Blueprint





 






EXHIBIT
10.2


 


GUARANTEE AND
PLEDGE AGREEMENT

 


This
GUARANTEE AND PLEDGE AGREEMENT, dated as of March 29, 2019 (as
amended, restated, amended and restated, supplemented or otherwise
modified from time to time, this “Guarantee”), is made by
New Age Health Sciences, Inc., NABC Properties, LLC, NABC, Inc.,
Morinda Holdings, Inc., Morinda, Inc., Tropical Resources, Inc.,
Morinda USA, Inc., Morinda Worldwide, Inc. and Morinda Japan GK
(together with any additional Persons named pursuant to Section 6.5
below, each a “Guarantor” and
collectively the “Guarantors”), in favor of
East West Bank, a Delaware corporation (together with its
Affiliates, successors, transferees and assignees,
“Bank”).

 


W I T N E S S E T H:

 


WHEREAS, pursuant
to the Loan and Security Agreement, dated as of March 29, 2019 (as
amended, restated, supplemented or otherwise modified from time to
time, the “Loan
Agreement”), by and between New Age Beverages
Corporation, a Washington corporation (“Borrower”) and Bank, Bank
has extended a Commitment to make Credit Extensions to Borrower;
and

 


WHEREAS, as a
condition precedent to the making of the Credit Extensions under
the Loan Agreement, the Guarantors are required to execute and
deliver this Guarantee;

 


NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to
induce Bank to make the Credit Extensions to Borrower, each
Guarantor hereby agrees, for the benefit of Bank, as
follows.

 


ARTICLE
I

 


Definitions

 


SECTION
1.1. Certain
Terms.  The
following terms (whether or not underscored) when used in this
Guarantee, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):

 


“Bank” is defined in the
preamble.

 


“Borrower” is defined in
the first
recital.

 


“CFC” means any Subsidiary
that is a “controlled foreign corporation” within the
meaning of Section 957 of the Internal Revenue Code.

 


“Collateral” is any and
all properties, rights and assets of each Guarantor described on
Annex
I.

 


“Commitment” means
Bank’s obligation (if any) to make Credit Extensions under
the Loan Agreement.


 




	








 

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“Domestic Subsidiary”
means any Subsidiary that is organized under the laws of any State
of the United States or the District of Columbia.

 


“Foreign Subsidiary” means
any Subsidiary that is not a Domestic Subsidiary.

 


“Foreign Subsidiary Holding
Company” means any Domestic Subsidiary all or
substantially all of the assets of which consist of, directly or
indirectly, the Capital Stock in one or more CFCs and/or
Indebtedness of one or more CFCs and any other assets incidental
thereto.

 


“Guarantee” is defined in
the preamble.

 


“Guarantor” is defined in
the preamble.

 


“Loan Agreement” is
defined in the first
recital.

 


“Obligor” is defined in
Section
2.1(a).

 


“Termination Date” means
the date on which all Obligations shall have been paid in full in
cash and the Commitment shall have terminated.

 


SECTION
1.2. Loan Agreement
Definitions.  Unless
otherwise defined herein or the context otherwise requires, terms
used in this Guarantee, including its preamble and recitals, have
the meanings provided in the Loan Agreement or the Code as defined
in the Loan Agreement, as applicable.

 


ARTICLE
II

 


Guarantee
Provisions

 


SECTION
2.1. Guarantee.  Each
Guarantor jointly and severally, absolutely, unconditionally and
irrevocably:

 


(a)           guarantees
the full and punctual payment when due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or
otherwise, and performance of all Obligations of Borrower and the
Subsidiaries (each, an “Obligor”) now or
hereafter existing, whether for principal, interest (including
interest accruing at the then applicable Default rate as provided
in Section 2.6(b) of the Loan Agreement, whether or not a claim for
post-filing or post-petition interest is allowed under applicable
law following the institution of a proceeding under bankruptcy,
insolvency or similar laws), fees, expenses or otherwise (including
all such amounts which would become due but for the operation of
the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. §362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. §502(b) and §506(b)); and

 


(b)           indemnifies
and holds harmless Bank for any and all costs and expenses
(including the reasonable fees and out-of-pocket expenses of
counsel to Bank) incurred by Bank in enforcing any rights under
this Guarantee, except to the extent such amounts arise or are
incurred as a consequence of Bank’s own gross negligence or
willful misconduct;


 




 

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provided, that each Guarantor
shall only be liable under this Guarantee for the maximum amount of
such liability that can be hereby incurred without rendering this
Guarantee, as it relates to such Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This Guarantee
constitutes a guarantee of payment when due and not of collection,
and each Guarantor specifically agrees that it shall not be
necessary or required that Bank exercise any right, assert any
claim or demand or enforce any remedy whatsoever against such
Guarantor or any other Person before or as a condition to the
obligations of such Guarantor becoming due hereunder.

 


SECTION
2.2. Reinstatement,
Etc.  Each
Guarantor agrees that this Guarantee shall continue to be effective
or be reinstated (including on or after the Termination Date), as
the case may be, if at any time any payment (in whole or in part)
of any of the Obligations is invalidated, declared to be fraudulent
or preferential, set aside, rescinded or must otherwise be restored
by Bank, including upon the occurrence of any Event of Default set
forth in Section 8.5 of the Loan Agreement or otherwise, all as
though such payment had not been made.

