Attached files
|
Exhibit
10.3
|
|||
|
(1)
|
|||
|
PNC
Bank, National Association
|
(2)
|
||
|
-
|
CONTENTS
|
1
|
INTERPRETATION
|
1
|
|
2
|
COVENANT TO
PAY
|
2
|
|
3
|
CHARGING
CLAUSE
|
2
|
|
4
|
NEGATIVE UNDERTAKINGS BY THE
CHARGOR
|
3
|
|
5
|
POSITIVE UNDERTAKINGS BY THE
CHARGOR
|
3
|
|
6
|
REPRESENTATIONS BY THE
CHARGOR
|
4
|
|
7
|
RIGHTS OF THE CHARGEE ON
DEFAULT
|
4
|
|
8
|
ENFORCEMENT BY THE
CHARGEE
|
5
|
|
9
|
ENFORCEMENT BY A
RECEIVER
|
5
|
|
10
|
EXERCISE OF POWERS;
PURCHASERS
|
5
|
|
11
|
FURTHER
ASSURANCE
|
6
|
|
12
|
POWER OF
ATTORNEY
|
6
|
|
13
|
SUBSEQUENT
ENCUMBRANCES
|
6
|
|
14
|
INDEMNITIES, COSTS AND
EXPENSES
|
7
|
|
15
|
PROTECTION FOR
CHARGEE
|
7
|
|
16
|
CONTINUING SECURITY AND OTHER
MATTERS
|
7
|
|
17
|
CURRENCIES
|
8
|
|
18
|
MISCELLANEOUS
|
8
|
|
19
|
NOTICES
|
9
|
|
20
|
LAW AND
JURISDICTION
|
10
|
i
THIS
DEED OF CHARGE is dated 5
March, 2010
and made
PARTIES
|
(1)
|
PRESSTEK OVERSEAS CORP.,
a corporation incorporated under the laws of the state of Delaware whose
principal place of business is at 10 Glenville Street, Greenwich,
Connecticut 06831 (the ‘Chargor’);
and
|
|
(2)
|
PNC BANK, NATIONAL
ASSOCIATION (as Lender and Agent), (the
‘Chargee’).
|
BACKGROUND
|
(1)
|
The
Lender has agreed under the Credit Agreement to make or continue to make
available to Presstek Overseas Corp. the revolving credit facilities
described therein on condition that the Chargor executes this
Deed.
|
|
(2)
|
Accordingly
the Chargor has agreed to execute this Deed in favour of the Chargee in
its capacity as Agent for the
Lenders.
|
NOW
THIS DEED WITNESSES as follows -
|
1
|
INTERPRETATION
|
|
1.1
|
In
this Deed -
|
“Charged Property” means the
Shares together with all stocks, shares, warrants, securities, rights, monies or
property (including the dividends, interest or income therefrom) accruing or
acquired at any time and from time to time by way of redemption, purchase,
bonus, preference, option or otherwise to or in respect of or derived from all
or any of the Shares or any derivatives thereof, including the proceeds of any
sale of any of the Shares;
“Company” means Presstek
Europe Limited, (Company No. 01941149), the registered office of which is at
Unit 1, The Summit Centre, Skyport Drive, Harmondsworth, West Drayton,
Middlesex, UB7 0LJ, England;
“Credit Agreement” means a
revolving credit and security agreement dated on or about the date of this Deed,
pursuant to which the Chargee, amongst others, has agreed to make financial
accommodation available to the Chargor, as that agreement may from time to time
be amended, novated or replaced in any manner whatsoever (including by any
increase in the amount of the facility, the extension of its term or any change
in the identity of the Lenders).
