Exhibit
10.03
GUARANTY
(Corporate)
New
York, New York June
30, 2007
FOR
VALUE RECEIVED, and in consideration of loans made or to be
made or credit otherwise extended or to be extended by
GERBER FINANCE INC. (“Lender”)
to or for the account of
NUTRITION 21, INC. and ICELAND HEALTH, INC.
(collectively
“Borrower”) from time to time and at any time and for
other good and valuable consideration and to induce Lender, in its
discretion, to make such loans or extensions of credit and to make
or grant such renewals, extensions, releases of collateral or
relinquishments of legal rights as Lender may deem advisable, the
undersigned (and each of them if more than one, the liability under
this Guaranty being joint and several) (jointly and severally
referred to as “Guarantor” or “the
undersigned”) unconditionally guaranties to Lender, its
successors, endorsees and assigns the prompt payment when due
(whether by acceleration or otherwise) of all present and future
obligations and liabilities of any and all kinds of Borrower to
Lender and of all instruments of any nature evidencing or relating
to any such obligations and liabilities upon which Borrower or one
or more parties and Borrower is or may become liable to Lender,
whether incurred by Borrower as maker, endorser, drawer, acceptor,
guarantor, accommodation party or otherwise, and whether due or to
become due, secured or unsecured, absolute or contingent, joint or
several, and however or whenever acquired by Lender, whether
arising under, out of, or in connection with that certain Loan and
Security Agreement dated as of June 30, 2007 between Lender and
Borrower (as amended, modified, restated or supplemented from time
to time, the “Loan Agreement”) or any documents,
instruments or agreements relating to or executed in connection
with the Loan Agreement or any documents, instruments or agreements
referred to therein (together with the Loan Agreement, as each may
be amended, modified, restated or supplemented from time to time,
the “Loan Documents”), or otherwise (all of which are
herein collectively referred to as the “Obligations”),
and irrespective of the genuineness, validity, regularity or
enforceability of such Obligations, or of any instrument evidencing
any of the Obligations or of any collateral therefore or of the
existence or extent of such collateral, and irrespective of the
allowability, allowance or disallowance of any or all of the
Obligations in any case commenced by or against Borrower under
Title 11, United States Code, including, without limitation,
obligations or indebtedness of Borrower for post-petition interest,
fees, costs and charges that would have accrued or been added to
the Obligations but for the commencement of such case. In
furtherance of the foregoing, the undersigned hereby agrees as
follows:
1
.
No Impairment .
Lender may at any time and from time to time, either before or
after the maturity thereof, without notice to or further consent of
the undersigned, extend the time of payment of, exchange or
surrender any collateral for, renew or extend any of the
Obligations or increase or decrease the interest rate thereon, and
may also make any agreement with Borrower or with any other party
to or person liable on any of the Obligations, or interested
therein, for the extension, renewal, payment, compromise, discharge
or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between Lender and Borrower
or any such other party or person, or make any election of rights
Lender may deem desirable
under the United States Bankruptcy Code, as amended, or any other
federal or state bankruptcy, reorganization, moratorium or
insolvency law relating to or affecting the enforcement of
creditors’ rights generally (any of the foregoing, an
“Insolvency Law”) without in any way impairing or
affecting this Guaranty. This instrument shall be effective
regardless of the subsequent incorporation, merger or consolidation
of Borrower, or any change in the composition, nature, personnel or
location of Borrower and shall extend to any successor entity to
Borrower, including a debtor in possession or the like under any
Insolvency Law.
2
.
Guaranty Absolute .