 


SECTION
2.3. Guarantee Absolute,
Etc.  This
Guarantee shall in all respects be a continuing, absolute,
unconditional and irrevocable guarantee of payment, and shall
remain in full force and effect until (unless reinstated pursuant
to Section 2.2 above) the Termination Date has occurred. Each
Guarantor guarantees that the Obligations shall be paid strictly in
accordance with the terms of each Loan Document under which they
arise, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the
rights of Bank with respect thereto. The liability of each
Guarantor under this Guarantee shall be absolute, unconditional and
irrevocable irrespective of:

 


(a)           any
lack of validity, legality or enforceability of any Loan
Document;

 


(b)           the
failure of Bank (i) to assert any claim or demand or to
enforce any right or remedy against such Guarantor or any other
Person (including any other guarantor) under the provisions of any
Loan Document or otherwise, or (ii) to exercise any right or
remedy against any other guarantor (including such Guarantor and
any other Guarantor) of, or collateral securing, any
Obligations;

 


(c)           any
change in the time, manner or place of payment of, or in any other
term of, all or any part of the Obligations, or any other
extension, compromise or renewal of any Obligation, or any
amendment to, rescission, waiver, or other modification of, or any
consent to or departure from, any of the terms of any Loan
Document;

 


(d)           any
reduction, limitation, impairment or termination of any Obligations
for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and each
Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting,
any Obligations or otherwise;


 




 

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(e)           any
addition, exchange or release of any collateral or of any Person
that is (or will become) a guarantor of the Obligations, or any
surrender or non-perfection of any collateral, or any amendment to,
or waiver or release of, or addition to, or consent to or departure
from, any other guarantee held by Bank securing any of the
Obligations; or

 


(f)           any
other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any Obligor,
any surety or any guarantor (including any Guarantor).

 


SECTION
2.4. Setoff. Each
Guarantor hereby irrevocably authorizes Bank, without the
requirement that any notice be given to such Guarantor (such notice
being expressly waived by such Guarantor), upon the occurrence and
during the continuance of any Event of Default, to appropriate and
apply to the payment of the Obligations owing to it (whether or not
then due), and (as security for such Obligations) each Guarantor
hereby grants to Bank a continuing security interest in, any and
all balances, credits, deposits, accounts or moneys of such
Guarantor then or thereafter maintained with or on behalf of Bank.
Bank agrees to notify such Guarantor after any such set-off and
application made by Bank; provided, that the failure to
give such notice shall not affect the validity of such setoff and
application. The rights of Bank under this Section 2.4 are in
addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which Bank may
have.

 


SECTION
2.5. Waiver,
Etc.  Each
Guarantor waives promptness, diligence, notice of acceptance and
any other notice with respect to any of the Obligations and this
Guarantee and any requirement that Bank protect, secure, perfect or
insure any Lien, or any property subject thereto, or exhaust any
right or take any action against any Obligor or any other Person
(including any Guarantor) or entity or any collateral securing the
Obligations, as the case may be.

 


SECTION
2.6. Postponement of
Subrogation, Etc.  Each
Guarantor agrees that it will not exercise any rights which it may
acquire by way of rights of subrogation under any Loan Document to
which it is a party, nor shall such Guarantor seek or be entitled
to seek any contribution or reimbursement from Borrower or any
other Obligor or Guarantor, in respect of any payment made under
any Loan Document or otherwise, until following the Termination
Date. Any amount paid to such Guarantor on account of any such
subrogation rights prior to the Termination Date shall be held in
trust for the benefit of Bank and shall immediately be paid and
turned over to Bank in the exact form received by such Guarantor
(duly endorsed in favor of Bank, if required), to be credited and
applied against the Obligations, whether matured or unmatured, in
accordance with Section 2.7; provided, that if such
Guarantor has made payment to Bank of all or any part of the
Obligations and the Termination Date has occurred, then, at such
Guarantor’s request, Bank will, at the expense of such
Guarantor, execute and deliver to such Guarantor appropriate
documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to such Guarantor
of an interest in the Obligations resulting from such payment. In
furtherance of the foregoing, at all times prior to the Termination
Date, such Guarantor shall refrain from taking any action or
commencing any proceeding against Borrower or any other Obligor or
Guarantor (or their successors or assigns, whether in connection
with a bankruptcy proceeding or otherwise) to recover any amounts
in respect of payments made under this Guarantee to
Bank.


 




 

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SECTION
2.7. Payments;
Application. Each Guarantor
agrees that all obligations of such Guarantor hereunder shall be
paid solely in Dollars to Bank in immediately available funds,
without set-off, counterclaim or other defense and in accordance
with Sections 2.2(e), 2.3(d), 2.3(f), 2.7, 2.8 and 2.9 of the Loan
Agreement, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any
Governmental Authority (including any interest, additions to tax or
penalties applicable thereto), such Guarantor hereby agreeing to
comply with and be bound by the provisions of Sections 2.2(e),
2.3(d), 2.3(f), 2.7, 2.8 and 2.9 of the Loan Agreement in respect
of all payments and application of such payments made by it
hereunder and the provisions of which Sections are hereby
incorporated into and made a part of this Guarantee by this
reference as if set forth herein; provided, that references to
“Borrower” in such Sections shall be deemed to be
references to such Guarantor, and references to “this
Agreement” in such Sections shall be deemed to be references
to this Guarantee.

