BORROWER/IVOSC/HALL (CANADA) TERM SECURITY AGREEMENT
THIS AGREEMENT, dated as of the 1 day of May, 1998, is made by IVC
INDUSTRIES, INC., a Delaware corporation (the "Borrower"); INTERNATIONAL VITAMIN
OVERSEAS SALES CORP., a New Jersey corporation ("IVOSC"); and HALL LABORATORIES,
LTD., a corporation organized under the laws of British Columbia ("Hall
(Canada)"; the Borrower, IVOSC and Hall (Canada) being called collectively the
"Grantors", and individually, a "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, 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, IVOSC and Hall (Canada) are 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 "IVOSC/Hall (Canada) Term Guaranty") in favor of the Agent and the Banks,
pursuant to which IVOSC and Hall (Canada) are 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, each 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 Term Loan Agreement and the
Term Notes (in the case of the Borrower) or the IVOSC/Hall (Canada) Term
Guaranty (in the case of IVOSC and Hall (Canada)). The term "Security" shall
mean all personal property and fixtures of each 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 (including, without limitation, the balance
of every deposit account of any Grantor with the Agent or any Bank and any other
claim of any Grantor against the Agent or any Bank), demands, precious metals
and any other property, rights
and interests of each Grantor, and shall include the proceeds, products and
accessions of and to any thereof.
As security for the payment of all the Liabilities, each 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,
each 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 such 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 each 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 any 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 for 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, any 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, each 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, each 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 any
Grantor, any such demand, notice or right and equity being hereby expressly
waived and released. Each 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, each 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. Each 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 each 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.
The security interests granted hereby are junior and subordinated to (i)
the security interests granted pursuant to the Security Agreement dated April
30, 1996 from each Grantor in favor of The Chase Manhattan Bank (National
Association) in its capacity as Agent under a certain Credit Agreement dated
such date; and (ii) the security interests granted pursuant to the Security
Agreement dated April 30, 1996 from each Grantor in favor of the Designated
Party in respect of a certain reimbursement obligation relating to the aforesaid
Credit Agreement.
This Security Agreement is not intended to be assigned to the Designated
Party in the event that the Term Note and other Term Loan Documents are assigned
to the Designated Party upon a payment under the Designated Party Term Guaranty.
Instead, upon any such assignment to the Designated Party of the Term Note and
other Term Loan Documents, this Security Agreement and the security interests
granted herein shall become void and of no further force or effect.
IVC INDUSTRIES, INC.
By: /s/ I. Xxxx Xxxxxxxxxx
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Name:
Title:
INTERNATIONAL VITAMIN OVERSEAS
SALES CORP.
By: /s/ I. Xxxx Xxxxxxxxxx
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Name:
Title:
HALL LABORATORIES, LTD.
By:
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Name:
Title:
