CONTINUING GUARANTY
Exhibit 10.2
(1) FOR
VALUABLE CONSIDERATION, the receipt and sufficiency of which is
hereby acknowledged, the undersigned (hereinafter called
“Guarantor”)
unconditionally guarantees and promises to pay to Compass Bank d/b/a Commercial Billing
Service (hereinafter called “Bank”) or order in lawful money of
the United States, any and all Indebtedness of NDS Nutrition Products, Inc., a Florida
corporation and iSatori,
Inc., a Delaware corporation (jointly and severally,
hereinafter called “Seller”, whether one or more), to
Bank. The word “Indebtedness” is used herein in
its most comprehensive sense and includes (i) all indebtedness and
recourse obligations of Seller to Bank, (ii) charges, fees and
expenses assessed by Bank against the account of the Seller or
otherwise properly charged by Bank to Seller, and (iii) any and all
other obligations and liabilities of Seller (or any of them, if
more than one) to Bank, and, as to (i)-(iii) above, heretofore,
now, or hereafter existing, made, incurred or created, whether
voluntary or involuntary and arising under, pursuant to or in
connection with a factoring facility, as evidenced by a Merchant
Agreement between Seller to Bank dated as of the ___ day of
_______________, 2017, and whether due or not due, absolute or
contingent, liquidated or unliquidated, determined or undetermined,
and not limited to, but including principal, interest, cost of
collection, attorney's fees and all other lawful charges, and
whether Seller may be liable individually or jointly with others,
or whether recovery upon such Indebtedness may be or hereafter
become barred by any statute of limitations, or whether such
Indebtedness may be now or hereafter become otherwise
unenforceable. The word “Indebtedness” also shall include
(a) all interest, (b) all charges, fees and expenses assessed by
Bank (or any affiliate of Bank, as applicable) against the account
of the Seller or otherwise properly charged by Bank (or such
affiliate) to Seller, and (c) all other obligations incurred by the
Seller, and, as to (a)-(c) above, arising under any agreement
between Seller and Bank or any affiliate of Bank, whether now
existing or hereafter entered into, which provides for an interest
rate currency, equity, credit or commodity swap, cap, floor or
collar, spot or foreign currency exchange transaction, cross
currency rate swap, currency option, any combination of, or option
with respect to, any of the foregoing or similar transactions, for
the purpose of hedging the Seller’s exposure to fluctuations
in interest rates, exchange rates, currency, stock, portfolio or
loan valuations or commodity prices, excluding, however, any
Excluded Swap Obligation (as defined below). This Guaranty is a guarantee of the
Indebtedness, and not just a guarantee of the obligations of the
Seller thereunder.
As used
in this Guaranty, (i) the term “Documents” shall mean all
documents given to evidence or secure, or otherwise executed in
connection with, the Indebtedness or any portion thereof, and (ii)
the term “Excluded Swap
Obligation” shall mean any Swap Obligation (as
hereinafter defined) if, and to the extent that, all or a portion
of the guarantee by Guarantor of, or the grant by Guarantor of a
security interest to secure, such Swap Obligation (or guarantee
thereof) is or becomes illegal under the Commodity Exchange Act or
any rule, regulation or order of the Commodity Futures Trading
Commission (or the application or official interpretation of any
thereof) by virtue of Guarantor’s failure for any reason to
constitute an “eligible contract participant” as
defined in the Commodity Exchange Act and the regulations
thereunder at the time of the guarantee of Guarantor or the grant
of such security interest becomes effective with respect to such
Swap Obligation; (iii) the term "Swap Obligation" shall mean any
obligation to pay or perform under any agreement, contract or
transaction that constitutes a “swap” within the
meaning of Section 1a(47) of the Commodity Exchange Act; and (iv)
the term "Commodity Exchange Act" shall mean the Commodity Exchange
Act (7 U.S.C. § 1 et seq.), as amended from time to
time.
(2) The liability
of Guarantor shall be unlimited and shall cover all Indebtedness of
Seller (or any or all of them if more than one) to Bank. This is a
continuing guaranty relating to any Indebtedness, including
Indebtedness arising under successive transactions which shall
either continue or modify Indebtedness or from time to time renew
or modify Indebtedness after such Indebtedness has been satisfied.
