EXHIBIT 10.3
EXECUTION COPY
SUBSIDIARY GUARANTY
Dated as of February 8, 2005
From
THE GUARANTORS NAMED HEREIN
and
THE ADDITIONAL GUARANTORS REFERRED TO HEREIN
as Guarantors
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
Del Monte Subsidiary Guaranty
TABLE OF CONTENTS
SECTION PAGE
Section 1. Guaranty; Limitation of Liability........................................... 1
Section 2. Guaranty Absolute........................................................... 2
Section 3. Waivers and Acknowledgments................................................. 3
Section 4. Subrogation................................................................. 4
Section 5. Payments Free and Clear of Taxes, Etc....................................... 5
Section 6. Representations and Warranties.............................................. 5
Section 7. Covenants................................................................... 5
Section 8. Amendments, Guaranty Supplements, Etc....................................... 6
Section 9. Notices and Other Communications; Facsimile Copies.......................... 6
Section 10. No Waiver; Remedies......................................................... 7
Section 11. Right of Set-off............................................................ 7
Section 12. Indemnification............................................................. 8
Section 13. Subordination............................................................... 8
Section 14. Continuing Guaranty; Assignments under the Credit Agreement................. 9
Section 15. Execution in Counterparts................................................... 10
Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc...................... 10
Section 17. Waiver of Jury Trial........................................................ 11
Exhibit A - Guaranty Supplement
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SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY dated as of February 8, 2005 made by the Persons
listed on the signature pages hereof under the caption "GUARANTOR" and the
Additional Guarantors (as defined in Section 8(b)) (such Persons so listed and
the Additional Guarantors being, collectively, the "GUARANTORS" and,
individually, each a "GUARANTOR") in favor of the Secured Parties (as defined in
the Credit Agreement referred to below).
PRELIMINARY STATEMENT. Del Monte Corporation, a Delaware corporation
(the "BORROWER"), is party to a Credit Agreement dated as of February 8, 2005
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"; the capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined) with Del Monte
Foods Company, a Delaware corporation ("HOLDINGS"), Bank of America, N.A. ("BANK
OF AMERICA") as Administrative Agent, Swing Line Lender and L/C Issuer, the
other Lenders party thereto, Xxxxxx Xxxxxxx Senior Funding Inc., as Syndication
Agent, JPMorgan Chase Bank, N.A., Xxxxxx Trust and Savings Bank and Suntrust
Bank, as Co-Documentation Agents and Banc of America Securities LLC, Xxxxxx
Xxxxxxx Senior Funding Inc. and X.X. Xxxxxx Securities Inc., as Joint Lead
Arrangers and Joint Book Managers. Each Guarantor will derive substantial direct
and indirect benefits from the transactions contemplated by the Credit
Agreement. It is a condition precedent to the making of Loans by the Lenders and
the issuance of Letters of Credit by the L/C Issuer under the Credit Agreement
and the entry by any Hedge Bank into any Secured Hedge Agreement with any Loan
Party or Subsidiary thereof from time to time that each Guarantor shall have
executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make Loans, the L/C Issuer to issue Letters of Credit
under the Credit Agreement and the Hedge Banks to enter into Secured Hedge
Agreements from time to time, each Guarantor, jointly and severally with each
other Guarantor, hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity or on any date of a required
prepayment or by acceleration, demand or otherwise, of all Obligations of each
other Loan Party or other Guarantor now or hereafter existing under or in
respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the "GUARANTEED
OBLIGATIONS"), and agrees to pay any and all reasonable expenses (including,
without limitation, fees and expenses of counsel) incurred by the Administrative
Agent or any other Secured Party in enforcing any rights under this Guaranty or
any other Loan Document to the extent such Secured Party is entitled to
reimbursement of any such expenses by any Loan Party or Guarantor pursuant to
the terms of the relevant Loan Document. Without limiting the generality of the
foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party or other Guarantor to any Secured Party under or in respect of the
Loan Documents but for the fact that they are unenforceable or not allowable due
to the existence of a
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bankruptcy, reorganization or similar proceeding involving such other Loan Party
or other Guarantor.
