Exhiit 2.12
Exhibit 4.11 (a)
Xxxxxxx Foods, Inc.
Cassco Ice & Cold Storage, Inc.
Xxxxxxx Supply Company, Inc.
Valley Rail Service, Inc.
GUARANTY AGREEMENT
Dated as of February 25, 1998
In Respect of:
WLR FOODS, INC.
$42,040,162.73 Variable Rate Senior Notes due December 31, 1999
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GUARANTY AGREEMENT
GUARANTY AGREEMENT (as amended, supplemented, restated or otherwise
modified from time to time, this "Guaranty Agreement"), dated as of
February 25, 1998, by XXXXXXX FOODS, INC., a Virginia corporation,
CASSCO ICE & COLD STORAGE, INC., a Virginia corporation, XXXXXXX
SUPPLY COMPANY, INC., a Virginia corporation, and VALLEY RAIL SERVICE,
INC., a Virginia corporation (all of the foregoing, together with
their respective successors and assigns, referred to herein,
individually, as a "Guarantor," and, collectively, as the "Guarantors"),
in favor of each of the Noteholders (as hereinafter defined).
PRELIMINARY STATEMENTS:
A. Certain capitalized terms used in this Guaranty Agreement
shall have the meanings ascribed to them in Section 2.1 hereof.
B. WLR Foods, Inc. (together, with its successors and assigns,
the "Company"), a Virginia corporation, has heretofore issued its
(c) 9.41% Senior Notes due May 1, 2001 (collectively,
as in effect immediately prior to the Closing Date, the
"Existing 1991 Notes") in the aggregate original principal
amount of Thirty Million Dollars ($30,000,000) pursuant to that
certain Note Agreement (as amended and in effect immediately
prior to the Closing Date, the "Existing 1991 Note Agreement"),
dated as of May 1, 1991, between the Company and the purchasers
identified on Schedule 1 thereto (the "Existing 1991 Purchasers"),
and
(d) 7.47% Senior Notes, Series B, due June 1, 2007
(collectively, as in effect immediately prior to the Closing
Date, the "Existing 1995 Notes") in the aggregate original
principal amount of Twenty-Two Million Dollars ($22,000,000)
pursuant to that certain Note Agreement (as amended and in
effect immediately prior to the Closing Date, the "Existing
1995 Note Agreement"; and together with Existing 1991 Note
Agreement, the "Existing Note Agreements"), dated as of June
1, 1995, between the Company and the purchasers identified on
Schedule 1 thereto (the "Existing 1995 Purchasers"; and together
with the Existing 1991 Purchasers, the "Purchasers").
The Company wishes to exchange the Existing Notes for new senior
notes to be issued to the Noteholders on the terms and conditions
contained in the Note Purchase Agreement.
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C. The Company, pursuant to that certain Note Purchase
Agreement (as amended from time to time, the "Note Purchase
Agreement"), dated as of February 25, 1998, with the Purchasers, has
authorized the issuance and sale of Forty Million Dollars
($40,000,000) in aggregate principal amount of its Variable Rate
Senior Notes Due December 31, 1999 (all such notes, whether initially
issued, or issued in exchange or substitution for, any such note, in
each case in accordance with this Agreement, and as amended from time
to time, the "Notes").
C. In order to induce the Purchasers to acquire the Notes, each
of the Guarantors has agreed to unconditionally guaranty all of the
obligations of the Company under and in respect of the Notes, the Note
Purchase Agreement and each of the other Financing Documents pursuant
to the terms and provisions hereof.
D. To secure their respective obligations hereunder, under the
Financing Documents and under the Bank Credit Agreements (as defined
in the Note Purchase Agreement) the Guarantors have granted and shall
grant, as the case may be, to the Collateral Agent, for the equal and
ratable benefit of the Noteholders and the other holders, from time to
time of the Notes, a security interest in, and Lien on, all of the
right, title and interest of the Guarantors in the collateral more
particularly described in the Security Documents.
