SECURITIES PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of June 26 2002, made by
MEDICAL TECHNOLOGY SYSTEMS, INC., a Delaware corporation ("MTS") and LIFESERV
TECHNOLOGIES, INC., a Florida corporation ("Lifeserv", and with MTS,
collectively, the "Pledgor"), each with its chief executive office located at
00000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx, is in favor of LASALLE BUSINESS
CREDIT, INC., as Agent ("Agent").
W I T N E S S E T H
WHEREAS, MTS and MTS Packaging Systems, Inc. ("Packaging"), as borrowers
(in such capacity, the "Borrowers") Agent, Standard Federal Bank National
Association, as lender ("Lender"), Lifeserv and the other Guarantors named
therein are parties to that certain Loan and Security Agreement, dated of even
date herewith (as amended, restated or otherwise modified from time to time, the
"Loan Agreement") pursuant to which Agent and/or Lender have agreed to extend
loans and certain other financial accommodations to the Borrowers, and as a
condition to such extensions of credit, the Pledgor has granted to Agent, for
its benefit and for the benefit of Lender, a security interest in substantially
all of the Pledgor's assets;
WHEREAS, the Pledgor presently owns all of the issued and outstanding
shares of capital stock as more fully described in Schedule I attached hereto
and made a part hereof and issued by the corporations named therein (each such
corporation being referred to in said Schedule I as an "Issuer") and may in the
future acquire additional shares of said capital stock (all of such now owned or
hereafter acquired shares of capital stock being collectively referred to herein
as the "Pledged Shares");
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the Pledgor hereby
agrees as follows:
1. Pledge. The Pledgor hereby pledges to Agent, for its benefit and for the
benefit of Lender, and grants to Agent, for its benefit and for the benefit of
Lender, a security interest in, the following (the "Pledged Collateral"):
(a) the Pledged Shares now owned by the Pledgor and the certificates,
if any, representing such Pledged Shares, and all dividends, cash,
securities, instruments, rights and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all of such Pledged Shares;
(b) all additional shares of said stock acquired by the Pledgor in any
manner, and the certificates, if any, representing such additional shares
(any such additional shares shall constitute part of the Pledged Shares
under and as defined in this Agreement), and all dividends, cash,
instruments, subscription warrants, securities and any other rights and
options and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
shares; and
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(c) all other property hereafter delivered to Agent in substitution
for, as proceeds of, or in addition to any of the foregoing, all
certificates, instruments and documents representing or evidencing such
property, and all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all thereof.
2. Security for Liabilities. The Pledged Collateral secures the payment of
all of the "Liabilities", as such term is defined in the Loan Agreement, to
Agent and/or Lender, whether for principal, interest, fees, expenses or
otherwise, and all obligations of the Pledgor now or hereafter existing under
this Agreement.
3. Delivery of Pledged Shares. All certificates, instruments or documents,
if any, representing or evidencing the Pledged Shares shall be delivered to and
held by or on behalf of Agent pursuant hereto and shall be in suitable form for
transfer by delivery, shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to
Agent. In the event any or all of the Pledged Shares are evidenced by a book
entry, Pledgor shall execute and deliver or cause to be executed and delivered
to Agent such control agreements, documents, and agreements as are required by
Agent to create and perfect a security interest in such uncertificated Pledged
Shares. In addition, Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Shares for
certificates or instruments of smaller or larger denominations.
4. Representations and Warranties. The Pledgor represents and warrants as
follows:
(a) The Pledged Shares have been duly authorized and validly issued
and are fully paid and non-assessable.
(b) The Pledgor is, or at the time of any future delivery, pledge,
assignment or transfer will be, the legal and beneficial owner of the
Pledged Collateral, free and clear of any lien, security interest, pledge,
warrant, option, purchase agreement, shareholders' agreement, restriction,
redemption agreement or other charge, encumbrance or restriction of any
nature on the Pledged Collateral, except for the liens in favor of the
Subordinated Lender, which are subordinate and junior to the liens created
in favor of the Agent hereunder and under the Loan Agreement, with full
right to deliver, pledge, assign and transfer the Pledged Collateral to
Agent as Pledged Collateral hereunder.
(c) The pledge and delivery of the Pledged Collateral pursuant to this
Agreement creates a valid, perfected security interest in the Pledged
Collateral, securing the payment of the Liabilities.