“Encumbrance” means any
mortgage, charge (whether fixed or floating), pledge, lien, hypothecation,
standard security, assignment by way of security or other security interest of
any kind;
“Enforcement Date” means the
date on which the Chargee demands payment of the Secured Obligations following
the occurrence of an Event of Default or any step is taken to put the Company
into administration;
“Event of Default” means any
event of default (howsoever described) and listed in the Credit
Agreement;
“Receiver” means any one or
more receivers and/or managers appointed under this Deed;
“Secured Obligations” means
the full and punctual payment and performance of all Obligations whether arising
under this Deed, the Credit Agreement or any Other Document and 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;
and
“Shares” means the entire
issued share capital of the Company from time to time comprising 3,000,000
ordinary shares of £1.00 each as at the date of this Deed.
|
1.2
|
In
this Deed -
|
|
(i)
|
clause
headings and the contents table are inserted for convenience of reference
only and do not affect the interpretation of this
Deed;
|
|
(ii)
|
references
to clauses and schedules are to clauses of, and schedules to, this
Deed;
|
|
(iii)
|
references
to this Deed or any other document are to this Deed or that document as
from time to time amended, novated or
replaced;
|
|
(iv)
|
words
importing the plural include the singular and vice
versa;
|
|
(v)
|
references
to a person include its successors in title;
and
|
|
(vi)
|
references
to statutory provisions include those provisions as amended, re-enacted or
replaced.
|
|
(vii)
|
words
and phrases which are not defined or construed in this Deed but which are
defined or construed in the Credit Agreement shall be construed as having
the meanings ascribed to them
therein.
|
|
2
|
COVENANT
TO PAY
|
The
Chargor covenants to pay to the Chargee the Secured Obligations when the same
become due whether by acceleration or otherwise.
|
3
|
CHARGING
CLAUSE
|
|
3.1
|
|
3.2
|
Upon
execution of this Deed the Chargor shall deliver or cause to be delivered
to the Chargee duly executed, but undated, transfers in respect of the
Shares in blank, together with the relevant share
certificate(s).
|
|
3.3
|
Prior
to the Enforcement Date the Chargor shall be entitled
-
|
|
(i)
|
to
receive, deal with and retain released from this Deed all dividends and
distributions on any of the Charged
Property;
|
|
(ii)
|
to
participate in any rights or bonus issue or any conditional or
preferential rights; and
|
|
(iii)
|
to
exercise all voting powers pertaining to the Charged
Property,
|
provided
in each such case that the Chargor shall not exercise such rights in a manner
which would or would reasonably be expected to derogate from the security
created by this Deed or conflict with any provision of the Credit
Agreement.
|
4
|
NEGATIVE
UNDERTAKINGS BY THE CHARGOR
|
The
Chargor will not, without the prior written consent of the Chargee (not to be
unreasonably withheld or delayed) -
|
(i)
|
create
or permit to subsist any Encumbrance (other than in favour of the Chargee)
over any Shares;
|
|
(ii)
|
sell,
transfer, assign or otherwise dispose of any Shares;
or
|
|
(iii)
|
permit
the Company to make any alteration to, grant any rights in relation to or
otherwise re-organise or purchase or reduce its capital or reserves in any
way or enter into any composition or arrangement with its creditors or any
class of its creditors; or
|
|
(iv)
|
save
for any alteration to the Company’s Memorandum and Articles of Association
required by the Chargee pursuant to the provisions of clause 11.1, convene
any meeting with a view either to the alteration of any of the provisions
of the Company’s Memorandum and Articles of Association or to passing a
resolution that the Company be wound
up.
|
|
5
|
POSITIVE
UNDERTAKINGS BY THE CHARGOR
|
The
Chargor will -
|
(i)
|
deposit
with the Chargee, or its nominee, and permit it to retain:
-
|
|
(A)
|
all
stock and share certificates and documents of title relating to the Shares
together with any other documents of title relating to the Charged
Property; and
|
|
(B)
|
all
such other documents as the Chargee may from time to time require for
perfecting its title to the Charged Property or for vesting or enabling it
to vest the same in itself or its nominees or in any purchaser to the
intent that the Chargee may at any time without notice present them for
registration;
|
|
(ii)
|
duly
register or procure that the directors of the Company duly register all
transfers of the Shares from time to time lodged with them by or on behalf
of the Chargee or its nominees and issue and deliver to the Chargee a new
certificate or certificates for the Shares in the name of the Chargee or
its nominees as soon as possible following receipt of such
transfers;
|
|
(iii)
|
on
the issue to the Chargor of any further Shares, cause to be issued share
certificates representing those shares so issued and deliver or cause to
be delivered to the Chargee duly executed but undated transfers in respect
of such shares in blank together with the relevant share certificates for
such shares such that the Chargee shall at all times hold share
certificates and share transfers representing all of the
Shares;
|
|
(iv)
|
duly
and promptly pay all calls, instalments or other payments which from time
to time become due in respect of any of the
Shares;
|
|
(v)
|
if
so requested by the Chargee following the Enforcement Date, transfer all
or any of the Shares to the Chargee or its nominees and all the Shares
shall be held at the expense and risk of the Chargor except in the case of
the Chargee’s or such nominees wilful default or gross negligence of its
obligations under this Deed. The Chargee agrees that it will keep each
share certificate and stock transfer form in respect of the Shares
delivered to it by the Chargor in safe keeping;
and
|
|
(vi)
|
permit
the Chargee or its nominee at all times upon the occurrence, and during
the continuance, of an Event of Default to exercise in respect of the
Charged Property all rights and powers conferred by statute or otherwise
upon absolute owners of the Charged Property including without limitation
the right to exercise any of the powers in clause
7.
