EXHIBIT 10.82
EXECUTION COPY
PERFORMANCE GUARANTY
THIS PERFORMANCE GUARANTY (this "Guaranty") is
made as of March 31, 1998 by SPECIALTY FOODS CORPORATION, a
Delaware corporation ("SFC"), as Master Servicer (in such
capacity, the "Master Servicer" and "Guarantor",) in favor
of SPECIALTY FOODS FINANCE CORPORATION, a Delaware
corporation (the "Company");
W I T N E S S E T H
WHEREAS, the Company, the Master Servicer and
certain of the subsidiaries of SFC named therein as sellers
(collectively, the "Sellers" and each a "Seller") are
parties to that certain Amended and Restated Receivables
Sale Agreement dated as of November 16, 1994 (as the same
may from time to time be amended, restated, supplemented or
otherwise modified, the "Receivables Sale Agreement");
WHEREAS, it is a condition precedent to the
willingness of the Company to continue to make available the
purchase facility under the Receivables Sale Agreement, that
SFC, individually and as Master Servicer, execute and
deliver this Guaranty;
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions. Terms used herein and
not otherwise defined herein shall have the meanings
assigned under the Receivables Sale Agreement or, to the
extent not defined therein, under that certain Pooling
Agreement dated as of November 16, 1994 (as the same may be
amended, restated, supplemented or otherwise modified, the
"Pooling Agreement"), among the Company, the Master
Servicer, and The Chase Manhattan Bank, as Trustee.
SECTION 2. Performance Guaranty. (a) The
Guarantor hereby unconditionally and irrevocably guarantees
to the Company, and all of its respective successors,
endorsees, transferees and assigns (including the Trustee
for the benefit of the Investor Certificateholders), the due
and punctual performance by each Seller of all covenants,
agreements, terms, conditions, undertakings, indemnities and
other obligations to be performed and observed by such
Seller to the Company under the Receivables Sale Agreement
including, without limitation, the due and punctual payment
of all sums which are or may become due and owing by each
Seller under the terms and provisions of the Receivables
Sale Agreement, whether for fees, expenses, indemnified
amounts or otherwise, whether upon any termination or for
any other reason. Upon the failure by any Seller to pay
punctually any amount due by it under the Receivables Sale
Agreement, the Guarantor agrees that it shall forthwith on
demand pay such amount at the place and in the manner
specified in the Receivables Sale Agreement.
SECTION 3. Waivers; Guaranty Unconditional. (a)
The Guarantor hereby waives promptness, diligence and notice
of acceptance of this Guaranty, of any action taken or
omitted in reliance hereon or of any default in the payment
of any such sums or in the performance of any covenants,
agreements, terms, conditions, and any demand, protest or
other notice of any kind. The Guarantor expressly waives
the right to require the Company to protect, secure,
perfect, insure, proceed against or exhaust any security
granted to it as security for the payment of any sums due
under the Receivables Sale Agreement or to exhaust any right
or take any action against any Seller or any other Person or
any collateral. The Guarantor further agrees that the
execution and delivery of this Guaranty shall be conclusive
evidence against the Guarantor that its obligations under
this Guaranty are unconditional and absolute. SFC in its
capacity as Master Servicer and as Guarantor hereby warrants
to the Company that it has adequate means to obtain from
each Seller on a continuing basis all information concerning
each of the Transaction Documents, the financial condition
of each such Seller and the collectability of the Purchased
Receivables, and that it is not relying on the Company to
provide such information either now or in the future.
