STOCK PLEDGE AGREEMENT
THIS AGREEMENT, dated May 1, 1998, made by IVC INDUSTRIES, INC., a
Delaware corporation (the "Pledgor"), to THE CHASE MANHATTAN BANK in its
capacity as agent under the Term Loan Agreement hereinafter referred to (the
"Pledgee").
Preliminary Statement
A. Contemporaneously herewith, the Pledgor is entering into a
certain term loan agreement with the Pledgee and the Banks party thereto (which,
as the same may hereafter be amended or restated from time to time, will be
called the "Term Loan Agreement") providing for term-loan financing in the
aggregate principal amount of $3,500,000 to the Pledgor.
B. It is a condition precedent to the execution and delivery
of the Term Loan Agreement by the Pledgee and the Banks that the Pledgor shall
grant the security interest contemplated by this Agreement in the collateral
described below.
NOW, THEREFORE, for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), and in order to induce the
Pledgee and the Banks to enter into the Term Loan Agreement and to extend the
credit contemplated thereby, the Pledgor hereby agrees as follows:
1. Pledge of Securities. (a) As security for the payment and
performance of the Liabilities (as such term is hereinafter defined), the
Pledgor hereby assigns, transfers and pledges to the Pledgee, and grants the
Pledgee a security interest in, 1,000 shares of common stock of VITAMIN
SPECIALTIES CORP., a Pennsylvania corporation, (which shares shall be called the
"Pledged Securities" and which corporation shall be called the "Company"),
together with all cash, securities and other property that may hereafter be
payable in respect of the Pledged Securities as a dividend or distribution or in
exchange therefor, and all proceeds of the foregoing. The certificate(s) for the
Pledged Securities, accompanied by stock powers duly executed in blank by the
Pledgor, have been delivered by the Pledgor to the Pledgee. The Pledgee may, at
its option and upon written notice to the Pledgor at any time while on Event of
Default (as hereinafter defined) exists, transfer the registration of any or all
of the Pledged Securities into its name or the name of any nominee.
(b) As used herein, the term "Liabilities" means (i) all
obligations and liabilities, now existing or hereafter arising, of the Pledgor
under the Term Loan Agreement or the other Term Loan Documents, including
(without limitation) the indebtedness evidenced by the Notes (as the terms "Term
Loan Documents" and "Notes") are defined in the Term Loan Agreement); and (ii)
all obligations and liabilities, now existing or hereafter arising, of the
Pledgor under this Agreement.
2. Representations and Warranties. The Pledgor represents and
warrants that:
(i) it has good title to the Pledged Securities, free and clear of
all liens and claims other than the lien of this Agreement;
(ii) the Pledged Securities constitute all the stock and other
securities of the Company in which the Pledgor has an ownership interest;
(iii) the Pledged Securities have been validly issued and are fully
paid and nonassessable;
(iv) the making and performance by the Pledgor of this Agreement and
the pledging of the Pledged Securities are within the corporate powers of the
Pledgor, have been duly authorized by all necessary corporate action on the part
of the Pledgor, do not violate any provision of law or the charter or by-laws of
the Pledgor, and do not contravene any contractual restriction binding on the
Pledgor or the Pledged Securities;
(v) this Agreement is a legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms;
(vi) no consent, approval or authorization of any person or entity
is required for (a) the execution, delivery and performance of this Agreement by
the Pledgor or the creation and perfection of the security interest granted
pursuant to this Agreement; or (b) for the exercise by the Pledgee of the voting
rights or any of the other rights, powers or remedies in respect of the Pledged
Securities pursuant to this Agreement, except as may be required in connection
with the disposition of the Pledged Securities by securities laws affecting the
offering and sale of securities generally;
(vii) the Pledged Securities constitute all of the outstanding
common stock of the Company; there is no outstanding preferred stock of the
Company; and there are no outstanding options, warrants, calls or commitments of
any character whatsoever relating to any of the unissued capital stock of the
Company, and no outstanding securities convertible into or exchangeable for any
capital stock of the Company; and
(viii) this Agreement and the delivery of the Pledged Securities to
the Pledgee, together with the fully executed stock powers, creates a fully
perfected, first priority lien on the Pledged Securities for the benefit of the
Pledgee.
