Exhibit 4.3
QUEBEC GUARANTY
This GUARANTY (this "Guaranty"), dated as of September 27, 1999, by
ICON OF CANADA INC., a Quebec company ("Guarantor"), in favor of IBJ WHITEHALL
BANK & TRUST COMPANY, as Trustee (the "Trustee") under that certain Indenture
(the "Indenture") dated September 27, 1999 between Icon Health & Fitness, Inc.
(the "Company") and the Trustee.
W I T N E S S E T H:
WHEREAS, pursuant to Article XIV of the Indenture, 510152 N.B. LTD.
("New Brunswick") has guaranteed to each Holder of a Security (as each term is
defined in the Indenture) the obligations of the Company under the Indenture and
the Securities (the "New Brunswick Guaranty");
WHEREAS, Guarantor is required pursuant to Section 10.18 of the
Indenture to provide this Guaranty; and
WHEREAS, 100% of the outstanding stock of Guarantor and New
Brunswick is owned directly by ICON International Holdings, Inc.;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. DEFINITIONS.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture, unless otherwise defined herein.
References to this "Guaranty" shall mean this Guaranty, including
all amendments, modifications and supplements and any annexes, exhibits and
schedules to any of the foregoing, and shall refer to this Guaranty as the same
may be in effect at the time such reference becomes operative.
2. THE GUARANTY.
Subject to the terms hereof, Guarantor hereby, jointly and
severally, unconditionally guarantees to each Holder of a Security authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the
Securities, the New Brunswick Guaranty or the obligations of the Company or New
Brunswick thereunder that the obligations of New Brunswick under the New
Brunswick Guaranty will be promptly paid in full or performed, all in accordance
with the terms thereof.
Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
New Brunswick Guaranty, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
thereof, the recovery of any judgment against New Brunswick, any
GBS canadian guaranty (Exh. 4.3)
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of New Brunswick, any right to
require a proceeding first against New Brunswick, protest, notice and all
demands whatsoever and covenant that this Guaranty shall not be discharged
except by complete performance of the obligations contained in the New Brunswick
Guaranty.
If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Subsidiary Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Subsidiary Guarantors, any amount paid by either to the Trustee or such
Holder, this Guaranty, to the extent theretofore discharged, shall be reinstated
in full force and effect.
Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.
3. Guaranty Limitation On Guarantor Liability.
Guarantor, and by its acceptance of Securities, each Holder, hereby
confirms that it is the intention of all such parties that the Guaranty of
Guarantor not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to
this Guaranty. To effectuate the foregoing intention, the Trustee, the Holders
and Guarantor hereby irrevocably agree that the obligations of Guarantor under
its this Guaranty shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Subsidiary Guarantor in respect of the obligations of such
other Subsidiary Guarantor under Article XIV of the Indenture, result in the
obligations of Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance.
4. Releases of Guaranty.
The Guaranty of Guarantor will be released upon the terms set forth
in Section 14.5 of the Indenture as if it were a Subsidiary Gurantor thereunder,
with such appropriate modifications as the context may require.
5. Subordination of Guaranty.
Guarantor agrees, and each Holder by accepting a Security agrees,
that the obligations of Guarantor under this Guaranty, are subordinated and
junior in right of payment to the prior payment of all Senior Indebtedness of
each Subsidiary Guarantor on the same basis as the obligations on, or relating
to the Securities, are subordinated and junior in right of payment to the prior
payment of all Senior Indebtedness of the Company pursuant to Article Thirteen
of the Indenture, including, without limitation, the obligations of Guarantor
under that certain guaranty,
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GBS canadian guaranty (Exh. 4.3)
dated the date hereof, in favor of the Banks pursuant to the Credit Agreement.
In furtherance of the foregoing, Guarantor agrees, and the Trustee and each
Holder by accepting a Security agrees, that the subordination and related
provisions applicable to the obligations of Guarantor under this Guaranty by
virtue of the preceding sentence shall be as set forth in Article Thirteen of
the Indenture as if each reference to "Company" therein were instead a reference
to "New Brunswick", each reference to "Senior Indebtedness of the Company"
therein were instead a reference to "Senior Indebtedness of Guarantor" and each
reference to "Securities" therein were instead a reference to "this Guaranty",
with such appropriate modifications as the context may require. For the purposes
of the foregoing sentence, the Trustee and the Holders shall have the right to
receive and/or retain payments by Guarantor only at such times as they may
receive and/or retain payments in respect of the New Brunswick Guaranty pursuant
to the Indenture, including Article Thirteen thereof.
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GBS canadian guaranty (Exh. 4.3)
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date first above written.
ICON OF CANADA INC./ ICON DU CANADA INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
GBS canadian guaranty (Exh. 4.3)
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