Xxxxxxxxx agrees that the Indebtedness extends to and includes any
and all liability for environmental indemnities contained in the
Documents. Notwithstanding any other provision of this Guaranty,
the provisions of this paragraph shall automatically expire and be
of no further force and effect if, as and when (i) the Indebtedness
has been paid in full and the Bank has no obligation or
discretionary right to make further advances under the Documents,
(ii) such payments have become final and are not subject to being
voided or refunded under the United States bankruptcy code or other
applicable law, and (iii) such satisfaction of Indebtedness did not
result from or was not related to the Bank accepting or acquiring
title to any real property (the “Property”) covered by the
environmental indemnities referenced above, whether by foreclosure,
deed in lieu of foreclosure, or otherwise. The Guarantor agrees
that, unless the provisions of this paragraph shall automatically
expire pursuant to the provisions of the preceding sentence, the
Guarantor's guaranty of the Indebtedness with respect to the
matters set forth in this paragraph shall survive indefinitely, and
shall not be extinguished by the payment of the Indebtedness, the
exercise of any right or remedy under any of the Documents
including, but not limited to, foreclosure or the taking of a deed
in lieu of foreclosure, or any subsequent sale or transfer of such
Property.
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This
Guaranty may not be revoked with respect to (i) any outstanding
Indebtedness, or (ii) any advances, credit extensions or payments
made under any commitment, credit arrangement or other agreement
relating to any Indebtedness which permits, provides for or
obligates Bank to make advances, extensions of credit or payments
on behalf of others, including without limitation any construction
loan, line of credit, letter of credit, or advances or payments for
protection of collateral. With respect to other obligations, this
Guaranty shall remain in effect until Bank's written acknowledgment
of Bank's receipt of a written notice of revocation by Guarantor
which revocation does not attempt to revoke liability for any of
the liabilities described in the first sentence of this paragraph.
Any revocation which attempts to revoke Guarantor’s liability
for any of the liabilities described in the first sentence of this
paragraph shall be void and of no force or effect, whether or not
received, acknowledged or accepted by Bank unless Bank executes a
separate written termination of this Guaranty.. Notwithstanding
anything to the contrary contained or implied herein or in any
other document, this Guaranty may not be revoked or terminated,
other than with the prior written consent of the Bank, except upon
strict compliance with the conditions and requirements heretofore
set forth in this Section (2) . In the event any sums or other
things of value that are paid or transferred to or otherwise
received by the Bank are rescinded, recovered, required to be
returned, set aside, rendered void or otherwise adversely affected
in any legal proceeding or for any cause whatsoever, including
under any law, rule or regulation relative to bankruptcy,
insolvency, fraudulent transfers or other relief of debtors, then
this Guaranty shall continue to be effective or shall be revived
and reinstated, as necessary in order to give full effect to the
Guarantor’s liability hereunder, to the same extent as if
such payment, transfer and/or receipt had never occurred. This
Guaranty shall not release, modify, revoke or terminate any other
guaranty heretofore or hereafter executed by any other guarantor of
any or all of the Indebtedness (individually and collectively,
“Other
Guarantors”). No other guaranty heretofore or
hereafter executed by any Other Guarantors shall release, modify,
revoke or terminate this Guaranty. This Guaranty shall not release,
modify, revoke or terminate any other guaranty heretofore or
hereafter executed by the Guarantor unless this Guaranty
specifically references such other guaranty and the release,
modification, revocation or termination thereof and the same is
accepted by Bank in writing. No other guaranty heretofore or
hereafter executed by the Guarantor shall release, modify, revoke
or terminate this Guaranty unless such guaranty specifically
references this Guaranty and the release, modification, revocation
or termination thereof and the same is accepted by Bank in
writing.
(3) The
obligations of Guarantor hereunder are independent of the
obligations of Seller and of any Other Guarantors. A separate
action or actions may be brought and prosecuted against the
Guarantor whether action is brought against Seller or any Other
Guarantors or whether the Seller or any Other Guarantors are joined
in any such action or actions.
(4) It is the
intent hereof that this obligation of Guarantor shall be and remain
unaffected, (a) by the existence or non-existence, validity or
invalidity, of any pledge, assignment or conveyance given as
security; or (b) by any understanding or agreement that any other
person, firm or corporation was or is to execute this or any other
guaranty, any of the notes evidencing the Indebtedness, or any part
thereof, or any other document or instrument or was or is to
provide collateral for any Indebtedness; or (c) by resort on the
part of Bank, or failure of Bank to resort, to any other security
or remedy for the collection of said Indebtedness; or (d) by the
death, bankruptcy, insolvency, dissolution or incapacitation of any
of the Guarantor, Other Guarantors, Seller or any other person, and
in case of any such death or bankruptcy, the failure of Bank to
file a claim against the deceased Guarantor's estate or against
such bankrupt’s estate, or the failure of Bank otherwise to
seek remedies as a consequence of such events.
