XXXXXXXXX FARMS, INC.
GUARANTY AGREEMENT
Xxxxxx Trust and Savings Bank
Chicago, Illinois
SunTrust Bank
Atlanta, Georgia
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of March 21,
2000 (such Credit Agreement, as the same may be modified or amended from time to
time, being hereinafter referred to as the "Credit Agreement") by and among Xxx
Xxxxxxxx Xxxxxxxxx, Jr. and Xxxxxxx Xxxxx Xxxxxxxxx, not individually but solely
as co-executors of the estate of Xxx Xxxxxxxx Xxxxxxxxx, deceased (the
"Borrower"), and Xxxxxx Trust and Savings Bank, individually and in its capacity
as agent thereunder, and SunTrust Bank (all of said banks, including Xxxxxx
Trust and Savings Bank in its individual capacity, being referred to
collectively as the "Banks" and individually as a "Bank", and said Xxxxxx Trust
and Savings Bank as agent for the Banks under the Credit Agreement being
hereinafter referred to in such capacity as the "Agent"), pursuant to which said
Banks have made term loans in an aggregate original principal amount of
$13,500,000 to the Borrower, which are evidenced by the Term Notes of the
Borrower (all such Term Notes being hereinafter referred to collectively as the
"Notes" and individually as a "Note"). All of the Borrower's indebtedness,
obligations and liabilities to the Banks under the Credit Agreement and the
other Loan Documents, including, without limitation, all such indebtedness,
obligations and liabilities evidenced by the Notes, and, subject to Section 6
below, all extensions or renewals of any of the foregoing, are hereinafter
collectively referred to as the "Indebtedness". All defined terms used herein
shall have the meanings set forth in the Credit Agreement unless expressly
defined herein.
In consideration of credit extended and to be extended by the Banks to the
Borrower under said Credit Agreement, the undersigned (hereinafter referred to
as the "Guarantor"), hereby guarantees the full and prompt payment to the Agent
and each of the Banks at maturity (whether by acceleration, lapse of time or
otherwise) and at all times thereafter of all Indebtedness of the Borrower under
the Credit Agreement, and, subject to Section 6 below, all extensions or
renewals of all or any part thereof and all other indebtedness, liabilities and
obligations of the Borrower to the Banks and the Agent under the Credit
Agreement; provided, however, that this Guaranty shall not cover any unaccrued
interest (or prepayment fee) that may otherwise be payable to the Banks pursuant
to Section 3.1 of the Credit Agreement (the "Unearned Interest").
Notwithstanding anything contained herewith to the contrary, the liability of
the Guarantor hereunder is limited to three million two hundred and six thousand
dollars ($3,206,000) plus all expenses paid or incurred by the Banks in
protecting, defending or enforcing this Guaranty in any litigation, bankruptcy
or insolvency proceedings or otherwise.
By their acceptance of this Guaranty, the Agent and the Banks agree with
the Guarantor that if the Agent and the Banks ever make a demand for payment by
the Guarantor under this Guaranty, the Guarantor may, at its option and in its
sole discretion, elect to purchase from the Agent and the Banks all of their
respective right, title and interest in, to and under the Credit Agreement, the
Notes, the Security Agreement, the Pledge Agreement, all of the Borrower's
indebtedness, obligations and liabilities to the Agent and the Bank thereunder
and all collateral security therefor for a purchase price equal to the aggregate
amount of all indebtedness, obligations and liabilities of the Borrower to the
Agent and the Banks under the Loan Documents but excluding any Unearned
Interest. Such sale shall be made by the Agent and the Banks without recourse,
representation or warranty of any nature whatsoever. The purchase price shall be
payable in immediately available funds at the offices of the Agent. In order to
exercise the option described above, the Guarantor shall give written notice to
the Agent no later than the close of business in Chicago, Illinois on the third
Business Day following the Guarantor's receipt of any demand for payment under
this Guaranty.
The Guarantor further acknowledges and agrees with the Banks that this
Guaranty and the undertaking of the Guarantor in connection therewith shall be
on and subject to the following terms and conditions:
1. This Guaranty of payment by the Guarantor shall be a continuing,
absolute and unconditional guaranty and shall remain in full force and
effect until the earlier of (a) its release pursuant to Section 2.4 of the
Credit Agreement and (b) all Indebtedness of the Borrower to the Banks and
the Agent shall be fully paid and satisfied and all commitments of the
Banks under the Credit Agreement to extend credit to or for the account of
the Borrower shall have terminated. The dissolution, liquidation or
insolvency (howsoever evidenced) of, or the institution of bankruptcy or
receivership proceedings against the Guarantor or the Borrower shall not
terminate this Guaranty.
2. The obligations and liabilities of the Guarantor hereunder shall
not be affected or impaired by any irregularity, invalidity or
unenforceability of or in any of the Notes or of any agreement, instrument
or other document evidencing or creating or providing for the same.
3. The obligations and liabilities of the Guarantor hereunder shall
not be affected or impaired by any exercise by the Agent or the Banks of
its remedies under the Credit Agreement, the Notes, any other Loan
Documents (as defined in the Credit Agreement), any other guaranty
thereof, or of any security or collateral therefor, provided, however,
that the undersigned has received the notices required by Section 11
hereof.
4. The obligations and liabilities of the Guarantor hereunder shall
not be affected or impaired by any acceptance by the Agent or the Banks,
or any of them, of any security or collateral for, or other guarantors
upon any of the Indebtedness or by any failure, neglect, omission, delay
or partial action on the part of the Agent or the Banks, or any of them,
in the administration of the Indebtedness or to realize upon or protect
any of the Indebtedness or any security or collateral therefor, or to
exercise any lien upon or right of appropriation of any moneys, credits or
property of the Borrower possessed by any of the Banks toward the
liquidation of the Indebtedness or by any application of payments or
credits thereon or by any other circumstances whatsoever (with or without
notice to or the knowledge of the Guarantor) which may in any manner or to
any extent vary the risk of the Guarantor hereunder or may otherwise
constitute a legal or equitable discharge of a surety or guarantor.
5. In order to hold the Guarantor liable hereunder, there shall be
no obligation on the part of any Bank, at any time, to resort for payment
to any person directly liable in respect of the Indebtedness or to any
other guaranty, or to any other person, their properties or estates, or to
resort to any collateral, security, property, liens or other rights or
remedies whatsoever, and the Banks shall have the right to enforce this
guaranty of payment irrespective of whether or not other proceedings or
steps are pending seeking resort to or realization upon or from any of the
foregoing. The Guarantor agrees to pay all reasonable out-of-pocket
expenses, including court costs and reasonable attorneys' fees, paid or
incurred by the Agent and the Banks or any of them in enforcing this
Guaranty.
6. The granting of credit to the Borrower by any Bank from time to
time in addition to the Indebtedness under the Credit Agreement without
consent from the Guarantor is not permitted. In addition, the principal
amount of the Indebtedness may not be increased and the final maturity
date of the Indebtedness may not be extended without the Guarantor's
consent.
7. The payment by the Guarantor of any amount or amounts under this
guaranty of payment shall not entitle it, either at law, in equity or
otherwise, to any right, title or interest (whether by way of subrogation
or otherwise) in and to any of the Indebtedness, or in and to any security
or collateral therefor, or in or to any amounts at any time paid or
payable under or pursuant to any guaranty by any other person of all or
part of Indebtedness, or in and to any amounts theretofore, then or
thereafter paid or applicable to the payment of the Indebtedness,
howsoever such payment or payments may arise, until all of the
Indebtedness has been fully paid and all obligations of the Banks to
extend credit to or for the benefit of the Borrower shall have terminated
or expired.
8. This Guaranty Agreement may be enforced by the Banks acting
jointly. Any Bank may, without any notice to the Guarantor, sell, assign
or transfer, to the extent permitted in the Credit Agreement, the
Indebtedness held by it, or any part thereof, or grant participations
therein; and in that event, each and every immediate and successive
assignee, transferee or holder of or participant in all or any part of the
Indebtedness shall, to the extent permitted in the Credit Agreement, have
the right to enforce this Guaranty, by suit or otherwise, for the benefit
of such assignee, transferee, holder or participant as fully as if such
assignee, transferee, holder or participant were herein by name
specifically given such rights, powers and benefits.
9. If any payment applied by any Bank to any of the Indebtedness is
thereafter set aside, recovered, rescinded or required to be returned for
any reason (including, without limitation, the bankruptcy, insolvency or
reorganization of the Borrower or any other obligor), the Indebtedness to
which such payment was applied shall for the purposes of this Guaranty be
deemed to have continued in existence, notwithstanding such application,
and this Guaranty shall be enforceable as to such of the Indebtedness as
fully as if such application had never been made.
10. This Guaranty Agreement and every part hereof shall be binding
upon the Guarantor and upon its legal representatives, successors and
assigns and shall inure to the benefit of the Agent and the Banks and
their respective successors, legal representatives and assigns.
11. Prior to exercising any rights under the Credit Agreement (or
any other Loan Document) the Agent and the Banks, as applicable, shall
provide the Guarantor with three days notice in writing (by facsimile or
overnight delivery) of its intention to exercise remedies under the Credit
Agreement. The Guarantor shall then have until the expiration of the third
day from receipt of the notice to cure any default under the Credit
Agreement. If the default is cured the Agent and the Banks, as applicable,
shall not be entitled to accelerate any of the indebtedness provided for
in the Credit Agreement.
12. The obligations of the Guarantor hereunder are subject to being
released as provided in Section 2.4 of the Credit Agreement, which rights
the Guarantor may exercise without the consent of the Borrower.
13. The Guarantor hereby agrees to indemnify and save harmless the
Agent and the Banks from any and all liabilities, losses, claims, costs
and expenses suffered or incurred by the Agent or the Banks in connection
with any action, suit or proceeding brought against the Agent or any Bank
by any person, firm or other entity which arises out of the execution and
delivery by the Guarantor of this Guaranty or the transactions
contemplated hereby.
14. This writing is intended by the parties to be a complete and
final expression of this Guaranty Agreement and is also intended as a
complete and exclusive statement of the terms of that agreement. No course
of dealing, course of performance or trade usage, and no parole evidence
of any nature, shall be used to supplement or modify any terms hereof, nor
are there any conditions to the full effectiveness of this Guaranty
Agreement.
Dated as of June 15, 2000
XXXXXXXXX FARMS, INC.
By : /s/D. Xxxxxxx Xxxxxxxx
Its Treasurer & Chief Financial
Officer
Address for Notices:
000 Xxxxx 00xx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
