Unassociated Document


    Exhibit
      10.04

    


    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 NUTRITION 21, LLC (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.

    


    
      
        
        

      

      
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    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 are paid in full and the Loan Agreement has been
      terminated. If, notwithstanding the foregoing, any amount shall be paid to
      the
      undersigned on account of such subrogation rights at any time when all of the
      Obligations shall not have been paid in full and the Loan Agreement shall not
      have been terminated, such amount shall be held by the undersigned in trust
      for
      Lender, segregated from other funds of the undersigned, and shall forthwith
      upon, and in any event within two (2) business days of, receipt by the
      undersigned, be turned over to Lender in the exact form received by the
      undersigned (duly endorsed by the undersigned to Lender, if required), to be
      applied against the Obligations, whether matured or unmatured, in such order
      as
      Lender may determine, subject to the provisions of the Loan Agreement. Any
      and
      all present and future debts and obligations of Borrower to any of the
      undersigned are hereby waived and postponed in favor of, and subordinated to
      the
      full payment and performance of, all present and future debts and obligations
      of
      Borrower to Lender.

    


    
      
        
        

      

      
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    4. Security.
      All
      sums at any time to the credit of the undersigned and any property of the
      undersigned in Lender’s possession or in the possession of any bank, financial
      institution or other entity that directly or indirectly, through one or more
      intermediaries, controls or is controlled by, or is under common control with,
      Lender (each such entity, an “Affiliate”) shall be deemed held by Lender or such
      Affiliate, as the case may be, as security for any and all of the undersigned’s
      obligations to Lender and to any Affiliate of Lender, no matter how or when
      arising and whether under this or any other instrument, agreement or
      otherwise.

    


    5. Representations
      and Warranties.
      The
      undersigned hereby represents and warrants (all of which representations and
      warranties shall survive until all Obligations are indefeasibly satisfied in
      full and the Loan Agreement has been irrevocably terminated), that:

    


    (a) Corporate
      Status.
      The
      undersigned is a corporation duly organized, validly existing and in good
      standing and has full power, authority and legal right to own its property
      and
      assets and to transact the business in which it is engaged.

    


    (b) Authority
      and Execution.
      The
      undersigned has full power, authority and legal right to execute and deliver,
      and to perform its obligations under, this Guaranty and has taken all necessary
      corporate and legal action to authorize the execution, delivery and performance
      of this Guaranty.

    


    (c) Legal,
      Valid and Binding Character.
      This
      Guaranty constitutes the legal, valid and binding obligation of the undersigned
      enforceable in accordance with its terms, except as enforceability may be
      limited by applicable Insolvency Law.

    


    (d) Violations.
      The
      execution, delivery and performance of this Guaranty will not violate any
      requirement of law applicable to the undersigned or any material contract,
      agreement or instrument to which the undersigned is a party or by which the
      undersigned or any property of the undersigned is bound or result in the
      creation or imposition of any mortgage, lien or other encumbrance other than
      to
      Lender on any of the property or assets of the undersigned pursuant to the
      provisions of any of the foregoing.

    


    (e) Consents
      or Approvals.
      No
      consent of any other person or entity (including, without limitation, any
      creditor of the undersigned) and no consent, license, permit, approval or
      authorization of, exemption by, notice or report to, or registration, filing
      or
      declaration with, any governmental authority is required in connection with
      the
      execution, delivery, performance, validity or enforceability of this
      Guaranty.

    


    (f) Litigation.
      No
      litigation, arbitration, investigation or administrative proceeding of or before
      any court, arbitrator or governmental authority, bureau or agency is currently
      pending or, to the best knowledge of the undersigned, threatened (i) with
      respect to this Guaranty or any of the transactions contemplated by this
      Guaranty or (ii) against or affecting the undersigned, or any of property or
      assets of the undersigned, which, if adversely determined, would have a material
      adverse effect on the business, operations, assets or condition, financial
      or
      otherwise, of the undersigned.

    


    (g) Material
      Adverse Change.
      Since
      March 31, 2007, which is the date of the undersigned’s most recent financial
      statement delivered to Lender, there has been no material adverse change in
      the
      assets or condition, financial or otherwise, of the undersigned.

    


    
      
        
        

      

      
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    (h) Financial
      Benefit.
      The
      undersigned has derived or expects to derive a financial or other advantage
      from
      each and every loan, advance or extension of credit made under the Loan
      Agreement or other Obligation incurred by Borrower to Lender.

    


    The
      foregoing representations and warranties (other than that set forth in paragraph
      (g) above) shall be deemed to have been made by the undersigned on the date
      of
      each borrowing by Borrower under the Loan Agreement on and as of such date
      of
      such borrowing as though made hereunder on and as of such date.

