Exhibit (c)(10)
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PLEDGE AGREEMENT
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PLEDGE AGREEMENT, dated as of February 25,
1998, made by Xxxxx X. Xxxxxxxxx (the "Pledgor"), to
Universal Hospital Services, Inc. (the "Pledgee").
WHEREAS, to secure the repayment of monies
loaned to the Pledgor by the Pledgee pursuant to the
terms of that certain Secured Promissory Note by the
Pledgor, as Maker, dated of even date herewith (the
"Note"), the Pledgor has agreed to enter into this Pledge
Agreement;
NOW, THEREFORE, in consideration of the
benefits accruing to the Pledgor, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor
hereby makes the following representations and warranties
to the Pledgee and hereby covenants and agrees with
Pledgee as follows:
1. SECURITY FOR NOTES, ETC. This
Agreement is for the benefit of the Pledgee to secure the
payment due of the principal of and interest on the Note,
the payment of all other obligations and liabilities of
the Pledgor, now existing or hereafter incurred under,
arising out of or in connection with the Note and the due
performance and compliance with the terms of the Note by
the Pledgor (all such principal, interest, obligations
and liabilities, collectively, the "Secured
Obligations").
2. DEFINITION OF STOCK. As used
herein, the term "Stock" shall mean the issued and
outstanding shares of common stock, par value $.01 per
share, of the Pledgee set forth on Annex A hereto (the
"Initial Stock"), together with all issued and
outstanding shares of capital stock of the Pledgee
hereafter acquired by the Pledgor with respect to the
Initial Stock, whether by stock dividend, stock split,
recapitalization or otherwise (including without
limitation pursuant to any transaction described in
paragraph 6 hereof).
3. PLEDGE OF STOCK, ETC.
3.1 Pledge. To secure the Secured
Obligations and for the purposes set forth in Section 1,
the Pledgor: (a) hereby grants to the Pledgee a security
interest in all of the Collateral (as defined in Section
3.3); (b) hereby pledges and deposits as security with
the Pledgee (except as otherwise permitted below) the
Stock and delivers to the Pledgee certificates therefor
accompanied by stock powers duly executed in blank by the
Pledgor or such other instruments of transfer as are
acceptable to the Pledgee; and (c) hereby assigns,
transfers, hypothecates, mortgages, charges and sets over
to the Pledgee all of the Pledgor's right, title and
interest in and to such Stock (and in and to the
certificates or instruments evidencing such Stock), to be
held by the Pledgee upon the terms and conditions set
forth in this Agreement.
3.2 Subsequently Acquired Stock.
If the Pledgor shall acquire (by stock dividend or
otherwise) any additional Stock at any time or from time
to time after the date hereof, the Pledgor will forthwith
pledge and deposit such Stock as security with the
Pledgee and deliver to the Pledgee certificates therefor
accompanied by stock powers duly executed in blank by the
Pledgor or such other instruments of transfer as are
acceptable to the Pledgee, and will promptly thereafter
deliver to the Pledgee a certificate executed by the
Pledgor describing such Stock and certifying that the
same has been duly pledged with the Pledgee hereunder.
3.3 Definitions of Pledged Stock
and Collateral. All Stock in which the Pledgor now or
hereafter has any right, title or interest is hereinafter
called the "Pledged Stock," and the Pledged Stock,
together with all proceeds thereof, including any
securities and moneys received and at the time held by
the Pledgee hereunder, is hereinafter called the
"Collateral."
4. APPOINTMENT OF SUB-AGENTS;
ENDORSEMENTS, ETC. The Pledgee shall have the right to
appoint one or more sub-agents for the purpose of
retaining physical possession of the Pledged Stock, which
may be held (in the discretion of the Pledgee) in the
name of the Pledgor, endorsed or assigned in blank or in
favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF
DEFAULT. Unless and until an Event of Default (as
defined herein) shall have occurred and be continuing,
the Pledgor shall be entitled to vote any and all Pledged
Stock and to give consents, waivers or ratifications in
respect thereof, provided that no vote shall be past or
any consent, waiver or ratification given or any action
taken which would violate or be inconsistent with any of
the terms of this Agreement, the Note or any other
instrument or agreement referred to herein or therein, or
which would have the effect of impairing the position or
interests of the Pledgee or any holder of the Note. All
such rights of the Pledgor to vote and to give consents,
waivers and ratifications shall cease in case an Event of
Default shall occur and be continuing, and Section 7
shall become applicable. For purposes of this Agreement,
"Event of Default" shall mean any Event of Default as
defined under the Note.
6. DIVIDENDS AND OTHER
DISTRIBUTIONS. Unless and until an Event of Default
shall have occurred and be continuing, all cash dividends
payable in respect of the Pledged Stock shall be paid to
the Pledgor, provided that all cash dividends payable in
respect of the Pledged Stock which are determined by the
Pledgee, in its absolute discretion, to represent in
whole or in part an extraordinary, liquidating or other
distribution in return of capital shall be paid to the
Pledgee and retained by it as part of the Collateral.
