GUARANTY (Corporate)
Exhibit
10.02
(Corporate)
FOR
VALUE
RECEIVED, and in consideration of loans made or to be made or credit otherwise
extended or to be extended by GERBER
FINANCE INC.
(“Lender”) to or for the account of NUTRITION
21, LLC. and ICELAND HEALTH, LLC (collectively
“Borrower”) from time to time and at any time and for other good and valuable
consideration and to induce Xxxxxx, in its discretion, to make such loans or
extensions of credit and to make or grant such renewals, extensions, releases
of
collateral or relinquishments of legal rights as Lender may deem advisable,
the
undersigned (and each of them if more than one, the liability under this
Guaranty being joint and several) (jointly and severally referred to as
“Guarantor” or “the undersigned”) unconditionally guaranties to Lender, its
successors, endorsees and assigns the prompt payment when due (whether by
acceleration or otherwise) of all present and future obligations and liabilities
of any and all kinds of Borrower to Lender and of all instruments of any nature
evidencing or relating to any such obligations and liabilities upon which
Borrower or one or more parties and Borrower is or may become liable to Lender,
whether incurred by Borrower as maker, endorser, drawer, acceptor, guarantor,
accommodation party or otherwise, and whether due or to become due, secured
or
unsecured, absolute or contingent, joint or several, and however or whenever
acquired by Lender, whether arising under, out of, or in connection with that
certain Loan and Security Agreement dated as of June 30, 2007 between Lender
and
Borrower (as amended, modified, restated or supplemented from time to time,
the
“Loan Agreement”) or any documents, instruments or agreements relating to or
executed in connection with the Loan Agreement or any documents, instruments
or
agreements referred to therein (together with the Loan Agreement, as each may
be
amended, modified, restated or supplemented from time to time, the “Loan
Documents”), or otherwise (all of which are herein collectively referred to as
the “Obligations”), and irrespective of the genuineness, validity, regularity or
enforceability of such Obligations, or of any instrument evidencing any of
the
Obligations or of any collateral therefore or of the existence or extent of
such
collateral, and irrespective of the allowability, allowance or disallowance
of
any or all of the Obligations in any case commenced by or against Borrower
under
Title 11, United States Code, including, without limitation, obligations or
indebtedness of Borrower for post-petition interest, fees, costs and charges
that would have accrued or been added to the Obligations but for the
commencement of such case. In furtherance of the foregoing, the undersigned
xxxxxx agrees as follows:
1. No
Impairment.
Lender
may at any time and from time to time, either before or after the maturity
thereof, without notice to or further consent of the undersigned, extend the
time of payment of, exchange or surrender any collateral for, renew or extend
any of the Obligations or increase or decrease the interest rate thereon, and
may also make any agreement with Borrower or with any other party to or person
liable on any of the Obligations, or interested therein, for the extension,
renewal, payment, compromise, discharge or release thereof, in whole or in
part,
or for any modification of the terms thereof or of any agreement between Lender
and Borrower or any such other party or person, or make any election of rights
Lender may deem desirable
under the United States Bankruptcy Code, as amended, or any other federal or
state bankruptcy, reorganization, moratorium or insolvency law relating to
or
affecting the enforcement of creditors’ rights generally (any of the foregoing,
an “Insolvency Law”) without in any way impairing or affecting this Guaranty.
This instrument shall be effective regardless of the subsequent incorporation,
merger or consolidation of Borrower, or any change in the composition, nature,
personnel or location of Borrower and shall extend to any successor entity
to
Borrower, including a debtor in possession or the like under any Insolvency
Law.
2. Guaranty
Absolute.