 


ARTICLE
III

 


CREATION OF
SECURITY INTEREST AND PLEDGE

 


SECTION
3.1. Grant of Security
Interest. Each Guarantor
hereby grants Bank, to secure the payment and performance in full
of all of the Obligations, a continuing security interest in, and
pledges to Bank, the Collateral, wherever located, whether now
owned or hereafter acquired or arising, and all proceeds and
products thereof.

 


Each
Guarantor acknowledges that Borrower previously has entered, and/or
may in the future enter, into Bank Services Agreements with Bank.
Regardless of the terms of any Bank Services Agreement, each
Guarantor agrees that any amounts Borrower owes Bank thereunder
shall be deemed to be Obligations under the Loan Agreement and that
it is the intent of Borrower, each Guarantor and Bank to have all
such Obligations secured by the first priority perfected security
interest in the Collateral granted herein (free and clear of all
Liens except for Permitted Liens).

 


If this
Guarantee is terminated, Bank’s Lien in the Collateral shall
continue until the Obligations (other than inchoate indemnity
obligations for which no claim has been asserted) are repaid in
full in cash. Upon payment in full in cash of the Obligations
(other than inchoate indemnity obligations for which no claim has
been asserted) and at such time as Bank’s obligation to make
Credit Extensions has terminated, Bank shall, at the sole cost and
expense of each Guarantor, release its Liens in the Collateral and
all rights therein shall revert to each Guarantor. In the event (a)
all Obligations (other than inchoate indemnity obligations for
which no claim has been asserted), except for Bank Services, are
satisfied in full, and (b) this Guarantee is terminated, Bank shall
terminate the security interest granted herein upon Borrower
providing cash collateral acceptable to Bank in its good faith
business judgment for Bank Services, if any.


 




 

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SECTION
3.2. Priority of Security
Interest. Each Guarantor
represents, warrants, and covenants that the security interest
granted herein creates a valid security interest in favor of Bank
in the Collateral and, when properly perfected by filing of a
uniform commercial code financing statement, shall constitute a
valid, perfected, first priority security interest in the
Collateral, to the extent such security interest can be perfected
by filing a financing statement under the Code, free and clear of
all Liens except for Permitted Liens. If any Guarantor shall
acquire a commercial tort claim, such Guarantor shall promptly, and
in any event within 10 days thereof, notify Bank in a writing
signed by such Guarantor of the general details thereof and grant
to Bank in such writing a security interest therein and in the
proceeds thereof, all upon the terms of this Guarantee, with such
writing to be in form and substance reasonably satisfactory to
Bank.

 


SECTION
3.3. Authorization to File
Financing Statements. Each Guarantor
hereby authorizes Bank to file financing statements, without notice
to such Guarantor, with all appropriate jurisdictions to perfect or
protect Bank’s interest or rights hereunder, including a
notice that any disposition of the Collateral, by such Guarantor or
any other Person, shall be deemed to violate the rights of Bank
under the Code.

 


SECTION
3.4. Pledge. To
secure the prompt payment and performance in full when due, whether
by lapse of time, acceleration, mandatory prepayment or otherwise,
of the Obligations, each Guarantor hereby grants, pledges and
assigns to Bank a continuing security interest in any and all
right, title and interest of such Guarantor in and to the
following, whether now owned or existing or owned, acquired, or
arising hereafter (collectively, the “Pledged
Collateral”):


 


(a)           Pledged
Shares. (i) 100% of the issued and outstanding Capital Stock
of each Domestic Subsidiary (other than any such Subsidiary that is
a Foreign Subsidiary Holding Company) directly owned by such
Guarantor, including, but not limited to, as set forth on Annex II
attached hereto and (ii) 65% (or such greater percentage that, due
to a change in an applicable law after the date hereof, (1) could
not reasonably be expected to cause the undistributed earnings of
such Foreign Subsidiary or such Foreign Subsidiary Holding Company
as determined for United States federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary’s or
such Foreign Subsidiary Holding Company’s United States
parent and (2) could not reasonably be expected to cause any
adverse tax consequences) of the issued and outstanding Capital
Stock entitled to vote (within the meaning of Treasury Regulations
Section 1.956-2(c)(2)) (“Voting Equity”) and 100%
of the issued and outstanding Capital Stock not entitled to vote
(within the meaning of Treasury Regulations Section 1.956-2(c)(2))
(“Non-Voting
Equity”) owned by such Guarantor of each Foreign
Subsidiary and each Foreign Subsidiary Holding Company, in each
case, directly owned by such Guarantor, including, but not limited
to, as set forth on Annex II attached hereto, and in each case
together with the certificates (or other agreements or
instruments), if any, representing such Capital Stock, and all
options and other rights, contractual or otherwise, with respect
thereto (collectively, together with the Capital Stock described in
Section 3.4(b) and 3.4(c) below, the “Pledged Shares”),
including, without limitation, the following:


 


 




 