(d) No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
either (i) for the pledge by the Pledgor of the Pledged Collateral pursuant
to this Agreement or for the execution, delivery or performance of this
Agreement by the Pledgor, or (ii) for the exercise by Agent of the voting
or other rights provided for in this Agreement or the remedies in respect
of the Pledged Collateral pursuant to this Agreement (except as may be
required in connection with a disposition of such shares by laws affecting
the offering and sale of securities generally).
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(e) The Pledgor has full power and authority to enter into this
Agreement and has the right to vote, pledge and grant a security interest
in the Pledged Collateral as provided by this Agreement.
(f) None of the Pledged Shares has been issued in violation of any
federal, state or other law, regulation or rule pertaining to the issuance
of securities, or in violation of any rights, pre-emptive or otherwise, of
any present or past stockholder of any Issuer described in Schedule I
attached hereto and made a part hereof.
5. Further Assistance. The Pledgor agrees that at any time and from time to
time, at the expense of the Pledgor, the Pledgor will promptly execute and
deliver, or cause to be executed and delivered, all certificates, if any,
representing the Pledged Shares, stock powers, proxies, assignments, instruments
and documents; will take all steps necessary to properly register the transfer
of the security interest hereunder on the books of the Issuer of any
uncertificated securities included in the Pledged Shares; and will take all
further action that may be necessary or desirable, or that Agent may request in
its sole discretion, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable Agent to exercise and
enforce its rights and remedies hereunder with respect to any Pledged Collateral
and to carry out the provisions and purposes hereof.
6. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default (as hereinafter defined) is
continuing:
(i) The Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Shares or any
part thereof for any purpose not inconsistent with the terms of this
Agreement or the Loan Agreement; provided, however, that the Pledgor
shall not exercise nor shall it refrain from exercising any such right
if such action could have a material adverse effect on the value of
the Pledged Collateral or any part thereof.
(ii) The Pledgor shall be entitled to receive and retain any and
all dividends and interest paid in respect of the Pledged Collateral,
provided however, that any and all dividends and interest paid or
payable other than in cash in respect of, and instruments and other
property received, receivable or otherwise distributed in respect of,
or in exchange for, any Pledged Collateral (other than in connection
with the complete liquidation of an Issuer).shall be Pledged
Collateral, shall be forthwith delivered to Agent to hold as Pledged
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 Pledged
Collateral in the same form as so received (with any necessary
endorsement).
(iii) The Pledgor shall execute and deliver (or cause to be
executed and delivered) to Agent all such proxies and other
instruments as Agent may (reasonably) request for the purpose of
enabling Agent to exercise the voting and other rights which it is
entitled to exercise pursuant to paragraph (i) above and to receive
the dividends or interest payments which it is authorized to receive
pursuant to paragraph (ii) above.
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(b) Upon the occurrence and during the continuance of an Event of
Default (as hereinafter defined):
(i) All rights of the Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise
pursuant to Section 6(a)(i) and to receive the dividends and interest
payments which it would otherwise be authorized to receive and retain
pursuant to Section 6(a)(ii) shall cease, and all such rights shall
thereupon become vested in Agent which shall thereupon have the sole
right to exercise such voting and other consensual rights and to
receive and hold as Pledged Collateral such dividends and interest
payments; and
(ii) All dividends and interest payments which are received by
the Pledgor contrary to the provisions of paragraph (i) of this
Section 6(b) shall be received in trust for the benefit of Agent,
shall be segregated from other funds of the Pledgor and shall be
forthwith paid over to Agent as Pledged Collateral in the same form as
so received (with any necessary endorsements).
7. Transfers and Other Liens; Additional Shares. The Pledgor agrees that it
will not (i) sell, assign, transfer, convey, exchange, pledge or otherwise
dispose of, or grant any option, warrant, right, contract or commitment with
respect to, any of the Pledged Collateral without the prior written consent of
Agent, or (ii) create or permit to exist any lien, security interest, pledge,
proxy, purchase arrangement, restriction, redemption agreements, shareholders'
agreement or other charge or encumbrance upon or with respect to any of the
Pledged Collateral, except for the lien created by this Agreement and the lien
in favor of the Subordinated Lender.
