Confidential information indicated by X's has been omitted and filed separately
with the Securities and Exchange Commission.
DESIGNATED PARTY TERM GUARANTY
REFERENCE IS HEREBY MADE to the Term Loan Agreement dated the date hereof
among IVC Industries, Inc., a Delaware corporation (the "Borrower"), the Banks
party thereto, and The Chase Manhattan Bank, as Agent. (Such term loan
agreement, as the same may hereafter be amended or supplemented from time to
time, will be called herein the "Term Loan Agreement"; provided however that the
consent of the Guarantor (as hereinafter defined) is required for certain
changes to the Term Loan Agreement, as provided in Section 5 hereof). All
capitalized terms used herein and not defined shall have the respective meanings
ascribed to them in the Term Loan Agreement, except as otherwise specified
herein.
WHEREAS, the Term Loan Agreement provides for (among other things) the
Banks to make one or more term loans to the Borrower in the aggregate principal
amount of $3,500,000; and
WHEREAS, the Loan of each Bank will be evidenced by a Term Note of the
Borrower in favor of such Bank; and
WHEREAS, although certain provisions of the Term Loan Agreement suggest
that such $3,500,000 term-loan financing may consist of more than one loan made
by more than one bank and/or that assignments of portions thereof may be made by
one bank to other banks, in fact (as provided in Section 2.12 thereof) the full
$3,500,000 term loan is being made on the Closing Date by The Chase Manhattan
Bank alone, and it is not anticipated that such loan will be hereafter assigned
in whole or in part to other banks; and for purposes of this Guaranty
(notwithstanding the definition of such terms in the Term Loan Agreement), the
term "Bank" means only Chase (as "Chase" is defined in Section 15 hereof); the
term "Note" means the promissory note of the Borrower in favor of the Bank
evidencing the Bank's $3,500,000 term loan under the Term Loan Agreement; and
the term "Loan" means the $3,500,000 term loan being made by the Bank to the
Borrower on the Closing Date under the Term Loan Agreement; and
WHEREAS, XXXXXXX, a New Jersey corporation (the "Guarantor"), expects to
obtain substantial economic benefit from the Loan to be made to the Borrower
under the Term Loan Agreement; and
WHEREAS, the execution and delivery of this guaranty by the Guarantor is
required in order to induce the Bank and the Agent to enter into the Term Loan
Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and to induce the Bank and the Agent to enter into
the Term Loan Agreement, the Guarantor hereby agrees with the Bank and the Agent
as follows:
1. The Guarantor hereby absolutely and unconditionally (except for the
condition set forth in Section 15 hereof) guarantees to the Bank and the Agent
the full and prompt payment, from time to time when the same shall become due
and payable (whether in installments, at stated maturity, upon acceleration,
upon mandatory prepayment, or otherwise), of all the obligations of the Borrower
under the Note, including the principal of and interest on the Note
(collectively, the "Obligations"). The liability of the Guarantor under this
guaranty shall expire on October 31, 1999, unless on or before such date a
demand for payment shall have been made by the Agent upon or after the
occurrence of an Event of Default.
2. (a) No demand for payment by the Guarantor under this Guaranty may be
made unless an Event of Default shall have occurred. The Guarantor shall be
obligated to make payment hereunder immediately upon receipt of such a demand in
writing from the Agent, except that if the only Event of Default that shall have
occurred is one described in clauses (ii) or (iii) of Section 10.01(a) of the
Term Loan Agreement or clause (ii) of Section 10.01(c) of the Term Loan
Agreement, then the Guarantor shall not be obligated to make such payment unless
such Event of Default continues for 30 days after such demand is made.
(b) A demand for payment under this Guaranty shall be for the full
outstanding principal balance of the Note and all accrued and unpaid interest
thereon and all other amounts due in respect thereof; and payment shall be made
by the Guarantor of the full outstanding principal balance of the Note, all
accrued and unpaid interest thereon and all other amounts due in respect of the
Note.
(c) The Guarantor further agrees with the Agent and the Bank that
the Guarantor will not prior to the payment of the Note in full refuse to sell,
or curtail, delay or condition its sales, to the Borrower of product under
normal commercial terms and conditions, as long as (x) the Borrower meets all
normal commercial terms and conditions, including not being materially past due
in its payment obligations to the Guarantor for Product purchased and (y) the
Guarantor has not been required to make payment under this Guaranty.
3. The Guarantor agrees that, as among the Guarantor, the Agent and the
Bank, the Obligations may be declared to be due and payable for purposes of this
guaranty notwithstanding any stay, injunction or other prohibition which may
prevent, delay or vitiate any such declaration as against the Borrower and that,
in the event of any such declaration (or attempted declaration), such
Obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by the Guarantor for purposes of this guaranty.
