VSC TERM SECURITY AGREEMENT
THIS AGREEMENT, dated as of the 1 day of May, 1998, is made by
VITAMIN SPECIALTIES CORP., a Pennsylvania corporation (the "Grantor"), in favor
of THE CHASE MANHATTAN BANK in its capacity as Agent under the Term Loan
Agreement hereinafter referred to (the "Agent").
Preliminary Statement
A. Contemporaneously herewith, IVC Industries, Inc., a Delaware
corporation (the "Borrower"), is entering into a certain Term Loan Agreement
dated the date hereof (which, as the same may be hereafter amended or
supplemented from time to time, will be called herein the "Term Loan Agreement")
among itself, the Banks party thereto and the Agent. All capitalized terms used
herein and not defined shall have the respective meanings ascribed to them in
the Term Loan Agreement.
B. Contemporaneously herewith, the Grantor is executing and
delivering a guaranty dated the date hereof (which, as the same may hereafter be
amended or supplemented from time to time, will be called herein the "VSC Term
Guaranty") in favor of the Agent and the Banks, pursuant to which the Grantor is
guaranteeing all the obligations and liabilities (now existing or hereafter
arising) of the Borrower to any or all of the Agent and the Banks under the Term
Loan Agreement or any of the other Term Loan Documents.
C. The execution and delivery of this Agreement is required in order
to induce the Banks and the Agent to enter into the Term Loan Agreement.
NOW, THEREFORE, for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), and in order to induce the Banks
and the Agent to enter into the Term Loan Agreement, the Grantor hereby agrees
as follows:
As used in this Agreement, the term "Liabilities" shall mean all
obligations and liabilities (now existing or hereafter arising) of the Grantor
to any or all of the Agent and the Banks under the VSC Term Guaranty.
The term "Security" shall mean all personal property and fixtures of
the Grantor, whether now or hereafter existing or now owned or hereafter
acquired and wherever located, of every kind and description, tangible or
intangible, including, but not limited to, all money, goods (including
equipment, farm products and inventory), instruments, securities, documents,
chattel paper, accounts, contract rights, general intangibles, credits, claims,
demands, precious metals and any other property, rights and interests of the
Grantor, and shall include the proceeds, products and accessions of and to any
thereof. The Security includes (without limitation) the following assets of the
Grantor:
(a) all inventories;
(b) all tangible personal property, computer equipment,
brochures, store signage, store fixtures and leasehold improvements,
including tangible personal property referred to on Schedule 1.03 of
the HealthRite Purchase Agreement;
(c) all cash actually present "in the till" at any of
the Stores;
(d) all accounts receivable;
(e) all rights in leases of the Stores;
(f) all rights in purchase orders, sales orders, order
books, mailing lists, customer accounts and customer lists and
records;
(g) all rights in intellectual property, including the
names "Vitamin Specialties" and "Herbal Specialties", proprietary
information, computer software, customer lists, mailing lists, trade
secrets, patents, patent applications, copyrights, copyright
applications, trademarks, service marks, trademark or service xxxx
registration applications, art work, boards, plates, films and
related art work (such as in catalogs), tradenames, licenses of any
such property or rights, goodwill and permits;
(h) all necessary permits and certificates issued or
granted;
(i) all books and records, including, without
limitation, quality control records and computer software and data
bases; and
(j) all goodwill.
As security for the payment of all the Liabilities, the Grantor
hereby grants to the Agent a security interest in and a general lien upon the
Security.
At any time and from time to time, upon the demand of the Agent, the
Grantor will: (1) give, execute, deliver, file and/or record any notice,
statement, instrument, document, agreement or other papers that may be necessary
or desirable, or that the Agent may request, in order to create, preserve,
perfect, or validate any security interest granted pursuant hereto or to enable
the Agent to exercise and enforce its rights hereunder or with respect to such
security interest; and (2) permit representatives of the Agent or any Bank at
any time during business hours to inspect its inventory and to inspect and make
abstracts from the Grantor's books and records pertaining to the Security. The
right is expressly granted to the Agent, at its discretion, to file one or more
financing statements under the Uniform Commercial Code naming the Grantor as
debtor and the Agent as secured party and indicating therein the types or
describing the items of Security herein specified. A photographic or other
reproduction of this agreement shall be sufficient as a financing statement.
With respect to the Security, or any part thereof, which at any time shall come
into the possession or custody or under the control of the Agent or any Bank or
any of their agents, associates or correspondents, for any purpose, the right is
expressly granted to the Agent, at its discretion, to transfer to or register in
the name of itself or its nominee any of the Security; and to exercise or cause
its nominee to exercise all or any powers with respect to the Security with the
same force and effect as an absolute owner
thereof; all without notice (except such notice as may be required by applicable
law and cannot be waived) and without liability except to account for property
actually received by it.
