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GUARANTY
(BLECHMANS)
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, as Agent, and each of
Twin Laboratories Inc., a Utah corporation ("TLI"), Advanced Research Press,
Inc., a New York corporation ("ARP"), Changes International, Inc., a Florida
corporation ("CII"), PR Nutrition, Inc., a California corporation ("PR
Nutrition"), Health Factors International, Inc., a Delaware corporation ("HFI")
and Xxxxxxx Laboratories, Inc., a Delaware corporation ("Xxxxxxx", and
individually a "Company" and collectively with TLI, ARP, CII, PR Nutrition and
HFI, the "Companies"). Each of the undersigned (each a "Guarantor" and
collectively "Guarantors") hereby unconditionally jointly and severally
guarantees and agrees to be liable for the full and indefeasible payment and
performance when due of $15,000,000 of the now existing and future Obligations
(as defined in the Agreement) of the Companies, plus all costs of collection and
enforcement hereof and of the Security Agreement (as hereinafter defined) (the
"Guaranteed 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
any Guarantor, its trustee, or any other party acting for, on behalf of or
through any Guarantor or its representative), the Guarantors' obligation to you
under this Guaranty, as amended, modified or supplemented, shall remain in full
force and effect (or be reinstated) until the Guarantors have 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. Each of the Guarantors agrees that any of the foregoing shall be
deemed to have been done or
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extended by you in consideration of and in reliance upon the execution of this
Guaranty.
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 the Guarantors may be entitled under this Guaranty,
and your reliance on this Guaranty are hereby waived. Each of the Guarantors
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 agree that the amount of the
Guaranteed Obligations shall not be diminished by any of the foregoing. 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; provided that, notwithstanding anything to the contrary
contained herein, your rights hereunder shall be subject to the Enforcement
Conditions. "Enforcement Conditions" shall mean: (i) that recourse hereunder
shall be limited to the Collateral under and as defined in that certain Security
Agreement - Securities Pledge, dated of even date herewith, between you and
Guarantors (the "Security Agreement"), other than for any breach by a Guarantor
of the terms and conditions of the Security Agreement as to which such Guarantor
shall have full, unlimited personal liability; and (ii) that the Guaranteed
Obligations shall be due and payable in full, and enforceable against each
Guarantor (subject to the foregoing clause (i)) only upon the occurrence of an
Event of Default under and as defined in the Security Agreement.
Subject to the Enforcement Conditions, 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 the Guarantors shall be made
to you at your office from time to time on demand if and when the Guaranteed
Obligations become due pursuant to the Enforcement Conditions. Subject to the
Enforcement Conditions, in the event any claim or action, or action on any
judgment, based on this Guaranty, is made or brought against the Guarantors,
each of the Guarantors agrees not to assert against you any set-off or
counterclaim which the other Guarantors may have, and, further, each of the
Guarantors 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 Guarantor, or for any loss
of contribution from any other guarantor. Furthermore, in any litigation based
on the Guaranty in which you and any of the Guarantors shall be adverse parties,
the
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Guarantors hereby waive trial by jury and waive any claim of laches and waive
the performance of each and every condition precedent to which the Guarantors
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 the Guarantors hereunder,
service of process may be made on the Guarantors by certified or registered
mail, return receipt requested, at the address for notices to the Companies (as
defined in the Agreement) pursuant to the Agreement.
This Guaranty may be terminated as to any one of the Guarantors 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 any of the Guarantors so terminating this Guaranty shall remain bound
hereunder, and (subject to the limitation of the amount of the Guaranteed
Obligations set forth in second sentence of this Guaranty) 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. Termination as to any one of the Guarantors shall not
affect the obligations of any of the other Guarantors, nor relieve the one
giving such notice from liability for any post termination collection expenses
or interest. 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. Guarantors acknowledge and agree that termination of this Guaranty
other than pursuant to the following sentence is an Event of Default under and
as defined in the Agreement. Anything in this Guaranty to the contrary
notwithstanding, this Guaranty shall terminate and be of no force and effect
upon delivery to you of one or more letters of credit aggregating $15,000,000 in
compliance with the terms of the Blechmans Agreement Regarding Letters of Credit
(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 the Guarantors (whether or not the
Guarantors 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.
Each of the Guarantors agrees that any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which it
may now or hereafter have against any other Guarantor, the Companies or any
other person directly or contingently liable for the Obligations guaranteed
hereunder, or against or
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with respect to any Company's property (including, without limitation, property
collateralizing its Obligations to you), arising from the existence or
performance of this Guaranty are subject to that certain Intercreditor
Agreement, dated of even date herewith, between Guarantors and you (the
"Intercreditor Agreement").
Each of the Guarantors consents and agrees that, without notice to or by
such Guarantor and without affecting or impairing in any way the obligations or
liability of such 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 each Guarantor expressly waives any defense based
upon the exercise of any such right or remedy, notwithstanding the effect
thereof upon any of such Guarantor's rights, including without limitation, any
destruction of Guarantor's right of subrogation against any Borrower under the
Agreement and any destruction of such 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,
each Guarantor waives all rights and defenses that such Guarantor may have
because the Obligations are secured by real property. This means, among other
things: (a) you may collect from any 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 such Guarantor even if you, by foreclosing on such real property
collateral, has destroyed any right such 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, together with the other Loan Documents (as defined in the
Agreement), embodies the whole agreement of the parties and may not be modified
except in writing, and no course of dealing between you and any of the
Guarantors 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
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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 any of the Guarantors of the terms and
provisions of this Guaranty shall constitute a waiver thereof, nor a waiver of
any obligations to be performed by the Guarantors 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.
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 any or
all of the Guarantors or others in your favor.
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 jointly and severally upon the
Guarantors and upon the respective heirs, executors, administrators, successors
and assigns of each of the Guarantors.
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 the Guarantors have executed and delivered this
Guaranty effective as of the date above set forth.
______________________________
XXXX XXXXXXXX
______________________________
XXXX XXXXXXXX
[EACH GUARANTOR SIGNATURE TO BE NOTARIZED]
STATE OF )
)
COUNTY OF )
On _________, 2001, before me, the undersigned, a notary public in and for said
State, personally appeared known to me to be Xx. Xxxx Xxxxxxxx and Xx. Xxxx
Xxxxxxxx who executed the within instrument.
WITNESS MY HAND AND OFFICIAL SEAL.
NOTARY PUBLIC
ACCEPTED AND AGREED:
THE CIT GROUP/ BUSINESS CREDIT, INC.
By____________________________
Title:________________________
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