(b) Each Guarantor, and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Guaranty and the Obligations of each
Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Code of the United States, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty and the
Obligations of each Guarantor hereunder. To effectuate the foregoing intention,
the Administrative Agent, the other Secured Parties and the Guarantors hereby
irrevocably agree that the Obligations of each Guarantor under this Guaranty at
any time shall be limited to the maximum amount as will result in the
Obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees
that in the event any payment shall be required to be made to any Secured Party
under this Guaranty, the Guaranty of Holdings contained in the Credit Agreement
or any other guaranty in respect of the Obligations, such Guarantor will
contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor and Holdings and each other guarantor so as to maximize the aggregate
amount paid to the Secured Parties under or in respect of the Loan Documents.
Section 2. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party with respect thereto. The Obligations of each Guarantor under or
in respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party or Guarantor under or in respect of
the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
Guarantor or whether the Borrower or any other Loan Party or Guarantor is joined
in any such action or actions. The liability of each Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
each Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party or Guarantor under or in respect of
the Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Loan Party or any of its Subsidiaries or
otherwise;
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(c) any taking, exchange, release or non-perfection of any
Collateral or any other collateral, or any taking, release or amendment or
waiver of, or consent to departure from, any other guaranty, for all or
any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party or Guarantor under the Loan Documents or any
other assets of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party
or other Guarantor any information relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects
of any other Loan Party or Guarantor now or hereafter known to such
Secured Party (each Guarantor waiving any duty on the part of the Secured
Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement (as hereinafter defined) or any other
guaranty or agreement or the release or reduction of liability of any
Guarantor or other guarantor or surety with respect to the Guaranteed
Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Secured Party that might otherwise constitute a
defense available to, or a discharge of, any Loan Party, any Guarantor or
any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or Guarantor or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party,
any Guarantor or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
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(c) Each Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other Guarantor,
any other guarantor or any other Person or any Collateral and (ii) any defense
based on any right of set-off or counterclaim against or in respect of the
Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Administrative Agent may,
without notice to or demand upon such Guarantor and without affecting the
liability of such Guarantor under this Guaranty, foreclose under any mortgage by
nonjudicial sale, and each Guarantor hereby waives any defense to the recovery
by the Administrative Agent and the other Secured Parties against such Guarantor
of any deficiency after such nonjudicial sale and any defense or benefits that
may be afforded by applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives any
duty on the part of any Secured Party to disclose to such Guarantor any matter,
fact or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party or any
of its Subsidiaries now or hereafter known by such Secured Party.
(f) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and the Secured Hedge Agreements and that the waivers set forth
in Section 2 and this Section 3 are knowingly made in contemplation of such
benefits.
Section 4. Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party, any other Guarantor or any
other insider guarantor that arise from the existence, payment, performance or
enforcement of such Guarantor's Obligations under or in respect of this Guaranty
or any other Loan Document, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of any Secured Party against the
Borrower, any other Loan Party, any other Guarantor or any other insider
guarantor or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Borrower, any other Loan
Party, any other Guarantor or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, all Letters of Credit and all
Secured Hedge Agreements shall have expired or been terminated and the
Commitments shall have expired or been terminated. If any amount shall be paid
to any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the latest
date of expiration, cancellation or termination of all Letters of Credit and all
Secured Hedge Agreements (or the cash collateralization thereof in a manner
satisfactory to the Secured Parties) and (c) the termination of all Commitments,
such amount shall be received and held in trust for the benefit
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of the Secured Parties, shall be segregated from other property and funds of
such Guarantor and shall forthwith be paid or delivered to the Administrative
Agent in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Guaranteed Obligations and all
other amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Loan Documents, or to be held as Collateral for
any Guaranteed Obligations or other amounts payable under this Guaranty
thereafter arising. If (i) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash, (ii)
all of the Commitments have been terminated and (iii) all Letters of Credit and
all Secured Hedge Agreements shall have expired or been cancelled or terminated
(or have been cash collateralized in a manner satisfactory to the Secured
Parties), the Secured Parties will, at such Guarantor's request and expense,
execute and deliver to such Guarantor appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer by
subrogation to such Guarantor of an interest in the Guaranteed Obligations
resulting from such payment made by such Guarantor pursuant to this Guaranty.
Section 5. Payments Free and Clear of Taxes, Etc. Any and all
payments by or on account of any obligation of any Guarantor hereunder or under
any other Loan Document shall be made free and clear of and without deduction or
withholding for any Indemnified Taxes or Other Taxes on the same terms and to
the same extent that payments by the Borrower and Holdings are required to be
made free and clear of Indemnified Taxes and Other Taxes pursuant to the terms
of Section 3.01 of the Credit Agreement.