Similarly, if the Agent is legally precluded from making a demand on the
Guarantor under the Guaranty by reason of the automatic stay of the Federal
Bankruptcy Code or any other stay or injunction, the Guarantor shall be
obligated to make payment hereunder at any time as the Agent may elect on or
after the occurrence of an Event of Default, and such demand will be deemed to
have been given at such time without the necessity of an actual demand. The
Guarantor further guarantees that all payments made by the Borrower to the Agent
and the Bank of any Obligation will, when made, be final and agrees that if any
such payment is recovered from, or repaid by, the Agent or the Bank in whole or
in part in any bankruptcy, insolvency or similar proceeding instituted by or
against
the Borrower, this guaranty shall continue to be fully applicable to such
Obligation to the same extent as though the payment so recovered or repaid had
never been originally made on such Obligation.
4. This is a guaranty of payment and not of collection only.
5. The Guarantor hereby consents that from time to time, without notice to
or further consent of any Guarantor, the payment, performance or observance of
any or all of the Obligations or any and all of the other obligations of the
Borrower under the Term Loan Documents may be waived or the time of payment or
performance thereof extended or accelerated, or renewed in whole or in part, or
the terms of the Term Loan Documents or any part thereof may be changed and any
collateral therefor may be exchanged, surrendered or otherwise dealt with as the
Agent may determine, and any of the acts mentioned in the Term Loan Documents
may be done, all without affecting the liability of the Guarantor hereunder;
except that until such time as a demand is made by the Agent for payment under
this guaranty for payment in full of the Obligations, without the consent of the
Guarantor (which shall not be unreasonably withheld if the Agent requests such
consent) none of the provisions of the Term Loan Agreement or the other Term
Loan Documents as existing on the Closing Date (the "Closing Date Term Loan
Agreement" and the "Closing Date Term Loan Documents") may be affirmatively
waived or modified by the Agent and the Bank, if such waiver or modification
would (x) constitute a Restricted Change (as hereinafter defined) and (y)
materially adversely affect the Guarantor. No failure or delay on the part of
the Agent and the Bank in exercising any right or remedy shall operate as a
waiver or modification of any provision of the Closing Date Term Loan Agreement
or other Closing Date Term Loan Document. The Guarantor hereby waives
presentment of any instrument, demand of payment, protest and notice of
non-payment or protest thereof or of any exchange, sale, surrender or other
handling or disposition of such collateral, and any requirement that the Agent
or the Bank exhaust any right, power or remedy or proceed against the Borrower
under the Term Loan Documents or against any other person under any other
guaranty of, or security for, any of the Obligations. The Guarantor hereby
further waives any defense whatsoever which might constitute a defense available
to, or discharge of, the Borrower or a guarantor. As used herein, the term
"Restricted Change" means:
(i) any change in the maturity of the Loan (including without
limitation the definition of Maturity Date, beyond the possible extension
already contemplated in the definition of Maturity Date); provided,
however, that neither the acceleration of such maturity on or after the
occurrence of an Event of Default, nor the requirement of a mandatory
prepayment of the Loan pursuant to the Closing Date Term Loan Agreement,
shall constitute a Restricted Change;
(ii) any change in the time required for the payment of interest
under the Loan;
(iii) any increase in total amount of the Commitment of the Bank
above $3,500,000;
(iv) any increase in the interest rate on the Loan above that
provided for in the Closing Date Term Loan Agreement; provided however
that in no event shall the determination by the Agent of the Money Market
Rate constitute a Restricted Change, nor shall the changes contemplated in
the definition of the term "Margin" in the Closing Date Term Loan
Agreement constitute a Restricted Change;
(v) any release of the Vitamin Specialties Assets or the New
Freehold/Xxxxxx Real Estate as collateral for the Loan, unless such
release (a) consists of a discharge of the Lien as to the New
Freehold/Xxxxxx Real Estate and is effected in connection with the
mortgage refinancing or sale/leaseback arrangement described in Section
2.09 of the Term Loan Agreement and prepayment of the Loan is made in
accordance with such Section 2.09, or (b) consists of an asset sale that
is not prohibited by Section 8.07 of the Term Loan Agreement;
(vi) any release of VSC from liability under the VSC Term Guaranty;
(vii) any increase or reduction in the total amount of the Facility
A Commitments; provided however that the reasonable exercise by the agent
of its rights under the Revolving Credit Agreement (for purposes of
computing the Borrowing Base) to change the advance rate as to Eligible
Accounts and Eligible Inventory, and to revise the criteria for
eligibility of Eligible Accounts and Eligible Inventory, shall not
constitute a Restricted Change (the terms "Facility A Commitments",
"Borrowing Base", "Eligible Accounts" and "Eligible Inventory" having the
meanings ascribed to such terms in the Revolving Credit Agreement);
(viii) any shortening of the maturity of Facility A, other than an
acceleration of such maturity on or after the occurrence of an Event of
Default; and
(ix) any waiver or modification of Section 10.01(k) of the Closing
Date Term Loan Agreement.
6. This guaranty shall be a continuing guaranty, and (except as otherwise
provided in Section 5 hereof) any other guarantor and any other party liable
upon or in respect of any Obligation hereby guaranteed may be released without
affecting the liability of the Guarantor. The liability of the Guarantor
hereunder shall be and remain in effect irrespective of the validity, regularity
or enforceability of the Note or any of the other Term Loan Documents and
irrespective of any present or future law or order of any government (whether of
right or in fact and whether the Agent or any Bank shall have consented thereto)
or of any agency thereof purporting to reduce, amend, restructure or otherwise
affect any Obligation or to vary the terms of payment.