The
undersigned guarantees that the Obligations will be paid strictly in accordance
with the terms of the Loan Agreement and/or any other document, instrument
or
agreement creating or evidencing the Obligations, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any
of such terms or the rights of Borrower with respect thereto. Guarantor hereby
knowingly accepts the full range of risk encompassed within a contract of
“continuing guaranty” which risk includes the possibility that Borrower will
contract additional indebtedness for which Guarantor may be liable hereunder
after Xxxxxxxx’s financial condition or ability to pay its lawful debts when
they fall due has deteriorated, whether or not Borrower has properly authorized
incurring such additional indebtedness. The undersigned acknowledges that (i)
no
oral representations, including any representations to extend credit or provide
other financial accommodations to Borrower, have been made by Lender to induce
the undersigned to enter into this Guaranty and (ii) any extension of credit
to
the Borrower shall be governed solely by the provisions of the Loan Agreement.
The liability of the undersigned under this Guaranty shall be absolute and
unconditional, in accordance with its terms, and shall remain in full force
and
effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (a) any waiver, indulgence, renewal, extension,
amendment or modification of or addition, consent or supplement to or deletion
from or any other action or inaction under or in respect of the Loan Documents
or any other instruments or agreements relating to the Obligations or any
assignment or transfer of any thereof, (b) any lack of validity or
enforceability of any Loan Document or other documents, instruments or
agreements relating to the Obligations or any assignment or transfer of any
thereof, (c) any furnishing of any additional security to Lender or its
assignees or any acceptance thereof or any release of any security by Lender
or
its assignees, (d) any limitation on any party’s liability or obligation under
the Loan Documents or any other documents, instruments or agreements relating
to
the Obligations or any assignment or transfer of any thereof or any invalidity
or unenforceability, in whole or in part, of any such document, instrument
or
agreement or any term thereof, (e) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to Borrower, or any action taken with respect to this Guaranty by
any
trustee or receiver, or by any court, in any such proceeding, whether or not
the
undersigned shall have notice or knowledge of any of the foregoing, (f) any
exchange, release or nonperfection of any collateral, or any release, or
amendment or waiver of or consent to departure from any guaranty or security,
for all or any of the Obligations or (g) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the undersigned.
Any amounts due from the undersigned to Lender shall bear interest until such
amounts are paid in full at the highest rate then applicable to the Obligations.
Obligations include post-petition interest whether or not allowed or
allowable.
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3. Waivers.
(a) This
Guaranty is a guaranty of payment and not of collection. Lender shall be under
no obligation to institute suit, exercise rights or remedies or take any other
action against Borrower or any other person liable with respect to any of the
Obligations or resort to any collateral security held by it to secure any of
the
Obligations as a condition precedent to the undersigned being obligated to
perform as agreed herein and Guarantor hereby waives any and all rights which
it
may have by statute or otherwise which would require Lender to do any of the
foregoing. Guarantor further consents and agrees that Xxxxxx shall be under
no
obligation to marshal any assets in favor of Guarantor, or against or in payment
of any or all of the Obligations. The undersigned hereby waives all suretyship
defenses and any rights to interpose any defense, counterclaim or offset of
any
nature and description which the undersigned may have or which may exist between
and among Lender, Borrower and/or the undersigned with respect to the
undersigned’s obligations under this Guaranty, or which Borrower may assert on
the underlying debt, including but not limited to failure of consideration,
breach of warranty, fraud, payment (other than cash payment in full of the
Obligations), statute of frauds, bankruptcy, infancy, statute of limitations,
accord and satisfaction, and usury.
(b) The
undersigned further waives (i) notice of the acceptance of this Guaranty, of
the
making of any such loans or extensions of credit, and of all notices and demands
of any kind to which the undersigned may be entitled, including, without
limitation, notice of adverse change in Borrower’s financial condition or of any
other fact which might materially increase the risk of the undersigned and
(ii)
presentment to or demand of payment from anyone whomsoever liable upon any
of
the Obligations, protest, notices of presentment, non-payment or protest and
notice of any sale of collateral security or any default of any
sort.