E. All acts and proceedings required by law and by the
certificate or articles of incorporation and by-laws of each of the
Guarantors, necessary to constitute this Guaranty Agreement a valid
and binding agreement for the uses and purposes set forth herein, in
accordance with its terms, have been done and taken, and the execution
and delivery hereof has been in all respects duly authorized.
F. The Guarantors and the Company are operated as part of one
consolidated business entity. The Guarantors are directly dependent
upon the Company for and in connection with their respective business
activities and their respective financial resources. Each of the
Guarantors will receive a direct economic and financial benefit from
the Debt incurred under the Note Purchase Agreement and the Notes by
the Company and under this Guaranty Agreement by the Guarantors, and
the incurrence of such Debt is in the best interests of the
Guarantors.
G. The Company provides financial assistance to each of the
Guarantors as needed from time to time and is responsible for
supplying the recurring working capital needs and other financial
support of the Guarantors on an ongoing basis.
H. By agreeing to enter into this Guaranty Agreement and the
Security Documents, each of the Guarantors will gain substantial
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financial and other benefits, both direct and indirect.
NOW THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt of which is hereby
acknowledged, each Guarantor does hereby covenant and agree, for the
benefit of all present and future Noteholders, as follows:
AGREEMENT:
1. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS
1.1 Guarantied Obligations.
Each of the Guarantors hereby irrevocably, unconditionally,
absolutely, jointly and severally guarantees to each Noteholder, as
and for each such Guarantor's own debt, until final and indefeasible
payment has been made:
(a) the due and punctual payment of the principal of and
interest on the Notes at any time outstanding and the due and
punctual payment of all other amounts payable, and all other
indebtedness owing, by the Company to any Noteholder under the Note
Purchase Agreement, the Notes and the other Financing Documents (all
such obligations so guarantied are herein collectively referred
to as the "Guarantied Obligations"), in each case when and as the
same shall become due and payable, whether at maturity, pursuant
to mandatory or optional prepayment, by acceleration or
otherwise, all in accordance with the terms and provisions
thereof; it being the intent of each of the Guarantors that
the guaranty set forth in this Section 1 shall be a guaranty
of payment and not a guaranty of collection; and
(b) the punctual and faithful performance, keeping,
observance, and fulfillment by the Company of all duties,
agreements, covenants and obligations of the Company contained
in the Notes, the Note Purchase Agreement and the other Financing
Documents.
1.2 Payments and Performance.
In the event that the Company fails to make, on or before the due
date thereof, any payment to be made of any principal amount of, or
interest on, or in respect of, the Notes or of any other amounts due
to any Noteholder under the Notes, the Note Purchase Agreement or any
other Financing Document or if the Company shall fail to perform,
keep, observe, or fulfill any other obligation referred to in clause
(a) or clause (b) of Section 1.1 in the manner provided in the Notes,
the Note Purchase Agreement or the other Financing Documents after in
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each case giving effect to any applicable grace periods or cure
provisions or waivers or amendments, each of the Guarantors shall
cause forthwith to be paid the moneys, or to be performed, kept,
observed, or fulfilled each of such obligations, in respect of which
such failure has occurred in accordance with the terms and provisions
of the Note Purchase Agreement, the Notes and the other Financing
Documents. In furtherance of the foregoing, if an Event of Default
shall exist, all of the Guarantied Obligations shall, in the manner
and subject to the limitations provided in the Note Purchase Agreement
for the acceleration of the Notes (including, without limitation, the
provisions related to the annulment thereof), forthwith become due and
payable without notice, regardless of whether the acceleration of the
Notes shall be stayed, enjoined, delayed or otherwise prevented.
Nothing shall discharge or satisfy the obligations of any
Guarantor hereunder except the full and final performance and
indefeasible payment of the Guarantied Obligations.
1.3 Joint and Several Liability.
Each of the Guarantors acknowledges and agrees that the
liabilities of each of the Guarantors under this Guaranty Agreement
for the due and punctual payment of the Guarantied Obligations and the
performance of the other obligations specified in Section 1.1 shall be
joint and several.