The Pledgee shall also be entitled to receive directly,
and to retain as part of the Collateral:
(a) all other or
additional stock or securities or property (other than
cash) paid or distributed by way of dividend in respect
of the Pledged Stock;
(b) all other or
additional stock or other securities or property
(including cash) paid or distributed in respect of the
Pledged Stock by way of stock split, spin-off, split-up,
reclassification, combination of shares or similar
rearrangement; and
(c) all other or
additional stock or other securities or property which
may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of
assets, liquidation or similar corporate reorganization.
7. REMEDIES IN CASE OF EVENT OF
DEFAULT. In case an Event of Default shall have occurred
and be continuing, the Pledgee shall be entitled to
exercise all of the rights, powers and remedies (whether
vested in it by this Agreement or by law) for the
protection and enforcement of its rights in respect of
the Collateral, and the Pledgee shall be entitled,
without limitation, to exercise the following rights,
which the Pledgor hereby agrees to be commercially
reasonable:
(a) to receive all
amounts payable in respect of the Collateral otherwise
payable under Section 6 to the Pledgor;
(b) to transfer all or
any part of the Pledged Stock into the Pledgee's name or
the name of its nominee or nominees;
(c) to vote all or any
part of the Pledged Stock (whether or not transferred
into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral
and otherwise act with respect thereto as though it were
the outright owner thereof (the Pledgor hereby
irrevocably constituting and appointing the Pledgee the
proxy and attorney-in-fact of the Pledgor, with full
power of substitution to do so); and
(d) at any time or from
time to time to sell, assign and deliver, or grant
options to purchase, all or any part of the Collateral,
or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of
intention to sell or of the time or place of sale or
adjournment thereof or to redeem or otherwise (all of
which are hereby waived by the Pledgor), for cash, or
credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Pledgee in
its absolute discretion may determine, provided that at
least 10 days' notice of the time and place of any such
sale shall be given to the Pledgor. The Pledgor hereby
waives and releases to the fullest extent permitted by
law any right or equity of redemption with respect to the
Collateral, whether before or after sale hereunder, and
all rights, if any, of marshalling the Collateral and any
other security for the Secured Obligations or otherwise.
At any such sale, unless prohibited by applicable law,
the Pledgee on behalf of any holder of the Note may bid
for and purchase all or any part of the Collateral so
sold free from any such right or equity of redemption.
Neither the Pledgee nor any holder of the Note shall be
liable for failure to collect or realize upon any or all
of the Collateral or for any delay in so doing nor shall
any of them be under any obligation to take any action
whatsoever with regard thereto.
8. APPLICATION OF PROCEEDS. All
moneys collected by the Pledgee upon any sale or other
disposition of the Collateral, together with all other
moneys received by the Pledgee hereunder, shall be
applied to the payment of all costs and expenses incurred
by the Pledgee in connection with such sale, the delivery
of the Collateral or the collection of any such moneys
(including, without limitation, attorneys' fees and
expenses), and the balance of such moneys shall be held
by the Pledgee and applied by it to satisfy the Secured
Obligations.
9. PURCHASERS OF COLLATERAL. Upon
any sale of the Collateral by the Pledgee hereunder
(whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt
of the Pledgee or the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of
the Collateral so sold, and such purchaser or purchasers
shall not be obligated to see to the application of any
part of the purchase money paid over to the Pledgee or
such officer or be answerable in any way for the
misapplication or nonapplication thereof.
10. FURTHER ASSURANCES. The
Pledgor agrees that it will join and cooperate fully with
the Pledgee in executing and filing and refiling under
the Uniform Commercial Code such financing statements,
continuation statements and other documents in such
offices as the Pledgee may deem necessary or desirable
and wherever required or permitted by law in order to
perfect and preserve the Pledgee's security interest in
the Collateral and hereby authorizes the Pledgee to file
financing statements and amendments thereto relative to
all or any part of the Collateral without the signature
of the Pledgor where permitted by law, and agrees to do
such further acts and things and to execute and deliver
to the Pledgee such additional conveyances, assignments,
agreements and instruments as the Pledgee may reasonably
require or deem advisable to carry into effect the
purposes of this Agreement or to further assure and
confirm unto the Pledgee its rights, powers and remedies
hereunder.
11. TRANSFER BY THE PLEDGOR. The
Pledgor will not sell or otherwise dispose of, grant any
option with respect to, or create, incur, assume or
suffer to exist any lien or any portion of the Collateral
(except the lien created by this Agreement).
12. REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE PLEDGOR. The Pledgor represents and
warrants that: (a) he is the legal, record and
beneficial owner of, and has valid title to, the Stock
described in Section 2 hereof, subject to no lien (except
the lien created by this Agreement); (b) he has full
power, authority and legal right to pledge all such Stock
pursuant to this Agreement; and (c) either (i) he is not
legally married or (ii) this Agreement has been duly
executed by his spouse on the signature page hereof. The
Pledgor covenants and agrees that he will defend the
Pledgee's right, title and lien in and to the Collateral
against the claims and demands of all persons; and the
Pledgor covenants and agrees that he will have like title
to and right to pledge any other property at any time
hereafter pledged to the Pledgee as Collateral hereunder.