(c) Notwithstanding
any payment or payments made by the undersigned hereunder, or any setoff or
application of funds of the undersigned by Xxxxxx, the undersigned shall not
be
entitled to be subrogated to any of the rights of Lender against Borrower or
against any collateral or guarantee or right of offset held by Lender for the
payment of the Obligations, nor shall the undersigned seek or be entitled to
seek any contribution or reimbursement from Borrower in respect of payments
made
by the undersigned hereunder, until all amounts owing to Lender by Borrower
on
account of the Obligations are paid in full and the Loan Agreement has been
terminated. If, notwithstanding the foregoing, any amount shall be paid to
the
undersigned on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full and the Loan Agreement shall not
have been terminated, such amount shall be held by the undersigned in trust
for
Lender, segregated from other funds of the undersigned, and shall forthwith
upon, and in any event within two (2) business days of, receipt by the
undersigned, be turned over to Lender in the exact form received by the
undersigned (duly endorsed by the undersigned to Lender, if required), to be
applied against the Obligations, whether matured or unmatured, in such order
as
Lender may determine, subject to the provisions of the Loan Agreement. Any
and
all present and future debts and obligations of Borrower to any of the
undersigned are hereby waived and postponed in favor of, and subordinated to
the
full payment and performance of, all present and future debts and obligations
of
Borrower to Lender.
4. Security.
All
sums at any time to the credit of the undersigned and any property of the
undersigned in Lender’s possession or in the possession of any bank, financial
institution or other entity that directly or indirectly, through one or more
intermediaries, controls or is controlled
by, or is under common control with, Lender (each such entity, an “Affiliate”)
shall be deemed held by Lender or such Affiliate, as the case may be, as
security for any and all of the undersigned’s obligations to Lender and to any
Affiliate of Lender, no matter how or when arising and whether under this or
any
other instrument, agreement or otherwise.
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5. Representations
and Warranties.
The
undersigned hereby represents and warrants (all of which representations and
warranties shall survive until all Obligations are indefeasibly satisfied in
full and the Loan Agreement has been irrevocably terminated), that:
(a) Corporate
Status.
The
undersigned is a corporation duly organized, validly existing and in good
standing and has full power, authority and legal right to own its property
and
assets and to transact the business in which it is engaged.
(b) Authority
and Execution.
The
undersigned has full power, authority and legal right to execute and deliver,
and to perform its obligations under, this Guaranty and has taken all necessary
corporate and legal action to authorize the execution, delivery and performance
of this Guaranty.
(c) Legal,
Xxxxx and Binding Character.
This
Guaranty constitutes the legal, valid and binding obligation of the undersigned
enforceable in accordance with its terms, except as enforceability may be
limited by applicable Insolvency Law.
(d) Violations.
The
execution, delivery and performance of this Guaranty will not violate any
requirement of law applicable to the undersigned or any material contract,
agreement or instrument to which the undersigned is a party or by which the
undersigned or any property of the undersigned is bound or result in the
creation or imposition of any mortgage, lien or other encumbrance other than
to
Lender on any of the property or assets of the undersigned pursuant to the
provisions of any of the foregoing.
(e) Consents
or Approvals.
No
consent of any other person or entity (including, without limitation, any
creditor of the undersigned) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing
or
declaration with, any governmental authority is required in connection with
the
execution, delivery, performance, validity or enforceability of this
Guaranty.
(f) Litigation.
No
litigation, arbitration, investigation or administrative proceeding of or before
any court, arbitrator or governmental authority, bureau or agency is currently
pending or, to the best knowledge of the undersigned, threatened (i) with
respect to this Guaranty or any of the transactions contemplated by this
Guaranty or (ii) against or affecting the undersigned, or any of property or
assets of the undersigned, which, if adversely determined, would have a material
adverse effect on the business, operations, assets or condition, financial
or
otherwise, of the undersigned.
(g) Material
Adverse Change.
Since
March 31, 2007, which is the date of the undersigned’s most recent financial
statement delivered to Lender, there has been no material
adverse change in the assets or condition, financial or otherwise, of the
undersigned.