|
|
6.1
|
The
Chargor represents to the Chargee as at the date hereof that
-
|
|
(i)
|
the
issued share capital of the Company currently comprises 3,000,000 ordinary
shares of £1.00 each and the Chargor is the registered holder of all the
Shares and is the beneficial and legal owner of and has full right and
title to, and has hereby charged the Charged
Property;
|
|
(ii)
|
all
the Shares are fully paid or credited as fully paid;
and
|
|
(iii)
|
all
the Shares are free from any Encumbrance of any kind (other than in favour
of the Chargee) and are not, nor shall they be, subject to any option or
pre-emption rights.
|
|
7
|
RIGHTS
OF THE CHARGEE ON DEFAULT
|
|
7.1
|
After
the Enforcement Date the Chargee or its nominee may at its discretion (in
the name of the Chargor or otherwise) and without any consent or authority
of the Chargor exercise the following rights in respect of any of the
Charged Property -
|
|
(i)
|
any
voting rights and any powers or rights which may be exercised by the
person or persons in whose name any of the Charged Property is
registered;
|
|
(ii)
|
the
right to require any dividends, interest or other monies which may be paid
or payable in respect of the Charged Property to be paid to the Chargee
for application in accordance with clause 9.2;
and
|
|
(iii)
|
all
the powers given to trustees by section 10(3) and (4) of the Trustee Act
1925 (as amended by section 9 of the Trustee Investments Act 1961) in
respect of securities or property subject to a
trust.
|
|
7.2
|
The
Chargee shall be at liberty from time to time to give time for payment of
any of the Secured Obligations as the Chargee shall in its discretion
think fit without in any manner releasing the Chargor or affecting the
security constituted by this Deed.
|
|
8
|
ENFORCEMENT
BY THE CHARGEE
|
|
8.2
|
Section
93 of the Law of Property Act 1925 shall not apply to this security, or to
any security given to the Chargee pursuant
hereto.
|
|
9
|
ENFORCEMENT
BY A RECEIVER
|
|
9.1
|
At
any time on or after the Enforcement Date or if requested by the Chargor,
the Chargee may, by instrument in writing, appoint any person to be a
Receiver of all or any part of the Charged Property. Where more
than one Receiver is appointed, each joint Receiver shall have power to
act severally, independently of any other joint Receivers, except to the
extent that the Chargee may specify to the contrary in the appointment.
The Chargee may remove any Receiver and appoint another in his
place.
|
|
9.2
|
A
Receiver shall be the agent of the Chargor, and the Chargor shall be
solely responsible for his acts or defaults and for his remuneration save
for acts or default which arise from the Receiver’s wilful misconduct or
gross negligence.
|
|
9.3
|
A
Receiver shall have the power to do or omit to do on behalf of the Chargor
anything which the Chargor itself could do or omit to do in relation to
the Charged Property if the Receiver had not been appointed,
notwithstanding the liquidation of the Chargor. In particular
(but without limitation), a Receiver shall have the powers conferred from
time to time on receivers by statute (in the case of powers conferred by
the Law of Property Act 1925, without the restrictions contained in
section 103 of that Act).