8. Application of Proceeds of Sale or Cash Held as Collateral. The proceeds
of sale of Pledged Collateral sold pursuant to this Agreement and/or the cash
held as Pledged Collateral hereunder shall (unless delivered to the applicable
Pledgor, in which case the terms of the Loan Agreement shall apply) be (a)
retained by Agent as cash collateral for the Liabilities, or (b) at the election
of Agent, applied by Agent as follows:
First: to payment of the costs and expenses of such sale, including the
out-of-pocket expenses of Agent and the reasonable fees and out-of-pocket
expenses of counsel employed in connection therewith, and to the payment of all
advances made by Agent for the account of the Pledgor hereunder, and the payment
of all costs and expenses incurred by Agent in connection with the enforcement
of this Agreement, to the extent that such advances, costs and expenses shall
not have been reimbursed to Agent;
Second: to the payment of interest accrued and unpaid, if any, on any of
the Liabilities to and including the date of such application and then to the
payment or prepayment of principal of any of the Liabilities and then to the
payment of the balance of the Liabilities in such order as Agent may determine
in its sole discretion; and
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Third: the balance, if any, of such proceeds shall be paid to the Pledgor,
or its successors or assigns, or as a court of competent jurisdiction may
direct.
9. Agent Appointed Attorney-in-Fact. The Pledgor hereby appoints Agent as
the Pledgor's attorney-in-fact, with full authority in the place and stead of
the Pledgor and in the name of the Pledgor or otherwise, from time to time in
Agent's reasonable discretion to take any action and to execute any instrument
which Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
instruments made payable to the Pledgor representing any dividend, interest
payment or other distribution in respect of the Pledged Collateral or any part
thereof, as and when Agent is permitted to do so in accordance with the terms of
this Agreement, and to give full discharge for the same.
(a) Agent May Perform. If the Pledgor fails to perform any agreement
contained herein, Agent may itself perform, or cause performance of, such
agreement, and the expenses of Agent incurred in connection therewith shall
be payable by the Pledgor under Section 16.
10. Reasonable Care. Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Pledged Collateral in its possession
if the Pledged Collateral is accorded treatment substantially equal to that
which Agent accords its own property, it being understood that Agent shall not
have any responsibility for (i) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relative to
any Pledged Collateral, whether or not Agent has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps to preserve rights against
any parties with respect to any Pledged Collateral; provided, however, that upon
the Pledgor's instruction, Agent shall use reasonable efforts to take such
action as the Pledgor directs Agent to take with respect to calls, conversions,
exchanges, maturities, tenders, rights against other parties or other similar
matters relative to the Pledged Collateral, but failure of Agent to comply with
any such request shall not of itself be deemed a failure to exercise reasonable
care, and no failure of Agent to preserve or protect any rights with respect to
the Pledged Collateral against prior parties, or to do any act with respect to
preservation of the Pledged Collateral not so requested by the Pledgor, shall be
deemed a failure to exercise reasonable care in the custody or preservation of
the Pledged Collateral.
11. Subsequent Changes Affecting Collateral. The Pledgor represents to
Agent that the Pledgor has made its own arrangements for keeping informed of
changes or potential changes affecting the Pledged Collateral (including, but
not limited to, rights to convert, rights to subscribe, payment of dividends,
reorganization or other exchanges, tender offers and voting rights), and the
Pledgor agrees that Agent shall have no responsibility or liability for
informing the Pledgor of any such changes or potential changes or for taking any
action or omitting to take any action with respect thereto.
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12. Events of Default; Remedies upon an Event of Default.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default" by Pledgor under this Agreement:
(i) there occurs an Event of Default under and as defined in the
Loan Agreement (after giving effect to any applicable cure or grace
periods as set forth in the Loan Agreement);
(ii) the Pledgor fails to perform or observe any term, covenant
or agreement contained in this Agreement on its part to be performed
or observed, or any representation or warranty made by the Pledgor in
this Agreement shall be untrue or misleading in any material respect
as of the date with respect to which such representation or warranty
was made (after giving effect to any applicable cure or grace periods
as set forth in the Loan Agreement);
(iii) a notice of lien, levy or assessment is filed or recorded
with respect to all or a substantial part of the Pledged Collateral,
except for Permitted Liens; and
(iv) all or a substantial part of the Pledged Collateral is
attached, seized, subjected to a writ or distress warrant, or is
levied upon, or comes within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors.