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(h) Financial
Benefit.
The
undersigned has derived or expects to derive a financial or other advantage
from
each and every loan, advance or extension of credit made under the Loan
Agreement or other Obligation incurred by Borrower to Lender.
The
foregoing representations and warranties (other than that set forth in paragraph
(g) above) shall be deemed to have been made by the undersigned on the date
of
each borrowing by Borrower under the Loan Agreement on and as of such date
of
such borrowing as though made hereunder on and as of such date.
6. Acceleration.
(a) If
any
breach of any covenant or condition or other event of default shall occur and
be
continuing under any agreement made by Borrower or the undersigned to Lender,
or
either Borrower or the undersigned should at any time become insolvent, or
make
a general assignment, or if a proceeding in or under any Insolvency Law shall
be
filed or commenced by, or in respect of, the undersigned, or if a notice of
any
lien, levy, or assessment is filed of record with respect to any assets of
the
undersigned by the United States of America or any department, agency, or
instrumentality thereof, or if any taxes or debts owing at any time or times
hereafter to any one of them becomes a lien or encumbrance upon any assets
of
the undersigned in Lender’s possession, or otherwise, any and all Obligations
shall for purposes hereof, at Lender’s option, be deemed due and payable without
notice notwithstanding that any such Obligation is not then due and payable
by
Borrower.
(b) The
undersigned will promptly notify Lender of any default by the undersigned in
the
performance or observance of any term or condition of any agreement to which
the
undersigned is a party if the effect of such default is to cause, or permit
the
holder of any obligation under such agreement to cause, such obligation to
become due prior to its stated maturity and, if such an event occurs, Lender
shall have the right to accelerate the undersigned’s obligations
hereunder.
7. Payments
from Guarantor.
Lender,
in its sole and absolute discretion, with or without notice to the undersigned,
may apply on account of the Obligations any payment from the undersigned or
any
other guarantor, or amounts realized from any security for the Obligations,
or
may deposit any and all such amounts realized in a non-interest bearing cash
collateral deposit account to be maintained as security for the
Obligations.
8. Costs.
The
undersigned shall pay on demand, all costs, fees and expenses (including
expenses for legal services of every kind) relating or incidental to the
enforcement or protection of the rights of Lender hereunder or under any of
the
Obligations.
9. No
Termination.
This is
a continuing irrevocable guaranty and shall remain in full force and effect
and
be binding upon the undersigned, and the undersigned’s successors and assigns,
until all of the Obligations have been paid in full and the Loan Agreement
has
been irrevocably terminated. If any of the present or future Obligations are
guarantied by persons, partnerships or corporations in addition to the
undersigned, the death, release or discharge in whole
or
in part or the bankruptcy, merger, consolidation, incorporation, liquidation
or
dissolution of one or more of them shall not discharge or affect the liabilities
of the undersigned under this Guaranty.
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10. Recapture.
Anything in this Guaranty to the contrary notwithstanding, if Lender receives
any payment or payments on account of the liabilities guaranteed hereby, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to
a
trustee, receiver, or any other party under any Insolvency Law, common law
or
equitable doctrine, then to the extent of any sum not finally retained by
Xxxxxx, the undersigned’s obligations to Lender shall be reinstated and this
Guaranty shall remain in full force and effect (or be reinstated) until payment
shall have been made to Lender, which payment shall be due on
demand.
11. Books
and Records.
The
books and records of Xxxxxx showing the account between Xxxxxx and Borrower
shall be admissible in evidence in any action or proceeding, shall be binding
upon the undersigned for the purpose of establishing the items therein set
forth
and shall constitute prima facie proof thereof.
12. No
Waiver.
No
failure on the part of Lender to exercise, and no delay in exercising, any
right, remedy or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise by Lender of any right, remedy or power hereunder
preclude any other or future exercise of any other legal right, remedy or power.
Each and every right, remedy and power hereby granted to Lender or allowed
it by
law or other agreement shall be cumulative and not exclusive of any other,
and
may be exercised by Lender at any time and from time to time.