|
|
9.4
|
The
Chargee may from time to time determine the remuneration of any Receiver
and section 109(6) of the Law of Property Act 1925 shall be varied
accordingly. A Receiver shall be entitled to remuneration
appropriate to the work and responsibilities involved upon the basis of
charging from time to time adopted by the Receiver in accordance with the
current practice of his firm.
|
|
10
|
EXERCISE
OF POWERS; PURCHASERS
|
|
10.1
|
In
exercising the powers referred to in clauses 8 and 9, the Charged
Property or any part thereof may be sold, disposed of or otherwise dealt
with at such times in such manner for such consideration and generally on
such terms and conditions as the Chargee or the Receiver may think
fit.
|
|
10.2
|
All
monies received by the Chargee or by any Receiver in the exercise of any
powers conferred by this Deed shall be applied, after the discharge of the
remuneration and expenses of the Receiver and all liabilities having
priority to the Secured Obligations, in or towards satisfaction of such of
the Secured Obligations and in such order as the Chargee in its absolute
discretion may from time to time conclusively
determine.
|
|
10.3
|
No
purchaser or other person shall be bound or concerned to enquire whether
the right of the Chargee or any Receiver to exercise any of the powers
conferred by this Deed has arisen or be concerned with notice to the
contrary or with the propriety of the exercise or purported exercise of
such powers.
|
|
11
|
FURTHER
ASSURANCE
|
|
11.1
|
The
Chargor shall execute such further documents in favour, or for the
benefit, of the Chargee and do all such acts and things as the Chargee
shall from time to time reasonably require in relation to all or any of
the Charged Property as shall be necessary to secure the Secured
Obligations or to perfect or protect its title to any of the Charged
Property or to facilitate their
realisation.
|
|
11.2
|
Such
documents shall be prepared by or on behalf of the Chargee at the expense
of the Chargor and shall contain -
|
|
(i)
|
an
immediate power of sale without
notice;
|
|
(ii)
|
a
clause excluding section 93 of the Law of Property Act 1925 and the
restrictions contained in section 103 of the Law of Property
Act 1925; and
|
|
(iii)
|
such
other clauses for the benefit of the Chargee as the Chargee may
require.
|
|
12
|
POWER
OF ATTORNEY
|
|
(i)
|
to
execute and complete all such documents which the Chargee or such Receiver
may require for perfecting the title of the Chargee to the Charged
Property or for vesting the same in the Chargee, its nominee or any
purchaser in accordance with the terms of this
Deed;
|
|
(ii)
|
to
execute and complete any document referred to in clause 11;
and
|
|
(iii)
|
generally
to execute and complete all documents and to do all acts and things which
may be required for the full exercise of any of the powers conferred on
the Chargee or a Receiver under this Deed or which may be deemed expedient
by the Chargee or a Receiver in connection with any disposition,
realisation or getting in by the Chargee or a Receiver of the Charged
Property or any part thereof or in connection with any other exercise of
any power under this Deed.
|
|
13
|
SUBSEQUENT
ENCUMBRANCES
|
If the
Chargee receives notice of any subsequent Encumbrance affecting any Charged
Property, it may open a new account for the Chargor. If it does not do so then,
unless it gives express written notice to the contrary to the Chargor, it shall
nevertheless be treated as if it had opened a new account at the time when it
received such notice and, as from that time, all payments made by or on behalf
of the Chargor to the Chargee shall be credited or be treated as having been
credited to the new account and shall not operate to reduce the Secured
Obligations at the time when it received such notice.
|
14
|
INDEMNITIES,
COSTS AND EXPENSES
|
The
Chargor must -
|
(i)
|
immediately
on demand pay all costs and expenses (including legal fees) reasonably
incurred by the Chargee, any Receiver, attorney, manager, agent or other
person appointed by the Chargee under this Deed as a consequence of
protecting or enforcing its rights in legal proceedings;
and
|
|
(ii)
|
keep
each of them indemnified against all actions, costs, charges, claims,
demands, expenses and liabilities (including legal fees) incurred by them
in relation to:
|
|
(A)
|
anything
done or omitted in the exercise of their powers (unless caused by their
gross negligence or wilful misconduct);
and
|
|
(B)
|
any
claim made against them which would not have arisen if this Deed had not
been entered into; and
|
|
(C)
|
any
breach, non-observance or non-performance of any obligations of the
Chargor; and
|
|
(D)
|
breach
or non-observance of any laws or regulations applicable to the
Chargor.