(b) The obligations of the Guarantor under this
Guaranty constitute a present and continuing guaranty of
payment and not of collectability, shall be absolute and
unconditional, shall not be subject to any counterclaim, set-
off, deduction or defense based upon any claim the Guarantor
or any Affiliate thereof may have against any Seller or
against the Company or any other Person and shall remain in
full force and effect without regard to and shall not be
released, discharged or in any way affected or impaired by,
any thing, event, happening, matter, circumstance or
condition whatsoever (whether or not the Guarantor shall
have any knowledge or notice thereof or consent thereto),
including, without limitation:
(i) any amendment or modification of or supplement
to the Receivables Sale Agreement agreed to by the
requisite parties specified therein, or any assignment
or transfer of any interest of the Company, therein,
including, without limitation, any renewal or extension
of the terms of payment of any sums due or contingently
due hereunder or the granting of time in respect of any
payment, or any furnishing or acceptance of security or
any release of any security so furnished or accepted
for the sum due or contingently due under any
Transaction Document or eligibility criteria for the
purchase of Purchased Receivables thereunder;
(ii) any waiver, consent, extension, granting of
time, forbearance, indulgence or other action or
inaction under or in respect of the Receivables Sale
Agreement or any other Transaction Document or any
exercise or nonexercise of any right, remedy or power
in respect thereof;
(iii) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or
similar proceedings with respect to any of the Sellers,
the Guarantor or any other Person, or the properties or
creditors of any of them;
(iv) the occurrence of any Purchase Termination
Event under the Receivables Sale Agreement, or any
invalidity or any unenforceability of, or any
misrepresentation, irregularity or other defect in the
Receivables Sale Agreement or any other Transaction
Document or any other document to be delivered in
connection therewith;
(v) any failure by the Company to take any
required steps to perfect and maintain any security
interest in, or to preserve any rights to, any security
or collateral for any Purchased Receivable or Related
Property;
(vi) any transfer or purported transfer, any
consolidation or merger of any of the Sellers, the
Guarantor or the Company with or into any other
corporation or entity, or any change whatsoever in the
objects, capital structure, constitution or business of
any of the Sellers or the Guarantor;
(vii) any failure on the part of any of the
Sellers to perform or comply with any term of the
Receivables Purchase Agreement, any other Transaction
Document or any other document to be delivered in
connection therewith;
(viii) any suit or other action brought by any
creditors of any of the Sellers or the Guarantor for
any reason whatsoever, including, without limitation,
any suit or action in any way attacking or involving
the Receivables Purchase Agreement, the Certificate
Purchase Agreement or any other Transaction Document or
any other document to be delivered in connection
therewith; or
(ix) any other fact or circumstance which might
constitute a defense available to, or a discharge of,
the Guarantor.
SECTION 4. Discharge Only Upon Payment in Full;
Reinstatement. The obligations of the Guarantor hereunder
shall remain in full force and effect until all obligations
guaranteed hereunder are fully satisfied. If at any time
any payment of any obligations guaranteed hereunder is
rescinded or must otherwise be restored or returned by the
Company upon the insolvency, bankruptcy or reorganization of
the Guarantor, each of the obligations of the Guarantor
hereunder, as applicable, shall be reinstated all as though
such payment had not been made.
SECTION 5. Subrogation. If the Guarantor shall
make any payment due in respect of the Receivables Sale
Agreement pursuant to this Guaranty, it shall, to the extent
permitted by applicable law, be subrogated to the rights of
the Company as against the Guarantor; provided, however,
that such rights of subrogation and all indebtedness and
claims arising therefrom shall be, and the Guarantor hereby
declares that they are, and shall at all times be, in all
respects subordinate and junior to all sums due or
contingently due under the Receivables Sale Agreement in
respect of which payment was not made. The Guarantor hereby
further agrees that the foregoing right of subrogation shall
not be effective until, and that it shall not be entitled to
receive any payment, under any condition, in respect of any
such subrogated claim unless and until (x) all sums which
may become due, or are stated in the Receivables Sale
Agreement to become due, shall have become due and shall
have been paid in full or funds for their payment shall have
been duly and sufficiently provided, and (y) all obligations
of the Company and the Master Servicer under the Pooling
Agreement and any Supplement entered into in connection
therewith have been fully paid and satisfied. The Guarantor
further agrees that, if, solely as a result of (i) the
existence of this Guaranty and (ii) the application of
Section 550 of the Bankruptcy Code, or any similar provision
of any state insolvency law, the Company is required in any
bankruptcy or insolvency proceeding to turn over or
otherwise pay to the estate of the Guarantor or lose the
right to receive from the Guarantor's estate any amount
representing or constituting a transfer avoidable as to the
Company (which transfer, but for the existence of this
Guaranty, would not have been recoverable from any such
Person), the Guarantor shall pay or cause to be paid to the
Company, an amount, in cash, equal to such avoided or
recovered amount.