1.4 Waivers.
To the fullest extent permitted by law, each Guarantor does
hereby waive:
(a) notice of acceptance of this Guaranty Agreement;
(b) notice of any purchase or acceptance of the Notes
under the Note Purchase Agreement, or the creation, existence
or acquisition of any of the Guarantied Obligations, subject to
such Guarantor's right to make inquiry of each Noteholder to
ascertain the amount of the Guarantied Obligations at any reasonable
time;
(c) notice of the amount of the Guarantied Obligations,
subject to such Guarantor's right to make inquiry of each
Noteholder to ascertain the amount of the Guarantied Obligations at
any reasonable time;
(d) notice of adverse change in the financial condition
of the Company, any of the Guarantors or any other guarantor or
any other fact that might increase such Guarantor's risk
hereunder;
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(e) notice of presentment for payment, demand, protest,
and notice thereof as to the Notes or any other instrument;
(f) notice of any Default or Event of Default except such
notice as may be specifically required by any one or more of the
Financing Documents;
(g) all other notices and demands to which such Guarantor
might otherwise be entitled (except if such notice or demand is
specifically otherwise required to be given to such Guarantor under
this Guaranty Agreement or any other Financing Document);
(h) the right by statute or otherwise to require any or
each Noteholder to institute suit against the Company, the
Guarantors or any other guarantor or to exhaust the rights and
remedies of any or each Noteholder against the Company, the
Guarantors or any other guarantor, such Guarantor being bound to
the payment of each and all Guarantied Obligations, whether now
existing or hereafter accruing, as fully as if such Guarantied
Obligations were directly owing to each Noteholder by such
Guarantor;
(i) any defense arising by reason of any disability or
other defense (other than the defense that the Guarantied
Obligations shall have been fully and finally performed and
indefeasibly paid) of the Company or by reason of the cessation
from any cause whatsoever of the liability of the Company in
respect thereof;
(j) any stay (except in connection with a pending
appeal), valuation, appraisal, redemption or extension law now
or at any time hereafter in force that, but for this waiver, might
be applicable to any sale of Property of such Guarantor made under
any judgment, order or decree based on this Guaranty Agreement, and
such Guarantor covenants that it will not at any time insist upon
or plead, or in any manner claim or take the benefit or advantage
of any such law; and
(k) at all times prior to the full and final
performance and indefeasible payment of the Guarantied
Obligations, any claim of any nature arising out of any right
of indemnity, contribution, reimbursement, indemnification or any
similar right or any claim of subrogation (whether such right or
claim arises under contract, state or federal common law or state or
federal statutory law (including, without limitation, Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Bankruptcy Code)) arising in respect of any
payment made under this Guaranty Agreement or in connection with this
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Guaranty Agreement, against the Company or the estate of the
Company (including Liens on the Property of the Company or the
estate of the Company), in each case whether or not the Company at
any time shall be the subject of any proceeding brought under any
bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar
law, whether now or hereafter in effect, and such Guarantor
further agrees that it will not file any claims against the
Company or the estate of the Company in the course of any such
proceeding or otherwise, and further agrees that each Noteholder may
specifically enforce the provisions of this clause (k).
1.5 Releases.
Each Guarantor hereby consents and agrees that, without notice to
or by such Guarantor and without affecting or impairing the
obligations of such Guarantor under this Guaranty Agreement, each
Noteholder, by action or inaction, may:
(a) compromise or settle, in whole or in part, renew or
extend the period of duration or the time for the payment, or
discharge the performance of, or may refuse to, or otherwise not,
enforce, or may, by action or inaction, release all or any one or
more parties to, any one or more of the Notes, this Guaranty
Agreement or any of the other Financing Documents;
(b) assign, sell or transfer, or otherwise dispose of,
any one or more of the Notes;
(C) grant waivers, extensions, consents and other
indulgences to the Company or any other Guarantor in respect
of any one or more of the Notes, the Note Purchase Agreement
or any of the other Financing Documents;
(d) amend, modify or supplement in any manner and at any
time (or from time to time) any one or more of the Notes, this
Guaranty Agreement or the other Financing Documents;
(e) release or substitute any one or more of the
endorsers or guarantors of the Guarantied Obligations whether
parties hereto or not;
(f) sell, exchange, release or surrender any Property
at any time pledged or granted as security in respect of the
Guarantied Obligations, whether so pledged or granted by such
Guarantor or another guarantor of the obligations of the Company
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under the Note Purchase Agreement, the Notes and the other Financing
Documents, and
(g) exchange, enforce, waive, or release, by action or
inaction, any security for the Guarantied Obligations or any
other guaranty of any of the Notes.
1.6 Marshaling.
Each Guarantor consents and agrees:
(a) that each Noteholder, and each Person acting for the
benefit of the Noteholders, shall be under no obligation to marshal
any assets in favor of such Guarantor or against or in payment of any
or all of the Guarantied Obligations; and
(b) that, to the extent that the Company makes a
payment or payments to any Noteholder, which payment or
payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or
required, for any of the foregoing reasons or for any other
reason, to be repaid or paid over to a custodian, trustee,
receiver or any other party under any bankruptcy law, common
law, or equitable cause, then, to the extent of such payment
or repayment, the obligation or part thereof intended to be
satisfied thereby shall be revived and continued in full force
and effect as if such payment or payments had not been made and
such Guarantor shall be primarily liable for such obligation.
1.7 Immediate Liability.
Each Guarantor agrees that the liability of such Guarantor in
respect of this Section 1 shall be immediate and shall not be
contingent upon the exercise or enforcement by any Noteholder or any
other Person of whatever remedies such Noteholder or other Person may
have against the Company or any other guarantor or the enforcement of
any Lien or realization upon any security such Noteholder or other
Person may at any time possess.
1.8 Primary Obligations.
The guaranty set forth in this Section 1 is a primary and
original obligation of each Guarantor and is an absolute,
unconditional, continuing and irrevocable guaranty of payment and
performance and shall remain in full force and effect without respect
to future changes in conditions, including, without limitation, change
of law or any invalidity or irregularity with respect to the issuance
or assumption of any obligations (including, without limitation, the
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Notes) of or by the Company or any other guarantor, or with respect to
the execution and delivery of any agreement (including, without
limitation, the Notes, the Note Purchase Agreement and the other
Financing Documents) of the Company or any other Person.
1.9 No Election.
Each Noteholder shall, individually or collectively, have the
right to seek recourse against each Guarantor to the fullest extent
provided for herein for its obligations under this Guaranty Agreement.
No election to proceed in one form of action or proceeding, or against
any party, or on any obligation, shall constitute a waiver of such
Noteholder's right to proceed in any other form of action or
proceeding or against other parties unless such Noteholder has
expressly waived such right in writing. Specifically, but without
limiting the generality of the foregoing, no action or proceeding by
or on behalf of any Noteholder against the Company or any other Person
under any document or instrument evidencing obligations of the Company
or such other Person to or for the benefit of such Noteholder shall
serve to diminish the liability of any of the Guarantors under this
Guaranty Agreement except to the extent that such Noteholder
unconditionally shall have realized payment by such action or
proceeding.
1.10 Severability.
Each of the rights and remedies granted under this Section 1 to
each Noteholder in respect of the Notes held by such Noteholder may be
exercised by such Noteholder without notice to, or the consent of or
any other action by, any other Noteholder.
1.11 Other Enforcement Rights.
Each Noteholder may proceed to protect and enforce this Guaranty
Agreement by suit or suits or proceedings in equity, at law or in
bankruptcy, and whether for the specific performance of any covenant
or agreement contained herein or in execution or aid of any power
herein granted; or for the recovery of judgment for the obligations
hereby guarantied or for the enforcement of any other proper, legal or
equitable remedy available under applicable law.
1.12 Delay or Omission; No Waiver.
No course of dealing on the part of any Noteholder or any other
Person and no delay or failure on the part of any Noteholder or such
other Person to exercise any right under this Guaranty Agreement shall
impair such right or operate as a waiver of such right or otherwise
prejudice any Noteholder's rights, powers and remedies hereunder or
under any other Financing Document. Every right and remedy given by
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this Guaranty Agreement or by law to any Noteholder or any other
Person may be exercised from time to time as often as may be deemed
expedient by such Noteholder or other Person.
