Amendment No. 3 to LASA [3/10/98]









Exhibit

10.31




 




AMENDMENT

NO. 2 TO LOAN AND SECURITY AGREEMENT




 




 




                AMENDMENT,

dated as of June 14, 2001, by and between IVC INDUSTRIES, INC., a Delaware

corporation (“Borrower”), and CONGRESS FINANCIAL CORPORATION, a Delaware

corporation (“Lender”).




 




 




W  I  T  N  E  S  S  E

T  H :




 




 




                WHEREAS,

Lender and Borrower have entered into financing arrangements pursuant to which

Lender may make loans and advances and provide other financial accommodations

to Borrower as set forth in the Loan and Security Agreement, dated October 16,

2000, between Lender and Borrower, as amended by Amendment No. 1 to Loan and

Security Agreement, dated June 13, 2001 (as further amended hereby and as the

same may hereafter be further amended, modified, supplemented, extended,

renewed, restated or replaced, the “Loan Agreement”, and together with all

agreements, documents and instruments at any time executed and/or delivered in

connection therewith or related thereto, as from time to time amended and

supplemented, collectively, the “Financing Agreements”).




 




                WHEREAS,

Borrower has requested Lender to provide certain supplemental loans and Lender

is willing to agree to such request, subject to the terms and condi­tions

contained herein.




 




                WHEREAS,

by this Amendment No. 2, Lender and Borrower desire and intend to evidence such

amendments.




 




                NOW

THEREFORE, in consideration of the foregoing and the mutual agreements and

covenants contained herein, the parties hereto agree as follows:




 




1.                                         Definitions.




 




	

  (a)


  	

   


  	

  Additional Definitions. As used herein, the following

  terms shall have the meanings given to them below, and the Loan Agreement and

  the other Financing Agreements are hereby amended to include, in addition and

  not in limitation, the following definitions:


  





 




	

  (i)


  	

   


  	

  “Amendment No. 2” shall mean

  this Amendment No. 2 to Loan and Security Agreement by and among Lender,

  Borrower, Guarantor and International Vitamin Overseas Sales Corp., as the


  





 




 




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  same now exists or may

  hereafter be amended, modified, supplemented, extended, renewed, restated or

  replaced.


  
	

   


  	

   


  	

   


  
	

  (ii)


  	

   


  	

  “Supplemental Loan Limit”

  shall mean $350,000 through and including the Supplemental Loan Termination

  Date and zero at all times thereafter.


  
	

   


  	

   


  	

   


  
	

  (iii)


  	

   


  	

  “Supplemental Loan Termination

  Date” shall mean June 22, 2001.


  
	

   


  	

   


  	

   


  
	

  (iv)


  	

   


  	

  “Supplemental Loans” shall

  mean the loans made by Lender to or for the benefit of Borrower on a

  revolving basis (involving advances, repayments and readvances) as set forth

  in Section 2 hereof.


  





 




	

  (b)


  	

   


  	

  Amendment to Definition.  All references to the term “Loans” in the Loan Agreement shall

  be deemed and each such reference is hereby amended to include, in addition

  and not in limitation, the Supplemental Loans.


  
	

   


  	

   


  	

   


  
	

  (c)


  	

   


  	

  Interpretation.  For purposes of this Amendment No. 2, unless otherwise defined

  herein, all terms used herein, including, but not limited to, those terms

  used and/or defined in the recitals above, shall have the respective meanings

  assigned to such terms in the Loan Agreement.


  





 




2.                                       Supplemental Loans.




 




	

  (a)


  	

   


  	

  In addition to the Loans which

  may be made by Lender to Borrower pursuant to Section 2.1 of the Loan

  Agreement, upon the request of Borrower, made at any time and from time to

  time prior to the Supplemental Loan Termination Date, subject to the terms

  and conditions contained herein, in the Loan Agreement and in the other

  Financing Agreements, Lender shall make Supplemental Loans to Borrower in

  amounts in excess of the amounts otherwise available to Borrower under

  Section 2.1 of the Loan Agreement (as calculated by Lender, and subject to

  the sublimits and Reserves provided for in the Loan Agreement) up to the

  amount of the Supplemental Loan Limit. 

  Any Loans shall be deemed to constitute Supplemental Loans or Loans

  other than Supplemental Loans as Lender may from time to time determine.  Lender 


  





 




 




2





























 




	

   


  	

   


  	

  may, at its option, apply

  payments in respect of the Loans received by Lender to the Supplemental Loans

  or the Loans other than the Supplemental Loans or any of the other

  Obligations in such order and manner as Lender shall from time to time

  determine.


  
	

   


  	

   


  	

   


  
	

  (b)


  	

   


  	

  Except in Lender’s discretion,

  Borrower shall not have any right to request, and Lender shall not make, any

  Supplemental Loans in excess of the Supplemental Loan Limit as then in effect

  or at any time on or after the Supplemental Loan Termination Date.  The Supplemental Loans shall be secured by

  all Collateral.


  
	

   


  	

   


  	

   


  
	

  (c)


  	

   


  	

  Unless sooner demanded by

  Lender in accordance with terms of the Loan Agreement or the other Financing

  Agreements, all outstanding and unpaid Obligations arising pursuant to the

  Supplemental Loans (includ­ing, but not limited to, principal, interest,

  fees, costs, expenses and other charges in respect thereof payable by

  Borrower to Lender) shall automatically, without notice or demand, be

  absolutely and unconditionally due and payable and Borrower shall pay to

  Lender in cash or other immediately available funds all such Obligations on

  the Supplemental Loan Termination Date. 