Section 6. Representations and Warranties. Each Guarantor hereby
makes each representation and warranty made in the Loan Documents by the
Borrower with respect to such Guarantor and each Guarantor hereby further
represents and warrants as follows:
(a) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(b) Such Guarantor has, independently and without reliance upon any
Secured Party and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Guaranty and each other Loan Document to which it is or is to be a party,
and such Guarantor has established adequate means of obtaining from each
other Loan Party and Guarantor on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely
familiar with, the business, condition (financial or otherwise),
operations, performance, properties and prospects of such other Loan Party
and Guarantor.
Section 7. Covenants. Each Guarantor covenants and agrees that, so
long as any part of the Guaranteed Obligations shall remain unpaid, any Letter
of Credit shall be outstanding, any Lender shall have any Commitment or any
Secured Hedge Agreement shall be in effect, such Guarantor will perform and
observe, and cause each of its Subsidiaries to perform and observe, all of the
terms, covenants and agreements set forth in the Loan Documents on its or their
part to be performed or observed or that the Borrower has agreed to cause such
Guarantor or such Subsidiaries to perform or observe.
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Section 8. Amendments, Guaranty Supplements, Etc. (a) No amendment
or waiver of any provision of this Guaranty and no consent to any departure by
any Guarantor therefrom shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders and each of the Guarantors and
acknowledged by the Administrative Agent, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all of the Lenders, (a) reduce or limit the
obligations of any Guarantor hereunder, release any Guarantor hereunder or
otherwise limit any Guarantor's liability with respect to the Obligations owing
to the Secured Parties under or in respect of the Loan Documents, (b) postpone
any date fixed for payment hereunder or (c) change the number of Secured Parties
or the percentage of (x) the Commitments, (y) the aggregate unpaid principal
amount of the Loans or (z) the aggregate Outstanding Amount of outstanding
Letters of Credit that, in each case, shall be required for the Secured Parties
or any of them to take any action hereunder.
(b) Upon the execution and delivery by any Person of a guaranty
supplement in substantially the form of Exhibit A hereto (each, a "GUARANTY
SUPPLEMENT"), (i) such Person shall be referred to as an "ADDITIONAL GUARANTOR"
and shall become and be a Guarantor hereunder, and each reference in this
Guaranty to a "GUARANTOR" shall also mean and be a reference to such Additional
Guarantor, and each reference in any other Loan Document to a "SUBSIDIARY
GUARANTOR" shall also mean and be a reference to such Additional Guarantor, and
(ii) each reference herein to "THIS GUARANTY", "HEREUNDER", "HEREOF" or words of
like import referring to this Guaranty, and each reference in any other Loan
Document to the "SUBSIDIARY GUARANTY", "THEREUNDER", "THEREOF" or words of like
import referring to this Guaranty, shall mean and be a reference to this
Guaranty as supplemented by such Guaranty Supplement.
Section 9. Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to any Guarantor, addressed to it in care of the Borrower at
the Borrower's address, facsimile number, electronic mail address or
telephone number specified on Schedule 11.02 of the Credit Agreement or to
such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other
parties;
(ii) if to any Agent or any Lender, at its address, facsimile
number, electronic mail address or telephone number specified on Schedule
11.02 of the Credit Agreement or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such
party in a notice to the other parties;
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(iii) if to any Hedge Bank, to the address, facsimile number,
electronic mail address or telephone number as shall be specified in the
Secured Hedge Agreement to which it is a party, and
(iv) if to any other party, at such other address as shall be
designated by such party in a written notice to each other party.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails (certified or registered), postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail (which form of delivery is subject to
the provisions of subsection (c) below), when delivered. In no event shall a
voicemail message be effective as a notice, communication or confirmation
hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
such document and signatures shall, subject to applicable law, have the same
force and effect as manually signed originals and shall be binding on each
Guarantor. The Administrative Agent may also require that any such document and
signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit the
effectiveness of any facsimile document or signature.
(c) Electronic Communications. Notices and other communications to
the Secured Parties hereunder may be delivered or furnished by electronic
communications (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent and the Guarantors. The
Administrative Agent or the Guarantors may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures
may be limited to particular notices or communications.