3. Voting Pledged Securities. Unless an Event of Default has
occurred that has not been waived, the Pledgor shall be entitled to vote the
Pledged Securities and give consents, waivers and ratifications in respect
thereof for purposes that are not inconsistent with the terms of this Agreement.
All such rights of the Pledgor shall, however, cease upon the occurrence of an
Event of Default (unless such Event of Default is waived). At any time during
the occurrence of an Event of Default that has not been waived, the Pledgee may
vote any or all of the Pledged Securities (whether or not such Pledged
Securities have been transferred into its name, or into the name of its nominee,
as provided in Section 1 hereof), and give all consents, waivers and
ratifications in respect thereof, and otherwise act with respect thereto as
though it were the owner thereof. The Pledgor hereby irrevocably constitutes and
appoints the Pledgee the proxy and attorney-in-fact of the Pledgor, with full
power of substitution, to take, subject to the provisions of this Agreement, any
and all such action with respect to the Pledged Securities.
4. Dividends. Unless an Event of Default has occurred that has
not been waived, all ordinary cash dividends on the Pledged Securities shall be
paid to the Pledgor. All other dividends and distributions and proceeds of any
kind in respect of any of the Pledged Securities, whenever paid or made, and all
ordinary cash dividends on the Pledged Securities paid after the occurrence of
an Event of Default (unless such Event of Default is waived), shall be delivered
directly to the Pledgee and held in pledge hereunder. Any such dividends or
distributions or proceeds required to be delivered to the Pledgee that are
received by the Pledgor, shall be held by the Pledgor in trust for the Pledgee
until the same are delivered by the Pledgor to the Pledgee.
5. Additional Securities. To the extent that it is within the
control of the Pledgor, the Pledgor shall not permit the Company to issue, after
the date of this Agreement, any capital stock or other securities convertible
into capital stock, unless all of such stock or other securities shall,
immediately after its issuance, be delivered to the Pledgee for holding by the
Pledgee in pledge hereunder. Any such stock or other securities so delivered
shall be included in the term "Pledged Securities", as used herein.
6. Transfer of Pledged Securities. The Pledgor shall not sell,
assign, encumber or otherwise transfer all or any part of the Pledged Securities
(or permit or suffer the same to be sold, assigned, encumbered or otherwise
transferred, whether by operation of law or otherwise).
7. Default. As used in this Pledge Agreement, the term "Event
of Default" has the same meaning ascribed to such term in the Term Loan
Agreement.
8. Remedies on Default. (A) Upon the occurrence of an Event of
Default, the Pledgee shall be entitled to exercise all rights, remedies and
powers provided or allowed by this Agreement, any other applicable agreement,
the New York Uniform Commercial Code and any other applicable law. All such
rights, remedies and powers shall be cumulative. The Pledgor waives any right to
require a marshalling of assets in connection with any disposition of the
Pledged Securities following an Event of Default and any right to require that
resort be had to any other remedy to satisfy the Liabilities prior to
realization on the Pledged Securities. If the Pledgee shall elect to dispose of
any of the Pledged Securities following an Event of Default (whether by way of
public or private sale or otherwise) and notice of such disposition is required
by law to be given, the Pledgor agrees that 10 days' advance notice to it of
such disposition shall constitute sufficient notice thereof.
(B) Any sale of the Pledged Securities by the Pledgee
following an Event of Default may be public or private, at any exchange,
broker's board of elsewhere, for cash or on credit or for future delivery, and
at such price or prices, and on such terms, as the Pledgee may deem reasonable.
