EXHIBIT 4.6
GUARANTY
GUARANTY dated as of January 6, 2006 (this "Guaranty"), by each of the
undersigned (each such Person hereinafter referred to individually as a
"Borrower" and, collectively as the "Borrowers"), in favor of (a) Back Bay
Capital Funding LLC, a Delaware limited liability company, as administrative
agent (in such capacity, the "Administrative Agent") and as collateral agent (in
such capacity, the "Collateral Agent" and, in its capacity as both
Administrative Agent and Collateral Agent, the "Agent") for the Secured Parties
(as defined in the Credit Agreement referred to below), (b) the Lenders party to
the Credit Agreement, and (c) the other Secured Parties.
W I T N E S S E T H
Reference is made to the Credit Agreement dated as of even date herewith
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by, among others, (i) the Borrowers, (ii) the Lenders named
therein, and (iii) Back Bay Capital Funding LLC, as Administrative Agent and
Collateral Agent for the Lenders. Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make a Term Loan to the Borrowers pursuant to,
and upon the terms and subject to the conditions specified in, the Credit
Agreement. The obligation of the Lenders to make the Term Loan is conditioned
on, among other things, the execution and delivery by the Borrowers of a
Guaranty in the form hereof. As consideration therefor and in order to induce
the Lenders to make the Term Loan, the Borrowers are willing to execute this
Guaranty.
Accordingly, the Borrowers agree as follows:
SECTION 1. Guaranty. Each Borrower unconditionally guarantees, as a
primary obligor and not merely as a surety, the due and punctual payment and
performance (whether at the stated maturity, by acceleration or otherwise) by
each other Borrower of all Obligations. Each Borrower further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon the Guaranty
notwithstanding any extension or renewal of any Obligation. The liabilities of
each Borrower hereunder are joint and several.
SECTION 2. Obligations Not Affected. To the fullest extent permitted by
Applicable Law, each Borrower waives presentment to, demand of payment from and
protest to any other Borrower of any of the Obligations, and also waives notice
of acceptance of the Guaranty and notice of protest for nonpayment. To the
fullest extent permitted by Applicable Law, the obligations of each Borrower
hereunder shall not be affected by (a) the failure of any Agent or any other
Secured Party to assert any claim or demand or to enforce or exercise any right
or remedy against any other Borrower under the provisions of the Credit
Agreement, any other Loan Document or otherwise, (b) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, this Guaranty, any other Loan Document or any
other agreement, with respect to any particular Borrower under the Credit
Agreement, or (c) the failure to perfect any security interest in, or the
release of, any of the security held by or on behalf of the Collateral Agent or
any other Secured Party.
SECTION 3. Security. Each of the Borrowers authorizes the Collateral Agent
and each of the other Secured Parties to (a) take and hold security for the
payment of the Guaranty and the Obligations and exchange, enforce, waive and
release any such security, (b) apply such security and direct the order or
manner of sale thereof as they in their sole discretion may determine and (c)
release or substitute any one or more endorsees or other obligors.
SECTION 4. Guaranty of Payment. Each of the Borrowers further agrees that
this Guaranty constitutes a guaranty of payment when due and not of collection,
and waives any right to require that any resort be had by the Collateral Agent
or any other Secured Party to any of the Collateral or other security held for
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Collateral Agent or any other Secured Party in favor of any
other Borrower or any other Person or to any other guarantor of all or part of
the Obligations.
SECTION 5. Indemnification. Without limiting any of their indemnification
obligations under the Credit Agreement or the other Loan Documents, the
Borrowers jointly and severally shall indemnify the Agents and each Lender, and
each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of, (i) the execution or delivery or performance of this
Guaranty or any other Loan Document, the performance by any Borrower of its
obligations under this Guaranty or any other Loan Document, or the consummation
of the transactions contemplated by the Loan Documents or any other transactions
contemplated hereby, or (ii) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence, bad faith or willful
misconduct of any Indemnitee or any Affiliate of an Indemnitee (or of any
officer, director, employee, advisor or agent of such Indemnitee or any such
Indemnitee's Affiliates). In connection with any indemnified claim hereunder,
the Indemnitee shall be entitled to select its own counsel and the Borrowers
shall promptly pay the reasonable fees and expenses of such counsel.