Section 10. No Waiver; Remedies. No failure on the part of any
Secured Party to exercise, and no delay in exercising, any right, remedy, power
or privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
Section 11. Right of Set-off. In addition to any right or remedy of
the Secured Parties provided by law, if an Event of Default exists, or the Loans
have been accelerated, each Secured Party is authorized at any time and from
time to time, without prior notice to any Guarantor, any such notice being
waived by such Guarantor to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other indebtedness at any time owing by, such
Secured Party or any Affiliate of such Secured Party to or for the credit or the
account of such Guarantor against any and all Obligations then due and owing to
such Secured Party and each Affiliate of such
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Secured Party and each Secured Party and Affiliate thereof is hereby irrevocably
authorized to permit such set-off and application. Each Secured Party agrees
promptly to notify the relevant Guarantor and the Administrative Agent after any
such set-off and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such set-off and application.
Section 12. Indemnification. (a) Without limitation on any other
Obligations of any Guarantor or remedies of the Secured Parties under this
Guaranty, and whether or not the transactions contemplated by the Credit
Agreement are consummated, each Guarantor shall, to the fullest extent permitted
by law, indemnify and hold harmless each Indemnitee from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, charges, expenses and disbursements (including the
fees, charges and disbursements of any counsel for any Indemnitee) of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
any Indemnitee in connection with or as a result of any failure of any
Guaranteed Obligations to be the legal, valid and binding obligations of any
Loan Party or Guarantor enforceable against such Loan Party or Guarantor in
accordance with their terms.
(b) Each Guarantor hereby also agrees that none of the Indemnified
Persons shall have any liability (whether direct or indirect, in contract, tort
or otherwise) to any of the Guarantors or any of their respective Affiliates or
any of their respective officers, directors, employees, agents and advisors, and
each Guarantor hereby agrees not to assert any claim against any Indemnified
Party on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Facilities, the
actual or proposed use of the proceeds of the Loans or the Letters of Credit,
the Loan Documents or any of the transactions contemplated by the Loan
Documents.
(c) Without prejudice to the survival of any of the other
agreements of any Guarantor under this Guaranty or any of the other Loan
Documents, the agreements and obligations of each Guarantor contained in Section
1(a) (with respect to enforcement expenses), the last sentence of Section 2,
Section 5 and this Section 12 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this Guaranty.
Section 13. Subordination. Each Guarantor hereby subordinates any
and all debts, liabilities and other Obligations owed to such Guarantor by each
other Loan Party and Guarantor (the "SUBORDINATED OBLIGATIONS") to the
Guaranteed Obligations to the extent and in the manner hereinafter set forth in
this Section 13:
(a) Prohibited Payments, Etc. Except during the continuance of any
Event of Default (including the commencement and continuation of any
proceeding under any Debtor Relief Law relating to any other Loan Party or
Guarantor) and so long as the Administrative Agent has delivered written
notice to the Guarantor of the Required Lenders' intent to exercise their
rights under this Section 13, each Guarantor may receive regularly
scheduled payments from any other Loan Party or other Guarantor on account
of the Subordinated Obligations. After the occurrence and during the
continuance of any Event of Default (including the commencement and
continuation of any Insolvency Proceeding relating to any other Loan Party
or Guarantor), and so long as the
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Administrative Agent has delivered written notice to such Guarantor of the
Required Lenders' intent to exercise their rights under this Section 13,
no Guarantor shall demand, accept or take any action to collect any
payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding
under any Debtor Relief Law relating to any other Loan Party or Guarantor,
each Guarantor agrees that the Secured Parties shall be entitled to
receive payment in full in cash of all Guaranteed Obligations (including
all interest and expenses accruing after the commencement of a proceeding
under any Debtor Relief Law, whether or not constituting an allowed claim
in such proceeding ("POST PETITION INTEREST")) before such Guarantor
receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of
any Default (including the commencement and continuation of any proceeding
under any Debtor Relief Law relating to any other Loan Party or
Guarantor), each Guarantor shall, if the Administrative Agent so requests
in writing, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for the Secured Parties and deliver
such payments to the Administrative Agent on account of the Guaranteed
Obligations (including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without
reducing or affecting in any manner the liability of such Guarantor under
the other provisions of this Guaranty.
