PARENT PLEDGE AGREEMENT
THIS PARENT PLEDGE AGREEMENT (" Agreement" ), made as of this 13th day of February, 2004, by and between Interactive Health, Inc., a Delaware corporation (the " Pledgor" ), and Comerica Bank, a Michigan banking corporation (herein called " Bank" ). The addresses for Pledgor and Bank are set forth on the signature pages.
A. Pursuant to that certain Interactive Health LLC Credit Agreement dated as of December 30, 2003 (as amended or otherwise modified from time to time, the " Credit Agreement" ), among Interactive Health LLC, a Delaware limited liability company (the " Company" ) and the Bank, the Bank has agreed, subject to the satisfaction of certain terms and conditions, to extend or continue to extend financial accommodations to the Company, as provided therein.
B. As a condition precedent to the making of the initial loans and issuing letters of credit and creating and discounting acceptances under the Credit Agreement, the Pledgor is required to execute and deliver a pledge agreement in the form of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and agreements hereinafter set forth, the parties hereto agree as follows:
I. Collateral and Security Interest .
Pledgor hereby assigns, transfers, delivers and pledges to the Bank, and grants to the Bank a security interest in the following collateral to secure the prompt and complete payment and performance when due of the Indebtedness (as defined in the Credit Agreement) whether at stated maturity by acceleration or otherwise:
1. all of Pledgor' s present and future interest(s) as a member (or other equity interest hereunder, as the case may be), in the Company, together with all of the certificates and/or instruments representing such membership or other equity interest and all cash, securities, 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 of such interests; 2. all other property hereafter delivered to the Bank in substitution for or in addition to the foregoing, all certificates and instruments 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;
3. all contract rights and claims of the Pledgor against the Company, and all collateral therefor, including but not limited to the various promissory notes issued by the members of the Company to evidence their respective original contribution obligations; 4. all additions, replacements, substitutions, renewals, interest, dividends, distributions, rights of any kind (including but not limited to stock splits, stock rights, voting and preferential rights), products, and proceeds of or pertaining to the above including, without limit, cash or other property which were proceeds and are recovered by a bankruptcy trustee or otherwise as a preferential transfer by Pledgor; all said property, products and proceeds herein called the " Collateral." The creation of a security interest in proceeds is not to be construed to give Pledgor any right to dispose of the Collateral. Pledgor warrants that Pledgor has clear title to the Collateral, free from any liens, claims or encumbrances except the security interest created by this Agreement, and has full power and authority to execute and perform this Agreement.
II. Warranties, Covenants and Agreements .
A. To induce the Bank to enter into this Agreement and the Credit Agreement, Pledgor represents and warrants, as continuing representations and warranties so long as the Agreement remains in effect, that: 1. The individual signatory hereto has authority to execute and deliver this Agreement on behalf of Pledgor. 2. No financing statement covering the Collateral, or any part thereof, has been or will be filed with any filing officer, except as required hereunder or as permitted under the Credit Agreement (including the schedules thereto). 3. No other agreement, pledge or assignment covering the Collateral, or any part thereof, has been made and no security interest, other than the one created hereby or pursuant to pledges and security agreements previously made in favor of Bank has or will be attached or is or will be perfected in the Collateral or in any part thereof, except as permitted under the Credit Agreement. 4. No material dispute, right of setoff, counterclaim or defenses exist with respect to any part of the Collateral. 5. All information supplied and statements made in any financial or credit statements or application for credit prior to the execution of this Agreement are true and correct as of the date hereof in all material respects. 6. The Collateral (a) constitutes all the present and future membership interests (or other equity interests) in the Company, (b) has been duly authorized and issued to Pledgor, (c) is fully paid and non-assessable, (d) is freely and validly assignable by Pledgor, and (e) is not subject to any option, warrant right to call or commitment of any kind or nature.
