Confidential information indicated by X's has been omitted and filed separately
with the Securities and Exchange Commission.
VSC SECURITY AGREEMENT
THIS AGREEMENT, dated as of the 1st day of May, 1998, is made by
VITAMIN SPECIALTIES CORP., a Pennsylvania corporation (the "Grantor"), in favor
of XXXXXXXXX XXXX INC., a New Jersey corporation ("XXXX").
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 Chase Manhattan Bank in its
capacity as Agent (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, XXXX 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 "Designated Party Term
Guaranty") in favor of the Agent and the Banks, pursuant to which XXXX is
guaranteeing to any or all of the Agent and the Banks the term loan in the
amount of $3,500,000 made by the Agent and the Banks to the Borrower pursuant to
the Term Loan Agreement.
C. Contemporaneously herewith, the Grantor is executing and
delivering a guaranty dated the date hereof (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.
D. Contemporaneously herewith, the Grantor is executing and
delivering the May 1998 Amendment Agreement, dated the date hereof (the
"Amendment Agreement") pursuant to which the Grantor is joining the Guaranty
Reimbursement Agreement under which the Grantor shall reimburse XXXX for any
amounts paid by XXXX under each of the Designated Party Term Guaranty and the
Designated Party Guaranty (as defined in the Amendment Agreement).
E. The Borrower is the parent and sole shareholder of the
outstanding capital stock of the Grantor, and the Grantor shall receive
substantial economic benefits from the Borrower's entering into the Term Loan
Agreement.
F. The execution and delivery of this Agreement is required in order
to induce XXXX to make the Designated Party Term Guaranty, and the execution and
delivery
of the Designated Party Term Guaranty 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 XXXX to
make the Designated Party Term Guaranty, 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 XXXX under the Designated Party Term Guaranty and/or the Designated Party
Guaranty.
The term "Security" shall mean all personal property and fixtures of
the Grantor, other than the Excluded VSC Assets, 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, other than the Excluded VSC
Assets, 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 XXXX a security interest in and a general lien upon the
Security.
At any time and from time to time, upon the demand of XXXX, 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 XXXX may request, in order to create, preserve, perfect,
or validate any security interest granted pursuant hereto or to enable XXXX to
exercise and enforce its rights hereunder or with respect to such security
interest; and (2) permit representatives of XXXX 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 XXXX, at its discretion, to file one or more financing statements
under the Uniform Commercial Code naming the Grantor as debtor and XXXX 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 XXXX or any of its designees, agents,
associates or correspondents, for any purpose, the right is expressly granted to
XXXX, 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.
XXXX 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 XXXX shall be under no obligation to do so,
or XXXX 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. XXXX 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, XXXX 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 XXXX
reasonably deems appropriate, but XXXX 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 XXXX, assemble the Security at such place or
places as XXXX designates in its request, and, to the extent permitted by
applicable law, XXXX 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. XXXX 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 XXXX or any of its
designees, agents, associates or
correspondents, XXXX 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
XXXX 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 XXXX 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 XXXX
all reasonable expenses (including reasonable attorneys' fees and legal expenses
incurred by any or all of XXXX) 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 XXXX 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 XXXX, 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 XXXX 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 XXXX 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 XXXX and its 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.
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 XXXX to execute and deliver the
Designated Party Term Guaranty, Grantor agrees that, upon any assignment of the
Loans to XXXX pursuant to Section 1 of the Term Intercreditor Agreement, Grantor
will permit XXXX or its designees, at XXXX'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 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
XXXX 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 XXXX 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 XXXX, 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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