7. Subject to Section 15 hereof, the Agent or the Bank may assign its
rights and powers hereunder, with all or any of the Obligations, and, in the
event of such assignment, the assignee hereof or of such rights and powers,
shall have the same rights and remedies as if originally named herein.
8. Notice of acceptance of this guaranty and of the incurring of any and
all of the Obligations is hereby waived. This guaranty and all rights,
obligations and liabilities arising hereunder shall be governed by and construed
according to the laws of the State of New York. Unless the context otherwise
requires, all terms used herein which are defined in the Uniform Commercial Code
shall have the meanings therein stated.
9. The Guarantor agrees that, in addition to (and without limitation of)
any right of setoff, banker's lien or counterclaim the Agent or any Bank may
otherwise have, each of the Agent and the Bank shall be entitled, at its option,
to setoff and apply balances (general or special, time or demand, provisional or
final) held by it for account of such Guarantor at any of its offices in dollars
or in any other currency, against any amounts owing hereunder that are not paid
when due (regardless of whether such balances are then due to such Guarantor),
in which case it shall promptly notify such Guarantor thereof; provided however
that any failure to give such notice shall not affect the validity thereof.
10. No provision of this guaranty may be modified or waived without the
prior written consent of the Agent.
11. The Guarantor hereby expressly waives any and every right to a trial
by jury in any action on or related to this guaranty, the Obligations or the
enforcement of either or all of the same, and does further expressly waive any
and every right to interpose any counterclaim in any such action or proceeding.
12. The Guarantor agrees to reimburse the Agent and the Bank on demand for
all reasonable costs, expenses, and charges (including, without limitation,
reasonable attorneys' fees) incurred by the Agent or the Bank in connection with
any enforcement of this guaranty.
13. The rights, powers and remedies granted to the Agent and the Bank
herein shall be cumulative and in addition to any rights, powers and remedies to
which the Agent and the Bank may be entitled either by operation of law or
pursuant to the Term Loan Documents or any other document or instrument
delivered or from time to time to be delivered to the Agent or the Bank in
connection with the Term Loan Documents.
14. The Guarantor acknowledges and agrees that any payments received by
the Agent or the Bank from the Borrower, and any amount recovered by the Agent
or the Bank from the Borrower or any other guarantor of the obligations of the
Borrower (including, without limitation, the Obligations), and any amounts
realized from any collateral for the obligations of the Borrower (including,
without limitation, the Obligations), may be applied by the Agent or the Bank to
obligations of the Borrower other than the Obligations, with no resulting
reduction in the liability of the Guarantor under this Guaranty; provided
however that if the Borrower designates in writing to the Agent,
contemporaneously with its making of any payment to the Agent, that such payment
is to be applied to reduce the outstanding amount of the Obligations, and if no
Default or Event of Default exists at the time such payment is made, and if no
Default or Event of Default would result from such application of such payment,
then the Agent shall apply such payment so as to reduce the outstanding amount
of the Obligations.
15. It is a condition to the liability of the Guarantor under this
Guaranty and the Term Intercreditor Agreement that Chase (as hereinafter
defined) shall assign its interests in the Term Loan Documents to the Guarantor
against payment hereunder, pursuant to the Term Intercreditor Agreement, but
shall not sell assignments or participations in the Loan. As used herein, the
term "Chase" means The Chase Manhattan Bank and also includes any entity that is
a successor thereto and any entity that is (directly or indirectly) wholly owned
by the bank holding company that owns such bank or successor entity. Nothing
herein shall preclude assignments of the Loan to or among the entities that so
comprise Chase.
16. Any notice, consent or other communication herein required or
permitted to be given shall be in writing and may be personally served or sent
by courier service or United States mail and shall be deemed to have been given
when delivered in person or by courier service, or three days after deposit in
the United States mail (registered or certified, with postage prepaid and
properly addressed). For the purpose hereof, the addresses of the parties hereto
(until notice of a change thereof is delivered as provided in this Section)
shall be as set forth below, or, as to each party, at such other address as may
be designated by such party in a written notice to all of the other parties:
If to the Guarantor:
XXXXXXX
XXXXXXX
XXXXXXX
XXXXXXX
-- With a simultaneous copy to:
XXXXXXX
XXXXXXX
XXXXXXX
XXXXXXX
If to the Agent or the Bank:
The Chase Manhattan Bank,
as Agent
New York Agency
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
-- With a simultaneous copy to:
The Chase Manhattan Bank
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxxxx
If to the Borrower:
IVC Industries, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Mr. I. Xxxx Xxxxxxxxxx
-- With a simultaneous copy to:
IVC Industries, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Mr. E. Xxxxxx Xxxxx
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed by its proper officers this 1st day of May, 1998.
WITNESS: XXXXXXXXXXXXX
-------------------------- By: XXXXXXXXXXXXXXXXX
Name: Name:
------------------------------
Title:
----------------------------