SECTION 6. No Discharge or Diminishment of Guaranty. The obligations of
each Borrower hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or set-off, counterclaim, recoupment or termination
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whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Borrower hereunder shall not be discharged or impaired or
otherwise affected by any default, failure or delay, willful or otherwise, in
the performance of the Obligations, or by any other act or omission that may or
might in any manner or to any extent vary the risk of any Borrower or that would
otherwise operate as a discharge of any Borrower as a matter of law or equity
(other than the indefeasible payment in full in cash of all the Obligations).
SECTION 7. Defenses of Borrowers Waived. To the fullest extent permitted
by Applicable Law, each of the Borrowers waives any defense based on or arising
out of any defense of any other Borrower or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any other Borrower, other than the indefeasible payment in
full in cash of all the Obligations. The Collateral Agent and the other Secured
Parties may, at their election, foreclose on any security held by one or more of
them by one or more judicial or nonjudicial sales, accept an assignment of any
such security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with any other Borrower, or exercise
any other right or remedy available to them against any other Borrower, without
affecting or impairing in any way the liability of any Borrower hereunder except
to the extent that all the Obligations have been indefeasibly paid in full in
cash. Pursuant to, and to the extent permitted by, Applicable Law, each of the
Borrowers waives any defense arising out of any such election even though such
election operates, pursuant to Applicable Law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Borrower
against any other Borrower or any security.
SECTION 8. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Agents or any other
Secured Party has at law or in equity against any Borrower by virtue hereof,
upon the failure of any other Borrower to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each of the Borrowers hereby promises to and will
forthwith pay, or cause to be paid, to the Agents or such other Secured Party as
designated thereby in cash the amount of such unpaid Obligations. Upon payment
by any Borrower of any sums to an Agent or any other Secured Party as provided
above, all rights of such Borrower against any other Borrower arising as a
result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subordinate and junior in right
of payment to the prior indefeasible payment in full in cash of all the
Obligations. In addition, any indebtedness of any other Borrower now or
hereafter held by any other Borrower is hereby subordinated in right of payment
to the prior payment in full in cash of all of the Obligations. Notwithstanding
the foregoing, so long as no Default or Event of Default has occurred and is
continuing, any Borrower may make payments to any other Borrower or accept
payments from any other Borrower on account of any such indebtedness. After the
occurrence and during the continuance of any Default or Event of Default, none
of the Borrowers will make any further payment or demand, xxx for, or otherwise
attempt to collect any such indebtedness until indefeasible payment in full in
cash of the Obligations. If any amount shall erroneously be paid
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to any Borrower on account of (a) such subrogation, contribution, reimbursement,
indemnity or similar right or (b) any such indebtedness of any other Borrower,
such amount shall be held in trust for the benefit of the Secured Parties and
shall forthwith be paid to the Administrative Agent to be credited against the
payment of the Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Documents.
SECTION 9. Limitation on Guaranty of Obligations. In any action or
proceeding with respect to any Borrower involving any state corporate law, or
any state or federal bankruptcy, insolvency, reorganization or other law
affecting the rights of creditors generally, if the obligations of such Borrower
under Section 1 hereof would otherwise be held or determined to be void, invalid
or unenforceable, or subordinated to the claims of any other creditors, on
account of the amount of its liability under said Section 1, then,
notwithstanding any other provision hereof to the contrary, the amount of such
liability shall, without any further action by such Borrower, any Lender, the
Agent or any other Person, be automatically limited and reduced to the highest
amount which is valid and enforceable and not subordinated to the claims of
other creditors as determined in such action or proceeding.
SECTION 10. Information. Each of the Borrowers assumes all responsibility
for being and keeping itself informed of each other Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations and the nature, scope and extent of the risks that
such Borrower assumes and incurs hereunder, and agrees that none of the Agents
or the other Secured Parties will have any duty to advise any of the Borrowers
of information known to it or any of them regarding such circumstances or risks.
SECTION 11. Termination. The Guaranty (a) shall terminate when all the
Obligations have been indefeasibly paid in full in cash and (b) shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be restored
by any Secured Party or any Borrower upon the bankruptcy or reorganization of
any other Borrower or otherwise.
SECTION 12. Costs of Enforcement. The Borrowers will pay on demand (i) all
reasonable out-of-pocket expenses incurred by the Agents and their Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Agents and any outside consultants for the Agents, in connection with the
preparation and administration of this Guaranty or any amendments, modifications
or waivers of the provisions hereof (whether or not the transactions
contemplated hereby shall be consummated), and (ii) all reasonable out-of-pocket
expenses incurred by the Agents, including the reasonable fees, charges and
disbursements of any counsel and any outside consultants for the Agents, in
connection with the enforcement or protection of the rights of the Agents in
connection with the Loan Documents, including their rights under this Guaranty.