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(A)           

all shares,
securities, membership interests and other Capital Stock or other
property representing a dividend or other distribution on or in
respect of any of the Pledged Shares, or representing a
distribution or return of capital upon or in respect of the Pledged
Shares, or resulting from a stock split, revision, reclassification
or other exchange therefor, and any other dividends, distributions,
subscriptions, warrants, cash, securities, instruments, rights,
options or other property issued to or received or receivable by
the holder of, or otherwise in respect of, the Pledged Shares;
and






 



(B)           

without affecting
the obligations of the Guarantors under any provision prohibiting
such action hereunder or under the Loan Agreement, in the event of
any consolidation or merger involving the issuer of any Pledged
Shares and in which such issuer is not the surviving Person, all
Capital Stock of the successor Person (or such lower amount as
specified above in the case of successor Persons that are Foreign
Subsidiaries or Foreign Subsidiary Holding Companies) formed by or
resulting from such consolidation or merger, to the extent that
such Person is a direct Subsidiary of a Guarantor.






 



(b)           

Additional Shares. (i) 100% of
the issued and outstanding Capital Stock of any Person that
hereafter becomes a Domestic Subsidiary (other than any such
Subsidiary that is a Foreign Subsidiary Holding Company) directly
owned by such Guarantor and (ii) 65% (or such greater percentage
that, due to a change in an applicable law after the date hereof,
(1) could not reasonably be expected to cause the undistributed
earnings of such Foreign Subsidiary or such Foreign Subsidiary
Holding Company as determined for United States federal income tax
purposes to be treated as a deemed dividend to such Foreign
Subsidiary’s or such Foreign Subsidiary Holding
Company’s United States parent and (2) could not reasonably
be expected to cause any adverse tax consequences) of the Voting
Equity and 100% of the Non-Voting Equity owned by such Guarantor of
any Person that hereafter becomes a Foreign Subsidiary or a Foreign
Subsidiary Holding Company, in each case, directly owned by such
Guarantor, including, without limitation, the certificates (or
other agreements or instruments) representing such Capital Stock,
and all options and other rights, contractual or otherwise, with
respect thereto.





 



(c)           

Accessions and Proceeds. All
Accessions and all Proceeds of any and all of the
foregoing.






 


Without
limiting the generality of the foregoing, it is hereby specifically
understood and agreed that a Guarantor may from time to time
hereafter deliver additional Capital Stock to Bank as collateral
security for the Obligations. Upon delivery to Bank, such
additional Capital Stock shall be deemed to be part of the Pledged
Collateral of such Guarantor and shall be subject to the terms of
this Guarantee whether or not Annex II is amended to refer to such
additional Capital Stock.

 


 




 

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Notwithstanding
anything to the contrary contained herein, the security interests
granted under this Guarantee shall not extend to, and in no event
shall the “Pledged Collateral” include, (i) any general
intangible, permit, lease, license, contract or other instrument of
a Guarantor if the grant of a security interest in such general
intangible, permit, lease, license, contract or other instrument in
the manner contemplated by the Loan Documents, under the terms
thereof or under applicable law, is prohibited and would result in
the termination thereof or give the other parties thereto the right
to terminate, accelerate or otherwise alter such Guarantor’s
rights, titles and interests thereunder (including upon the giving
of notice or lapse of time or both); provided, that, (x) any such limitation
described in this clause (i) on the security interests granted
under the Loan Documents shall only apply to the extent that any
such prohibition would not be rendered ineffective pursuant to the
Code or any other applicable law or principles of equity and (y) in
the event of the termination or elimination of any such prohibition
or the requirement for any consent contained in any applicable law,
general intangible, permit, lease, license, contract or other
instrument, to the extent sufficient to permit any such item to
become Pledged Collateral, a security interest in such general
intangible, permit, lease, license, contract or other instrument
shall be automatically and simultaneously granted under the
applicable Loan Document and such general intangible, permit,
lease, license, contract or other instrument shall no longer
constitute “excluded property” and shall be considered
Pledged Collateral; and (ii) those assets with respect to which the
granting of security interests in such assets would be prohibited
by applicable law or regulation (other than to the extent that any
such law, regulation or prohibition would be rendered ineffective
pursuant to the Code or any other applicable law or principles of
equity), or would require governmental consent (after giving effect
to the applicable anti-assignment provisions of the Code or other
applicable law or principles of equity).

 


SECTION
3.5. Delivery of Pledged
Collateral. Each Guarantor herby agrees that:


 


(a)            Delivery
of Certificates. Each Guarantor shall deliver to Bank (i)
simultaneously with or promptly following the execution and
delivery of this Guarantee, all certificates (if any) representing
the Pledged Shares of such Guarantor as set forth on Annex II
attached hereto and (ii) promptly upon the receipt thereof by or on
behalf of a Guarantor, all other certificates and instruments
constituting Pledged Collateral of a Guarantor. Prior to delivery
to Bank, all certificates and instruments constituting Pledged
Collateral of a Guarantor shall be held in trust by such Guarantor
for the benefit of Bank pursuant hereto. All such certificates and
instruments shall be delivered in suitable form for transfer by
delivery or shall be accompanied by duly executed instruments of
transfer or assignment in blank, substantially in the form provided
in Annex III
attached hereto.


