PLEDGE AGREEMENT (U.S. Health Services Corp.)
Exhibit
10.5
PLEDGE AGREEMENT
(U.S. Health Services Corp.)
(U.S. Health Services Corp.)
THIS PLEDGE AGREEMENT (this “Agreement”), made as of July 27, 2006, by U.S. Health
Services Corp., a Delaware corporation (“Pledgor”), in favor of Xxxxxxx X. Xxxxxxxx
(“Lender”).
WITNESSETH THAT:
WHEREAS, Lender has agreed to extend a bridge loan to Pledgor’s parent corporation, Standard
Management Corporation, an Indiana corporation (the “Borrower”), pursuant to a Secured
Promissory Note of even date herewith in the original principal amount of $2,837,087.67 (the
“Note”); and
WHEREAS, Pledgor owns all of the issued and outstanding securities (the “Pledged
Securities”) of Rainier Home Health Care Pharmacy, Inc., a Washington corporation
(“Rainier”), Precision Healthcare, Inc. (“Precision”), a Tennessee corporation,
Long Term Rx, Inc., an Indiana corporation (“Long Term Rx”), and Home Med Channel, Inc., an
Indiana corporation (“Home Med”); and
WHEREAS, as a condition to Lender extending credit to Borrower under the Note, Lender requires
Pledgor to pledge a security interest in the Pledged Securities to Lender;
NOW, THEREFORE, in consideration of the premises contained herein and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, Pledgor hereby agrees
as follows:
1. Pledge. Pledgor hereby pledges to Lender, and grants to Lender a first priority
lien on and first priority security interest in the Pledged Securities as security for the prompt
and complete payment of the Liabilities, as hereinafter defined, and performance of Pledgor
hereunder. As used herein, “Liabilities”
means.
(a) the due and punctual payment by Borrower of the principal of and premium, if
any, and interest (including interest accruing under the terms of the Note during the
pendency of any bankruptcy, insolvency, receivership, or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Note, when and
as due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise;
(b) the due and punctual payment and performance by Borrower of its obligations
under the Fee Letter dated July 26, 2006, to Lender “the “Fee Letter”);
(c) any and all additional advances made by Lender to protect or preserve the
Pledged Securities or the lien created on such property, or for performance of any of
Pledgor’s obligations hereunder or Borrower’s obligations under the Note or the Fee
Letter or for any other purpose provided herein or in the Note (whether or not
Pledgor remains the owner of the Pledged Securities at the time of such advances and
it being understood that Lender is not under any obligation to make future advances);
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(d) all costs and expenses, including attorneys’ fees and expenses, incurred by
Lender in the collection or enforcement of any of the Liabilities described in (a),
(b), or (c) above; and
(e) all extensions, renewals, and modifications of any of the Liabilities
described in (a), (b), (c), or (d) above.
2. Delivery of Pledged Securities. Upon the execution of this Agreement, Pledgor
shall deliver to Lender certificates representing the Pledged Securities, together with duly
executed forms of assignment sufficient to transfer title thereto to Lender upon the exercise of
their rights under this Agreement. Lender shall hold the certificates representing the Pledged
Securities, together with duly executed forms of assignment sufficient to transfer title thereto to
Lender, until full and final payment and performance of the Liabilities and the obligations of
Pledgor hereunder. Lender shall hold the Pledged Securities subject to, and have all rights of a
secured creditor under, the Uniform Commercial Code, as enacted in Indiana.
3. Representations and Warranties of Borrower. Pledgor represents and warrants to
Lender that:
(a) Pledgor is the record and beneficial owner of, and has legal and beneficial
title to, the Pledged Securities, and such Pledged Securities are and will remain
free and clear of all liens, security interests or other encumbrances except the
security interest and pledge granted under this Agreement;
(b) Pledgor has full capacity and legal authority under its governance documents
to execute, deliver, and perform this Agreement; and
(c) this Agreement has been duly authorized, executed and delivered by Pledgor
and constitutes a legal, valid, and binding obligation of Pledgor enforceable in
accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, moratorium, reorganization and other similar laws affecting the
enforcement of creditors’ rights generally.
4. Pledgor covenants to Lender that Pledgor:
(a) shall not create, incur, assume, or suffer to exist any pledge, security
interest, encumbrance, lien or charge of any kind against the Pledged Securities or
Pledgor’s rights as a holder thereof, other than pursuant to this Agreement;
(b) shall not sell or otherwise transfer any Pledged Securities or any interest
therein;
(c) will faithfully preserve, defend and protect Lender’s right, title and
security interest in and to the Pledged Securities against the claims and demands of
all persons whomsoever. Pledgor, at its or Borrower’s sole cost and expense, will do
all such other acts and things and execute and deliver all such other instruments and
documents, including without limitation, further security agreements, pledges and
assignments, as Lender may reasonably deem necessary or advisable from time to time
in order to perfect, preserve and continue as perfected the priority of such security
interest. At the election of
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Lender, Pledgor shall or shall cause the Borrower to, at Pledgor’s or Borrower’s
sole cost and expense, prepare, execute, and file all necessary financing statements
and supplements thereto, if any, describing the Pledged Securities (collectively, the
“Financing Agreements”), continuation statements and other documents with
respect to the Pledged Securities. Pledgor hereby authorizes Borrower to prepare,
execute and file all such Financing Agreements, continuation statements and other
documents; and
(d) shall cause Rainier, Precision, Long Term Rx, and Home Med to keep full and
accurate books and records relating to the Pledged Securities and stamp or otherwise
xxxx such books and records in such a manner as Lender may require in order to
reflect the security interests and pledge granted by this Agreement.
