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GUARANTY
(Parent)
Dated: March 29, 2001
To: THE CIT GROUP/BUSINESS CREDIT, INC.
Address: 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Gentlemen:
Reference is made to that certain Financing Agreement dated of even
date herewith, as amended (herein the "Agreement") between you and each of the
Borrowers named therein (herein each a "Borrower" and collectively the
"Borrowers"). The undersigned ("Guarantor") hereby unconditionally guarantees
and agrees to be liable for the full and indefeasible payment and performance
when due of all now existing and future Obligations (as defined in the
Agreement) of the Borrowers to you, howsoever arising, whether direct or
indirect, absolute or contingent, secured or unsecured, whether arising under
the Agreement as now written or as amended or supplemented hereafter, or by
operation of law or otherwise. Further Guarantor agrees to pay to you on demand
the amount of all expenses (including reasonable attorney's fees) incurred by
you in collecting or attempting to collect any of the Obligations (as
hereinafter defined) from Guarantor. (All of the aforementioned obligations,
liabilities, expenses and interest are hereinafter collectively called the
"Obligations"). To the extent you receive payment on account of Obligations
guaranteed hereby, which payment is thereafter set aside or required to be
repaid by you in whole or in part, then, to the extent of any sum not finally
retained by you (regardless of whether such sum is recovered from you by
Guarantor, its trustee, or any other party acting for, on behalf of or through
Guarantor or its representative), Guarantor's obligation to you under this
Guaranty, as amended, modified or supplemented, shall remain in full force and
effect (or be reinstated) until Guarantor has made payment to you therefor,
which payment shall be due upon demand.
This Guaranty is executed as an inducement to you to enter into or
continue the financing arrangement under the Agreement and to make the loans,
advances, extensions of credit or financial accommodations described therein,
and is executed in consideration of your doing or having done any of the
foregoing. Guarantor agrees that any of the foregoing shall be deemed to have
been done or extended by you in consideration of and in reliance upon the
execution of this Guaranty.
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Notice of acceptance of this Guaranty, the making of loans or
advances, or the extension of credit under the Agreement, the amendment,
execution or termination of the Agreement or any other agreements in connection
therewith, and presentment, demand, protest, notice of protest, notice of
non-payment and all other notices to which Guarantor may be entitled (whether
under this Guaranty or the Agreement), and your reliance on this Guaranty are
hereby waived. Guarantor also waives notice of: changes in terms or extensions
of the time of payment, the taking and releasing of collateral or guarantees and
the settlement, compromise or release of any Obligations, and agrees that, as to
Guarantor, the amount of the Obligations shall not be diminished by any of the
foregoing. Guarantor also agrees that you need not attempt to collect any
Obligations from the Borrowers, or any other obligor or to realize upon any
collateral, but may require Guarantor to make immediate payment of Obligations
to you when due or at any time thereafter. You shall not be liable for failure
to collect Obligations or to realize upon any collateral or security therefor,
or any part thereof, or for any delay in so doing, nor shall you be under any
obligation to take any action whatsoever with regard thereto.
This Guaranty is absolute, unconditional and continuing, regardless
of the validity, regularity or enforceability of any of the Obligations or the
fact that a security interest or lien in any collateral or security therefor may
not be enforceable by you or may otherwise be subject to equities or defenses or
prior claims in favor of others or may be invalid or defective in any way and
for any reason, including any action, or failure to act, on your part. Payment
by Guarantor shall be made to you at your office from time to time on demand as
Obligations become due, and one or more successive or concurrent actions may be
brought hereon against Guarantor either in the same action or in separate
actions. In the event any claim or action, or action on any judgment, based on
this Guaranty, is made or brought against the Guarantor, Guarantor agrees not to
assert against you any set-off or counterclaim which any Borrower may have, and,
further, Guarantor agrees not to deduct, set-off, or seek to counterclaim for or
recoup, any amounts which are or may be owed by you to such Borrower, or for any
loss of contribution from any other guarantor. Furthermore, in any litigation
based on the Guaranty in which you and Guarantor shall be adverse parties,
Guarantor hereby waives trial by jury and waives the right to interpose any
defense based upon any claim of laches and waives the performance of each and
every condition precedent to which Guarantor might otherwise be entitled by law.
In the event that you bring any action or suit in any court to enforce any or
all liabilities of Guarantor hereunder, service of process may be made on
Guarantor by certified or registered mail, return receipt requested, to
Guarantor at the address for notices to the Companies (as defined in the
Agreement) pursuant to the Agreement.
All sums at any time to the credit of Guarantor and any property of
the Guarantor on which you at any time have a lien or security interest, or of
which
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you at any time have possession, shall secure payment and performance of all
Obligations and any and all other obligations of Guarantor to you under this
Guaranty. Guarantor shall have no right of subrogation, indemnification or
recourse to any Obligations or collateral or guarantees therefor, or to any
assets of any of the Guarantor.
This Guaranty may be terminated only as of any Anniversary Date (as
defined in the Agreement) and then only upon actual receipt by one of your
officers of at least ninety (90) days prior written notice of termination sent
by registered or certified mail; provided however, that Guarantor shall remain
bound hereunder, and this Guaranty shall continue in full force and effect, with
respect to any and all Obligations created or arising prior to the effective
date of such termination and with respect to any and all extensions, renewals or
modifications of said pre-existing Obligations. This is a continuing agreement
and written notice as above provided shall be the only means of termination,
notwithstanding the fact that for certain periods of time there may be no
Obligations owing to you under the Agreement. Guarantor acknowledges and agrees
that termination of this Guaranty is an Event of Default under and as defined in
the Agreement.
Your books and records showing the loan account(s) maintained under
the Agreement shall be admissible in evidence in any action or proceeding as
prima facie proof of the items therein set forth. Your monthly statements
rendered under the Agreement shall be binding upon Guarantor (whether or not
Guarantor received copies thereof) and shall constitute an account stated unless
you shall have received a written statement of the exceptions thereto within
thirty (30) days after the statement was mailed by you.
Guarantor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which it
may now or hereafter have against the Borrowers or any other person directly or
contingently liable for the Obligations guaranteed hereunder, or against or with
respect to any Borrower's property (including, without limitation, property
collateralizing its Obligations to you), arising from the existence or
performance of this Guaranty.
Guarantor consents and agrees that, without notice to or by Guarantor
and without affecting or impairing in any way the obligations or liability of
Guarantor hereunder, you may, from time to time, exercise any right or remedy
you may have with respect to the Obligations or any property securing any or all
of the Obligations or any guaranty thereof, including without limitation,
judicial foreclosure, nonjudicial foreclosure, exercise of a power of sale, and
taking a deed, assignment or transfer in lieu of foreclosure as to any such
property, and Guarantor expressly waives any defense based upon the exercise of
any such right or remedy, notwithstanding the effect thereof upon any of
Guarantor's rights, including
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without limitation, any destruction of Guarantor's right of subrogation against
any Borrower under the Agreement and any destruction of Guarantor's right of
contribution or other right against any other guarantor of any or all of the
Obligations or against any other person, whether by operation of Sections 580a,
580d or 726 of the California Code of Civil Procedure, or any comparable
provisions of the laws of any other jurisdiction, or any other statutes or rules
of law now or hereafter in effect, or otherwise. Pursuant to Section 2856 of the
California Civil Code, Guarantor waives all rights and defenses that Guarantor
may have because the Obligations are secured by real property. This means, among
other things: (a) you may collect from Guarantor without first foreclosing on
any real or personal property collateral pledged by any Borrower or any other
guarantor; and (b) if you forecloses on any real property collateral pledged by
any Borrower or any other guarantor: (i) the amount of the Obligations may be
reduced only by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price; and (ii) you may
collect from Guarantor even if you, by foreclosing on such real property
collateral, has destroyed any right Guarantor may have to collect from any
Borrower or such other guarantor. This is an unconditional and irrevocable
waiver of any rights and defenses each Guarantor may have because the
Obligations are secured by real property. These rights and defenses include, but
are not limited to, any rights or defenses based upon Section 580a, 580b, 580d,
or 726 of the California Code of Civil Procedure.
This Guaranty embodies the whole agreement of the parties and may not
be modified except in writing, and no course of dealing between you and
Guarantor shall be effective to change or modify this Guaranty. Your failure to
exercise any right hereunder shall not be construed as a waiver of the right to
exercise the same or any other right at any other time and from time to time
thereafter, and such rights shall be considered as cumulative rather than
alternative. No knowledge of any breach or other nonobservance by Guarantor of
the terms and provisions of this Guaranty shall constitute a waiver thereof, nor
a waiver of any obligations to be performed by Guarantor hereunder.
This Guaranty may be assigned by you and shall be for your benefit
and for the benefit of any of your assignees or transferees, and shall cover any
Obligations owed to you at the time of assignment or transfer as well as any and
all future Obligations, loans, advances or extensions of credit made under the
Agreement by such assignee or transferee.
This instrument is executed and given in addition to, and not in
substitution, reduction, replacement, or satisfaction of, any other endorsements
or guarantees of the Obligations, now existing or hereafter executed by
Guarantor or others in your favor.
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When used in this agreement, all pronouns shall, wherever applicable,
be deemed to include the singular and plural as well as the masculine, feminine,
and neuter genders. This agreement shall inure to the benefit of you, your
successors and assigns; shall be binding upon Guarantor and the successors and
assigns of Guarantor.
This Guaranty may be executed in any number of counterparts, each of
which when so executed shall be deemed an original and such counterparts shall
together constitute but one and the same document.
This Guaranty shall be governed by and construed in accordance with
the laws of the State of California.
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IN WITNESS WHEREOF Guarantor has executed and delivered this Guaranty
effective as of the date above set forth.
TWINLAB CORPORATION,
a Delaware corporation
By:
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Title:
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