 


(b)           Additional
Securities. If such Guarantor shall receive (or become
entitled to receive) by virtue of its being or having been the
owner of any Pledged Collateral, any (i) certificate or instrument,
including without limitation, any certificate representing a
dividend or distribution in connection with any increase or
reduction of capital, reclassification, merger, consolidation, sale
of assets, combination of shares or membership or other Capital
Stock, stock splits, spin-off or split-off, promissory notes or
other instruments, (ii) option or right, whether as an addition to,
substitution for, conversion of, or an exchange for, any Pledged
Collateral or otherwise in respect thereof, (iii) dividends payable
in securities, or (iv) distributions of securities or other Capital
Stock or cash or other property in connection with a partial or
total liquidation, dissolution or reduction of capital, capital
surplus or paid-in surplus, then such Guarantor shall accept and
receive each such certificate, instrument, option, right, dividend
or distribution in trust for the benefit of Bank, shall segregate
it from such Guarantor’s other property and shall deliver it
forthwith to Bank in the exact form received together with any
necessary endorsement and/or appropriate stock power duly executed
in blank, substantially in the form provided in Annex III, to be
held by Bank as Pledged Collateral and as further collateral
security for the Obligations.


 




 

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SECTION
3.6. Power of
Attorney. Each Guarantor
hereby irrevocably appoints Bank as its lawful attorney-in-fact,
exercisable following the occurrence of an Event of Default, to:
(a) endorse such Guarantor’s name on any checks, payment
instruments, or other forms of payment or security; (b) sign such
Guarantor’s name on any invoice or bill of lading for any
Account or drafts against Account Debtors; (c) demand, collect,
sue, and give releases to any Account Debtor for monies due, settle
and adjust disputes and claims about the Accounts directly with
Account Debtors, and compromise, prosecute, or defend any action,
claim, case or proceeding about any Collateral and any Pledged
Collateral (including filing a claim or voting a claim in any
bankruptcy case in Bank’s or such Guarantor’s name, as
Bank chooses); (d) make, settle, and adjust all claims under such
Guarantor’s insurance policies; (e) pay, contest or settle
any Lien, charge, encumbrance, security interest, or other claim in
or to the Collateral and the Pledged Collateral, or any judgment
based thereon, or otherwise take any action to terminate or
discharge the same; (f) dispose of the Collateral and the Pledged
Collateral; and (g) transfer the Collateral and the Pledged
Collateral into the name of Bank or a third party as the Code
permits. Each Guarantor hereby appoints Bank as its lawful
attorney-in-fact to sign such Guarantor’s name on any
documents necessary to perfect or continue the perfection of
Bank’s security interest in the Collateral and the Pledged
Collateral regardless of whether an Event of Default has occurred
until all Obligations have been satisfied in full and the Loan
Documents have been terminated. Bank’s foregoing appointment
as such Guarantor’s attorney-in-fact, and all of Bank’s
rights and powers, coupled with an interest, are irrevocable until
all Obligations have been fully repaid and performed and the Loan
Documents have been terminated.

 


SECTION
3.7. Remedies. The provisions of
Sections 9.1, 9.3, 9.4, 9.5, 9.6 and of the Loan Agreement are
hereby incorporated into and made a part of this Guarantee,
mutatis mutandis, as if set
forth herein; provided, that references to
“Borrower” in such Sections shall be deemed to be
references to each Guarantor and references to
“Collateral” in such Sections shall be deemed to be
references to “Collateral and Pledged
Collateral”.

 


SECTION
3.8. Voting Rights;
Dividend Rights.

 


(a)            So
long as no Event of Default shall have occurred and be continuing,
or if an Event of Default has occurred and is continuing and a
Guarantor has not received any notice contemplated by Section
3.8(b), such Guarantor may exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral of such
Guarantor or any part thereof for any purpose not inconsistent with
the terms of this Guarantee, the Loan Agreement or any other Loan
Document.

 


(b)           Upon
the occurrence and during the continuance of an Event of Default,
and delivery by Bank to the applicable Guarantor of notice of its
intent to exercise its rights under this Section 3.8(b), all rights
of a Guarantor to exercise the voting and other consensual rights
that it would otherwise be entitled to exercise pursuant to Section
3.8(a) shall cease
and all such rights shall thereupon become vested in Bank, which
shall then have the sole right to exercise such voting and other
consensual rights.


 




 

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(c)            So
long as no Event of Default shall have occurred and be continuing
and subject to Section 3.5(b) hereof, or if an Event of Default has
occurred and is continuing and a Guarantor has not received any
notice contemplated by Section 3.8(d), each Guarantor may receive
and retain any and all dividends and distributions (other than
stock dividends and other dividends and distributions constituting
Pledged Collateral addressed hereinabove) or interest paid in
respect of the Pledged Collateral to the extent permitted under the
Loan Agreement.