(b) If any Event of Default shall be continuing, Agent shall have, in
addition to all other rights given by law or by this Agreement, the Loan
Agreement or otherwise, all of the rights and remedies with respect to the
Pledged Collateral of a secured party under the Uniform Commercial Code
("Code") as adopted in the Commonwealth of Pennsylvania at that time and
Agent may, without notice and at its option, transfer or register the
Pledged Collateral or any part thereof on the books of the Issuer thereof
into the name of Agent or Agent's nominee(s), with or without any
indication that such Pledged Collateral is subject to the security interest
hereunder. In addition, with respect to any Pledged Collateral which shall
then be in or shall thereafter come into the possession or custody of
Agent, Agent may sell or cause the same to be sold at any broker's board or
at public or private sale, in one or more sales or lots, at such price or
prices as Agent may deem best, for cash or on credit or for future
delivery, without assumption of any credit risk. The purchaser of any or
all Pledged Collateral so sold shall thereafter hold the same absolutely,
free from any claim, encumbrance or right of any kind whatsoever, except
for claims, encumbrances or rights that may arise without the knowledge or
consent of the Pledgor. Unless any of the Pledged Collateral threatens to
decline speedily in value or is or becomes of a type sold on a recognized
market, Agent will give the Pledgor reasonable notice of the time and place
of any public sale thereof, or of the time after which any private sale or
other intended disposition is to be made. Any sale of the Pledged
Collateral conducted in conformity with reasonable commercial practices of
banks, insurance companies, commercial finance companies, or other
financial institutions disposing of property similar to the Pledged
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Collateral shall be deemed to be commercially reasonable. Any requirements
of notice shall deemed to be a reasonable authenticated notice of
disposition if it is mailed to the Pledgor as provided in Section 20 below,
at least five (5) days before the time of the sale or disposition. Any
other requirement of notice, demand or advertisement for sale is, to the
extent permitted by law, waived. Agent may disclaim any warranties that
might arise in connection with the sale or other disposition of the Pledged
Collateral and Agent has no obligation to provide any warranties at such
time. Agent may, in its own name or in the name of a designee or nominee,
buy any of the Pledged Collateral at any public sale and, if permitted by
applicable law, at any private sale. All expenses (including court costs
and reasonable attorneys' fees and expenses actually incurred) of, or
incident to, the enforcement of any of the provisions hereof shall be
recoverable from the proceeds of the sale or other disposition of Pledged
Collateral. In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after an Event of Default, the Pledgor agrees
that upon the occurrence or existence of any Event of Default, Agent may,
from time to time, attempt to sell all or any part of the Pledged
Collateral by means of a private placement, restricting the prospective
purchasers to those who can make the representations and agreements
required of purchasers of securities in private placements. In so doing,
Agent may solicit offers to buy the Pledged Collateral, or any part of it,
for cash, from a limited number of investors deemed by Agent in its
judgment, to be responsible parties who might be interested in purchasing
the Pledged Collateral, and if Agent solicits such offers from not fewer
than three (3) such investors, then the acceptance by Agent of the highest
offer obtained therefrom shall be deemed to be a commercially reasonable
method of disposition of the Pledged Collateral.
In addition, during the continuance of an Event of Default, all rights of
the Pledgor to exercise the voting and other rights which it would otherwise be
entitled to exercise and to receive cash dividends and interest payments, shall
cease, and all such rights shall thereupon become vested in Agent as provided in
Section 6.
13. Authority of Agent. Agent shall have and be entitled to exercise all
such powers hereunder as are specifically delegated to Agent by the terms
hereof, together with such powers as are incidental thereto. Agent may execute
any of its duties hereunder by or through agents or employees. Neither Agent,
nor any director, officer, agent or employee of Agent, shall be liable for any
action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct.
The Pledgor hereby agrees to indemnify and hold harmless Agent and/or any such
director, officer, agent or employee from and against any and all liability
incurred by any of them, hereunder or in connection herewith, unless such
liability shall be due to its or their own gross negligence or willful
misconduct.