    


    6. Acceleration.
      (a) If
      any
      breach of any covenant or condition or other event of default shall occur and
      be
      continuing under any agreement made by Borrower or the undersigned to Lender,
      or
      either Borrower or the undersigned should at any time become insolvent, or
      make
      a general assignment, or if a proceeding in or under any Insolvency Law shall
      be
      filed or commenced by, or in respect of, the undersigned, or if a notice of
      any
      lien, levy, or assessment is filed of record with respect to any assets of
      the
      undersigned by the United States of America or any department, agency, or
      instrumentality thereof, or if any taxes or debts owing at any time or times
      hereafter to any one of them becomes a lien or encumbrance upon any assets
      of
      the undersigned in Lender’s possession, or otherwise, any and all Obligations
      shall for purposes hereof, at Lender’s option, be deemed due and payable without
      notice notwithstanding that any such Obligation is not then due and payable
      by
      Borrower.

    


    (b) The
      undersigned will promptly notify Lender of any default by the undersigned in
      the
      performance or observance of any term or condition of any agreement to which
      the
      undersigned is a party if the effect of such default is to cause, or permit
      the
      holder of any obligation under such agreement to cause, such obligation to
      become due prior to its stated maturity and, if such an event occurs, Lender
      shall have the right to accelerate the undersigned’s obligations
      hereunder.

    


    7. Payments
      from Guarantor.
      Lender,
      in its sole and absolute discretion, with or without notice to the undersigned,
      may apply on account of the Obligations any payment from the undersigned or
      any
      other guarantor, or amounts realized from any security for the Obligations,
      or
      may deposit any and all such amounts realized in a non-interest bearing cash
      collateral deposit account to be maintained as security for the
      Obligations.

    


    8. Costs.
      The
      undersigned shall pay on demand, all costs, fees and expenses (including
      expenses for legal services of every kind) relating or incidental to the
      enforcement or protection of the rights of Lender hereunder or under any of
      the
      Obligations.

    


    9. No
      Termination.
      This is
      a continuing irrevocable guaranty and shall remain in full force and effect
      and
      be binding upon the undersigned, and the undersigned’s successors and assigns,
      until all of the Obligations have been paid in full and the Loan Agreement
      has
      been irrevocably terminated. If any of the present or future Obligations are
      guarantied by persons, partnerships or corporations in addition to the
      undersigned, the death, release or discharge in whole or in part or the
      bankruptcy, merger, consolidation, incorporation, liquidation or dissolution
      of
      one or more of them shall not discharge or affect the liabilities of the
      undersigned under this Guaranty.

    


    
      
        
        

      

      
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    10. Recapture.
      Anything in this Guaranty to the contrary notwithstanding, if Lender receives
      any payment or payments on account of the liabilities guaranteed hereby, which
      payment or payments or any part thereof are subsequently invalidated, declared
      to be fraudulent or preferential, set aside and/or required to be repaid to
      a
      trustee, receiver, or any other party under any Insolvency Law, common law
      or
      equitable doctrine, then to the extent of any sum not finally retained by
      Lender, the undersigned’s obligations to Lender shall be reinstated and this
      Guaranty shall remain in full force and effect (or be reinstated) until payment
      shall have been made to Lender, which payment shall be due on
      demand.

    


    11. Books
      and Records.
      The
      books and records of Lender showing the account between Lender and Borrower
      shall be admissible in evidence in any action or proceeding, shall be binding
      upon the undersigned for the purpose of establishing the items therein set
      forth
      and shall constitute prima facie proof thereof.

    


    12. No
      Waiver.
      No
      failure on the part of Lender to exercise, and no delay in exercising, any
      right, remedy or power hereunder shall operate as a waiver thereof, nor shall
      any single or partial exercise by Lender of any right, remedy or power hereunder
      preclude any other or future exercise of any other legal right, remedy or power.
      Each and every right, remedy and power hereby granted to Lender or allowed
      it by
      law or other agreement shall be cumulative and not exclusive of any other,
      and
      may be exercised by Lender at any time and from time to time.

    


    13. Waiver
      of Jury Trial.
      THE
      UNDERSIGNED DOES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
      RIGHT
      TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO THIS
      GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR
      INCIDENTAL HERETO. THE UNDERSIGNED DOES HEREBY CERTIFY THAT NO REPRESENTATIVE
      OR
      AGENT OF LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD
      NOT,
      IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
      PROVISION. 

    


    14. Governing
      Law; Jurisdiction; Amendments.
      THIS
      INSTRUMENT CANNOT BE CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED,
      CONSTRUED AND INTERPRETED AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS
      IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE UNDERSIGNED EXPRESSLY
      CONSENTS TO THE JURISDICTION AND VENUE OF THE SUPREME COURT OF THE STATE OF
      NEW
      YORK, COUNTY OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE
      SOUTHERN DISTRICT OF NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH. ANY
      JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST LENDER INVOLVING, DIRECTLY OR
      INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR
      CONNECTED HEREWITH SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF THE STATE
      OF
      NEW YORK, COUNTY OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE
      SOUTHERN DISTRICT OF NEW YORK. THE UNDERSIGNED FURTHER CONSENTS THAT ANY
      SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT LIMITATION,
      ANY
      NOTICE OR MOTION OR OTHER APPLICATION TO EITHER OF THE AFOREMENTIONED COURTS
      OR
      A JUDGE THEREOF) OR ANY NOTICE IN CONNECTION WITH ANY PROCEEDINGS HEREUNDER,
      MAY
      BE SERVED INSIDE OR OUTSIDE OF THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT
      OF
      NEW YORK BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY
      PERSONAL SERVICE PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR
      IN
      SUCH OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. THE
      UNDERSIGNED WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION
      INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION
      OR VENUE OR BASED UPON FORUM NON CONVENIENS.

    


    
      
        
        

      

      
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    15. Severability.
      To the
      extent permitted by applicable law, any provision of this Guaranty which is
      prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
      be ineffective to the extent of such prohibition or unenforceability without
      invalidating the remaining provisions hereof, and any such prohibition or
      unenforceability in any jurisdiction shall not invalidate or render
      unenforceable such provision in any other jurisdiction.

    


    16. Amendments,
      Waivers.
      No
      amendment or waiver of any provision of this Guaranty nor consent to any
      departure by the undersigned therefrom shall in any event be effective unless
      the same shall be in writing executed by the undersigned and
      Lender.

    


    17. Notice.
      All
      notices, requests and demands to or upon the undersigned, shall be in writing
      and shall be deemed to have been duly given or made (a) when delivered, if
      by
      hand, (b) three (3) days after being sent, postage prepaid, if by registered
      or
      certified mail, (c) when confirmed electronically, if by facsimile, or (d)
      when
      delivered, if by a recognized overnight delivery service in each event, to
      the
      numbers and/or address set forth beneath the signature of the
      undersigned.

    


    18. Successors.
      Lender
      may, from time to time, without notice to the undersigned, sell, assign,
      transfer or otherwise dispose of all or any part of the Obligations and/or
      rights under this Guaranty. Without limiting the generality of the foregoing,
      Lender may assign, or grant participations to, one or more banks, financial
      institutions or other entities all or any part of any of the Obligations. In
      each such event, Lender, its Affiliates and each and every immediate and
      successive purchaser, assignee, transferee or holder of all or any part of
      the
      Obligations shall have the right to enforce this Guaranty, by legal action
      or
      otherwise, for its own benefit as fully as if such purchaser, assignee,
      transferee or holder were herein by name specifically given such right. Lender
      shall have an unimpaired right to enforce this Guaranty for its benefit with
      respect to that portion of the Obligations which Lender has not disposed of,
      sold, assigned, or otherwise transferred.

     

    
      
        
        

      

      
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    19. Release.
      Nothing
      except cash payment in full of the Obligations shall release the undersigned
      from liability under this Guaranty.

    


    IN
      WITNESS WHEREOF, this Guaranty has been executed by the undersigned this 16th
      day of July 2007.

    


    ICELAND
      HEALTH, LLC

    


    
      
        	
                By:

              	
                
                  
                    
                      
                        
                          /s/
                            Alan Kirschbaum

                        

                      

                    

                  

                

              
	
                Name:

              	
                 Alan
                  Kirschbaum

              
	Title:	
                 Chief
                  Financial Officer

              


      

    

     

    Address:
      4 Manhattanville Road

    Purchase,
      NY 10577   

    Telephone
      No.:914-701-4548   

    Facsimile
      No.: 877-270-9170  

    


    
      	STATE
              OF NEW YORK	)
	 	):
              ss.:
	COUNTY
              OF WESTCHESTER	
              )

            


    

     

    On
      the
      16th day of July, 2007 before me personally came Alan J. Kirschbaum to me known,
      who being by me duly sworn, did depose and say he is the Chief Financial Officer
      of Iceland
      Health, LLC the company described in and which executed
      the foregoing instrument; and that he signed his name thereto by order of the
      board of directors of said corporation.

     

    
      
        	 	/s/
                Rosalee J. Golczewski	
              
	 	Notary
                Public


      

    

     

    
       

      
        
          
          

        

        
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