 


(d)            Upon
the occurrence and during the continuance of an Event of Default,
and delivery by Bank to the applicable Guarantor of notice of its
intent to exercise its rights under this Section
3.8(d):

 


(i)           all
rights of a Guarantor to receive the dividends, distributions and
interest payments that it would otherwise be authorized to receive
and retain pursuant to Section 3.8(c) shall cease and all such
rights shall thereupon be vested in Bank, which shall then have the
sole right to receive and hold as Pledged Collateral such
dividends, distributions and interest payments; and

 


(ii)           all
dividends and interest payments that are received by a Guarantor
contrary to the provisions of Section 3.8(d)(i) shall be received
in trust for the benefit of Bank, shall be segregated from other
property or funds of such Guarantor, and shall be promptly paid
over to Bank as Pledged Collateral in the exact form received, to
be held by Bank as Pledged Collateral and as further collateral
security for the applicable Obligations.

 


ARTICLE
IV

 


Representations and
Warranties

 


In
order to induce Bank to enter into the Loan Agreement and make the
Loans thereunder, each Guarantor represents and warrants to Bank as
set forth below.

 


SECTION
4.1. Loan Agreement
Representations and Warranties. The representations and
warranties contained in Section 5 of the Loan Agreement, insofar as
the representations and warranties contained therein are applicable
to such Guarantor and its properties, are true and correct in all
material respects (or, if qualified by materiality, in all
respects) as of the Closing Date; and each such representation and
warranty set forth in such Section 5 (insofar as applicable as
aforesaid) and all other terms of the Loan Agreement to which
reference is made therein, together with all related definitions
and ancillary provisions, is hereby incorporated into this
Guarantee by this reference as though specifically set forth in
this Article IV; provided that references to
“Borrower” in Section 5 of the Loan Agreement shall be
deemed to be references to such Guarantor.

 


SECTION
4.2. Financial Condition,
Etc. Each Guarantor has knowledge of Borrower’s and
each other Guarantor’s financial condition and affairs and
has adequate means to obtain from each such Person on an ongoing
basis information relating thereto and to each such Person’s
ability to pay and perform the Obligations, and agrees to assume
the responsibility for keeping, and to keep, so informed for so
long as this Guarantee is in effect. Each Guarantor acknowledges
and agrees that Bank shall have no obligation to investigate the
financial condition or affairs of Borrower or any other Guarantor
for the benefit of such Guarantor nor to advise such Guarantor of
any fact respecting, or any change in, the financial condition or
affairs of each such Person that might become known to Bank at any
time, whether or not Bank knows or believes or has reason to know
or believe that any such fact or change is unknown to such
Guarantor, or might (or does) materially increase the risk of such
Guarantor as guarantor, or might (or would) affect the willingness
of such Guarantor to continue as a guarantor of the
Obligations.


 




 

10








 





 





SECTION
4.3. Best
Interests. It is in the best interests of each Guarantor to
execute this Guarantee inasmuch as each Guarantor will, as a result
of being an Affiliate of Borrower, derive substantial direct and
indirect benefits from the Credit Extensions made to Borrower by
Bank pursuant to the Loan Agreement, and each Guarantor agrees that
Bank is relying on this representation in agreeing to make the
Credit Extensions to Borrower.

 


SECTION
4.4. Collateral; Pledged
Collateral.

 



(a)           

Authorization of Pledged
Shares. The Pledged Shares are duly authorized and validly
issued, are fully paid and nonassessable (if applicable) and are
not subject to the preemptive rights of any Person.





 



(b)           

Title. Such Guarantor has good
and indefeasible title to the Collateral and the Pledged Collateral
of such Guarantor and is the legal and beneficial owner of such
Collateral and Pledged Collateral free and clear of any Lien, other
than Permitted Liens. There exists no “adverse claim”
within the meaning of Section 8-102 of the Code with respect to the
Pledged Shares of such Guarantor (other than Permitted
Liens).





 



(c)           

Exercising of Rights. (i) The
exercise by Bank of its rights and remedies hereunder will not
violate any law or governmental regulation applicable to such
Guarantor or any material contractual restriction binding on or
affecting a Guarantor or any of its property, (ii) there are no
restrictions in any organization document governing any Pledged
Collateral or any document related thereto which would limit or
restrict the grant of a Lien pursuant to this Guarantee on such
Pledged Collateral, the perfection of such Lien or the exercise of
remedies in respect of such perfected Lien in the Pledged
Collateral as contemplated by this Guarantee (except, in connection
with the exercise of remedies, restrictions under the Code,
applicable foreign laws or laws affecting the offering and sale of
securities).





 



(d)           

Guarantor’s Authority. No
authorization, approval or action by, and no notice or filing with
any Governmental Authority or with the issuer of any Pledged Shares
or any other Person is required either (i) for the pledge made by
such Guarantor or for the granting of the security interest by a
Guarantor pursuant to this Guarantee (except (A) as have been
already obtained, (B) for the proper filing of a financing
statement under the Code and (C) in the case of any Foreign
Subsidiary, as may be required under the laws of the jurisdiction
in which such Foreign Subsidiary is organized) or (ii) for the
exercise by Bank of its rights and remedies hereunder (except as
may be required by the Code or applicable foreign laws or laws
affecting the offering and sale of securities).