14. Termination. This Agreement shall terminate when all the Liabilities
have been fully paid and performed, at which time Agent shall reassign and
redeliver (or cause to be reassigned and redelivered) (a) in the event that the
Subordinated Debt remains outstanding, to the Subordinated Lender, and
otherwise, (b) to the Pledgor, or to such person or persons as the Pledgor shall
designate, against receipt, such of the Pledged Collateral (if any) as shall not
have been sold or otherwise applied by Agent pursuant to the terms hereof and
shall still be held by it hereunder, together with appropriate instruments of
reassignment and release. Any such reassignment shall be without recourse upon
or warranty by Agent and at the expense of the Pledgor.
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15. Expenses. The Pledgor agrees to reimburse Agent and Lender, on demand
for any and all reasonable expenses, including the reasonable fees and expenses
actually incurred of its counsel and of any experts and agents, which Agent or
Lender may incur in connection with (i) the administration of this Agreement,
(ii) the custody or preservation of, or the registration of the Pledged
Collateral, (iii) the exercise or enforcement of any of the rights of Agent
hereunder, or (iv) the failure by the Pledgor to perform or observe any of the
provisions hereof.
16. Security Interest Absolute. All rights of Agent and/or Lender and
security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the Loan Agreement or an
other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Liabilities, or any other amendment or
waiver of or any consent to any departure from the Loan Agreement;
(iii) any exchange, surrender, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Liabilities; or
(iv) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Pledgor in respect of the Liabilities
or of this Agreement.
17. Amendments, Waivers and Consents. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by Agent, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
18. Notices. Any notice required or desired to be served, given or
delivered hereunder shall be in writing (including facsimile transmission), and
shall be deemed to have been validly served, given or delivered upon the earlier
of (a) personal delivery to the address set forth below (b) in the case of
mailed notice, three (3) days after deposit in the United States mails, with
proper postage for certified mail, return receipt requested, prepaid, or in the
case of notice by Federal Express or other reputable overnight courier service,
one (1) Business Day after delivery to such courier service, and (c) in the case
of facsimile transmission, upon transmission with confirmation of receipt,
addressed to the party to be notified as follows:
If to the Pledgor: 0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, President
Facsimile Number: (000) 000-0000
With a copy to: Xxxxxxxxxx Xxxxxxxx LLP
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile Number: (000) 000-0000
If to Agent: LaSalle Business Credit, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Vice President
Facsimile Number: (000) 000-0000
With a copy to: Wolf, Block, Xxxxxx and Xxxxx-Xxxxx, LLP
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile Number: (000) 000-0000
or to such other address as any of the parties may hereafter designate for
itself by written notice to the other parties in the manner herein prescribed.
19. Continuing Security Interest. This Agreement shall create a continuing
security interest in the Pledged Collateral and shall (i) remain in full force
and effect until payment in full of the Liabilities; (ii) be binding upon the
Pledgor, its successors and assigns; and (iii) inure to the benefit of Agent,
Lender and their successors, transferees and assigns.
20. Waivers. The Pledgor waives presentment and demand for payment of any
of the Liabilities, protest and notice of dishonor or default with respect to
any of the Liabilities, and all other notices to which the Pledgor might
otherwise be entitled, except as otherwise expressly provided herein or in the
Loan Agreement or as required by applicable law.
21. Governing Law; Terms. This Agreement shall be governed by and construed
in accordance with the internal laws (as opposed to conflict of laws provisions)
and decisions of the Commonwealth of Pennsylvania. Unless otherwise defined
herein, terms defined in Articles 8 and 9 of the Pennsylvania Uniform Commercial
Code are used herein as therein defined. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but, if any provision of this Agreement shall be
interpreted in such manner as to be ineffective or invalid under applicable law,
such provisions shall be ineffective or invalid only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
22. Definitions. The singular shall include the plural and vice versa and
any gender shall include any other gender as the text shall indicate.
23. Section Headings. The section headings herein are for convenience of
reference only, and shall not affect in any way the interpretation of any of the
provisions hereof.
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IN WITNESS WHEREOF, the Pledgor, Agent and Lender have each caused this
Agreement to be duly executed and delivered by its officer, if any, thereunto
duly authorized as of the date first above written.
MEDICAL TECHNOLOGY SYSTEMS, INC.
By_________________________________
Name:
Title:
LIFESERV TECHNOLOGIES, INC.
By_________________________________
Name:
Title:
LASALLE BUSINESS CREDIT, INC., as Agent
By_________________________________
Name/Title:________________________
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SCHEDULE I
Description of Pledged Shares
OWNER ISSUER NUMBER OF SHARES
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