1
EXHIBIT 10.4
GUARANTY
THIS GUARANTY (the "Guaranty") is made and entered into on this 27th
day of January, 1997, by Windmere-Durable Holdings, Inc., a Florida corporation
(together with its successors and assigns, the "Guarantor") and Kmart
Corporation, a Michigan corporation ("Kmart").
Concurrently with the execution and delivery of this Guaranty, New
M-Tech, Inc., a Florida corporation which is 50%-owned by the Guarantor (the
"Company"), and Kmart have entered into a Purchase, Distribution and Marketing
Agreement (the "Agreement").
In order to induce Kmart to enter into the Agreement and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the Guarantor hereby agrees as
follows:
1. Guaranty.
(a) The Guarantor hereby unconditionally and irrevocably
guarantees, as primary obligor and not merely as surety, to Kmart, its
successors and assigns the full, complete and punctual observance, fulfillment
and performance by the Company of all the obligations of the Company under the
Agreement (the "Guaranteed Obligations").
(b) If at any time the Company fails to perform any of the
Guaranteed Obligations when required or due under and in accordance with the
terms of the Agreement, the Guarantor shall forthwith perform on the day any
Guaranteed Obligations are (or would have become) required to be performed, upon
written notice or demand by Kmart that such Guaranteed Obligations have not been
performed in accordance with the terms of the Agreement.
(c) Without limiting the foregoing, the obligations,
covenants, agreements and duties of the Guarantor under this Guaranty shall be
absolute and unconditional, and shall remain in full force and effect, and shall
not be released, discharged, limited, impaired, reduced or terminated in any way
by any circumstance or condition whatsoever.
(d) This Guaranty is a continuing guaranty with respect to
performance. The Guarantor agrees that in the discharge of its obligations
hereunder, no judgment, order or exhaustion need be obtained, and no action,
suit or proceeding need be brought, and no other remedies need be exhausted
against the Company or any other person prior to the demand by Kmart for
performance hereunder.
2. Representations and Warranties. The Guarantor represents and
warrants that:
2.1 Legal Capacity: Approvals and Consents.
(a) The Guarantor has the full legal right and power and all
authority and approvals necessary to execute, deliver and perform this Guaranty.
The Guarantor has duly taken all actions necessary to authorize the execution,
delivery and performance of this Guaranty. This Guaranty has been duly executed
and delivered by the Guarantor and is the valid and binding obligation of the
Guarantor enforceable in accordance with its terms, except insofar as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
2
generally, or by principles governing the availability of equitable remedies.
(b) The execution, delivery and performance of this Guaranty
and the consummation of the transactions contemplated hereby does not and will
not (with the passage of time or the giving of notice or both): (x) conflict
with or result in a breach or violation by the Guarantor of, or (y) violate or
result in the breach of any of the terms of, result in a material modification
of or otherwise give any other contracting party the right to terminate or
constitute a default under, or (z) result in the acceleration of any performance
or any increase in any payment or benefits required by, any law, judgment,
contract, arrangement or understanding by which the Guarantor or the Company or
any of their respective assets, shares or business is subject or bound or may be
affected. No consents or approvals of any person are required in connection with
the execution, delivery and performance of this Guaranty.
(c) There are no persons (including, without limitation,
governmental authorities, courts and creditors of the Guarantor, and parties to
any other instrument or agreement to which the Guarantor is a party or by which
the Guarantor, the Company, or any of their respective assets are bound) whose
approval or consent, or with whom the filing of any certificate, notice,
application, report or other document, is legally or contractually required or
otherwise is necessary (i) in connection with the execution, delivery or
performance of this Guaranty by the Guarantor, (ii) in order to preclude any
termination, suspension, modification or impairment of any contract or any legal
or contractual right, privilege, permit or franchise in which the Guarantor or
the Company has a right and interest or (iii) in connection with the execution
of the Agreement.
3. Covenants and Agreements. The Guarantors covenant and agree as
follows:
3.1 Dispute Resolution. All disputes arising out of, or in relation to,
this Guaranty (other than disputes arising out of any claim by a third party in
an action commenced against a party), shall be referred for decision forthwith
to a senior executive of each party not involved in the dispute. If no agreement
can be reached through this process within thirty days of request by one party
to the other to nominate a senior executive for dispute resolution, then either
party hereto shall be entitled to pursue any and all available legal remedies.