 



(e)           

Security Interest/Priority.
This Guarantee creates a valid security interest in favor of Bank
in the rights of such Guarantor in the Collateral and the Pledged
Collateral. The taking of possession by Bank of the certificates
representing the Pledged Shares and any other certificates and
instruments constituting Pledged Collateral, together with the
taking of possession by Bank of duly executed instruments of
transfer or assignments in blank, will perfect and establish the
first priority (subject to Permitted Liens) of Bank’s
security interest in such Pledged Shares represented by
certificates and, when properly perfected by filing a uniform
commercial code financing statement or registration, in the
Collateral and all other Pledged Collateral represented by such
Pledged Shares and instruments securing the applicable Obligations
to the extent such security interest can be perfected by filing a
uniform commercial code financing statement. Except as set forth in
this Section 4.4(e), to each Guarantor’s knowledge, no action
is necessary to perfect such security interest.






 




 

11








 






 

 



(f)           

Partnership and Membership
Interests. None of the Pledged Shares consisting of
partnership or limited liability company interests (i) is dealt in
or traded on a securities exchange or in a securities market, (ii)
by its terms expressly provides that it is a security governed by
Article 8 of the Code, (iii) is an Investment Company Security,
(iv) is held in a securities account or (v) constitutes a Security
or a Financial Asset.





 



(g)           

No Other Interests. As of the
date hereof, no Guarantor owns any Capital Stock in any Subsidiary
constituting Pledged Collateral other than as set forth on Annex II
attached hereto.





 


ARTICLE
V

 


Covenants,
Etc.

 


SECTION
5.1. Covenants.  Each
Guarantor covenants and agrees that, at all times prior to the
Termination Date it shall:

 



(a)           

perform, comply
with and be bound by all of the agreements, covenants and
obligations contained in the Loan Agreement (including Sections 6
and 7 of the Loan Agreement) which are applicable to such Guarantor
or its properties, each such agreement, covenant and obligation
contained in the Loan Agreement and all other terms of the Loan
Agreement to which reference is made in this Article V, together
with all related definitions and ancillary provisions, being hereby
incorporated into this Guarantee by this reference as though
specifically set forth in this Article V;





 



(b)           

warrant and defend
title to and ownership of the Pledged Collateral of such Guarantor
at its own expense against the claims and demands of all other
parties claiming an interest therein (other than holders of
Permitted Liens), keep the Pledged Collateral free from all Liens,
except for Permitted Liens, and not sell, exchange, transfer,
assign, lease or otherwise dispose of Pledged Collateral of such
Guarantor or any interest therein, except as permitted under the
Loan Documents;





 



(c)           

not make or consent
to any amendment or other modification or waiver that is materially
adverse to the interests of Bank with respect to any of the Pledged
Collateral of such Guarantor or enter into any agreement or allow
to exist any restriction with respect to any of the Pledged
Collateral of such Guarantor, in each case, other than pursuant
hereto or as may be permitted under the Loan
Agreement;





 



(d)           

file all reports
and other information now or hereafter required to be filed by such
Guarantor with the SEC and any other state, federal or foreign
agency in connection with the ownership of the Pledged Collateral
of such Guarantor; and





 



(e)           

not, without
promptly executing and delivering, or causing to be executed and
delivered, to Bank such agreements, documents and instruments as
Bank may reasonably request for the purpose of perfecting its
security interest therein, issue or acquire any Capital Stock
constituting Pledged Collateral consisting of an interest in a
partnership or a limited liability company that (i) is dealt in or
traded on a securities exchange or in a securities market, (ii) by
its terms expressly provides that it is a security governed by
Article 8 of the UCC, (iii) is an Investment Company Security, (iv)
is held in a securities account or (v) constitutes a Security or a
Financial Asset.






 




 

12








 





 





ARTICLE
VI

 


Miscellaneous
Provisions

 


SECTION
6.1. Loan
Document.  This
Guarantee is a Loan Document executed pursuant to the Loan
Agreement and shall (unless otherwise expressly indicated herein)
be construed, administered and applied in accordance with the terms
and provisions thereof, including Section 11 thereof.
Notwithstanding anything contained herein to the contrary, to the
extent that any provision in this Guarantee conflicts with any
provision in the Loan Agreement, the terms of the Loan Agreement
shall control.

 


SECTION
6.2. Binding on
Successors, Transferees and Assigns;
Assignment.  This
Guarantee shall remain in full force and effect until the
Termination Date has occurred, shall be binding upon each Guarantor
and its successors, transferees and assigns and shall inure to the
benefit of and be enforceable by Bank; provided, that such Guarantor
may not (unless otherwise permitted under the terms of the Loan
Agreement) assign any of its obligations hereunder without the
prior written consent of Bank. Without limiting the generality of
the foregoing, Bank may assign or otherwise transfer (in whole or
in part) its Commitment or Credit Extensions held by it to any
other Person to the extent permitted by the Loan Agreement, and
such other Person shall thereupon become vested with all rights and
benefits in respect thereof granted to Bank under each Loan
Document (including this Guarantee) or otherwise.

 


SECTION
6.3. Amendments,
Etc.  No amendment
to or waiver of any provision of this Guarantee, nor consent to any
departure by any Guarantor from its obligations under this
Guarantee, shall in any event be effective unless the same shall be
in writing and signed by Bank and then such waiver or consent shall
be effective only in the specific instance and for the specific
purpose for which given.

 


SECTION
6.4. Notices.  All
notices and other communications provided for hereunder shall be
given or made as set forth in Section 10 of the Loan
Agreement.