SECTION 13. Binding Effect; Several Agreement; Assignments. Whenever in
this Guaranty any of the parties hereto is referred to, such reference shall be
deemed to include the
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successors and assigns of such party, and all covenants, promises and agreements
by or on behalf of the Borrowers that are contained in this Guaranty shall bind
and inure to the benefit of each party hereto and their respective successors
and assigns. This Guaranty shall be binding upon each of the Borrowers and their
respective permitted successors and assigns, and shall inure to the benefit of
the Agents and the other Secured Parties, and their respective permitted
successors and assigns, except that no Borrower shall have the right to assign
or transfer its rights or obligations hereunder or any interest herein (and any
such attempted assignment or transfer shall be void). This Guaranty shall be
construed as a separate agreement with respect to each Borrower and may be
amended, modified, supplemented, waived or released with respect to any Borrower
without the approval of any other Borrower and without affecting the obligations
of any other Borrower hereunder.
SECTION 14. Waivers; Amendment. (a) The rights, remedies, powers,
privileges, and discretions of the Agents hereunder and under Applicable Law
(herein, the "Agents' Rights and Remedies") shall be cumulative and not
exclusive of any rights or remedies which it would otherwise have. No delay or
omission by the Agents in exercising or enforcing any of the Agents' Rights and
Remedies shall operate as, or constitute, a waiver thereof. No waiver by the
Agents of any Event of Default or of any default under any other agreement shall
operate as a waiver of any other default hereunder or under any other agreement.
No single or partial exercise of any of the Agents' Rights or Remedies, and no
express or implied agreement or transaction of whatever nature entered into
between the Agents and any Person, at any time, shall preclude the other or
further exercise of the Agents' Rights and Remedies. No waiver by the Agents of
any of the Agents' Rights and Remedies on any one occasion shall be deemed a
waiver on any subsequent occasion, nor shall it be deemed a continuing waiver.
The Agents' Rights and Remedies may be exercised at such time or times and in
such order of preference as the Agents may determine. The Agents' Rights and
Remedies may be exercised without resort or regard to any other source of
satisfaction of the Obligations. No waiver of any provisions of this Guaranty or
any other Loan Document or consent to any departure by any Borrower therefrom
shall in any event be effective unless the same shall be permitted by paragraph
(b) below, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on
any Borrower in any case shall entitle such Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Guaranty nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between the
Agents and the Borrower or Borrowers with respect to whom such waiver, amendment
or modification is to apply, subject to any consent required in accordance with
Section 9.02 of the Credit Agreement.
SECTION 15. Copies and Facsimiles. This instrument and all documents which
have been or may be hereinafter furnished by the Borrowers to any of the Agents
may be reproduced by the Agents by any photographic, microfilm, xerographic,
digital imaging, or other process. Any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
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reproduction was made in the regular course of business). Any facsimile which
bears proof of transmission shall be binding on the party which or on whose
behalf such transmission was initiated and likewise so admissible in evidence as
if the original of such facsimile had been delivered to the party which or on
whose behalf such transmission was received.
SECTION 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 17. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Borrowers herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Guaranty or any other Loan Document shall be considered to
have been relied upon by the Agents and the other Secured Parties and shall
survive the making by the Lenders of the Term Loan regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as the Obligations are outstanding.
(b) Any provision of this Guaranty held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 18. Counterparts. This Guaranty may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page of this
Guaranty by telecopy shall be effective as delivery of a manually executed
counterpart of this Guaranty.
SECTION 19. Rules of Interpretation. The rules of interpretation specified
in Section 1.02 of the Credit Agreement shall be applicable to this Guaranty.
SECTION 20. Jurisdiction; Consent to Service of Process. (a) The Borrowers
agree that any suit for the enforcement of this Guaranty or any other Loan
Document may be brought in any New York state or federal court sitting in New
York County as the Agent may elect in its sole discretion and consent to the
non-exclusive jurisdiction of such courts. The Borrowers hereby waive any
objection which they may now or hereafter have to the venue of any such suit or
any such court or that such suit is brought in an inconvenient forum. The
Borrowers agree that any action commenced by any Borrower asserting any claim or
counterclaim arising under or in connection with this Guaranty or any other Loan
Document shall be brought solely in any New York state or federal court sitting
in New York County as the Agent may elect in its sole discretion and consent to
the exclusive jurisdiction of such courts with respect to any such action.