|
|
15
|
PROTECTION
FOR CHARGEE
|
Neither
the Chargee nor any Receiver shall in any circumstances have any liability to
the Chargor -
|
(i)
|
for
any act, default or omission of the Chargee, a Receiver or their agents or
contractors which does not amount to gross negligence or
fraud;
|
|
(ii)
|
to
account as mortgagee in possession;
or
|
|
(iii)
|
for
any loss on realisation of
Security.
|
|
16
|
CONTINUING
SECURITY AND OTHER MATTERS
|
|
16.1
|
This
Deed and the obligations of the Chargor under this Deed shall extend to
the ultimate balance from time to time in respect of the Secured
Obligations and shall be a continuing security, notwithstanding any
settlement of account or other matter whatsoever and shall remain in full
force and effect until all the Secured Obligations have been paid or
discharged in full.
|
|
16.2
|
This
Deed is in addition to, and shall not merge with or otherwise prejudice,
any other right or remedy or any encumbrance now or hereafter held by or
available to the Chargee.
|
|
16.3
|
Except
as otherwise specified in a deed of release executed by the Agent, any
release, discharge or settlement between the Chargor and the Chargee shall
be conditional upon no security, disposition or payment to the Chargee by
the Chargor being void, set aside or ordered to be refunded pursuant to
any enactment or law relating to bankruptcy, liquidation, administration
or insolvency or for any other reason whatsoever and if such condition
shall not be fulfilled the Chargee shall be entitled to enforce the charge
hereby created subsequently as if such release, discharge or settlement
had not occurred and any such payment had not been made. When
the Secured Obligations have been irrevocably paid or performed in
accordance with the provisions of this Deed, the Chargee shall promptly
return to the Chargor, all the Shares then held by the Chargee together
with the share certificates and stock transfer forms representing those
Shares. It will, if so requested by the Chargor, at the cost of
the Chargor, do such other acts and things as may be necessary to effect a
release of this Deed.
|
|
16.4
|
The
Chargee shall not be obliged to resort to any other means of payment now
or hereafter held by or available to it before enforcing this Deed and no
action taken or omitted to be taken in connection with any other means of
payment shall discharge, reduce, prejudice or affect the liability of the
Chargor. The Chargee shall not be obliged to account for any
money or other property received in consequence of any enforcement or
realisations of any other means of
payment.
|
|
17
|
CURRENCIES
|
All
monies received or held by the Chargee or by a Receiver under this Deed at any
time on or after the Enforcement Date in a currency other than a currency in
which the Secured Obligations are denominated may from time to time be sold for
such one or more of the currencies in which the Secured Obligations are
denominated as the Chargee or Receiver considers necessary or desirable. The
Chargor hereby agrees to indemnify the Chargee against the full cost (including
all costs, charges and expenses) incurred in relation to such sale. Neither the
Chargee nor any Receiver shall have any liability to the Chargor in respect of
any loss resulting from any fluctuation in exchange rates after any such
sale.
|
18
|
MISCELLANEOUS
|
|
18.1
|
No
failure or delay on the part of the Chargee to exercise any power, right
or remedy shall operate as a waiver thereof nor shall any single or any
partial exercise or waiver of any power, right or remedy preclude its
further exercise or the exercise of any other power, right or
remedy.
|
|
18.2
|
Each
of the provisions of this Deed is severable and distinct from the others
and if any time one or more of such provisions is or becomes invalid,
illegal or unenforceable the validity, legality and enforceability of the
remaining provisions of this Deed shall not in any way be affected or
impaired thereby.
|
|
18.3
|
|
18.4
|
Any
liability or power which may be exercised or any determination which may
be made under this Deed by the Chargee may be exercised or made in its
absolute and unfettered discretion and it shall not be obliged to give
reasons therefore.