Any sale hereunder may be conducted by an auctioneer or any officer, employee,
attorney or agent of the Pledgee. To the extent permitted by applicable law, the
Pledgee may be the purchaser of all or any of the Pledged Securities so sold.
The Pledgee reserves the right to reject any and all bids at such sale which, in
its sole discretion, it shall deem unacceptable. Any such sale may be held at
such time or times and at such place or places as the Pledgee may determine. The
Pledgee shall not be obligated to make any such sale pursuant to any such
notice. The Pledgee
may adjourn any public or private sale from time to time by announcement at the
proposed sale, and such sale may, without further notice, be made at the time
and place to which the same may be so adjourned from time to time.
(C) The Pledgor recognizes that, in taking action pursuant to
this Section, the Pledgee may be restricted in effecting a public sale of all or
of a part of the Pledged Securities by reason of certain requirements contained
in the Securities Act of 1933, as amended, and the regulations thereunder, or
any applicable State securities laws, and the Pledgee may deem it necessary or
appropriate to resort to one or more private sales to a restricted group of
purchasers who will be obligated to agree, among other things, to acquire the
Pledged Securities for their own account, for investment and not with a view to
the distribution or sale thereof. The Pledgor agrees that such private sales so
made may be at prices and on other terms less favorable to the Pledgor than if
the Pledged Securities were sold at public sales. The Pledgor agrees that
private sales made under the foregoing circumstances shall be deemed to have
been made in a commercially reasonable manner.
9. Protection of the Pledgee. Other than the exercise of
reasonable care in the custody of the Pledged Securities, the Pledgee shall have
no responsibility for or duty with respect to any Pledged Securities or any
matter or proceedings arising out of or relating thereto. The Pledgee shall be
deemed to have exercised reasonable care in the custody and preservation of the
Pledged Securities in its possession if the Pledged Securities are accorded
treatment substantially equal to that which it accords its own property. As to
all matters in connection with this Agreement, the Pledgee may consult with
legal counsel and shall be fully protected in taking, or omitting to take, any
action in good faith reliance thereon. Neither the Pledgee nor any of its
directors, officers, employees, agents or counsel shall be liable for any action
lawfully taken or omitted to be taken by it or them hereunder or in connection
herewith, except for their own gross negligence or willful misconduct.
10. Expenses. The Pledgor shall upon demand pay to the Pledgee
all costs and expenses (including, without limitation, attorneys' fees) the
Pledgee may suffer or incur in connection with (i) the preparation and
administration of this Agreement, (ii) the custody or preservation of the
Pledged Securities and the validity, perfection, and priority of the security
interests provided for in this Agreement, (iii) the failure of the Pledgor to
perform or observe any provisions of this Agreement, and (iv) the exercise or
enforcement by the Pledgee of any of its rights, powers or remedies hereunder.
11. Changes; Waivers. No provision of this Agreement may be
changed or waived orally, but only by an instrument in writing executed by the
party to be charged therewith. No failure or delay on the part of the Pledgee in
exercising any right, remedy or power shall operate as a waiver thereof, nor
shall any single or partial exercise thereof
preclude any further or other exercise of the same or any other right, remedy or
power. No modification of the terms of payment of the indebtedness secured
hereby or waiver thereof or forbearance on the part of the Pledgee or release of
any other collateral for such indebtedness shall affect in any way whatsoever
the continuing effectiveness of this Agreement or the validity, perfection or
priority of the security interest granted hereby.
12. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York (without giving
effect to principles of conflicts of law).
13. Continuing Effect. This Pledge Agreement shall remain in
effect until the Liabilities shall have been satisfied in full. This Agreement
shall be binding upon the Pledgor, its successors and assigns, and inure to the
benefit of the Pledgee, its successors and assigns.
14. Notices. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been properly given at the times and in the manner and
at the addresses provided in Section 12.06 of the Term Loan Agreement.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be
executed by its duly authorized officer as of the day and year first above
written.
IVC INDUSTRIES, INC.
By: /s/ I. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name:
Title: