IVOSC/HALL (CANADA) TERM GUARANTY
REFERENCE IS HEREBY MADE to the Term Loan Agreement dated the date
hereof (which, as the same may hereafter be amended from time to time, will be
called herein the "Term Loan Agreement") among IVC Industries, Inc., a Delaware
corporation (the "Borrower"), the Banks party thereto, and The Chase Manhattan
Bank, as Agent. All capitalized terms used herein and not defined shall have the
respective meanings ascribed to them in the Term Loan Agreement.
WHEREAS, the Term Loan Agreement provides for the extension of
credit by the Banks to the Borrower; and
WHEREAS, all the obligations and liabilities (whether now existing
or hereafter arising) of the Borrower to any or all of the Agent and the Banks
under the Term Loan Agreement or any of the other Term Loan Documents (whether
for principal, interest, fees, reimbursement obligations, indemnification
obligations, costs of enforcement or otherwise) will be called herein the
"Obligations"; and
WHEREAS, each of the undersigned (each, a "Guarantor") expects to
obtain substantial economic benefit from the extension of credit by the Banks to
the Borrower under the Term Loan Agreement; and
WHEREAS, the execution and delivery of this guaranty by the
Guarantors is required in order to induce the Banks 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 Banks and the
Agent to enter into the Term Loan Agreement, the Guarantors hereby jointly and
severally agree with the Banks and the Agent as follows:
1. The Guarantors hereby absolutely, unconditionally, jointly and
severally guarantee to the Agent and the Banks that the Borrower will promptly
pay, perform and observe all the Obligations, and that all sums stated to be
payable in, or which become payable under, the Term Loan Documents by the
Borrower will be promptly paid in full when due, whether at stated maturity or
earlier by reason of acceleration or otherwise, and, in the case of one or more
extensions of time of payment or performance or renewals of any Obligation, that
the same will be promptly paid or performed (as the case may be) when due
according to such extension or renewal, whether at stated maturity or earlier by
reason of acceleration or otherwise, irrespective of the validity, regularity,
or enforceability of any of the 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 of the Borrower or other obligor or to vary the terms of payment;
provided, however, that the liability of any Guarantor hereunder with respect to
the Obligations shall not exceed at any time 90% of Adjusted Net Worth (as
hereinafter defined) of such Guarantor. The term "Adjusted Net Worth" of a
Guarantor means the
current Net Worth of such Guarantor, plus (as and when Net Worth increases) any
increase in such amount of Net Worth after the date hereof (without any decrease
for any reduction after the date hereof in current Net Worth as so increased).
The term "Net Worth" of a Guarantor means the amount of all assets of such
Guarantor, at a fair valuation, less the total liabilities of such Guarantor
(including contingent liabilities other than the liabilities of such Guarantor
under this guaranty).
2. The Guarantors agree that, as among the Guarantors, the Agent and
the Banks, 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 Guarantors for purposes of this guaranty. The
Guarantors further guarantee that all payments made by the Borrower to the Agent
and the Banks of any Obligation will, when made, be final and agree that if any
such payment is recovered from, or repaid by, the Agent or any 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.
3. This is a guaranty of payment and not of collection only.
4. The Guarantors hereby consent 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 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 any Guarantor
hereunder. The Guarantors hereby waive 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 any 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 Guarantors hereby further waive any defense whatsoever which
might constitute a defense available to, or discharge of, the Borrower or a
guarantor. No payment by any Guarantor pursuant to any provision hereunder shall
entitle such Guarantor, by subrogation to the rights of the Agent or any Bank or
otherwise, to any payment by the Borrower (or out of the property of the
Borrower) except after payment in full of all sums (including interest, costs
and expenses) which may be or become payable by the Borrower to the Agent and
the Banks at any time or from time to time; provided, however, if any Guarantor
is an "insider" of the Borrower, as such term is
defined in Section 101 of the Federal Bankruptcy Code, such Guarantor hereby
irrevocably waives any and all rights to which it may be entitled, by operation
of law or otherwise, upon making any payment hereunder to be subrogated to the
rights of the Agent and the Banks against the Borrower with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated by the Borrower
in respect thereof.
5. This guaranty shall be a continuing guaranty, and 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 any
Guarantor. The liability of the Guarantors hereunder shall be joint and several
with each other and joint and several with the liability of any other guarantor
or other party upon or in respect of the Obligations.
6. The Agent or any 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.
7. Notice of acceptance of this guaranty and of the incurring of any
and all of the Obligations of the Borrower pursuant to the Term Loan Documents
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.
8. Each Guarantor represents and warrants that:
a) The present fair saleable value of the assets of the
Guarantor after giving effect to all the transactions contemplated by the Term
Loan Documents (including this guaranty) and the funding of all Commitments
exceeds the amount that will be required to be paid on or in respect of the
existing debts and other liabilities (including contingent liabilities) of the
Guarantor as they mature.
b) The property of the Guarantor does not constitute
unreasonably small capital for the Guarantor to carry out its business as now
conducted and as proposed to be conducted including the capital needs of the
Guarantor.
c) The Guarantor does not intend to, nor does it believe that
it will, incur debts beyond its ability to pay such debts as they mature (taking
into account the timing and amounts of cash to be received by the Guarantor, and
of amounts to be payable on or in respect of debt of the Guarantor). The cash
available to the Guarantor after taking into account all other anticipated uses
of the cash of the Guarantor, is anticipated to be sufficient to pay all such
amounts on or in respect of debt of the Guarantor when such amounts are required
to be paid.
d) The Guarantor does not believe that final judgments against
it in actions for money damages will be rendered at a time when, or in an amount
such that, the Guarantor will be unable to satisfy any such judgments promptly
in accordance with their terms (taking into account the maximum reasonable
amount of such judgments in any such actions and the earliest reasonable time at
which such judgments might be rendered). The cash available to the Borrower
after taking into account all other anticipated uses of the cash of the Borrower
(including the payments on or in respect of debt referred to in paragraph (c) of
this Section), is anticipated to be sufficient to pay all such judgments
promptly in accordance with their terms.
9. Each 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 each 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 and the Required Banks.
11. Each Guarantor hereby irrevocably submits to the jurisdiction of
any New York State court or Federal court sitting in New York City and any New
Jersey State court or Federal court sitting in New Jersey in any action or
proceeding arising out of or relating to this guaranty, and each Guarantor
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State or New Jersey
State or Federal court. Each Guarantor irrevocably consents to the service of
any and all process in any such action or proceeding by the mailing of copies of
such process to such Guarantor at its address specified on the signature page
hereof. Each Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
paragraph shall affect the rights of the Agent and the Banks to serve legal
process in any other manner permitted by law or affect the rights of the Agent
and the Banks to bring any action or proceeding against such Guarantor or any of
its property in the courts of any other jurisdiction. To the extent that a
Guarantor has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether from service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, such Guarantor hereby irrevocably waives such
immunity in respect of its Obligations under this guaranty. Each 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 Guarantors agree to reimburse the Agent and the Banks on
demand for all reasonable costs, expenses, and charges (including, without
limitation, reasonable attorneys' fees) incurred by the Agent or the Banks in
connection with any enforcement of this guaranty.
13. The rights, powers and remedies granted to the Agent and the
Banks herein shall be cumulative and in addition to any rights, powers and
remedies to which the Agent and the Banks 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 any Bank in
connection with the Term Loan Documents.
This Guaranty is not intended to be assigned to the Designated Party
in the event that the Term Note and the other Term Loan Documents are assigned
to the Designated Party upon a payment under the Designated Party Term Guaranty.
Instead, upon any such assignment to the Designated Party of the Term Note and
other Term Loan Documents, this Guaranty shall become void and of no further
force or effect.
IN WITNESS WHEREOF, the Guarantors have caused this instrument to be
duly executed by their proper officers this 1 day of May, 1998.
WITNESS: HALL LABORATORIES, LTD.
/s/ X. Xxxx By:/s/ X.X. Xxxxxxxxx
----------------------------------- -----------------------------------
Name: Name:
------------------------------ ------------------------------
Title:
-----------------------------
Address of Guarantor:
00000 00xx Xxxxxx #000
Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
WITNESS: INTERNATIONAL VITAMIN OVERSEAS
SALES CORP.
By:
----------------------------------- -----------------------------------
Name: Name:
------------------------------ ------------------------------
Title:
-----------------------------
Address of Guarantor:
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
IN WITNESS WHEREOF, the Guarantors have caused this instrument to be
duly executed by their proper officers this 1 day of May, 1998.
WITNESS: HALL LABORATORIES, LTD.
By:
----------------------------------- -----------------------------------
Name: Name:
------------------------------ ------------------------------
Title:
-----------------------------
Address of Guarantor:
00000 00xx Xxxxxx #000
Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
WITNESS: INTERNATIONAL VITAMIN OVERSEAS
SALES CORP.
/s/ Xxxxx X. Xxxxxxxx By: /s/ I. Xxxx Xxxxxxxxxx
----------------------------------- -----------------------------------
Name: Name:
------------------------------ ------------------------------
Title:
-----------------------------
Address of Guarantor:
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