5. Voting Rights; Cash Dividends. Until such time as an Event of Default occurs,
Pledgor shall have all voting rights, but shall have no right to receive cash dividends or
distributions with respect to the Pledged Securities.
6. Dividends; Distributions, etc. If, while this Agreement is in effect, Pledgor
becomes entitled to receive or receives any cash dividends or distributions in respect of the
Pledged Securities, or any securities or other property in addition to, in substitution of, or in
exchange for any of the Pledged Securities (whether as a distribution in connection with any
recapitalization, reorganization or reclassification, a stock or unit dividend or otherwise),
Pledgor shall accept such dividends, distributions, securities or other property on behalf of and
for the benefit of Lender as additional security for the Liabilities and shall promptly deliver
such dividends, distributions, securities, or other papers to Lender together with duly executed
forms of assignment, and such additional security shall be deemed to be part of the Pledged
Securities and subject to the security interest granted hereunder.
7. Default. If there is any (a) Event of Default under the Note and as defined
therein, or (b) any breach of this Agreement that occurs and continues for 10 business days after
Lender has given notice to Pledgor of such default and Lender have given Pledgor an opportunity to
cure such breach (each of (a) and (b) above being an “Event of Default”), Lender may
exercise any and all of the rights, powers and remedies of any owner of the Pledged Securities
(including the right to vote the Pledged Securities) and shall have and may exercise without demand
any and all the rights and remedies granted to a secured party upon default under the Uniform
Commercial Code of Indiana or otherwise available to Lender under applicable law.
8. Costs and Attorneys’ Fees. All reasonable costs and expenses (including reasonable
attorneys’ fees) incurred in exercising any right, power or remedy conferred by this Agreement or
in the enforcement thereof, shall become part of the indebtedness secured hereunder.
9. Payment of Indebtedness and Release of Pledged Securities. Upon payment in full of
the indebtedness and obligation secured hereby, Lender shall surrender the Pledged Securities to
Pledgor together with all forms of assignment.
10. Further Assurances. Pledgor agrees that at any time and from time to time upon
the written request of Lender, Pledgor shall execute and deliver such further documents (including
Uniform Commercial Code financing statements) and do such further acts and things as Lender may
reasonably request in order to effect the purposes of this Agreement, all at the sole cost and
expense of Borrower.
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11. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. No Waiver, Cumulative Remedies. Lender shall not by any act, delay, omission or
otherwise be deemed to have waived any of its rights or remedies hereunder, and no waiver shall be
valid unless in writing, signed by Lender, and then only to the extent therein set forth. A waiver
by Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Lender would otherwise have on any future occasion. No failure to
exercise nor any delay in exercising on the part of Lender, any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided are cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights or remedies provided by law.
13. Waivers, Amendments; Applicable Law. None of the terms or provisions of this
Agreement may be waived, altered, modified or amended except by an instrument in writing, duly
executed by Pledgor and Lender.
14. Successors. This Agreement and all obligations of Pledgor hereunder shall be
binding upon the heirs, executors, administrators, representatives and permitted assigns of
Pledgor, and shall, together with the rights and remedies of Lender hereunder, inure to the benefit
of Lender and their successors and assigns. Pledgor and Lender shall not have any right to assign
their respective rights or obligations under this Agreement or any interest herein without the
prior written consent of Pledgor or Lender, as applicable (the giving of such consent to be within
the sole discretion of the parties whose consents are required).
15. Possession of Pledged Securities. Lender shall exercise reasonable care to assure
the safe custody of the Pledged Securities in the physical possession of Lender pursuant hereto.
16. Survival of Representations. All representations and warranties of the Pledgor
contained in this Agreement shall survive the execution and delivery of this Agreement.
17. Notices. All notices or other written communications contemplated by this
Agreement shall be deemed to have been properly given (i) upon delivery, if delivered in person or
by facsimile transmission with receipt acknowledged by the recipient thereof, (ii) one (1) business
day after having been deposited for overnight delivery with any reputable overnight courier
service, (iii) on the day of receipt of a confirmed transmission, if delivered by facsimile to the
number set forth below, or (iv) three (3) business days after having been deposited in any post
office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
| If to Lender: | Xx. Xxxxxxx X. Xxxxxxxx | |||
| c/o Browning Investments, Inc. | ||||
| 0000 Xxxx 00xx Xxxxxx | ||||
| Xxxxx 000 | ||||
| Xxxxxxxxxxxx, XX 00000 |
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| and copy to: | Xxxxx & Xxxxxxx LLP | |||
| 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxxxxxxx, XX 00000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Attention: Xxxxx X. Xxxx | ||||
| If to Pledgor: | c/o Standard Management Corporation | |||
| 00000 X. Xxxxxxxxxxxx Xx. | ||||
| Xxxxxxxxxxxx, XX 00000 | ||||
| Attention: Xxxxxx X. Xxxxxx | ||||
| Facsimile No.: 000-000-0000 | ||||
| and copy to: | Xxxxxx Xxxxxxx | |||
| Xxx Xxxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxxxxxxx, XX 00000 | ||||
| Attention: Xxxxxx X. Xxxxx | ||||
| Facsimile No.: 000-000-0000 |
or addressed as such party may from time to time designate by written notice to the other party.
18. Governing Law. This Agreement shall be governed, construed, applied and enforced
in accordance with the internal Laws of the State of Indiana, without regard to its conflicts of
law rules.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Pledge Agreement has been executed as of the date first above
written.
| U.S. Health Services Corp. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||
| Name: Xxxxxxx X. Xxxxx | ||||||
| Title: Treasurer | ||||||
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