EXHIBIT 10.4 GUARANTEE BY WHF IN FAVOR OF WNGGuarantee Agreement |
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Search Guarantee Agreement by:
GUARANTEE
This GUARANTEE
(this “Guarantee”), dated as of
April 1, 2005, is executed and delivered by Weider Health and Fitness, a Nevada
corporation (“Guarantor”), in favor of
Weider Nutrition International, Inc., a Delaware corporation (“WNI”), and Weider
Nutrition Group, Inc., a Utah corporation (“WNG”) (each of WNI and
WNG being a “Seller” and collectively,
the “Sellers”), in light of the
following:
WHEREAS, Sellers
and Weider Global Nutrition, LLC, a Nevada limited liability company
(“Buyer”), are parties to
that certain Stock and Asset Purchase Agreement dated as of April 1, 2005 (as
amended, restated or otherwise modified from time to time, the “Purchase
Agreement”), the Transition
Services Agreement dated as of April 1, 2005, the Name License Agreement dated
as of April 1, 2005 and the other agreements and documents entered into pursuant
thereto (collectively, as amended, restated or otherwise modified from time to
time, the “Purchase
Documents”);
WHEREAS, pursuant
to the Purchase Agreement, Buyer has agreed to purchase all of the assets of
Sellers and WNG related to their Weider® branded products business and has
offered a promissory note to WNI in the form attached hereto as Exhibit
A
(as amended, restated or otherwise modified from time to time, the “Promissory
Note”) in partial
consideration for the Weider® branded assets; and
WHEREAS, in order
to induce Sellers to enter into the Purchase Documents and to accept the
Promissory Note, Guarantor has agreed to guarantee the Guaranteed Obligations
(as defined herein) on the terms and conditions contained herein;
NOW, THEREFORE, in
consideration of the foregoing, Guarantor hereby agrees, in favor of Sellers, as
follows:
1. Guaranteed
Obligations. Guarantor hereby
irrevocably and unconditionally guaranties to Sellers: (a) the full and complete
timely performance of each and all of the covenants, agreements, obligations and
liabilities of Buyer under each of the Purchase Documents and the Promissory
Note; (b) any and all obligations and liabilities of Buyer under the Purchase
Documents with respect to indemnification, or any covenant or representation or
warranty of Buyer; (c) as and for its own debt, until final and indefeasible
payment thereof has been made, the due and punctual payment of the principal of,
and interest (including, without limitation, any and all interest which, but for
the application of the provisions of the U.S. Bankruptcy Code, would have
accrued on such amounts) on, any and all premium on, and any and all fees,
costs, and expenses incurred in connection with or on the obligations owed by
Buyer to Sellers pursuant to the terms of the Promissory Note, in each case when
and as the same shall become due and payable, whether at maturity, pursuant to a
mandatory prepayment requirement, by acceleration, or otherwise (all such
covenants, agreements, liabilities and debts being collectively referred to
herein as the “Guaranteed
Obligations”); it being the
intent of Guarantor that the guarantee set forth herein shall be a guarantee of
payment and not a guarantee of collection.
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2. Continuing
Guarantee. This Guarantee
includes Guaranteed Obligations arising under successive transactions
continuing, compromising, extending, increasing, modifying, releasing, or
renewing the Guaranteed Obligations, changing the interest rate, payment terms,
or other terms and conditions thereof, or creating new or additional Guaranteed
Obligations after prior Guaranteed Obligations have been satisfied in whole or
in part. To the maximum extent permitted by law, Guarantor hereby waives any
right to revoke this Guarantee as to future Guaranteed Obligations. If such a
revocation is effective notwithstanding the foregoing waiver, Guarantor
acknowledges and agrees that (a) no such revocation shall be effective until
written notice thereof has been received by Sellers, (b) no such revocation
shall apply to any Guaranteed Obligations in existence on such date (including
any subsequent continuation, extension, or renewal thereof, or change in the
interest rate, payment terms, or other terms and conditions thereof), (c) no
such revocation shall apply to any Guaranteed Obligations made or created after
such date to the extent made or created pursuant to a legally binding commitment
of Sellers in existence on the date of such revocation, (d) no payment by
Guarantor or from any other source, prior to the date of such revocation shall
reduce the maximum obligation of Guarantor hereunder, and (e) any payment by any
source other than Guarantor subsequent to the date of such revocation shall
first be applied to that portion of the Guaranteed Obligations as to which the
revocation is effective and which are not, therefore, guaranteed hereunder, and
to the extent so applied shall not reduce the maximum obligation of Guarantor
hereunder.
3. Primary
Obligations. This Guarantee is
a primary and original obligation of Guarantor, is not merely the creation of a
surety relationship, and is an absolute, unconditional, and continuing guarantee
of payment and performance that shall remain in full force and effect without
respect to future changes in conditions. Guarantor agrees that it is directly,
jointly and severally with Buyer, liable to Sellers, that the obligations of
Guarantor hereunder are independent of the obligations of Buyer or any other
guarantor, and that a separate action may be brought against Guarantor, whether
such action is brought against Buyer or any other guarantor or whether Buyer or
any other guarantor is joined in such action. Guarantor agrees that its
liability hereunder shall be immediate and shall not be contingent upon the
exercise or enforcement by Sellers of whatever remedies it may have against
Buyer or any other guarantor, or the enforcement of any lien or realization upon
any security Sellers may at any time possess. Guarantor agrees that any release
that may be given by Sellers to Buyer or any other guarantor shall not release
Guarantor or otherwise limit Guarantor’s obligations hereunder. Guarantor
consents and agrees that Sellers shall be under no obligation to marshal any
property or assets of Buyer or any other guarantor in favor of Guarantor, or
against or in payment of any or all of the Guaranteed Obligations.
4. Waivers.
(a) To the fullest
extent permitted by applicable law, Guarantor hereby waives: (i) notice of
acceptance hereof; (ii) notice of any loans or other financial accommodations
made or extended under any Purchase Document or the Promissory Note, or the
creation or existence of any Guaranteed Obligations; (iii) notice of the amount
of the Guaranteed Obligations, subject, however, to Guarantor’s right to make
inquiry of Sellers to ascertain the amount of the Guaranteed Obligations at any
reasonable time and from time to time; (iv) notice of any adverse change in the
financial condition of Buyer or any other guarantor or of any other fact that
might increase Guarantor’s risk hereunder; (v) notice of presentment for
payment,
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demand, protest,
and notice thereof as to any Purchase Document or the Promissory Note or any
instrument related thereto; (vi) notice of any event of default under any
Purchase Document or the Promissory Note; and (vii) all other notices (except if
such notice is specifically required to be given to Guarantor under this
Guarantee) and demands to which Guarantor might otherwise be
entitled.
(b) To the fullest
extent permitted by applicable law, Guarantor waives the right by statute or
otherwise to require Sellers to institute suit against Buyer or any other
guarantor or to exhaust any rights and remedies that Sellers has or may have
against Buyer or any other guarantor. In this regard, Guarantor agrees that it
is bound to the payment of each and all Guaranteed Obligations, whether now
existing or hereafter arising, as fully as if such Guaranteed Obligations were
directly owing to Sellers by Guarantor. Guarantor further waives any defense
arising by reason of any disability or other defense (other than the defense
that the Guaranteed Obligations shall have been fully and finally performed and
indefeasibly paid) of Buyer or any other guarantor or by reason of the cessation
from any cause (other than that the Guaranteed Obligations shall have been fully
and finally performed and indefeasibly paid) whatsoever of the liability of
Buyer or any other guarantor in respect thereof.
(c) To the fullest
extent permitted by applicable law, Guarantor hereby waives: (i) any rights to
assert against Sellers any defense (legal or equitable), set-off, counterclaim,
or claim which Guarantor may now or at any time hereafter have against Buyer or
any other guarantor or any other party liable to Sellers; (ii) any defense,
set-off, counterclaim, or claim, of any kind or nature, arising directly or
indirectly from the present or future lack of perfection, sufficiency, validity,
or enforceability of the Guaranteed Obligations or any security therefor; (iii)
any defense arising by reason of any claim or defense based upon an election of
remedies by Sellers; (iv) the benefit of any statute of limitations affecting
Guarantor’s liability hereunder or the enforcement thereof, and any act which
shall defer or delay the operation of any statute of limitations applicable to
the Guaranteed Obligations shall similarly operate to defer or delay the
operation of such statute of limitations applicable to Guarantor’s liability
hereunder and (v) any defense arising by any lack of validity or enforceability
of any of the Purchase Documents or the Promissory Note.
(d)