1.13 Restoration of Rights and Remedies.
If any Noteholder shall have instituted any proceeding to enforce
any right or remedy under this Guaranty Agreement or under any Note
held by such Noteholder and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been
determined adversely to such Noteholder, then and in every such case
each such Noteholder, the Company and the Guarantors shall, except as
may be limited or affected by any determination in such proceeding, be
restored severally and respectively to its respective former position
hereunder and thereunder, and thereafter the rights and remedies of
such Noteholders shall continue as though no such proceeding had been
instituted.
1.14 Cumulative Remedies.
No remedy under this Guaranty Agreement or any other Financing
Document is intended to be exclusive of any other remedy, but each and
every remedy shall be cumulative and in addition to any and every
other remedy given under this Guaranty Agreement or under any other
Financing Document.
1.15 Limitation on Guarantied Obligations.
It is the intention of the Guarantors and each Noteholder that
the maximum amount of the obligations of each such Guarantor hereunder
shall be equal to, but not in excess of, the amount equal to the
lesser of
(a) its Guarantied Obligations, and
(b) the maximum amount permitted by applicable law.
To that end, with respect to the determination of the "maximum amount
permitted by applicable law," but only to the extent such obligations
would otherwise be avoidable, the obligations of the Guarantors
hereunder shall be limited to the maximum amount that, after giving
effect to the incurrence thereof, would not render any such Guarantor
insolvent or unable to pay its debts (within the meaning of Title 11
of the United States Code or as defined in the analogous applicable
law) as they mature or leave such Guarantor with an unreasonably small
capital. The need for any such limitation shall be determined, and
any such needed limitation shall be effective, at the time or times
that such Guarantor is deemed, under applicable law, to incur
obligations hereunder. Any such limitation shall be apportioned
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amongst the Guarantied Obligations owed to the Noteholders pro rata.
This Section 1.15 is intended solely to preserve the rights of each
Noteholder hereunder to the maximum extent permitted by applicable
law, and neither the Guarantors nor any other Person shall have any
rights under this Section 1.15 that it would not otherwise have under
applicable law. For the purposes of this Section 1.15, "insolvency",
"unreasonably small capital" and "inability to pay debts (as so
defined) as they mature" shall be determined in accordance with
applicable law.
1.16 Survival.
So long as the Guarantied Obligations shall not have been fully
and finally performed and indefeasibly paid, the obligations of each
Guarantor under this Section 1 shall survive the transfer and payment
of any Note and the payment in full of all the Notes.
1.17 No Setoff, Counterclaim or Withholding; Gross-Up.
Except as otherwise required by law, each payment by each
Guarantor shall be made without setoff or counterclaim and without
withholding for or on account of any present or future taxes imposed
by or within the United States of America, or by or within any other
jurisdiction, or any political subdivision or taxing authority thereof
or therein. If any such withholding is so required, such Guarantor
will make the withholding, pay the amount withheld to the appropriate
Governmental Authority before penalties attach thereto or interest
accrues thereon and pay each Noteholder the same amount that such
Noteholder would be entitled to receive from such Guarantor hereunder
if such withholding had not been required.
1.18 Maintenance of Office.
Each Guarantor will maintain an office at the address of such
Guarantor referred to in Section 3.3 hereof, or in any Acknowledgment
and Agreement delivered in respect of this Guaranty Agreement, as the
case may be, where notices, presentations and demands in respect
hereof or the Guarantied Obligations may be made upon such Guarantor.
Such office will be maintained at such address until such time as such
Guarantor shall notify each Noteholder of any change of location of
such office, which will in any event be located in the United States
of America.
1.19 Representations and Warranties; Covenants Contained in Note
Purchase Agreement.
Without in any way limiting the generality of the warranties and
representations contained in Section 5 of the Note Purchase Agreement,
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each of such warranties and representations is, insofar as it refers
to a Guarantor specifically or to the Obligors or any Subsidiary
generally, true and correct with respect to each Guarantor.