SECTION 6. Representations and Warranties. The
Guarantor hereby represents and warrants on and as of the
date hereof, and on and as of each date on which a purchase
shall be made under the Receivables Sale Agreement, as
follows:
(a) the execution, delivery and performance by
the Guarantor of this Guaranty (i) is within its
corporate powers, (ii) has been duly authorized by all
necessary corporate action, (iii) does not contravene
or result in a default under or conflict with (1) its
certificate or articles of incorporation or by-laws or
the provisions of any indenture, instrument or material
agreement to which they may be party or is subject (2)
any law, rule or regulation applicable to it, (3) any
contractual restriction binding on or affecting the
Guarantor or its property or (4) any order, writ,
judgment, award, injunction or decree binding on or
affecting the Guarantor or its property, and (iv) does
not result in or require the creation of any adverse
claim upon or with respect to any of its properties.
This Guaranty has been duly executed and delivered by
the Guarantor.
(b) No authorization or approval or other action
by, and no notice to or filing with, any Governmental
Authority or other Person is required for the due
execution, delivery and performance by the Guarantor of
this Guaranty.
(c) This Guaranty constitutes the legal, valid
and binding obligation of such Guarantor enforceable
against it in accordance with its terms.
(d) There is no pending or threatened action or
proceeding affecting the Guarantor or any of its
subsidiaries before any Governmental Authority or
arbitrator which could materially adversely affect the
business, operations, property, financial or other
condition or operations of the Guarantor, the ability
of the Guarantor to perform its obligations under this
Guaranty or which affects or purports to affect the
legality, validity or enforceability of this Guaranty.
SECTION 7. Further Assurances. The Guarantor
hereby agrees, upon the written request of the Company, to
execute and deliver to the Company from time to time, any
additional instruments or documents reasonably considered
necessary by the Company to cause this Guaranty to be,
become or continue to be valid and effective in accordance
with its terms.
SECTION 8. No Proceedings. The Guarantor
covenants and agrees that it will not institute against, or
join any other Person in instituting against the Company any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and
one day after the last Investor Certificate issued by the
Trust is paid in full.
SECTION 9. Successors and Assigns. This Guaranty
shall inure to the benefit of the Company and its respective
successors, endorsees, transferees and assigns. Each such
Person shall have the right to assign any and all of its or
their rights hereunder to any other Person and the Person
acquiring any interest herein shall succeed to all of the
rights of the transferor thereof hereunder to the extent of
such transfer. Notwithstanding the immediate preceding
sentence, the Guarantor agrees that it will not assign or
transfer all or any portion of its rights or obligations
hereunder without the prior written consent of the Company.
The Guarantor acknowledges that the Company shall assign all
of its rights hereunder to the Trustee or any Control Party.
The Guarantor consents to such assignment and agrees that
any Control Party (or the Trustee at the direction of any
Control Party), to the extent provided in the Pooling
Agreement with respect to the enforcement of the Receivables
Sale Agreement, shall be entitled to enforce the terms of
this Guaranty and the rights (including, without limitation,
the right to grant or withhold any consent or waiver) of the
Company directly against the Guarantor, whether or not a
Purchase Termination Event or a Potential Purchase
Termination Event has occurred. The Guarantor further
agrees that, in respect of its obligations hereunder, (i)
it will act at the direction of and in accordance with all
requests and instructions from any Control Party (or the
Trustee, as the case may be) until all amounts due to the
Investor Certificateholders are paid in full and (ii) in the
event of any conflict or requests or instructions to the
Guarantor, among the Trustee, any Control Party and the
Company, the Guarantor will at all times act in accordance
with the requests and instructions of any Control Party.