(5) Guarantor
authorizes Bank, without notice or demand and without affecting
Guarantor's liability hereunder, from time to time to (a) renew,
compromise, extend, accelerate, restate, consolidate, replace,
refinance or otherwise change the time for payment of, or otherwise
change the terms of, the Indebtedness or any part thereof,
including increasing or decreasing the rate of interest thereof;
(b) take and hold security for the payment of this Guaranty or any
of the Indebtedness and/or exchange, modify, enforce, waive and
release any such security; (c) apply such security and direct the
order or manner of sale thereof as Bank in its discretion may
determine; and/or (d) release or substitute the Seller, any of the
Other Guarantors and any other obligors or endorsers of all or any
part of the Indebtedness.
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(6) Guarantor
waives any right to require Bank (a) to proceed against the Seller
or Other Guarantors; (b) to protect, preserve, proceed against or
exhaust any security held from Seller; or (c) to pursue any other
remedy in Bank's power whatsoever. Guarantor waives any defense
arising by reason of any disability or other defense of the Seller,
Guarantor, or Other Guarantors (including any defense based on or
arising out of the unenforceability of any part of the Indebtedness
for any cause whatsoever), or by reason of the cessation from any
cause whatsoever of the liability of the Seller, Guarantor or Other
Guarantors. Until all Indebtedness shall have been paid in full,
Guarantor shall not have any rights of subrogation, reimbursement,
contribution or indemnity or any right of recourse to any assets or
properties of the Seller or any of the Other Guarantors, and
Guarantor waives (i) all such rights, if any, of subrogation,
reimbursement, contribution, indemnity and recourse, (ii) any right
to enforce any remedy which Bank now has or may hereafter have
against the Seller or any Other Guarantor, and (iii) any benefit
of, and any right of recourse to or to participate in any security
now or hereafter held by Bank or otherwise constituting collateral
for any Indebtedness. Guarantor waives all presentments, demands
for performance, notices of nonperformance, notice of acceleration,
notice of intent to accelerate, protests, notices of protest,
notices of dishonor, and notices of acceptance of this Guaranty and
of the existence, creation, or incurrence of new or additional
Indebtedness, and waives any rights of defenses based, in whole or
in part, upon an offset by Guarantor, Seller or Other Guarantors
against any obligation or Indebtedness now or hereafter owed to the
Seller, Guarantor or Other Guarantors (including to Guarantor by
Seller). Guarantor waives the benefit of any statute of limitations
or other defenses affecting Seller's liability for the Indebtedness
or the enforcement thereof or such Guarantor's liability hereunder
or the enforcement thereof, and Guarantor further agrees that any
payment by Seller or other circumstances that operate to toll any
statute of limitations as to the Seller shall operate to toll the
statute of limitations as to Guarantor. Guarantor waives any rights
to exemption under the constitution of the State of Alabama or any
other state as to any Indebtedness or obligation created
hereunder.
(7) In
addition to all liens upon, and rights of setoff against, moneys,
securities or other property of the Guarantor given to Bank by law,
Bank shall have and hereby is granted a lien upon, security
interest in and a right of setoff against all moneys, securities
and other property of the Guarantor now or hereafter in the
possession of or on deposit with Bank, whether held in a general or
special account or deposit, or for safekeeping or otherwise; and
every such lien, security interest and right of setoff may be
exercised without demand upon or notice to Guarantor or any Other
Guarantor. No lien, security interest or right of setoff shall be
deemed to have been waived by any act or conduct on the part of
Bank, or by any failure to exercise such right of setoff or to
enforce such lien or security interest, or by any delay in so
doing, and every right of setoff and lien shall continue in full
force and effect until such right of setoff or lien specifically is
waived or released in a written instrument executed by
Bank.
(8) Any
indebtedness of Seller to Guarantor, whether now existing,
hereafter arising, secured or unsecured, and if secured, the
security for same, hereby is subordinated to the Indebtedness; and
such subordinated indebtedness, if Bank so requests, shall be
collected, enforced and received by Guarantor as trustee for Bank
and be paid over to Bank on account of the Indebtedness but without
reducing or affecting in any manner the liability of any Guarantor
under this Guaranty.