(d) Administrative Agent Authorization. After the occurrence and
during the continuance of any Event of Default (including the commencement
and continuation of any proceeding under any Debtor Relief Law relating to
any other Loan Party or Guarantor) and so long as written notice has been
delivered to the relevant Guarantor of the Required Lenders' intent to
exercise their rights under this Section 13, the Administrative Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of each Guarantor, to collect and enforce, and
to submit claims in respect of, Subordinated Obligations and to apply any
amounts received thereon to the Guaranteed Obligations (including any and
all Post Petition Interest), and (ii) to require each Guarantor (A) to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the
Administrative Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
Section 14. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the latest of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty, (ii)
the latest date of expiration, cancellation or termination of all Letters of
Credit and all Secured Hedge Agreements (or the cash collateralization thereof
in a manner satisfactory to the Secured Parties) and (iii) the termination of
all Commitments, (b) be binding upon the Guarantor, its successors and assigns
and (c) inure to the benefit of and be enforceable by the Secured Parties and
their successors, transferees and assigns. Without limiting the generality of
clause (c) of the immediately preceding sentence, any Secured Party may assign
or otherwise transfer all or any portion of its rights and obligations under the
Credit Agreement
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(including, without limitation, all or any portion of its Commitments, the Loans
owing to it and the Note or Notes held by it) to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Secured Party herein or otherwise, in each case as and
to the extent provided in Section 11.06 of the Credit Agreement. No Guarantor
shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Secured Parties. Notwithstanding
anything herein to the contrary, the Administrative Agent agrees to release this
Guaranty and all obligations of the Guarantors hereunder during a Guaranty
Release Period on the terms set forth in the Credit Agreement. In addition,
after December 31, 2005, the Administrative Agent agrees to release this
Guaranty and all obligations of the initial Guarantors hereunder, and to execute
and deliver (at the Borrower's expense) all documents or other instruments that
the Borrower shall reasonably request to evidence such termination and release,
so long as at such time (x) no Default or Event of Default has occurred and is
continuing, (y) no such Guarantor qualifies as a Material Subsidiary and all
such Guarantors taken together as one entity would not qualify as a Material
Subsidiary and (z) the guaranty of such Guarantors in favor of the holders of
any Subordinated Notes will be terminated contemporaneously therewith, subject
to receipt by the Administrative Agent of a certificate of a Responsible Officer
of the Borrower as to the satisfaction of the conditions set forth in the
preceding clauses (x), (y) and (z), showing the calculations used in determining
compliance with clause (y).
Section 15. Execution in Counterparts. This Guaranty and each
amendment, waiver and consent with respect hereto may be executed in any number
of counterparts and by different parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE SECURED PARTIES SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH GUARANTOR CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH
GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH
GUARANTOR WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
Del Monte Subsidiary Guaranty
10
Section 17. Waiver of Jury Trial EACH GUARANTOR WAIVES ITS
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH GUARANTOR AGREES THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, EACH GUARANTOR FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION TO THIS GUARANTY AND THE OTHER
LOAN DOCUMENTS.
Del Monte Subsidiary Guaranty
11
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
GUARANTORS
XXXX MAC IHC, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
and Treasurer
STAR-XXXX SAMOA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
and Treasurer
MARINE TRADING PACIFIC, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
and Treasurer
STAR-XXXX MAURITIUS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
and Treasurer
Del Monte Subsidiary Guaranty
EXHIBIT A
TO THE
SUBSIDIARY GUARANTY
FORM OF SUBSIDIARY GUARANTY SUPPLEMENT
_____________ ___, _______
Bank of America, N.A., as Administrative Agent
[INSERT ADDRESS OF ADMINISTRATIVE AGENT]
Attention: _________
Credit Agreement dated as of February 8, 2005
among Del Monte Corporation, a Delaware corporation (the "BORROWER"),
Del Monte Foods Company, a Delaware corporation ("HOLDINGS"),
Bank of America, N.A. as Administrative Agent,
Swing Line Lender and L/C Issuer, the other Lenders party thereto,
Xxxxxx Xxxxxxx Senior Funding Inc., as Syndication Agent,
JPMorgan Chase Bank, N.A., Xxxxxx Trust and Savings Bank and Suntrust Bank,
as Co-Documentation Agents and Banc of America Securities LLC and
Xxxxxx Xxxxxxx Senior Funding Inc., as Joint Lead Arrangers
and Joint Book Managers.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the
Subsidiary Guaranty referred to therein (such Subsidiary Guaranty, as in effect
on the date hereof and as it may hereafter be amended, supplemented or otherwise
modified from time to time, together with this Guaranty Supplement, being the
"SUBSIDIARY GUARANTY"). The capitalized terms defined in the Subsidiary Guaranty
or in the Credit Agreement and not otherwise defined herein are used herein as
therein defined.
Section 1. Guaranty; Limitation of Liability. (a) The undersigned
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity or on any date of a required
prepayment or by acceleration, demand or otherwise, of all Obligations of each
other Loan Party or Guarantor now or hereafter existing under or in respect of
the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premium, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the "GUARANTEED
OBLIGATIONS"), and agrees to pay any and all reasonable expenses (including,
without limitation, fees and expenses of counsel) incurred by the Administrative
Agent or any other Secured Party in enforcing any rights under this Guaranty
Supplement, the Subsidiary Guaranty or any other Loan Document to the extent
such Secured Party is entitled to reimbursement of any such expenses by any Loan
Party or Guarantor. Without limiting the generality of the foregoing, the
undersigned's liability shall extend to all amounts that constitute
Del Monte Subsidiary Guaranty
part of the Guaranteed Obligations and would be owed by any other Loan Party or
Guarantor to any Secured Party under or in respect of the Loan Documents but for
the fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such other Loan Party
or Guarantor.
(b) The undersigned, and by its acceptance of this Guaranty
Supplement, the Administrative Agent and each other Secured Party, hereby
confirms that it is the intention of all such Persons that this Guaranty
Supplement, the Subsidiary Guaranty and the Obligations of the undersigned
hereunder and thereunder not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Code of the United States, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty Supplement, the
Subsidiary Guaranty and the Obligations of the undersigned hereunder and
thereunder. To effectuate the foregoing intention, the Administrative Agent, the
other Secured Parties and the undersigned hereby irrevocably agree that the
Obligations of the undersigned under this Guaranty Supplement and the Subsidiary
Guaranty at any time shall be limited to the maximum amount as will result in
the Obligations of the undersigned under this Guaranty Supplement and the
Subsidiary Guaranty not constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby unconditionally and irrevocably agrees
that in the event any payment shall be required to be made to any Secured Party
under this Guaranty Supplement, the Subsidiary Guaranty or the Guaranty of
Holdings contained in the Credit Agreement, as the case may be, or any other
guaranty, the undersigned will contribute, to the maximum extent permitted by
applicable law, such amounts to each other Guarantor and each other guarantor so
as to maximize the aggregate amount paid to the Secured Parties under or in
respect of the Loan Documents.
Section 2. Obligations Under the Guaranty. The undersigned hereby
agrees, as of the date first above written, to be bound as a Guarantor by all of
the terms and conditions of the Subsidiary Guaranty to the same extent as each
of the other Guarantors thereunder. The undersigned further agrees, as of the
date first above written, that each reference in the Subsidiary Guaranty to an
"ADDITIONAL GUARANTOR" or a "GUARANTOR" shall also mean and be a reference to
the undersigned, and each reference in any other Loan Document to a "SUBSIDIARY
GUARANTOR" or a "LOAN PARTY" shall also mean and be a reference to the
undersigned.
Section 3. Representations and Warranties. The undersigned hereby,
with respect to itself, makes each representation and warranty set forth in
Section 6 of the Subsidiary Guaranty to the same extent as each other Guarantor.
Section 4. Delivery by Telecopier. Delivery of an executed
counterpart of a signature page to this Guaranty Supplement by telecopier shall
be effective as delivery of an original executed counterpart of this Guaranty
Supplement.
Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE SECURED PARTIES SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
Del Monte Subsidiary Guaranty
2
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE GUARANTOR CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. THE
GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
GUARANTOR WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
Section 6. Waiver of Jury Trial THE GUARANTOR WAIVES ITS RESPECTIVE
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF
ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS OR OTHERWISE. THE GUARANTOR AGREES THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH GUARANTOR FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL,
SUPPLEMENT OR MODIFICATION TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
Del Monte Subsidiary Guaranty
3
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By _____________________________
Title:
Del Monte Subsidiary Guaranty
4