3.2 Assignment. This Guaranty may not be assigned nor may the
performance of any duties hereunder be delegated by either party hereto without
the prior written consent of the other party; provided that any such assignment
shall not relieve the assignor from any of its obligations hereunder or under
any other document or agreement delivered by such party pursuant to, or
delivered (or acknowledged to have been delivered) contemporaneously with or in
connection with the execution of, this Guaranty, which shall continue to be
binding upon such party notwithstanding such assignment.
3.3 Notices. Any notice required or permitted to be given under this
Guaranty shall be sufficiently given if in writing and delivered by registered
or certified mail (return receipt requested), facsimile (with confirmation of
transmittal), overnight courier (with confirmation of delivery), or hand
delivery to the appropriate party at the address set forth below, or at such
other address as such party may from time to time specify for that purpose in a
notice similarly given:
If to Guarantor: Windmere-Durable Holdings, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
2
3
with a copy to: Greenberg, Traurig, Hoffman, Lipoff,
Xxxxx & Quentel, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
If to Kmart: Kmart Corporation
0000 X. Xxx Xxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
Attn: Divisional Vice President
Home Electronics/Home Appliances
with a copy to: Kmart Corporation
Legal Department
0000 X. Xxx Xxxxxx Xxxx
Xxxx Xxxxxxxx 00000
Attn: General Counsel
Any such notice shall be effective (i) if sent by mail, as aforesaid,
three business days after mailing, (ii) if sent by facsimile, as aforesaid, when
sent, and (iii) if sent by courier or hand delivered, as aforesaid, when
received. Provided that if any such notice shall have been sent by mail and if
on the date of mailing thereof or during the period prior to the expiry of the
third business day following the date of mailing there shall be a general postal
disruption (whether as a result of rotating strikes or otherwise) in the United
States then such notice shall not become effective until the third business day
following the date of resumption of normal mail service.
3.4 Governing Law and Consent to Jurisdiction. THIS GUARANTY SHALL BE
DEEMED TO HAVE BEEN EXECUTED AND DELIVERED IN TROY, MICHIGAN, AND SHALL BE
CONSTRUED, INTERPRETED AND ENFORCED UNDER AND IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF MICHIGAN. THE GUARANTOR AGREES TO EXERCISE ANY RIGHT OR
REMEDY IN CONNECTION WITH THIS AGREEMENT EXCLUSIVELY IN, AND HEREBY SUBMITS TO
THE JURISDICTION OF, THE STATE OF MICHIGAN COURTS OF OAKLAND COUNTY, MICHIGAN OR
THE UNITED STATES DISTRICT COURT IN DETROIT, MICHIGAN.
3.5 Binding Agreement. This Guaranty shall be binding upon the parties
hereto, and their respective successors and permitted assigns, whether by
operation of law or otherwise.
3.6 Entire Agreement. This Guaranty and all other documents and
instruments specifically incorporated by reference herein contain the entire
agreement and understanding of the parties with respect to the subject matter
hereof and thereof and supersedes all negotiations, prior discussions and
agreements relating to the subject of this Guaranty.
3.7 Headings. The headings to the various paragraphs of this Guaranty
have been inserted for convenience only and shall not affect the meaning of the
language contained in this Guaranty.
3.8 Waiver. The waiver by any party of any breach by another party of
any term or condition of this Guaranty shall not constitute a waiver of any
subsequent breach or nullify the effectiveness of that term or condition.
3
4
3.9 Counterparts. This Agreement may be executed in identical
duplicate copies exchanged by facsimile transmission. The parties agree to
execute two identical original copies of the Guaranty after exchanging signed
facsimile versions. Each identical counterpart shall be deemed an original,
but all of which together shall constitute one and the same instrument.
3.10 Severability of Provisions. If, for any reason whatsoever, any
term, covenant or condition of this Agreement or the application thereof to any
party or circumstance is to any extent held or rendered invalid, unenforceable
or illegal, then such term, covenant or condition:
(i) shall be deemed to be independent of the remainder of
such document and to be severable and divisible
therefrom and its validity, unenforceability or
illegality does not affect, impair or invalidate the
remainder of such document or any part thereof; and
(ii) shall continue to be applicable and enforceable to
the fullest extent permitted by law against any party
and circumstances other than those as to which it has
been held or rendered invalid, unenforceable or
illegal.
3.11 No Third Party Beneficiaries. Nothing in this Guaranty, express or
implied, is intended to confer on any person, other than the Guarantor and
Kmart, any rights or remedies under or by reason of this Guaranty.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed on the date first above written.
WINDMERE-DURABLE HOLDINGS, INC.
By:
----------------------------
Name:
Title:
ACCEPTED:
KMART CORPORATION
By:
-------------------------------------
Name:
Title:
4