|
|
18.5
|
No
term of this Deed shall be enforceable by any person who is not a party to
it under the Contracts (Rights of Third Parties) Act
1999.
|
|
19
|
NOTICES
|
|
19.1
|
Except
as otherwise stated in this Deed, all demands, notices or other
communications (“Notice”) under this Deed to either party shall be made by
letter (personally delivered, sent by registered or certified post or
overnight courier), electronic mail or facsimile and shall be deemed to be
duly given or made on the earlier date of:
-
|
(a) receipt
by; or
|
(b)
|
three
business days after being put in the post (with postage prepaid, return
receipt requested) addressed to,
|
the
relevant party, whose address is set out at (e) to (g) below,
and, if
given or made by the Chargee in connection with the enforcement of the Chargee’s
rights under this Deed, shall be deemed to be duly given or made by the Chargee
on the date of –
(c) being put
in the post or delivered personally; or
(d) being
transmitted by facsimile or electronic mail,
sent
to,
(e) in the
case of the Chargee, its address, or facsimile number set out in
below;
(f) in the
case of the Chargor, its address, or facsimile number set out below;
or
|
(g)
|
such
address, electronic mail address or facsimile number as either party may,
after the date hereof specify to the other for such purpose by not less
than five days’ notice.
|
|
19.2
|
The
Chargee’s address and facsimile numbers for notices as at the date hereof
are -
|
PNC Bank,
National Association
340
Madison Avenue
New York,
New York 10173
Attention: Christopher
Gauch
Telephone: 212-752-6368
Facsimile: 212-303-0060
Email: Christopher
Gauch@PNC.com
with a
copy to:
Hahn
& Hessen LLP
488
Madison Avenue
New York,
New York 10022
Attention: Steven
J. Seif, Esq.
Telephone: (212)
478-7370
Facsimile: (212)
478-7400
Email: sseif@hahnhessen.com
|
19.3
|
The
Chargor’s address and facsimile number for notices as at the date hereof
are -
|
Presstek
Overseas Corp.
10
Glenville Street
Greenwich,
Connecticut 06831
Attention: James
R. Van Horn
Telephone: (203)
769-8032
Facsimile: (203)
769-8099
Email: jvanhorn@presstek.com
with a
copy to:
McDermott
Will & Emery LLP
227 West
Monroe Street, Suite 4400
Chicago,
Illinois 60606-5096
Attention: Michael
L. Boykins
Telephone: (312)
984-7599
Facsimile: (312)
984-7700
Email: mboykins@mwe.com
|
19.4
|
A
Notice received on a non-working day or after business hours in the place
of receipt shall be deemed to be served on the next following working day
in that place.
|
|
20
|
LAW
AND JURISDICTION
|
|
20.1
|
This
Deed is governed by English law.
|
|
20.2
|
For
the benefit of the Chargee, the Chargor irrevocably agrees that the courts
of England are to have non-exclusive jurisdiction to settle any disputes
which may arise out of, or in connection with, this Deed and that,
accordingly, any suit, action or proceedings arising out of, or in
connection with, this Deed may be brought in such
courts.
|
|
20.3
|
The
submission to the jurisdiction of the Courts of England shall not limit
the right of the Chargee to take proceedings against the Chargor in any
other court of competent jurisdiction nor shall the taking of proceedings
in any one or more jurisdictions preclude the taking of proceedings in any
other jurisdiction, whether currently or
not.
|
IN
WITNESS whereof this Deed has been entered into the day and year first above
written.
EXECUTED
and delivered as a deed by PRESSTEK
EUROPE LIMITED
acting by
its duly authorised attorney
|
Authorised
Signatory
|
|
|
Signature
|
: /S/
James R. Van Horn
|
|
Name
|
: James
R. Van Horn
|
In the
presence of:
Witness
Name: Ineke
Kuijpers
Witness
Signature: /S/
Ineke Kuijpers
SIGNED for and on behalf of
PNC BANK, NATIONAL ASSOCIATION
by:
|
Authorised
Signatory
|
|
|
Signature
|
: /S/
Thomas J. Lorenz
|
|
Name
|
: Thomas
J. Lorenz
|
: