1
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated September 15, 1998, made by and among XXXXXX-FIELD
HEALTH PRODUCTS, INC., a corporation organized under the laws of the State of
Delaware ("Holdings"), XXXXXX-FIELD, INC., a corporation organized under the
laws of the State of New York ("Field"), EVEREST & XXXXXXXX, INC., a corporation
organized under the laws of the State of California ("E & J"), MEDICAL SUPPLIES
OF AMERICA, INC., a corporation organized under the laws of the State of Florida
("Medapex"), LUMEX/BASIC AMERICAN HOLDINGS, INC., a corporation organized under
the laws of the State of Delaware ("Lumex"), BASIC AMERICAN MEDICAL PRODUCTS,
INC., a corporation organized under the laws of the State of Georgia ("Basic
American"), LUMEX MEDICAL PRODUCTS, INC., a corporation organized under the laws
of the State of Delaware ("Lumex Medical"), PRISM ENTERPRISES, INC., a
corporation organized under the laws of the State of Delaware ("Prism") and
EVEREST & XXXXXXXX INTERNATIONAL LTD., a corporation organized under the laws of
the State of Delaware ("International") (Holdings, Field, E&J, Medapex, Lumex,
Basic American, Lumex Medical, Prism and International, each a "Pledgor" and,
jointly and severally, "Pledgors") to IBJ XXXXXXXX BUSINESS CREDIT CORPORATION,
as Agent (the "Pledgee").
BACKGROUND TO THE AGREEMENT
Pledgors (other than International), various other borrowers, various
lenders ("Lenders") and Pledgee are parties to a Revolving Credit and Security
Agreement dated as of December 10, 1996, as amended, modified and supplemented
from time to time, (the "Loan Agreement") pursuant to which Lenders and Pledgee
have agreed, subject to the terms and conditions contained therein, to provide
certain financial accommodations to Pledgors and such other borrowers.
In order to induce Pledgee to waive certain Events of Default and amend
certain financial covenants, Pledgors have agreed to pledge and grant a security
interest to Pledgee in the Pledged 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, Pledgor hereby agrees with Pledgee as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Loan Agreement shall
have such defined meanings when used herein.
SECTION 2. Pledge
Each Pledgor hereby pledges, assigns, hypothecates, transfers and grants a
security interest to Pledgee in all of the following (the "Pledged Collateral"):
2
(a) the shares of stock set forth on Schedule A annexed hereto and
expressly made a part hereof (the "Pledged Stock") applicable to such Pledgor,
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 such 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 Pledged 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 and all dividends, cash and
instruments.
SECTION 3. Indebtedness Secured
This pledge is made to secure and the Pledged Collateral is security for
the payment of (a) all the Obligations and (b) any and all other indebtedness,
obligations and liabilities of Pledgors to Pledgee 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, other instrument or otherwise ((a) and (b)
collectively, the "Indebtedness").
SECTION 4. Delivery of Pledged Collateral
All certificates representing or evidencing the Pledged Stock shall be
delivered to and held by or on behalf of Pledgee pursuant hereto and shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to Pledgee. Pledgors hereby authorize the
Issuer upon demand by Pledgee to deliver any certificates, instruments or other
distributions issued in connection with the Pledged Collateral directly to
Pledgee, in each case to be held by Pledgee, subject to the terms hereof. Upon
an Event of Default, Pledgee shall have the right, at any time in its discretion
and without notice to the Pledgors, to transfer to or to register in the name of
Pledgee or any of its nominees any or all of the Pledged Stock. In addition,
Pledgee 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.
SECTION 5. Representations and Warranties
Pledgors represent and warrant to Pledgee that:
(a) Pledgors have the requisite power and authority to enter into this
Agreement, to
2
3
pledge the Pledged Collateral for the purposes described herein and to carry out
the transactions contemplated by this Agreement.
(b) The execution, delivery and performance by Pledgors of this Agreement
have been duly and properly authorized and does not and will not result in any
violation of any agreement, indenture or other instrument, license, judgment,
decree, order, law, statute, ordinance or other governmental rule or regulation
applicable to Pledgors.
(c) This Agreement constitutes a legal, valid and binding obligation of
Pledgors enforceable in accordance with its terms.
(d) Each Pledgor is the direct and beneficial owner of each share of the
Pledged Stock which it has pledged pursuant hereto.
(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 Pledgee or an agent for Pledgee,
this Agreement creates and grants a valid first lien on and perfected security
interest in the Pledged Collateral and the proceeds thereof, subject to no prior
Lien, or to any agreement purporting to grant to any third party a Lien upon the
property or assets of Pledgors which would include the Pledged Collateral.
(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) 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 Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement or
(ii) for the exercise by the Pledgee 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 such disposition
by laws affecting the offering and sale of securities generally.
(j) No notification of the pledge evidenced hereby to any Person is
required.
(k) 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.
3
4
(l) The Pledged Stock constitutes the percentage of the issued and
outstanding shares of capital stock of the Issuers thereof set forth on Schedule
A annexed hereto.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
SECTION 6. Covenants
Pledgors covenant that, until the Indebtedness shall be satisfied in full
and the Loan Agreement is irrevocably terminated:
(a) Except as otherwise permitted in the Loan Agreement, no Pledgor will
sell, assign, transfer, convey, or otherwise dispose of its rights in or to the
Pledged Collateral or any interest therein; nor will any Pledgor create, incur
or permit to exist any Lien whatsoever with respect to any of the Pledged
Collateral or the proceeds thereof other than that created hereby.
(b) Each Pledgor will, at its expense, defend Pledgee's right, title and
security interest in and to the Pledged Collateral against the claims of any
Person.
(c) Each Pledgor shall at any time, and from time to time, upon the
written request of Pledgee, execute and deliver such further documents and do
such further acts and things as Pledgee may reasonably request in order to
effect the purposes of this Agreement including, but without limitation,
delivering to Pledgee upon the occurrence of an Event of Default irrevocable
proxies in respect of the Pledged Collateral in form satisfactory to Pledgee.
Until receipt thereof, this Agreement shall constitute such Pledgor's proxy to
Pledgee or its nominee to vote all shares of Pledged Collateral then registered
in such Pledgor's name in accordance with Section 7 hereof.
(d) No Pledgor will 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.
SECTION 7. Voting Rights and Dividends
In addition to Pledgee's rights and remedies set forth in Section 9
hereof, in case an Event of Default shall have occurred and has been declared by
Pledgee, Pledgee shall (i) vote the Pledged Collateral (ii) be entitled to give
consents, waivers and ratifications in respect of the Pledged Collateral
(Pledgors hereby irrevocably constituting and appointing Pledgee, with full
power of substitution, the proxy and attorney-in-fact of Pledgors for such
purposes) and (iii) be entitled to collect and receive for its own use cash
dividends paid on the Pledged Collateral. Pledgors shall not be permitted to
exercise or refrain from exercising any voting rights or other powers if, in the
reasonable judgment of Pledgee, such action would have a material adverse effect
on the value of the Pledged Collateral or any part thereof; and, provided,
further, that each Pledgor shall give at least five (5) days' written notice of
the manner in which such Pledgor
4
5
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. All dividends and all other
distributions in respect of any of the Pledged Collateral, whenever paid or
made, shall be delivered to Pledgee to hold as Pledged Collateral and shall, if
received by any Pledgor, be received in trust for the benefit of Pledgee, be
segregated from the other property or funds of such Pledgor, and be forthwith
delivered to Pledgee as Pledged Collateral in the same form as so received (with
any necessary endorsement).
SECTION 8. Event of Default
An Event of Default shall be deemed to have occurred and may be declared
by Pledgee upon the happening of any of the following events:
(a) An Event of Default shall occur under the Loan Agreement;
(b) Any Pledgor shall default in the performance of any of its obligations
under this Agreement or any other material agreement between such Pledgor and
Pledgee which is not cured within any applicable grace period; or
(c) Any representation or warranty made or furnished to Pledgee by or on
behalf of any Pledgor in this Agreement proves to have been false in any
material respect when made or furnished or any covenant made or furnished to
Pledgee by or on behalf of any Pledgor is breached, violated or not complied
with.
SECTION 9. Remedies
In case an Event of Default shall have occurred and be declared by
Pledgee, Pledgee may:
(a) Transfer any or all of the Pledged Collateral into its name, or
into the name of its nominee or nominees;
(b) Exercise all corporate rights with respect to the Pledged Collateral
including, without limitation, all rights of conversion, exchange, subscription
or any other rights, privileges or options pertaining to any shares of the
Pledged 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
Pledged 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 Pledged Collateral, and, in connection therewith, to deposit and deliver any
and all of the Pledged 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;
(c) Subject to any requirement of applicable law, sell, assign and deliver
the whole or, from time to time, any part of the Pledged Collateral at the time
held by Pledgee, at any private sale or at public auction, with or without
demand, advertisement or notice of the time or
5
6
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 Pledgee in its sole
discretion may determine, or as may be required by applicable law.
Each 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, Pledgee may bid for and purchase the whole or any
part of the Pledged Collateral so sold free from any such right or equity of
redemption. All moneys received by Pledgee hereunder whether upon sale of the
Pledged Collateral or any part thereof or otherwise shall be held by Pledgee and
applied by it as provided in Section 12 hereof. No failure or delay on the part
of Pledgee 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. Pledgee shall have no duty as to the collection or protection of the
Pledged 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 12 hereof. Pledgee 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, Pledgee shall
have all of the rights, remedies and privileges of a secured party under the
Uniform Commercial Code of New York regardless of the jurisdiction in which
enforcement hereof is sought.
SECTION 10. INTENTIONALLY OMITTED.
SECTION 11. Private Sale
Notwithstanding anything contained in Section 10, each Pledgor recognizes
that Pledgee may be unable to effect (or to do so only after delay which would
adversely affect the value that might be realized from the Pledged Collateral) a
public sale of all or part of the Pledged Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (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 Pledged Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. Each 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. Each Pledgor agrees that
Pledgee has no obligation to delay sale of any Pledged Collateral for the period
of time necessary to permit the Issuer to register the Pledged Collateral for
public sale under the Securities Act.
SECTION 12. Proceeds of Sale
The proceeds of any collection, recovery, receipt, appropriation,
realization or sale of the Pledged Collateral shall be applied by Pledgee as
follows:
(a) First, to the payment of all costs, expenses and charges of Pledgee,
as such, or the reimbursement of Pledgee for the prior payment of such costs,
expenses and charges incurred in
6
7
connection with the care and safekeeping of any of the Pledged Collateral
(including, without limitation, the expenses of any sale or other proceeding,
the expenses of any taking, reasonable attorneys' fees and expenses, court
costs, any other expenses incurred or expenditures or advances made by Pledgee
in the protection, enforcement or exercise of its rights, powers or remedies
hereunder) with interest on any such reimbursement at the rate prescribed in the
Loan Agreement as the Default Rate from the date of payment.
(b) Second, to the payment of the Indebtedness, in whole or in part, in
such order as Pledgee may elect, whether such Indebtedness is then due or not
due.
(c) Third, to such Persons as required by applicable law including,
without limitation, Section 9-504(1)(c) of the Uniform Commercial Code.
(d) Fourth, to the extent of any surplus thereafter remaining, to Pledgors
or as a court of competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery, receipt,
appropriation, realization or sale are insufficient to satisfy the Indebtedness,
Pledgors shall be liable for the deficiency together with interest thereon at
the rate prescribed in the Loan Agreement as the Default Rate plus the
reasonable fees of any attorneys employed by Pledgee to collect such deficiency.
SECTION 13. Information
Each Pledgor will promptly give or cause to be given written notice to
Pledgee of any notices or other documents received by it with respect to Pledged
Collateral registered in the name of such Pledgor.
SECTION 14. Termination
This Agreement shall terminate and Pledgors shall be entitled to the
return, at Pledgors' expense, of such of the Pledged Collateral as has not
theretofore been sold or otherwise applied pursuant to this Agreement, together
with any moneys at any time held by Pledgee, upon payment in full of the
Indebtedness and irrevocable termination of the Loan Agreement, provided,
however, upon any permitted sale of any Pledged Collateral pursuant to the terms
of the Loan Agreement, Pledgors shall be entitled to the return of such Pledged
Collateral so long as it has not been sold or otherwise applied pursuant to this
Agreement.
SECTION 15. Concerning Pledgee
The recitals of fact herein shall be taken as statements of Pledgors for
which Pledgee assumes no responsibility. Pledgee makes no representation to
anyone as to the value of the Pledged 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. Pledgee 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
7
8
Pledgee hereunder shall not be construed as duties of Pledgee. Pledgee 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 Pledged Collateral. Pledgee 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.
SECTION 16. Notices
Any notice or request hereunder may be given to Pledgors or to Pledgee at
their respective addresses set forth below or at such other address as may
hereafter be specified in a notice designated as a notice of change of address
under this Section. Any notice or request hereunder shall be given by (a) hand
delivery, (b) registered or certified mail, return receipt requested, (c)
telefax to the number set out below (or such other number as may hereafter be
specified in a notice designated as a notice of change of address) with
electronic confirmation of its receipt. Any notice or other communication
required or permitted pursuant to this Agreement shall be deemed given (a) when
personally delivered to any officer of the party to whom it is addressed, (b) on
the earlier of actual receipt thereof or three (3) days following posting
thereof by certified or registered mail, postage prepaid, or (c) upon actual
receipt thereof when sent by a recognized overnight delivery service or (d) upon
actual receipt thereof when sent by telecopier to the number set forth below
with electronic confirmation of receipt, in each case addressed to each party at
its address set forth below or at such other address as has been furnished in
writing by a party to the other by like notice:
(A) If to Pledgee, at: IBJ Xxxxxxxx Business Credit Corporation
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(B) If to Pledgor, at: c/x Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Vice President Finance
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
8
9
with a copy to: Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Vice President and General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SECTION 17. Governing Law.
This Agreement and all rights and obligations hereunder shall be governed
by and construed in accordance with the laws of the State of New York applied to
contracts to be performed wholly within the State of New York.
SECTION 18 Waivers.
PLEDGORS AND PLEDGEE EACH HEREBY EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OTHER AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR
THE TRANSACTIONS RELATING HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE; AND
PLEDGORS AND PLEDGEE EACH HEREBY AGREE AND CONSENT THAT ANY SUCH ACTIONS OR
PROCEEDINGS SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT EITHER PARTY
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
SECTION 19. Litigation.
EACH PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF THE
SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK, AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR ALL PURPOSES IN
CONNECTION WITH THIS AGREEMENT. ANY JUDICIAL PROCEEDING BY ANY PLEDGOR AGAINST
PLEDGEE 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 THE
SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK OR THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. EACH 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
9
00
XXXXXXX XX XXX XXXXX XX XXX XXXX XX 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. EACH 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.
SECTION 20. No Waiver; Cumulative Remedies.
No failure on the part of Pledgee 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 Pledgee
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.
SECTION 21. Severability.
In case any security interest or other right of Pledgee 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.
SECTION 22. Counterparts.
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 agreement.
SECTION 23. Miscellaneous
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing, signed by
Pledgee and Pledgors. The provisions of this Agreement shall be binding upon the
successors and assigns of Pledgors. The term "Pledgee", as used herein, shall
include any successor or assign of Pledgee at the time entitled to the pledged
interest in the Pledged Collateral. The headings in this Agreement are for
purposes of reference only and shall not limit or define the meaning hereof.
SECTION 24. Captions
The captions at various places in this Agreement are intended for
convenience only and do not constitute and shall not be interpreted as part of
this Agreement.
SECTION 25. Recapture
Anything in this Agreement to the contrary notwithstanding, if Pledgee
receives any
10
11
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
Pledgee, Pledgors' obligations to Pledgee shall be reinstated and this Agreement
shall remain in full force and effect (or be reinstated) until payment shall
have been made to Pledgee, which payment shall be due on demand.
IN WITNESS WHEREOF, Pledgors have caused this Agreement to be duly
executed as of the ___ day of September, 1998.
XXXXXX-FIELD HEALTH PRODUCTS, INC.
XXXXXX-FIELD, INC.
EVEREST & XXXXXXXX, INC.
MEDICAL SUPPLIES OF AMERICA, INC.
LUMEX/BASIC AMERICAN HOLDINGS, INC.
BASIC AMERICAN MEDICAL PRODUCTS, INC.
LUMEX MEDICAL PRODUCTS, INC.
PRISM ENTERPRISES, INC.
EVEREST & XXXXXXXX INTERNATIONAL, LTD.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Its: Chairman of the Board and
Chief Executive Officer
IBJ XXXXXXXX BUSINESS CREDIT CORPORATION, As
Agent
By: /s/ Signature Illegible
-----------------------------------------
Its: Vice President
11
12
STATE OF NEW YORK )
: ss.:
COUNTY OF )
On the ___ day of September, 1998, before me personally came Xxxxxx X.
Xxxxx, to me known, who being by me duly sworn, did depose and say that he is an
Officer of each Pledgor, the corporations described in and which executed the
above instrument; and that he signed his name thereto by like order of the board
of directors of said corporations.
/s/ Xxxxxxxx Xxxxxxx
----------------------------------
Notary Public
XXXXXXXX XXXXXXX
Notary Public, State of New York
No. 4640263
Qualified in Suffolk County
Commission Expires September 30, 1998
12
13
SCHEDULE A
TO PLEDGE AGREEMENT DATED AS OF September 15, 1998, made by and among
XXXXXX-FIELD HEALTH PRODUCTS, INC., a corporation organized under the laws of
the State of Delaware ("Holdings"), XXXXXX-FIELD, INC., a corporation organized
under the laws of the State of New York ("Field"), EVEREST & XXXXXXXX, INC., a
corporation organized under the laws of the State of California ("E & J"),
MEDICAL SUPPLIES OF AMERICA, INC., a corporation organized under the laws of the
State of Florida ("Medapex"), LUMEX/BASIC AMERICAN HOLDINGS, INC., a corporation
organized under the laws of the State of Delaware ("Lumex"), BASIC AMERICAN
MEDICAL PRODUCTS, INC., a corporation organized under the laws of the State of
Georgia ("Basic American"), LUMEX MEDICAL PRODUCTS, INC., a corporation
organized under the laws of the State of Delaware ("Lumex Medical"), PRISM
ENTERPRISES, INC., a corporation organized under the laws of the State of
Delaware ("Prism") and EVEREST & XXXXXXXX INTERNATIONAL LTD., a corporation
organized under the laws of the State of Delaware ("International") (Holdings,
Field, E&J, Medapex, Lumex, Basic American, Lumex Medical, Prism and
International each a "Pledgor" and, jointly and severally, "Pledgors") to IBJ
XXXXXXXX BUSINESS CREDIT CORPORATION, as Agent (the "Pledgee").
SEE ATTACHED
14
1. XXXXXX-FIELD HEALTH PRODUCTS, INC.
% OF ISSUED
STOCK AND
CLASS OF CERTIFICATE PAR NUMBER OF OUTSTANDING
ISSUER STOCK NUMBER VALUE SHARES STOCK
--------------------------------------------------------------------------------------------------------------
x. Xxxxxx-Field Express, Inc. -- Merged into Xxxxxx-Field, Inc. as of June 18, 1998 (see Schedule I to
Amendment Number 6)
--------------------------------------------------------------------------------------------------------------
x. Xxxxxx-Field, Inc. Class A 1 $1.00 5,000 100%
Common
Class B 2 $1.00 5,000 100%
Common
--------------------------------------------------------------------------------------------------------------
x. Xxxx Data Systems, Inc. Common 1 $1.00 100 100%
(formerly known as
Medisco, Inc.)
--------------------------------------------------------------------------------------------------------------
x. Xxxxxx-Field Express Common 1 $ .01 10 100%
(Puerto Rico), Inc.
--------------------------------------------------------------------------------------------------------------
e. Everest & Xxxxxxxx Common 1 $ .01 100 100%
International Ltd.*
--------------------------------------------------------------------------------------------------------------
x. XxXxx Systems, Inc. Common 1 No Par 54,406 100%
--------------------------------------------------------------------------------------------------------------
g. Medical Supplies of Common 1 $1.00 2,100 100%
America, Inc.
--------------------------------------------------------------------------------------------------------------
h. Lumex/Basic American Common 1 $ .01 100 100%
Holdings, Inc.
--------------------------------------------------------------------------------------------------------------
x. Xxxxxx-Field Sales Corp. Common 1 $ .01 100 100%
--------------------------------------------------------------------------------------------------------------
x. Xxxxxx-Field Express Common 1 $ .01 100 100%
(Dallas), Inc.
--------------------------------------------------------------------------------------------------------------
x. Xxxxxx Medical Sales, Common 1 No Par 200 100%
Inc.