2. INTERPRETATION OF THIS GUARANTY AGREEMENT.
2.1 Terms Defined.
As used in this Guaranty Agreement, the following terms have the
respective meanings specified below or set forth in the section of
this Guaranty Agreement referred to immediately following such term
(such definitions, unless otherwise expressly provided, to be equally
applicable to both the singular and plural forms of the terms
defined):
Closing Date -- has the meaning assigned to such term in the Note
Purchase Agreement.
Collateral Agent -- has the meaning assigned to such term in the
Note Purchase Agreement.
Company -- has the meaning assigned to such term in Preliminary
Statement B.
Debt -- has the meaning assigned to such term in the Note
Purchase Agreement.
Default -- has the meaning assigned to such term in the Note
Purchase Agreement.
Event of Default -- has the meaning assigned to such term in the
Note Purchase Agreement.
Existing 1991 Noteshas the meaning assigned to such term in
Preliminary Statement B.
Existing 1991 Note Purchase Agreementhas the meaning assigned to
such term in Preliminary Statement B.
Existing 1991 Purchasershas the meaning assigned to such term in
Preliminary Statement B.
Existing 1995 Noteshas the meaning assigned to such term in
Preliminary Statement B.
Existing 1995 Note Purchase Agreementhas the meaning assigned to
such term in Preliminary Statement B.
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Existing 1995 Purchasershas the meaning assigned to such term in
Preliminary Statement B.
Financing Documents -- has the meaning assigned to such term in
the Note Purchase Agreement.
Governmental Authority -- has the meaning assigned to such term
in the Note Purchase Agreement.
Guarantied Obligations -- has the meaning assigned to such term
in Section 1.1.
Guarantor; Guarantors -- has the meaning assigned to such term in
the introductory paragraph hereof.
Guaranty Agreement, this -- has the meaning assigned to such term
in the introductory paragraph hereof.
Lien -- has the meaning assigned to such term in the Note
Purchase Agreement.
Note Purchase Agreement -- has the meaning assigned to such term
in Preliminary Statement C.
Noteholder -- means, at any time, each Person that is the holder
of any Note at such time.
Notes -- has the meaning assigned to such term in Preliminary
Statement C.
Obligors -- means any one or all of the Company and the
Guarantors, as the context may require.
Person -- has the meaning assigned to such term in the Note
Purchase Agreement.
Property -- has the meaning assigned to such term in the Note
Purchase Agreement.
Purchasers -- has the meaning assigned to such term in Recital B.
Security Documents -- has the meaning assigned to such term in
the Note Purchase Agreement.
Subsidiary has the meaning assigned to such term in the Note
Purchase Agreement.
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2.2 Directly or Indirectly.
Where any provision herein refers to action to be taken by any
Person, or that such Person is prohibited from taking, such provision
shall be applicable whether such action is taken directly or
indirectly by such Person, including, without limitation, actions
taken by or on behalf of any partnership in which such Person is a
general partner.
2.3 Section Headings and Construction.
(a) Section Headings, etc. The titles of the Sections
appear as a matter of convenience only, do not constitute a
part hereof and shall not affect the construction hereof. The
words "herein," "hereof," "hereunder" and "hereto" refer to this
Guaranty Agreement as a whole and not to any particular Section
or other subdivision.
(b) Construction. Each covenant contained herein shall
be construed (absent an express contrary provision herein) as
being independent of each other covenant contained herein, and
compliance with any one covenant shall not (absent such an express
contrary provision) be deemed to excuse compliance with one or more
other covenants.
2.4 Separate Instruments.
Notwithstanding that each of the Guarantors is a party to this
Guaranty Agreement, each of the Guarantied Obligations of each
Guarantor hereunder shall be deemed to be contained in a separate
instrument and any invalidity or unenforceability of this Guaranty
Agreement in respect of any Guarantor shall have no effect on the
validity or enforceability of this Guaranty Agreement in respect of
the other Guarantors.