 


SECTION
6.5. Additional
Guarantors. Upon the
execution and delivery by any other Person of a supplement in the
form of Annex IV
hereto, such Person shall become a “Guarantor”
hereunder with the same force and effect as if it were originally a
party to this Guarantee and named as a “Guarantor”
hereunder. The execution and delivery of such supplement shall not
require the consent of any other Guarantor hereunder, and the
rights and obligations of each Guarantor hereunder shall remain in
full force and effect notwithstanding the addition of any new
Guarantor as a party to this Guarantee.

 


SECTION
6.6. No Waiver;
Remedies.  In
addition to, and not in limitation of, Section 2.3 and Section 2.5,
no failure on the part of Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.


 




 

13








 





 





SECTION
6.7. Further
Assurances. Each Guarantor agrees, upon the written request
of Bank, to promptly execute and deliver to Bank, from time to
time, any additional instruments or documents deemed to be
reasonably necessary by Bank to (a) cause this Guarantee to be,
become or remain valid and effective in accordance with its terms,
(b) perfect and protect the security interest created hereby in the
Collateral and the Pledged Collateral of such Guarantor (including,
without limitation, any and all other action reasonably necessary
to satisfy Bank that Bank has obtained a first priority, subject
only to Permitted Liens, perfected security interest in all the
Collateral and the Pledged Collateral), (c) enable Bank to exercise
and enforce its rights and remedies hereunder in respect of the
Collateral and the Pledged Collateral of such Guarantor, and (d)
otherwise effect the purposes of this Guarantee, including, without
limitation and if requested by Bank, delivering to Bank upon its
request following the occurrence and continuation of an Event of
Default, irrevocable proxies in respect of the Pledged Collateral
of such Guarantor.

 


SECTION
6.8. Section
Captions.  Section
captions used in this Guarantee are for convenience of reference
only and shall not affect the construction of this
Guarantee.

 


SECTION
6.9. Severability.  Any
provision of this Guarantee which is prohibited or unenforceable in
any jurisdiction shall, as to such provision and such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Guarantee or affecting the validity or enforceability of such
provision in any other jurisdiction.

 


SECTION
6.10. Governing Law;
Venue; Jury Trial Waiver.

 


  This
Guarantee shall be governed by and construed in accordance with the
law of the State of New York without regard to principles of
conflicts of law. Each Guarantor and Bank each submit to the
exclusive jurisdiction of the State and Federal courts in New York
County, New York; provided,
however,
that nothing in this Guarantee shall be deemed to operate to
preclude Bank from bringing suit or taking other legal action in
any other jurisdiction to realize on the Collateral or any other
security for the Obligations, or to enforce a judgment or other
court order in favor of Bank. Each Guarantor expressly
submits and consents in advance to such jurisdiction in any action
or suit commenced in any such court, and each Guarantor hereby
waives any objection that it may have based upon lack of personal
jurisdiction, improper venue, or forum non conveniens and hereby
consents to the granting of such legal or equitable relief as is
deemed appropriate by such court. Each Guarantor hereby waives
personal service of the summons, complaints, and other process
issued in such action or suit and agrees that service of such
summons, complaints, and other process may be made by registered or
certified mail addressed to such Guarantor at the address set forth
in, or subsequently provided by Borrower in accordance with,
Section 10 of the Loan Agreement and that service so made shall be
deemed completed upon the earlier to occur of Guarantor’s
actual receipt thereof or three days after deposit in the U.S.
mails, proper postage prepaid.

 


TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR AND
BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS GUARANTEE, THE OTHER
LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT,
TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A
MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS GUARANTEE.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.


 




 

14








 





 





This
Section 6.10 shall survive the termination of this
Agreement.

 


SECTION
6.11. Counterparts.  This
Guarantee may be executed by the parties hereto in several
counterparts, each of which shall be an original and all of which
shall constitute together but one and the same agreement. This
Guarantee shall become effective when counterparts hereof executed
on behalf of each Guarantor shall have been received by Bank.
Delivery of an executed counterpart of a signature page to this
Guarantee by email (e.g., “.pdf” or
“.tiff”) or telecopy shall be effective as delivery of
a manually executed counterpart of this Guarantee.

 


 

 



[Signature Page Follows]


 




 

15








 





 


IN
WITNESS WHEREOF, each Guarantor has caused this Guarantee and
Pledge Agreement to be duly executed and delivered by its
authorized officer as of the date first above written.


 





NEW AGE
HEALTH SCIENCES, INC.

 



By:_________________________________________



 

   
Name: 

   
Title:



 


NABC
PROPERTIES, LLC

 



By:_________________________________________








Name:


Title:

 


NABC,
INC.

 



By:_________________________________________






Name:


Title:

 


MORINDA
HOLDINGS, INC.

 



By:_________________________________________






Name:


Title:

 


MORINDA,
INC.

 



By:_________________________________________






Name:


Title:

 


 




 

16








 





 




 


TROPICAL RESOURCES,
INC.

 



By:________________________________________






Name:


Title:

 


MORINDA
USA, INC.

 



By:________________________________________






Name:


Title:

 


MORINDA
WORLDWIDE, INC.

 



By:________________________________________






Name:


Title:

 


MORINDA
JAPAN GK

 



By:________________________________________








Name:


Title:


 



 




 

17