(9) Where the
Guarantor or Seller is a corporation, partnership, joint venture,
trust, limited liability company, business organization or
enterprise, it shall not be necessary for Bank to inquire into the
power or authority of Seller or Guarantor or the officers,
directors, partners, trustees or agents or purporting to act on
their behalf.
(10) Guarantor
shall pay attorney's fees and all other costs and expenses which
are incurred by Bank in the enforcement of this
Guaranty.
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(11) No right,
privilege, remedy or power of Bank hereunder shall be deemed to
have been waived by any act or conduct or failure or delay to act
on the part of the Bank or any of its agents, employees or
representatives; and the terms and provisions hereof may not be
waived, altered, modified, or amended except in writing duly signed
by a duly authorized officer of the Bank. In the event that Bank
shall waive in writing any provision or requirement hereunder, such
waiver shall be effective only for the specific purposes,
circumstances and duration stated in said waiver. Bank may without
notice assign this Guaranty in whole or in part and each reference
herein to Bank shall be deemed to include its successors and
assigns. The provisions of this Guaranty are binding upon the
Guarantor and the heirs, distributees, executors, administrators,
legal representatives, personal representatives, successors and
assigns thereof and shall inure to the benefit of the Bank and each
of its successors and assigns. THIS
GUARANTY AND THE RIGHTS AND OBLIGATIONS OF GUARANTOR AND BANK
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ALABAMA. Guarantor acknowledges that
any cause of action arising under this Guaranty will be a cause of
action arising from an Alabama transaction and that the
Indebtedness is owing to a banking organization under Alabama law
or that has its principal place of business in Alabama, that it is
foreseeable that this Guaranty and the performance hereof have and
will have significant effects in the State of Alabama, and that
Guarantor's execution of this Guaranty will subject Guarantor to
judicial jurisdiction in the State of Alabama. If any of the
provisions of this Guaranty or the application thereof to any
person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of the provisions of this Guaranty, or
the application of such provision or provisions to persons or
circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected thereby, and every
provision of this Guaranty shall be valid and enforceable to the
fullest extent permitted by law. Except as expressly set forth in
this Guaranty, this Guaranty is the entire agreement of the
Guarantor and the Bank with respect to the guarantee of the
Indebtedness by the Guarantor and no representation, understanding,
promise or condition concerning the subject matter hereof shall be
binding upon the Bank unless expressed herein. Any notice by
Guarantor to Bank shall be effective only upon the actual receipt
thereof by the General Counsel of Bank at Bank’s office in
Decatur, Alabama.
(12) Guarantor
hereby irrevocably submits to the exclusive jurisdiction of the
State of Alabama and the United States District Court located in
Birmingham, Alabama, and waives any objection it might have to the
laying of venue of any suit, action or proceedings related to this
Guaranty (“Proceedings”) brought in any such court,
waives any claim that such Proceedings have been brought in an
inconvenient forum, and waives the right to object, with respect to
such Proceedings, that such court does not have any jurisdiction
over Guarantor.
(13) BANK
AND GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVE ANY RIGHTS THEY MAY
HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS GUARANTY, THE
LOAN, ANY MORTGAGE, ALL OTHER DOCUMENTS GIVEN TO EVIDENCE OR SECURE
THE LOAN, OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENTS
RELATED THERETO (WHETHER VERBAL OR WRITTEN).
(14) This
Guaranty is given under the seal of all parties hereto, and it is
intended that this Guaranty is and shall constitute and have the
effect of a sealed instrument according to law.
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[Signature page follows]
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IN WITNESS WHEREOF, the undersigned Guarantor has executed
this Guaranty effective the ______ day of
_________________________, 2017.
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Address:
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STATE
OF
COUNTY
OF
I,________________,
a notary public in and for said county in said state, hereby
certify that ________________
, whose name as ________________
of FitLife Brands, Inc., a Nevada corporation, is signed to the
foregoing instrument and who is known to me, acknowledged before me
on this day that, being informed of the contents of such
instrument, he, as such and with full authority,
executed the same voluntarily for and as the act of said
corporation.
Given
under my hand and official seal this day
of , 2017.
________________________________
Notary Public
[Notorial Seal]
My Commission
Expires: _________________________
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