3. MISCELLANEOUS.
3.1 Successors and Assigns.
Whenever any Guarantor or any of the parties to any of the other
Financing Documents is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all the
covenants, promises and agreements contained in this Guaranty
Agreement by or on behalf of each Guarantor shall bind the successors
and assigns of such Guarantor and shall inure to the benefit of each
of the Noteholders from time to time whether so expressed or not and
whether or not an assignment of the rights hereunder shall have been
delivered in connection with any assignment or other transfer of
Notes.
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3.2 Partial Invalidity.
The unenforceability or invalidity of any provision or provisions
hereof shall not render any other provision or provisions contained
herein unenforceable or invalid.
3.3 Communications.
All communications provided for hereunder to any Guarantor or any
Noteholder shall be in writing and to the applicable address or
addresses, and with the effect, provided for in Annex 1 hereto or in
any Acknowledgment and Agreement delivered in respect of this Guaranty
Agreement, as the case may be.
3.4 Governing Law.
THIS GUARANTY AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO ANY CONFLICTS-OF-LAW PRINCIPLES).
3.5 Amendment.
This Guaranty Agreement may only be amended by written instrument
executed and delivered by all of the Guarantors and all of the
Noteholders.
3.6 Counterparts.
This Guaranty Agreement may be executed and delivered in any
number of counterparts, each of such counterparts constituting an
original but altogether only one Guaranty Agreement.
3.7 Benefits of Guaranty Agreement Restricted to Noteholders.
Nothing express or implied in this Guaranty Agreement is intended
or shall be construed to give to any Person other than the Guarantors
and the Noteholders any legal or equitable right, remedy or claim
under or in respect hereof or any covenant, condition or provision
contained herein; and all such covenants, conditions and provisions
are and shall be held to be for the sole and exclusive benefit of the
Guarantors and the Noteholders.
3.8 Survival of Representations and Warranties; Entire
Agreement.
All representations and warranties contained herein or made in
writing by the Guarantors in connection herewith shall survive the
execution and delivery hereof and of each other Financing Document.
This Guaranty Agreement constitutes the final written expression of
all of the terms hereof and is a complete and exclusive statement of
those terms.
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3.9 Additional Parties.
Any Person which becomes a Subsidiary after the Closing Date and
which is required, pursuant to Section 9.6 of the Note Purchase
Agreement, to become a party to this Guaranty Agreement shall execute
and deliver an acknowledgement and agreement in the form of Exhibit A
hereto and, upon delivery thereof, such Subsidiary shall become a
"Guarantor" under this Guaranty Agreement for all purposes and shall
be deemed to have made the covenants and agreements of each Guarantor
set forth herein as of the date of the execution and delivery of such
acknowledgment and agreement and shall comply with all other
obligations to be performed by a Guarantor party hereto.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty
Agreement to be executed on its behalf by one of its duly authorized
officers as of the date first set forth above.
XXXXXXX FOODS, INC.
By:_______________
Name:
Title:
CASSCO ICE & COLD STORAGE,
INC.
By:________________
Name:
Title:
XXXXXXX SUPPLY COMPANY, INC.
By:_________________
Name:
Title:
VALLEY RAIL SERVICE, INC.
By:___________________
Name:
Title:
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EXHIBIT A
FORM OF ACKNOWLEDGMENT AND AGREEMENT
Guaranty Agreement, dated as of February 25, 1998, delivered by each
of the Guarantors of the Variable Rate Senior Notes due December 31,
1999 issued by WLR Foods, Inc. (as amended from time to time, the
"Guaranty Agreement")
[DATE]
Reference is made to Section 3.9 of the Guaranty Agreement as defined
above; capitalized terms used herein and not otherwise defined herein
shall have the meanings given to such terms in, or by reference in,
the Guaranty Agreement. The undersigned is a Subsidiary and, in
accordance with the terms of the Note Purchase Agreement, is required
to become a party to the Guaranty Agreement. By execution and
delivery of this acknowledgment and agreement the undersigned hereby
becomes a party to the Guaranty Agreement for all purposes, makes the
covenants and agreements of each Guarantor set forth in the Guaranty
Agreement as of the date hereof and agrees to comply with all other
obligations to be performed by a Guarantor under the Guaranty
Agreement.
