
and deeds for and on behalf of and in the name of Pledgor, which Pledgor could
or might do or which Agent may deem necessary, desirable or convenient to
accomplish the purposes of this Agreement, including, without limitation, to
execute such instruments of assignment or transfer or orders and to register,
convey or otherwise transfer title to the Collateral into Agent’s
name. Pledgor hereby ratifies and confirms all that said
attorney-in-fact may so do and hereby declares this power of attorney to be
coupled with an interest and irrevocable. If Pledgor fails to perform
any agreement herein contained, Agent may itself perform or cause performance
thereof, and any costs and expenses of Agent incurred in connection therewith
shall be paid by Pledgor as provided in Section 24 hereof.
14. Termination. This
Agreement shall terminate and Pledgor shall be entitled to the return, at
Pledgor’s expense, of such of the Collateral as has not theretofore been sold,
disposed of or otherwise applied pursuant to this Agreement upon payment in full
of the Indebtedness and termination of the Guaranty.
15. Concerning
Agent. The recitals of fact herein shall be taken as
statements of Pledgor for which Agent assumes no
responsibility. Agent makes no representation to anyone as to the
value of the Collateral or any part thereof or as to the validity or adequacy of
the security afforded or intended to be afforded thereby or as to the validity
of this Agreement. Agent shall be protected in relying upon any
notice, consent, request or other paper or document believed by it to be genuine
and correct and to have been signed by a proper person. The
permissive rights of Agent hereunder shall not be construed as duties of
Agent. Agent shall be under no obligation to take any action toward
the enforcement of this Agreement or rights or remedies in respect of any of the
Collateral. Agent shall not be personally liable for any action taken
or omitted by it in good faith and reasonably believed by it to be within the
power or discretion conferred upon it by this Agreement.
16. Notices. Any
notice or other communication required or permitted pursuant to this Agreement
shall be deemed given in the same manner specified under Section 16.6 in the
Loan Agreement:
|
|
If
to Agent:
|
PNC
Bank, National Association
|
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxxxxxx
Xxxxx
Telephone: 000-000-0000
Facsimile: 212-303-0060
|
|
with
a copy to:
|
Xxxx
& Hessen LLP
|
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
X. Xxxx, Esq.
Telephone: 212-478-7200
Facsimile: 212-478-7400
|
|
If
to Pledgor:
|
Presstek
Overseas Corp.
|
00
Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention: Xxxxx
X. Xxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
|
|
with
a copy to:
|
XxXxxxxxx
Will & Xxxxx LLP
|
000 Xxxx
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
17. Governing
Law. This Agreement and all rights and obligations hereunder
shall be governed by and construed and enforced in all respects in accordance
with the laws of the State of New York applied to contracts to be performed
wholly within the State of New York.
18. Waivers. EACH
PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OTHER AGREEMENT EXECUTED OR DELIVERED BY THEM IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE AND EACH PARTY HERETO HEREBY AGREES AND CONSENTS THAT ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH PARTY TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.
19. Litigation. PLEDGOR
EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF EACH COURT OF COMPETENT
JURISDICTION LOCATED IN THE STATE OF NEW YORK FOR ALL PURPOSES IN CONNECTION
WITH THIS AGREEMENT. ANY JUDICIAL PROCEEDING BY PLEDGOR AGAINST AGENT
INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF,
RELATED TO OR CONNECTED WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN A STATE
COURT LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. PLEDGOR
FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS
(INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO
EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF
THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A
REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE
PERMISSIBLE UNDER THE RULES OF SAID COURTS. PLEDGOR WAIVES ANY
OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL
NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON
FORUM NON CONVENIENS.
20. No Waiver; Cumulative
Remedies. Any and all of Agent’s and Lenders’ rights with
respect to the Liens granted under this Agreement shall continue unimpaired, and
Pledgor shall be and remain obligated in accordance with the terms hereof,
notwithstanding (a) the bankruptcy, insolvency or reorganization of Pledgor, (b)
the release or substitution of any item of the Collateral at any time, or of any
rights or interests therein, or (c) any delay, extension of time, renewal,
compromise or other indulgence granted by Agent and Lenders in reference to any
of the Indebtedness. Pledgor hereby waives all notice of any such
delay, extension, release, substitution, renewal, compromise or other
indulgence, and hereby consents to be bound hereby as fully and effectively as
if Pledgor had expressly agreed thereto in advance. No failure on the
part of Agent or Lenders to exercise, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof nor shall any single
or partial exercise of any such right, power or remedy by Agent and Lenders
preclude any other or further exercise thereof or the exercise of any right,
power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
21. Severability. In
case any security interest or other right of Agent and/or any Lender shall be
held to be invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect any other security interest or other right,
privilege or power granted under this Agreement. In the event that
any provision of this Agreement or the application thereof to Pledgor or any
circumstance in any jurisdiction governing this Agreement shall, to any extent,
be invalid or unenforceable under any applicable statute, regulation, or rule of
law, such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform to such statute,
regulation or rule of law, and the remainder of this Agreement and the
application of any such invalid or unenforceable provision to parties,
jurisdictions, or circumstances other than to whom or to which it is held
invalid or unenforceable shall not be affected thereby, nor shall same affect
the validity or enforceability of any other provision of this
Agreement.