The undersigned guarantees that the Obligations will be paid
strictly in accordance with the terms of the Loan Agreement and/or
any other document, instrument or agreement creating or evidencing
the Obligations, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms
or the rights of Borrower with respect thereto. Guarantor hereby
knowingly accepts the full range of risk encompassed within a
contract of “continuing guaranty” which risk includes
the possibility that Borrower will contract additional indebtedness
for which Guarantor may be liable hereunder after Borrower’s
financial condition or ability to pay its lawful debts when they
fall due has deteriorated, whether or not Borrower has properly
authorized incurring such additional indebtedness. The undersigned
acknowledges that (i) no oral representations, including any
representations to extend credit or provide other financial
accommodations to Borrower, have been made by Lender to induce the
undersigned to enter into this Guaranty and (ii) any extension of
credit to the Borrower shall be governed solely by the provisions
of the Loan Agreement. The liability of the undersigned under this
Guaranty shall be absolute and unconditional, in accordance with
its terms, and shall remain in full force and effect without regard
to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or
supplement to or deletion from or any other action or inaction
under or in respect of the Loan Documents or any other instruments
or agreements relating to the Obligations or any assignment or
transfer of any thereof, (b) any lack of validity or enforceability
of any Loan Document or other documents, instruments or agreements
relating to the Obligations or any assignment or transfer of any
thereof, (c) any furnishing of any additional security to Lender or
its assignees or any acceptance thereof or any release of any
security by Lender or its assignees, (d) any limitation on any
party’s liability or obligation under the Loan Documents or
any other documents, instruments or agreements relating to the
Obligations or any assignment or transfer of any thereof or any
invalidity or unenforceability, in whole or in part, of any such
document, instrument or agreement or any term thereof, (e) any
bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to
Borrower, or any action taken with respect to this Guaranty by any
trustee or receiver, or by any court, in any such proceeding,
whether or not the undersigned shall have notice or knowledge of
any of the foregoing, (f) any exchange, release or nonperfection of
any collateral, or any release, or amendment or waiver of or
consent to departure from any guaranty or security, for all or any
of the Obligations or (g) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the
undersigned. Any amounts due from the undersigned to Lender shall
bear interest until such amounts are paid in full at the highest
rate then applicable to the Obligations. Obligations include
post-petition interest whether or not allowed or
allowable.
3
.
Waivers .
( a
)
This
Guaranty is a guaranty of payment and not of collection. Lender
shall be under no obligation to institute suit, exercise rights or
remedies or take any other action against Borrower or any other
person liable with respect to any of the Obligations or resort to
any collateral security held by it to secure any of the Obligations
as a condition precedent to the undersigned being obligated to
perform as agreed herein and Guarantor hereby waives any and all
rights which it may have by statute or otherwise which would
require Lender to do any of the foregoing. Guarantor further
consents and agrees that Lender shall be under no obligation to
marshal any assets in favor of Guarantor, or against or in payment
of any or all of the Obligations. The undersigned hereby waives all
suretyship defenses and any rights to interpose any defense,
counterclaim or offset of any nature and description which the
undersigned may have or which may exist between and among Lender,
Borrower and/or the undersigned with respect to the
undersigned’s obligations under this Guaranty, or which
Borrower may assert on the underlying debt, including but not
limited to failure of consideration, breach of warranty, fraud,
payment (other than cash payment in full of the Obligations),
statute of frauds, bankruptcy, infancy, statute of limitations,
accord and satisfaction, and usury.
(
b
)
The
undersigned further waives (i) notice of the acceptance of
this Guaranty, of the making of any such loans or extensions
of credit, and of all notices and demands of any kind to which
the undersigned may be entitled, including, without
limitation, notice of adverse change in Borrower’s
financial condition or of any other fact which might
materially increase the risk of the undersigned and (ii)
presentment to or demand of payment from anyone whomsoever
liable upon any of the Obligations, protest, notices of
presentment, non-payment or protest and notice of any sale of
collateral security or any default of any sort.
(
c
)
Notwithstanding
any payment or payments made by the undersigned hereunder, or
any setoff or application of funds of the undersigned by
Lender, the undersigned shall not be entitled to be subrogated
to any of the rights of Lender against Borrower or against any
collateral or guarantee or right of offset held by Lender for
the payment of the Obligations, nor shall the undersigned seek
or be entitled to seek any contribution or reimbursement from
Borrower in respect of payments made by the undersigned
hereunder, until all amounts owing to Lender by Borrower on
account of the Obligations
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