  Interest shall accrue and be due, until and including the next

  business day, if the amount so paid by Borrower to the bank account

  designated by Lender for such purpose is received in such bank account after

  11:00 a.m. New York City time.


  
	

   


  	

   


  	

   


  
	

  (d)


  	

   


  	

  Borrower acknowledges and agrees

  that, notwithstanding anything to the contrary contained in the Loan

  Agreement or the other Financing Agreements, the failure of Borrower to pay

  all of the Obligations arising pursuant to the Supplemental Loans on the

  Supplemental Loan Termination Date, shall constitute an Event of Default.


  





 




3.                                       Additional Representations,

Warranties and Covenants.  Borrower

represents, warrants and covenants with and to Lender as follows, which

representations, warranties and covenants are continuing and shall survive the

execution and delivery hereof, and the truth and accuracy of, or compliance

with each, together with the representations, warranties and covenants in the

other Financing Agreements, being a continuing condition of the making of Loans

by Lender to Borrower:




 




 




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  (a)


  	

   


  	

  no Event of Default exists or

  has occurred as of the date of this Amendment No. 2 (after giving effect to

  the amendments to the Financing Agreements made by this Amendment No. 2); and


  
	

   


  	

   


  	

   


  
	

  (b)


  	

   


  	

  this Amendment No. 2 has been

  duly executed and delivered by each of Borrower, Guarantor and International

  Vitamin Overseas Sales Corp. and is in full force and effect as of the date

  hereof and the agreements and obligations of each of Borrower, Guarantor and

  International Vitamin Overseas Sales Corp. contained herein constitute legal,

  valid and binding obligations of each of Borrower, Guarantor and

  International Vitamin Overseas Sales Corp. enforceable against each of them

  in accordance with their respective terms.


  





 




4.                                       Conditions Precedent.  The effectiveness of the amendments and consents contained herein

shall be subject to the satisfaction of each of the following, in a manner

satisfactory to Lender and its counsel:




 




	

  (a)


  	

   


  	

  Lender shall have received this

  Amendment No. 2 duly authorized, executed and delivered by the parties

  hereto; and


  
	

   


  	

   


  	

   


  
	

  (b)


  	

   


  	

  no Event of Default, or event,

  act or condition which with notice or passage of time or both would

  constitute an Event of Default, shall exist or have occurred (after giving

  effect to the amendments to the Financing Agreements made by this Amendment

  No. 2).


  





 




5.                                       Effect of this Amendment.  Except as expressly set forth herein, no other amendments,

consents, changes or modifications to the Financing Agreements are intended or

implied, and in all other respects the Financing Agreements are hereby

specifically ratified, restated and confirmed by all parties hereto as of the

effective date hereof and Borrower shall not be entitled to any other or

further amendment or consent by virtue of the provisions of this Amendment No.

2 or with respect to the subject matter of this Amendment No. 2.  To the extent of conflict between the terms

of this Amendment No. 2 and the other Financing Agreements, the terms of this

Amendment No. 2 shall control.  The Loan

Agreement and this Amendment No. 2 shall be read and construed as one

agreement.




 




6.                                       Further Assurances.  The parties hereto shall execute and deliver such additional

documents and take such additional action as may be necessary or desirable to

effectuate the provisions and purposes of this Amendment No. 2.




 




 




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7.                                       Governing Law.  The validity, interpretation and enforcement of this Amendment

No. 2 and the other Financing Agreements and any dispute arising out of the

relationship between the parties hereto whether in contract, tort, equity or

otherwise, shall be governed by the internal laws of the State of New York

(without giving effect to principles of conflicts of laws).




 




8.                                       Binding Effect.  This Amendment No. 2 shall be binding upon and inure to the

benefit of each of the parties hereto and their respective successors and

assigns.




 




9.                                       Headings.  The headings listed herein are for convenience only and do not

constitute matters to be construed in interpreting this Amendment No. 2.




 




10.                                 Counterparts.  This Amendment No. 2 may be executed in any number of

counterparts, but all of such counterparts shall together constitute but one

and the same agreement.  In making proof

of this Amendment No. 2, it shall not be necessary to produce or account for

more than one counterpart thereof signed by each of the parties hereto.  Delivery of an executed counterpart of this

Amendment No. 2 by telefacsimile shall have the same force and effect as

delivery of an original executed counterpart of this Amendment No. 2.  Any party delivering an executed counterpart

of this Amendment No. 2 by telefacsimile also shall deliver an original

executed counterpart of this Amendment No. 2, but the failure to deliver an

original executed counterpart shall not affect the validity, enforceability,

and binding effect of this Amendment No. 2 as to such party or any other party.




 




 




 




 




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                IN

WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly

executed and delivered by their authorized officers as of the day and year

first above written.




 




	

   


  	

   


  	

  Very truly yours,


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  CONGRESS FINANCIAL CORPORATION


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  By:


  	

  /s/ Thomas Martin


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Title: 


  	

  Vice President


  
	

   


  	

   


  	

   


  	

   


  
	

  AGREED:


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  IVC INDUSTRIES, INC.


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  By: 

  


  	

  /s/ Thomas Bocchino


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  Title: 


  	

  Chief Financial Officer


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  HALL LABORATORIES LTD.


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  By: 

  


  	

  /s/ William Lederman


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  Title: 


  	

  President


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  INTERNATIONAL VITAMIN OVERSEAS 


     SALES

  CORP.


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  By: 


  	

  /s/ Thomas Bocchino


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  Title: 


  	

  Chief Financial Officer


  	

   


  	

   


  
						





 




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