The Agent at its discretion may, if an Event of Default exists, in
its name or in the name of the Grantor or otherwise, demand, xxx for, collect or
receive any money or property at any time payable or receivable on account of or
in exchange for, or make any compromise or settlement deemed desirable with
respect to, any of the Security, but the Agent shall be under no obligation to
do so, or the Agent may extend the time of payment, arrange for payment in
installments, or otherwise modify the terms of, or release, any of the Security,
without thereby incurring responsibility to, or discharging or otherwise
affecting any liability of, the Grantor. The Agent shall not be required to take
any steps necessary to preserve any rights against prior parties to any of the
Security. If an Event of Default exists, the Agent may use or operate any of the
Security for the purpose of preserving the Security or its value in the manner
and to the extent the Agent reasonably deems appropriate, but the Agent shall be
under no obligation to do so. Upon the occurrence and during the continuance of
an Event of Default, the Grantor shall, at the request of the Agent, assemble
the Security at such place or places as the Agent designates in its request,
and, to the extent permitted by applicable law, the Agent shall have the right,
with or without legal process and with or without prior notice or demand, to
take possession of the Security or any part thereof and to enter any premises
for the purpose of taking possession thereof. The Agent shall have the rights
and remedies with respect to the Security of a secured party under the Uniform
Commercial Code (whether or not such Code is in effect in the jurisdiction where
the rights and remedies are asserted). In addition, with respect to the
Security, or any part thereof, which shall then be or shall thereafter come into
the possession or custody of the Agent, any Bank or any of their agents,
associates or correspondents, the Agent may sell or cause to be sold in the
Borough of Manhattan, New York City, or elsewhere, in one or more sales or
parcels, at such price as the Agent may deem best, and for cash or on credit or
for future delivery, without assumption of any credit risk, all or any of the
Security, at any broker's board or at public or private sale, in any reasonable
manner permissible under the Uniform Commercial Code (except that, to the extent
permitted thereunder, the Grantor hereby waives the requirements of said Code),
and the Agent or anyone else may be the purchaser of any or all of the Security
so sold and thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any equity of redemption, of the Grantor, any such
demand, notice or right and equity being hereby expressly waived and released.
The Grantor will pay to the Agent all reasonable expenses (including reasonable
attorneys' fees and legal expenses incurred by any or all of the Agent and the
Banks) of, or incidental to, the enforcement of any of the provisions hereof or
of any of the Liabilities, or any actual or attempted sale of any of the
Security or receipt of the proceeds thereof, and for the care of the Security
and defending or asserting the rights and claims of the Agent in respect
thereof, by litigation or otherwise, including expense of insurance; and all
such expenses shall be indebtedness within the terms of this agreement.
Notwithstanding that the Agent, whether in its own behalf and/or in behalf of
another or others, may continue to hold Security and regardless of the value
thereof, the Grantor shall be and remain liable for the payment in full,
principal and interest, of any balance of the Liabilities and expenses at any
time unpaid.
No delay on the part of the Agent in exercising any power or right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any power or right hereunder preclude other or further exercise
thereof or the exercise of any other power or right. The rights, remedies and
benefits herein expressly specified are cumulative and not exclusive of any
rights, remedies or benefits which any or all of the Agent and the Banks may
otherwise have. The Grantor hereby waive(s) presentment, notice of dishonor and
protest of all instruments included in or evidencing the Liabilities or the
Security and any and all other notices and demands whatsoever, whether or not
relating to such instruments.
No provision hereof shall be modified or limited except by a written
instrument executed by the party sought to be charged therewith, expressly
referring hereto and to the provision so modified or limited. This agreement
shall be binding upon the Grantor and its successors and assigns, and shall
inure to the benefit of the Agent and the Banks and their respective successors
and assigns, and shall be governed by and construed according to the laws of the
State of New York. Unless the context otherwise requires, all terms used herein
which are defined in the New York Uniform Commercial Code shall have the
meanings therein stated.
Upon any assignment by the Agent to the Designated Party of this
Agreement, the Excluded VSC Assets shall automatically be released from the Lien
of this Agreement (without any need for any documentation or consent on the part
of the Agent or the Designated Party, such automatic release being a condition
of the grant herein of such Lien); but the Excluded VSC Assets shall remain
subject to the Lien granted by the Grantor (pursuant to a separate security
agreement being granted by the Grantor contemporaneously herewith) to secure
obligations under the Revolving Credit Agreement. As used herein, the term
"Excluded VSC Assets" means (i) any and all cash (including, without limitation,
deposit accounts and investments that are cash equivalents) of VSC existing on
the day on which the Agent assigns to the Designated Party the Lien of the Agent
in the Vitamin Specialties Assets, other than cash "in the till" at the Stores
on the day on which the Agent assigns to the Designated Party; provided,
however, that all cash that is received by VSC after such day shall not
constitute Excluded VSC Assets; and (ii) any and all inventory of VSC that is
not located at a Store, except for any such inventory that shall have already
been paid for by VSC. The Excluded VSC Assets are intended to be excluded from
any assignment by the Agent to the Designated Party of the Lien of the Agent in
the Vitamin Specialties Assets; but the Excluded VSC Assets will remain subject
to the Lien securing the obligations under Revolving Credit Agreement.
Grantor acknowledges that the Designated Party has agreed to execute and
deliver the Designated Party Term Guaranty in reliance upon this Agreement,
among other things. In order to further induce the Designated Party to execute
and deliver the Designated Party Term Guaranty, Grantor agrees that, upon any
assignment of the Loans to the Designated Party pursuant to Section 1 of the
Term Intercreditor Agreement, Grantor will permit the Designated Party or its
designees, at the Designated Party's option, to take over any or all operations
of Grantor at any of its locations, with full power to control and to conduct
any or all aspects of Grantor's operations as the Designated Party may see fit,
for the purposes of applying or generating cash on hand or cash from operations
or sales of inventory or assets, for the purposes of reimbursing the Designated
Party for amounts paid by it under or in connection with the Designated Party
Term Guaranty, including its and its designees'
expenses in connection with any such operations, until all such amounts and
expenses have been fully and finally reimbursed and paid. Grantor agrees to
indemnify the Designated Party, its designees, and their officers, directors,
employees and agents, from and against any and all liabilities and expenses
incurred by them in such connection, except for their gross negligence or
willful misconduct.
VITAMIN SPECIALTIES CORP.
By: /s/ I. Xxxx Xxxxxxxxxx
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