--------------------------------------------------------------------------------------------------------------
---------------
* E&J Acquisition Corp. merged with and into Everest & Xxxxxxxx International
Ltd. and the capital stock of E&J Acquisition Corp. was converted into the
capital stock of Everest & Xxxxxxxx International Ltd. pursuant to the
Xxxxxx-Field Everest & Xxxxxxxx merger completed on November 27, 1996.
15
2. Everest & Xxxxxxxx International Ltd.
% of Issued
Stock and
Class of Certificate Par Number of Outstanding
Issuer Stock Number Value Shares Stock
------ -------- ----------- ------- --------- -----------
a. Everest & Xxxxxxxx, Inc. Common 87 $100.00 8,906 100%
b. Everest & Xxxxxxxx de
Mexico, S.A. de C.V. Common 1 N/A 217,100 65%
X. Xxxxx & Xxxxx
Manufacturing Company Common 1 $ 1.00 100,000 100%
3. Everest & Xxxxxxxx, Inc.
% of Issued
Stock and
Class of Certificate Par Number of Outstanding
Issuer Stock Number Value Shares Stock
------ -------- ----------- ------- ---------- -----------
a. Everest & Xxxxxxxx
Canadian, Limited Common 17 No Par 6,500 65%
b. Kuschall of America, Inc. Common 1 $.01 2,542,448 100%
4. Xxxxxx-Field, Inc.
% of Issued
Stock and
Class of Certificate Par Number of Outstanding
Issuer Stock Number Value Shares Stock
------ -------- ----------- --------- --------- -----------
a. Aqua Therm Corp.
(formerly known as
AquaTherm Acquisition
Corp.) Common 1 $.01 100 100%
x. Xxxxxx-Field Temco, Inc. Common 1 $.01 10 100%
x. Xxxxxx-Field European
Distribution Corporation
Limited Common 1 One Irish 2 100%
Pound
x. Xxxxxx-Field
Distribution, Inc. Common 1 $.01 10 100%
x. Xxxxxx-Field Bandage,
Inc. Common 1 $.01 10 100%
16
5. MEDICAL SUPPLIES OF AMERICA, INC.
% OF ISSUED
STOCK AND
CLASS OF CERTIFICATE PAR NUMBER OF OUTSTANDING
ISSUER STOCK NUMBER VALUE SHARES STOCK
------ ----- ------- ----- ------ -----
a. Health Care Wholesalers, Inc. Common 1 $1.00 500 100%
b. HC Wholesalers, Inc. Common 4 $1.00 500 100%
c. Critical Care Associates, Inc. Common 1 $1.00 100 100%
Common 2 $1.00 400
6. LUMEX/BASIC AMERICAN HOLDINGS, INC.
% OF ISSUED
STOCK AND
CLASS OF CERTIFICATE PAR NUMBER OF OUTSTANDING
ISSUER STOCK NUMBER VALUE SHARES STOCK
------ ----- ------- ----- ------ -----
a. Basic American Medical Products, Inc. Common 1 $.01 100 100%
b. Prism Enterprises, Inc. Class A A-10 $.01 1,000 100%
Common
c. Lumex Medical Products, Inc. Common 1 $.01 1,000 100%
(formerly known as MUL Acquisition
Corp. I)
7. LUMEX MEDICAL PRODUCTS, INC.
% OF ISSUED
STOCK AND
CLASS OF CERTIFICATE PAR NUMBER OF OUTSTANDING
ISSUER STOCK NUMBER VALUE SHARES STOCK
------ ----- ------- ----- ------ -----
a. Lumex Sales and Distribution Co., Inc. Common 1 $1.00 1,000 100%
b. MUL Acquisition Corp. II Common 1 $.01 1,000 100%
17
8. Prism Enterprises, Inc.
% of Issued
Stock and
Class of Certificate Par Number of Outstanding
Issuer Stock Number Value Shares Stock
------ -------- ----------- ----- --------- -----------
a. PrisTech, Inc. Common 1 $.01 1,000 100%
9. Basic American Medical Products, Inc.
% of Issued
Stock and
Class of Certificate Par Number of Outstanding
Issuer Stock Number Value Shares Stock
------ -------- ----------- ----- --------- -----------
a. Basic American Sales Common 1 $1.00 1,000 100%
and Distribution
Co., Inc.