13. PLEDGOR'S OBLIGATIONS
ABSOLUTE, ETC. The obligations of the Pledgor under this
Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated
or otherwise affected by, any circumstance or occurrence
whatsoever, including without limitation: (a) any
renewal, extension, amendment or modification of, or
addition or supplement to or deletion from, the Note, or
any assignment or transfer of any thereof; (b) any
waiver, consent, extension, indulgence or other action or
inaction under or in respect of the Note or this
Agreement or any exercise or non-exercise of any right,
remedy, power or privilege under or in respect of the
Note or this Agreement; (c) any furnishing of any
additional security to the Pledgee or any acceptance
thereof or any sale, exchange, release, surrender or
realization of or upon any security by the Pledgee; or
(d) any invalidity, irregularity or unenforceability of
all or part of the Secured Obligations or of any security
therefor.
14. PRIVATE SALE, ETC. If at any
time when the Pledgee shall determine to exercise its
right to sell all or any part of the Pledged Stock
pursuant to Section 7 hereof, such Pledged Stock or the
part thereof to be sold shall not, for any reason
whatsoever, be effectively registered under the
Securities Act of 1933, as amended (the "Act"), the
Pledgee may, in its sole and absolute discretion, sell
such Pledged Stock or part thereof by private sale in
such manner and under such circumstances as Pledgee may
deem necessary or advisable in order that such sale may
legally be effected without such registration, provided
that at least 10 days' notice of the time and place of
any such sale shall be given to the Pledgor. Without
limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion
(i) may proceed to make such private sale notwithstanding
that a registration statement for the purpose of
registering such Pledged Stock or part thereof shall have
been filed under the Act, (ii) may approach and negotiate
with a single possible purchaser to effect such sale and
(iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for
its own account, for investment, and not with a view to
the distribution or sale of such Pledged Stock or part
thereof. In the event of any such sale, the Pledgee
shall incur no responsibility or liability for selling
all or any part of the Pledged Stock at a price which the
Pledgee, in its sole and absolute discretion, may in good
xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially
higher price might be realized if the sale were deferred
until after registration as aforesaid.
15. TERMINATION; RELEASE. When
all Secured Obligations have been paid in full, this
Agreement shall terminate, and the Pledgee, at the
request and expense of the Pledgor, will execute and
deliver to the Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to
the Pledgor (without recourse and without any
representation or warranty) such of the Collateral as may
be in the possession of the Pledgee and has not
theretofore been sold or otherwise applied or released
pursuant to this Agreement, together with any moneys at
the time held by the Pledgee hereunder.
16. NOTICES, ETC. Any notice,
request, instruction or other document to be given
hereunder by any party to any other party shall be in
writing and delivered personally or sent by registered or
certified mail or by FedEx or other nationally-recognized
overnight courier, postage prepaid, as follows:
(a) If to the Pledgor, to:
Xxxxx X. Xxxxxxxxx
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
(000) 000-0000 (telephone)
(b) If to the Pledgee, to:
Universal Hospital Services, Inc.
0000 Xxxxxxxxx Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: President
(000) 000-0000 (telephone)
with a copy to:
X.X. Childs Associates, L.P.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
(000) 000-0000 (telephone)
or to such other persons or addresses as may be
designated in writing by like notice by the party to
receive such notice, request, instruction or other
document.
17. MISCELLANEOUS. This
Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, that
the Pledgor may not assign or transfer any of its rights
or obligations hereunder without the prior written
consent of the Pledgee. This Agreement may be changed,
waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought.
This Agreement shall be construed in accordance with and
governed by the law of the State of Minnesota. The
headings of the several sections and subsections in this
Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any
provision of this Agreement. This Agreement may be
executed in any number of counterparts and by the
different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an
original, but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the Pledgor and the Pledgee
have caused this Agreement to be executed by their duly
elected officers duly authorized as of the date first
above written.
PLEDGOR:
/s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
PLEDGEE:
UNIVERSAL HOSPITAL SERVICES, INC.
By /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Title: Vice President and Secretary
The undersigned, as spouse of the above-named Pledgor,
acknowledges that he or she has read the foregoing Pledge
Agreement and agrees to bound by all of the terms
thereof, including without limitation with respect to any
and all right, title and interest of the undersigned in
and to the Collateral.
/s/ Xxxx Xxxxx Xxxxxxxxx
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Signature of Spouse
Xxxx Xxxxx Xxxxxxxxx
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Name of Spouse
ANNEX A TO
Pledge Agreement
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Description of Initial Stock
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63,226 shares of common stock, par value
$.01 per share of Universal Hospital
Services, Inc., a Minnesota corporation,
standing in the name of Xxxxx X. Xxxxxxxxx
on the books of said corporation and
represented by Certificate No. 53.