22. Counterparts;
Facsimiles. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same instrument. Any
signature delivered by a party by facsimile transmission shall be deemed an
original signature hereto.
23. Miscellaneous.
(a) This
Agreement constitutes the entire and final agreement among the parties with
respect to the subject matter hereof and neither this Agreement nor any term
hereof may be changed, discharged or terminated orally, but only by an
instrument in writing, signed by Agent and Pledgor. No waiver of any
term or condition of this Agreement, whether by delay, omission or otherwise,
shall be effective unless in writing and signed by the party sought to be
charged, and then such waiver shall be effective only in the specific instance
and for the purpose for which given.
(b) This
Agreement shall be binding upon Pledgor, and Pledgor’s successors and assigns,
and shall inure to the benefit of Agent, Lenders and their successors and
assigns. The term “Agent”, as used herein, shall include any
successor or assign of Agent at the time entitled to the pledged interest in the
Collateral.
(c) The
headings and captions in this Agreement are for purposes of reference only and
shall not constitute part of this Agreement for any other purpose.
24. Expenses. The
Collateral shall also secure, and Pledgor shall pay to Agent on demand, from
time to time, all costs and expenses, (including but not limited to, attorneys’
fees and costs, taxes, and all transfer, recording, filing and other charges)
of, or incidental to, the custody, care, transfer, administration of the
Collateral or any other collateral, or in any way relating to the enforcement,
protection or preservation of the rights or remedies of Agent and Lenders under
this Agreement or with respect to any of the Indebtedness.
25. Recapture. Anything
in this Agreement to the contrary notwithstanding, if Agent and/or Lenders
receives any payment or payments on account of the Indebtedness, which payment
or payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver, or any other party under the United States Bankruptcy Code, as
amended, or any other federal or state bankruptcy, reorganization, moratorium or
insolvency law relating to or affecting the enforcement of creditors’ rights
generally, common law or equitable doctrine, then to the extent of any sum not
finally retained by Agent and/or Lenders, Pledgor’s obligations to Agent and
Lenders shall be reinstated and this Agreement shall remain in full force and
effect (or be reinstated) until payment shall have been made to Agent, which
payment shall be due on demand.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and
year first written above.
PRESSTEK
OVERSEAS CORP.
By: /S/ Xxxxx Xxx
Xxxx
Name: Xxxxx Xxx
Xxxx
Its: Secretary
PNC BANK,
NATIONAL ASSOCIATION, as Agent
By: /S/ Xxxxxxxxxxx
Xxxxx
Name: Xxxxxxxxxxx
Xxxxx
Its: Vice
President
STATE OF
CONNECTICUT )
): ss.:
COUNTY OF
FAIRFIELD )
On the
4th day of March, 2010, before me personally came Xxxxx Xxx Xxxx to me known,
who, being by me duly sworn did depose and say that s/he is the Secretary of
Presstek Overseas Corp. the corporation described in and which executed the
above instrument; and that s/he signed her/his name thereto by order of the
board of directors of said corporation.
/S/ Xxxxxxxxxxx X.
Xxxxx
Notary
Public
My
Commission Expires 1/31/2015
STATE OF
NEW
YORK )
: ss.:
COUNTY OF
NEW
YORK )
On the
16th day of March, 2010, before me personally came Xxxxxxxxxxx Xxxxx to me
known, who, being by me duly sworn did depose and say that s/he is the Vice
President of PNC Bank, National Association, the national banking association
described in and which executed the above instrument; and that s/he was
authorized to sign her/his name thereto.
/S/ Xxxxxx X.
Xxx
Notary
Public
SCHEDULE
A
PLEDGED
STOCK
|
Issuer
|
Class
of Stock
|
Stock
Certificate Number
|
Par
Value
|
Number
of Shares
|
Percentage
of Outstanding Shares
|
|
Presstek
Europe Ltd.
|
Ordinary
|
10
|
n/a
|
3,000,000
|
100%
|
|
ABD
Canada Holdings, Inc.
|
Common
|
1
|
$0.01
|
1,000
|
100%
|
|
Presstek
France SAS
|
n/a
|
n/a
|
n/a
|
n/a
|
65%
|
|
Presstek
Deutschland Gmbh
|
n/a
|
n/a
|
n/a
|
n/a
|
65%
|
|
Presstek
Asia Pte. Ltd.
|
Ordinary
|
1
|
n/a
|
1
|
65%
|
Schedule
A