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(b) Each Borrower irrevocably consents to service of process in the manner
provided for in the Credit Agreement. Nothing in this Guaranty or any other Loan
Document will affect the right of any party to this Guaranty to serve process in
any other manner permitted by law.
SECTION 21. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A JURY IN ANY TRIAL OF
ANY CASE OR CONTROVERSY IN WHICH ANY PARTY HERETO IS OR BECOMES A PARTY (WHETHER
SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST ANY PARTY HERETO OR IN WHICH
ANY PARTY HERETO IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY
ARISES OUT OF OR RELATES TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
SET FORTH IN THIS SECTION 21.
SECTION 22. Right of Set-off. If an Event of Default shall have occurred
and be continuing and at the direction of Agent, each Secured Party and each of
its Affiliates is hereby authorized at any time and from time to time, 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 and
other obligations at any time owing by such Secured Party or such Affiliate to
or for the credit or the account of any Borrower against any of and all the
obligations of such Borrower now or hereafter existing under this Guaranty and
the other Loan Documents held by such Secured Party, irrespective of whether or
not such Secured Party shall have made any demand under this Guaranty or any
other Loan Document and although such obligations may be unmatured. The rights
of each Secured Party under this Section 22 are in addition to other rights and
remedies (including other rights of set-off) that such Secured Party may have.
SECTION 23. Intercreditor Agreement. The representations, warranties and
covenants of each Borrower hereunder, and the rights and remedies of the Agents
hereunder, are subject to the provisions of the Intercreditor Agreement. The
Borrowers hereby agree that so long as the Intercreditor Agreement remains in
effect, in the event of a conflict between this Agreement and the Intercreditor
Agreement, the terms of the Intercreditor Agreement shall control.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Borrowers have duly executed this Guaranty under seal as
of the day and year first above written.
BORROWERS:
XXXXX SUPERMARKETS, LLC
XXXXX SUPERMARKETS, INC.
XXXXX DRUGS, INC.
XXXXX VILLAGE PANTRIES, INC.
X. X. XXXX & SONS, INC.
XXXXX REALTY, INC.
MAR PROPERTIES, INC.
MARLEASE, INC.
XXXXX INTERNATIONAL, INC.
XXXXX DRUGS OF ILLINOIS, INC.
LIMITED HOLDINGS, INC.
XXXXX SUPERMARKETS OF ILLINOIS,
INC.
TEMPORARY SERVICES, INC.
CONTRACT TRANSPORT, INC.
NORTH XXXXXX DEVELOPMENT
CORPORATION
O'MALIA FOOD MARKETS, LLC
FLORAL FASHIONS, LLC
CRYSTAL FOOD SERVICES, LLC
XXXXXXXX, LLC
LOBILL FOODS, LLC
CONTRACT TRANSPORT, LLC
VILLAGE PANTRY, LLC
XXXXX DRUGS, LLC
XXXXX CLEARING HOUSE, LLC
CRYSTAL CAFE MANAGEMENT
GROUP, LLC
CONVENIENCE STORE TRANSPORTATION
COMPANY, LLC
CRYSTAL FOOD MANAGEMENT
SERVICES, LLC
XXXXXXXXXXX FOODS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx, Senior Vice
President, Chief Financial Officer and
Treasurer
Attest: /s/ X. Xxxxxxxx Butt
--------------------------------------
X. Xxxxxxxx Butt, Secretary
PANTRY PROPERTY, LLC
BY: VILLAGE PANTRY, LLC
MS PROPERTY, LLC
BY: XXXXX SUPERMARKETS, LLC
BF PROPERTY, LLC
BY: XXXXXXXXXXX FOODS, LLC
CF PROPERTY, LLC
BY: CRYSTAL FOOD SERVICES, LLC
MD PROPERTY, LLC
BY: XXXXX DRUGS, LLC
LB PROPERTY, LLC
BY: LOBILL FOODS, LLC
MCN PROPERTY, LLC
BY: XXXXXXXX, LLC
CSD PROPERTY, LLC
BY: CRYSTAL CAFE MANAGEMENT GROUP, LLC
FLORAL PROPERTY, LLC
BY: XXXXX SUPERMARKETS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx,, Senior Vice
President, Chief Financial Officer
and Treasurer
Attest: /s/ X. Xxxxxxxx Butt
----------------------------------
X. Xxxxxxxx Butt, Secretary
TRADEMARK HOLDINGS, INC.
By: /s/ X. Xxxxxxxx Butt
-------------------------------------
X. Xxxxxxxx Butt, Assistant Treasurer