7. At the time Bank' s security interest attaches to any of the Collateral or its proceeds, Pledgor will be the lawful owner with the right to transfer any interest therein, and that Pledgor will make such further assurances as to prove its title to the Collateral as may be reasonably required and will defend the Collateral and its proceeds against the lawful claims and demands of all persons whomsoever. The delivery at any time by Pledgor to Bank of Collateral or financing statements covering Collateral shall constitute a representation and warranty by Pledgor under this Agreement that, with respect to such Collateral, and each item thereof, Pledgor is owner of the Collateral and the matters heretofore warranted in this paragraph II are true and correct. B. Pledgor agrees that: (i) it will not sell, transfer, assign or otherwise dispose of any of the Collateral or any interest therein or offer to do so without the prior written consent of Bank; (ii) it will pay all taxes and assessments upon the Collateral or for its use or operation before any interest or penalty for nonpayment attaches thereto unless said payment is being contested in good faith and it establishes a reserve as required by generally accepted accounting principles; (iii) it will promptly furnish Bank with any information in writing which Bank may reasonably request concerning the Collateral; (iv) it will promptly notify Bank of any material change in any material fact or circumstances warranted or represented by Pledgor in this Agreement in connection with the Collateral or the Indebtedness; (v) it will promptly and properly perform all of its covenants and duties under this Agreement or under any other document or agreement to which it is a party, now or hereafter arising, for or in connection with the Indebtedness or the Collateral; (vi) it will promptly notify Bank of any material claim, action or proceeding affecting the Collateral and title therein, or in any part thereof, or the security interest created herein, and, at the request of the Bank, appear in and defend, at Pledgor' s expense, any such action or proceeding; (vii) it will execute such endorsements or assignments of the Collateral as Bank may reasonably request; and (viii) it will keep the Collateral free at all times from any and all claims, liens, security interests, and encumbrances other than those in favor of Bank, and shall deliver or cause to be delivered to Bank all certificates or other instruments representing the Collateral. C. Bank agrees to use reasonable care in the custody and preservation of Collateral in its possession but assumes no duty to take steps necessary to preserve rights against prior parties. D. If Bank, acting in its sole discretion, redelivers Collateral to Pledgor or Pledgor' s designee for the purpose of: (a) the ultimate sale or exchange thereof, or (b) presentation, collection, renewal, or registration of transfer thereof, such redelivery shall be in trust for the benefit of Bank and shall not constitute a release of Bank' s security interest therein or in the proceeds or products thereof unless Bank specifically so agrees in writing. If Pledgor requests any such redelivery, Pledgor will deliver with such request a duly executed financing statement in form and substance satisfactory to Bank. Any proceeds of Collateral coming into the Pledgor' s possession as a result of any such redelivery shall be held in trust for Bank and forthwith delivered to
Bank for application on the Indebtedness. Subject to the terms of the Credit Agreement, Bank may (if, in its sole discretion, it elects to do so) deliver the Collateral or any part of the Collateral to Pledgor, and such delivery by Bank shall discharge Bank from any and all liability or responsibility for such Collateral.
E. Pledgor hereby acknowledges it has guaranteed to the Bank the due and punctual payment to the Bank when due, whether by acceleration or otherwise, of the Indebtedness pursuant to that certain Guaranty of even date herewith, including, without limitation, principal, interest (including interest accruing on or after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding by or against the Company, whether or not a claim for post-filing or post-petition interest is allowed in such a proceeding), and all other liabilities and obligations, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with the Credit Agreement or the other Loan Documents, whether such Indebtedness is now existing or hereafter arising. Pledgor waives notice of acceptance of this Agreement and presentment, demand, protest, notice of protest, dishonor, notice of dishonor, notice of demand, notice of intent to demand, notice of acceleration, notice of intent to accelerate, notice of default and diligence in collecting any Indebtedness, and agrees that the Bank may modify the terms of borrowing, compromise, extend, increase, accelerate, renew or forbear to enforce payment of any part or all of any Indebtedness, or permit the Company to incur additional Indebtedness, all without notice to Pledgor and without affecting in any manner the Bank' s rights under this Agreement. Except (i) to the extent unenforceable in accordance with applicable law or (ii) in connection with any notice required to be delivered to Pledgor by Bank in accordance with the Loan Documents, Pledgor further waives any and all other notices to which Pledgor might otherwise be entitled. Pledgor acknowledges and agrees that the Bank' s rights under this Agreement are not conditioned upon pursuit by the Bank of any remedy the Bank may have against the Company or any other person or any other security. No invalidity, irregularity or unenforceability of any part or all of the Indebtedness or any documents evidencing the same, by reason of any bankruptcy, insolvency or other law or order of any kind or for any other reasons, and no defense or setoff available at any time to the Company, shall impair, affect or be a defense or setoff to the Bank' s rights under this Agreement. F. Pledgor delivers this Agreement based solely on the Pledgor' s independent investigation of (or decision not to investigate) the financial condition of the Company and the Loan Parties and is not relying on any information furnished by the Bank. Pledgor assumes full responsibility for obtaining any further information concerning the Company' s and each of the Loan Parties' financial condition, the status of