Each Control Party and the Trustee, on behalf of the
Investor Certificateholders, shall have the rights of third-
party beneficiaries under this Guaranty.
SECTION 10. Taxes; Expenses of Enforcement, etc.
All payments required to be made by the Guarantor hereunder
shall be made without setoff or counterclaim and free and
clear and without deduction or withholding for or on account
of, any present or future taxes, levies, imposts, duties or
other charges of whatsoever nature imposed by any government
or political or taxing authority thereof, provided, however,
that if the Guarantor is required by law to make such
deduction or withholding, the Guarantor shall forthwith pay
to the Company, such additional amount as results in the net
amount received by the Company equaling the full amount
which would have been received by the Company had no
deduction or withholding been made. The Guarantor also
agrees to reimburse the Company for any reasonable costs,
internal charges and out-of-pocket expenses (including
reasonable attorney's fees and time charges of attorneys for
the Company, which attorneys may be the employees of the
Company) paid or incurred by the Company in connection with
the collection and enforcement of amounts due under this
Guaranty.
SECTION 11. Setoff. At any time after all or any
part of the obligations guarantied hereunder become due and
payable (by acceleration or otherwise), the Company may,
without notice to the Guarantor and regardless or the
acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of all or
any part of the obligations guarantied hereunder, (i) any
indebtedness due or becoming due from the Company to the
Guarantor, and (ii) any monies, credits or other property
belonging to the Guarantor, at any time held by it or coming
into the possession of the Company or any of its respective
affiliates.
SECTION 12. GOVERNING LAW. (a) THIS GUARANTY
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 13. WAIVER OF JURY TRIAL. THE GUARANTOR
HEREBY AND UNCONDITIONALLY WAIVES ITS RIGHTS TO A TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT AND ANY COUNTERCLAIM THEREIN.
SECTION 14. Submission To Jurisdiction; Waivers.
The Guarantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any
legal action or proceeding relating to this Guaranty,
or for the recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York,
the courts of the United States of America for the
Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding
may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of any
such action or proceeding in any such court or that
such action or proceeding was brought in an
inconvenient court;
(c) agrees that service of process in any action
or proceeding may be effected by mailing a copy thereof
by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the
Guarantor at its address as set forth in Section 10.5
of the Pooling Agreement or under its name on the
signature page thereof, or at such other address of
which the Company shall have been notified pursuant
thereof;
(d) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to xxx in any
other jurisdiction; and
(e) waives, to the maximum extent not prohibited
by law, any right it may have to claim or recover in
any legal action or proceeding referred to in this
section any special, exemplary, punitive or
consequential damages.
SECTION 15. Amendment and Waiver. No amendment
or waiver of any provision of this Guaranty shall be
effective unless in a writing signed by the Company, the
Guarantor, and the Control Party and such amendment or
waiver shall be effective only in the specific instance and
for the specific purpose for which given. No failure on the
part of the Company to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver hereof; nor
shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the
exercise of any other right.
SECTION 16. Severability. Wherever possible,
each provision of this Guaranty shall be interpreted in such
manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by
or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the
remaining provisions of this Guaranty. Without limiting the
foregoing, if the liability of the Guarantor hereunder is
determined to have exceeded the maximum amount of liability
hereunder which could have been recovered from the Guarantor
under this Guaranty without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy
Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law, then this Guaranty shall remain
enforceable against the Guarantor for the full amount which
could have been claimed without becoming subject to such
avoidance.
SECTION 17. Merger. This Guaranty represents the
final agreement of the Guarantor with respect to the matters
contained herein and may not be contradicted by evidence of
prior or contemporaneous agreements, or subsequent oral
agreements, between the Guarantor and the Company.
SECTION 18. Headings. The captions and headings
of this Guaranty are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
IN WITNESS WHEREOF, each of the undersigned has
caused this Guaranty to be duly executed by its duly
authorized officer as of the date first set forth above.
SPECIALTY FOODS CORPORATION
By:
Name:
Title:
