Exhibit 10.4 Guarantee by WHF in favor of WNG




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)  Until such time as
all of the Guaranteed Obligations have been fully, finally, and indefeasibly
paid in full in cash: (i)
Guarantor hereby waives and postpones any right of subrogation which Guarantor
has or may have as against Buyer or any other guarantor with respect to the
Guaranteed Obligations; (ii) in addition, Guarantor hereby waives and postpones
any right to proceed against Buyer, any other guarantor, or any other person,
now or hereafter, for contribution, indemnity, exoneration, reimbursement, or
any other suretyship rights and claims (irrespective of whether direct or
indirect, liquidated or contingent), with respect to the Guaranteed Obligations;
and (iii) in addition, Guarantor also hereby waives and postpones any right to
proceed or to seek recourse against or with respect to any property or asset of
Buyer or any other guarantor.

 

(e)  WITHOUT LIMITING
THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS
GUARANTEE, GUARANTOR HEREBY WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS
PERMITTED BY LAW, ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR
INDIRECTLY 

 








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UNDER ANY ONE OR
MORE OF CALIFORNIA CIVIL CODE §§ 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821,
2822, 2838, 2839, 2845, 2847, 2848, 2849, 2850 AND 3433 AND CHAPTER 2 OF TITLE
14 OF THE CALIFORNIA CIVIL CODE.

 

(f)  WITHOUT LIMITING
THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS
GUARANTEE, GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION
OF REMEDIES BY SELLERS, EVEN THOUGH THAT ELECTION OF REMEDIES, SUCH AS A
NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR A GUARANTEED OBLIGATION,
HAS DESTROYED GUARANTOR’S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST
BORROWER BY THE OPERATION OF SECTION 580d OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE OR OTHERWISE.

 

5.  Releases. Guarantor
consents and agrees that, without notice to or by Guarantor and without
affecting or impairing the obligations of Guarantor hereunder, Sellers may, by
action or inaction, compromise or settle, extend the period of duration or the
time for the payment, or discharge the performance of, or may refuse to, or
otherwise not enforce, or may, by action or inaction, release all or any one or
more parties to, any one or more of the terms and provisions of any of the
Purchase Documents or the Promissory Note or may grant other indulgences to
Buyer or any other guarantor in respect thereof, or may, by action or inaction,
release or substitute any other guarantor, if any, of the Guaranteed
Obligations, or may enforce, exchange, release, or waive, by action or inaction,
any security for the Guaranteed Obligations or any other guarantee of the
Guaranteed Obligations, or any portion thereof.

 

6.  No
Election. Sellers shall
have the right to seek recourse against Guarantor to the fullest extent provided
for herein and no election by Sellers to proceed in one form of action or
proceeding, or against any party, or on any obligation, shall constitute a
waiver of Sellers’ right to proceed in any other form of action or proceeding or
against other parties unless Sellers have expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no
action or proceeding by Sellers under any document or instrument evidencing the
Guaranteed Obligations shall serve to diminish the liability of Guarantor under
this Guarantee except to the extent that Sellers finally and unconditionally
shall have realized indefeasible payment by such action or
proceeding.

 

7.  Indefeasible
Payment. The Guaranteed
Obligations shall not be considered indefeasibly paid for purposes of this
Guarantee unless and until all payments to Sellers are no longer subject to any
right on the part of any person whomsoever, including Buyer, Buyer as a debtor
in possession, or any trustee (whether appointed under the U.S. Bankruptcy Code
or otherwise) of Buyer’s assets to invalidate or set aside such payments or to
seek to recoup the amount of such payments or any portion thereof in any
bankruptcy, insolvency, or similar proceeding, or to declare same to be
fraudulent or preferential. In the event that, for any reason, all or any
portion of such payments to Sellers is set aside or restored, whether
voluntarily or involuntarily, after the making thereof, the obligation or part
thereof intended to be satisfied thereby shall be revived and continued in full
force and effect as if said payment or payments had not been made and Guarantor
shall be liable for the full amount Sellers are required to repay plus any and
all costs and expenses (including attorneys fees) paid by Sellers in connection
therewith.

 








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8.  Financial
Condition of Buyer. Guarantor further
represents and warrants to Sellers that it has read and understands the terms
and conditions of any of the Purchase Documents and the Promissory Note.
Guarantor hereby covenants that it will continue to keep itself informed of each
of Buyer’s financial condition, the financial condition of other guarantors, if
any, and of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations.

 

9.  Non-Competition
Covenant. Guarantor further
acknowledges and agrees that it has read and understands the non-competition
covenant contained in Section 5.11 of the Purchase Agreement. Guarantor further
agrees and covenants to be bound by the obligations and duties contained in
Section 5.11 of the Purchase Agreement. For purposes of this Guarantee,
Guarantor agrees to comply with the terms of Section 5.11 of the Purchase
Agreement as if the terms thereof were incorporated herein and to treat every
reference to Buyer therein as if it were a reference to Guarantor.

 

10.  Payments;
Application. All payments to
be made hereunder by Guarantor shall be made in lawful money of the United
States of America at the time of payment, shall be made in immediately available
funds, and shall be made without deduction (whether for taxes or otherwise) or
offset. All payments made by Guarantor hereunder shall be applied as follows:
first, to all reasonable costs and expenses (including reasonable attorneys
fees) incurred by Sellers in enforcing this Guarantee or in collecting the
Guaranteed Obligations; second, to all accrued and unpaid interest, premium, if
any, and fees owing to Sellers constituting Guaranteed Obligations; and third,
to the balance of the Guaranteed Obligations.

 

11.  Attorneys Fees
and Costs. Guarantor agrees
to pay, on demand, all reasonable attorneys fees and all other costs and
expenses which may be incurred by Sellers in the enforcement of this Guarantee
or in any way arising out of, or in connection with the protection or
enforcement of the Guaranteed Obligations (or any security therefor),
irrespective of whether suit is brought.

 

12.  Notices. Unless otherwise
provided in this Agreement, all notices or demands by any party relating to this
Agreement shall be in writing and made in accordance with the terms of the
Purchase Agreement.

 

13.  Cumulative
Remedies. No remedy under
this Guarantee is intended to be exclusive of any other remedy, but each and
every remedy shall be cumulative and in addition to any and every other remedy
given under this Guarantee and those provided by law. No delay or omission by
Sellers to exercise any right under this Guarantee shall impair any such right
nor be construed to be a waiver thereof. No failure on the part of Sellers to
exercise, and no delay in exercising, any right under this Guarantee shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right under this Guarantee preclude any other or further exercise thereof or the
exercise of any other right.

 

 







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14.  Severability of
Provisions. Any provision of
this Guarantee which is prohibited or unenforceable under applicable law against
Guarantor shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof.

 

15.  Entire
Agreement; Amendments. This Guarantee
constitutes the entire agreement between Guarantor and Sellers pertaining to the
subject matter contained herein. This Guarantee may not be altered, amended, or
modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by Guarantor and Sellers.
Any such alteration, amendment, modification, waiver, or consent shall be
effective only to the extent specified therein and for the specific purpose for
which given. No course of dealing and no delay or waiver of any right or default
under this Guarantee shall be deemed a waiver of any other, similar or
dissimilar, right or default or otherwise prejudice the rights and remedies of
the Sellers hereunder.

 

16.  Successors and
Assigns. This Guarantee
shall be binding upon Guarantor and its successors and assigns and shall inure
to the benefit of the successors and assigns of Sellers; provided, however, Guarantor shall
not assign this Guarantee or delegate any of its duties hereunder without
Sellers’ prior written consent and any unconsented to assignment shall be
absolutely void. In the event of any assignment or other transfer of rights by
Sellers, the rights and benefits herein conferred upon Sellers shall
automatically extend to and be vested in such assignee or other
transferee.

 

17.  Choice of Law and
Venue.

 

THE
VALIDITY OF THIS GUARANTEE, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT,
AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, EXCLUSIVE OF
CONFLICTS OF LAWS PRINCIPLES.

 

THE PARTIES
AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTEE
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, OR AT THE SOLE OPTION OF GUARANTEED
PARTY, IN ANY OTHER COURT IN WHICH GUARANTEED PARTY SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER
IN CONTROVERSY. EACH OF GUARANTOR AND GUARANTEED PARTY WAIVES, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF
FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS
BROUGHT IN ACCORDANCE WITH THIS SECTION.

 

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intentionally left blank]

 








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IN
WITNESS WHEREOF, the undersigned have executed and delivered this Guarantee as
of the date first written above.

 

WEIDER
HEALTH AND FITNESS

as
Guarantor







By:_____________________________________

Name:

Title:







WEIDER
NUTRITION INTERNATIONAL, INC.

as
Guaranteed Party







By:________________________________________

Name:

Title:







WEIDER
NUTRITION GROUP, INC.

as
Guaranteed Party







By:________________________________________

Name:

Title:






















Exhbit
A




Promissory
Note of Buyer