13. Waiver
of Jury Trial.
THE
UNDERSIGNED DOES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO THIS
GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR
INCIDENTAL HERETO. THE UNDERSIGNED DOES HEREBY CERTIFY THAT NO REPRESENTATIVE
OR
AGENT OF XXXXXX HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD
NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION.
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14. Governing
Law; Jurisdiction; Amendments.
THIS
INSTRUMENT CANNOT BE CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED,
CONSTRUED AND INTERPRETED AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE UNDERSIGNED EXPRESSLY
CONSENTS TO THE JURISDICTION AND VENUE OF THE SUPREME COURT OF THE STATE
OF NEW
YORK, COUNTY OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH. ANY
JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST LENDER INVOLVING, DIRECTLY
OR
INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR
CONNECTED HEREWITH SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF THE STATE
OF
NEW YORK, COUNTY OF NEW YORK OR THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE UNDERSIGNED
FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS
(INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION
TO
EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE
OF
THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED
OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED
A
REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY
BE
PERMISSIBLE UNDER THE RULES OF SAID COURTS. THE UNDERSIGNED WAIVES ANY OBJECTION
TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL NOT ASSERT
ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
15. Severability.
To the
extent permitted by applicable law, any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Amendments,
Waivers.
No
amendment or waiver of any provision of this Guaranty nor consent to any
departure by the undersigned therefrom shall in any event be effective unless
the same shall be in writing executed by the undersigned and
Xxxxxx.
17. Notice.
All
notices, requests and demands to or upon the undersigned, shall be in writing
and shall be deemed to have been duly given or made (a) when delivered, if
by
hand, (b) three (3) days after being sent, postage prepaid, if by registered
or
certified mail, (c) when confirmed electronically, if by facsimile, or (d)
when
delivered, if by a recognized overnight delivery service in each event, to
the
numbers and/or address set forth beneath the signature of the
undersigned.
18. Successors.
Lender
may, from time to time, without notice to the undersigned, sell, assign,
transfer or otherwise dispose of all or any part of the Obligations and/or
rights under this Guaranty. Without limiting the generality of the foregoing,
Lender may assign, or grant participations to, one or more banks, financial
institutions or other entities all or any part of any of the Obligations. In
each such event, Lender, its Affiliates and each and every immediate and
successive purchaser, assignee, transferee or holder of all or any part of
the
Obligations shall have the right to enforce this Guaranty, by legal action
or
otherwise, for its own benefit as fully as if such purchaser, assignee,
transferee or holder were herein by name specifically given such right. Lender
shall have an unimpaired right to enforce this Guaranty for its benefit with
respect to that portion of the Obligations which Lender has not disposed of,
sold, assigned, or otherwise transferred.
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19. Release.
Nothing
except cash payment in full of the Obligations shall release the undersigned
from liability under this Guaranty.
IN
WITNESS WHEREOF, this Guaranty has been executed by the undersigned this 16th
day of July, 2007.
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NUTRITION
21, INC.
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|
By:
|
/s/
Xxxx Xxxxxxxxxx
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||
| Name: |
Xxxx
Xxxxxxxxxx
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||
|
Title:
|
Chief
Financial Officer
|
||
Address:
0 Xxxxxxxxxxxxxx Xxxx
Purchase,
NY 10577
Telephone
No.:000-000-0000
Facsimile
No.: 000-000-0000
|
STATE
OF NEW YORK
|
)
|
|
):
ss.:
|
|
|
COUNTY
OF WESTCHESTER
|
)
|
On
the
16th day of July, 2007 before me personally came Xxxx X. Xxxxxxxxxx to me known,
who being by me duly sworn, did depose and say he is the Chief Financial Officer
of Nutrition 21, Inc., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of said corporation.
|
Xxxxxxx
X. Xxxxxxxxxx
Notary
Public
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