This acknowledgment and agreement hereby incorporates by reference the
provisions of the Guaranty Agreement, which are deemed to be a part
hereof, and this acknowledgment and agreement shall also be deemed to
be a part of the Guaranty Agreement.
[NAME OF GUARANTOR]
By:______________________
Name:
Title:
[Address of Guarantor]
Tel.: [ ]
Fax.: [ ]
18
ANNEX 1
As to each Guarantor:
Xxxxxxx Foods, Inc.
[Address]
Tel.: [ ]
Fax.: [ ]
Cassco Ice & Cold Storage, Inc.
[Address]
Tel.: [ ]
Fax.: [ ]
Xxxxxxx Supply Company, Inc.
[Address]
Tel.: [ ]
Fax.: [ ]
Valley Rail Service, Inc.
[Address]
Tel.: [ ]
Fax.: [ ]
19
EXHIBIT 4.11(b)
[FORM OF SUBSIDIARY VICE PRESIDENT/TREASURER CERTIFICATE]
[Name of Subsidiary Guarantor]
CERTIFICATE OF VICE PRESIDENT/TREASURER
I, ______ hereby certify that I am the [Vice President/Treasurer
of [NAME OF SUBSIDIARY GUARANTOR] (the "Guarantor"), a Virginia
corporation, and that, as such, I have responsibility for the
management of the financial affairs of the Guarantor and the
preparation of the financial statements of the Guarantor and its
subsidiaries, am familiar with the matters herein certified, and I am
authorized to execute and deliver this Certificate in the name and on
behalf of the Guarantor, and that:
4. This certificate is being delivered pursuant to Section
4.11(b) of the Note Purchase Agreement (the "Note Purchase
Agreement"), dated as of February 25, 1998, among WLR Foods, Inc. (the
"Company") and each of the purchasers listed on Schedule A thereto
(collectively, the "Purchasers"). The terms used in this Certificate
and not defined herein have the respective meanings specified in the
Note Purchase Agreement. Pursuant to the Note Purchase Agreement, the
Company will issue
(a) Forty-Two Million Forty Thousand One Hundred
Sixty-Two and 73/00 Dollars ($42,040,162.73) in aggregate
principal amount of its Variable Rate Senior Notes Due
December 31, 1999 (all such notes, whether initially issued,
or issued in exchange or substitution for, any such note, in
each case in accordance with this Agreement, and as amended
from time to time, the "Notes"), and
(b) the Guarantor will enter into a certain Guaranty
Agreement, dated as of February 25, 1998 (the "Guaranty
Agreement"), to unconditionally guaranty the obligations
evidenced by the Notes.
5. I have reviewed the most current financial statements of the
Guarantor and I have prepared a pro forma balance sheet (the "Balance
Sheet") of the Guarantor, which Balance Sheet gives effect to the
transactions contemplated by the Guaranty Agreement and the Note
Purchase Agreement.
6. In connection with the preparation of the Balance Sheet, I
have made such investigation and inquiries as I deem necessary and
prudent therefor. The assumptions upon which the Balance Sheet is
based are stated therein, which assumptions are reasonable.
20
Based on the foregoing, I have reached the following conclusions:
The execution and delivery of the Guaranty Agreement by the
Guarantor and the guaranty of the obligations of the Guarantor therein
pursuant to the terms and provisions of the Guaranty Agreement will
not render the Guarantor "insolvent," nor will the value of the
liabilities of the Guarantor, determined in accordance with generally
accepted accounting principles, immediately thereafter exceed the
value of the assets of the Guarantor, determined in accordance with
generally accepted accounting principles, in each case after given
effect to the transactions contemplated by the Guaranty Agreement and
the Note Purchase Agreement. In this context, "insolvent" means that
(a) the present fair salable value of assets of the
Guarantor is less than the amount that will be required to pay
the probable liability on existing debts of the Guarantor as they
become absolute and matured, or
(b) the Guarantor will not otherwise be able to pay its
debts as they become absolute and matured.
I also understand that the term "debts" includes any legal liability,
whether matured or unmatured, liquidated or unliquidated, absolute,
fixed or contingent.
IN WITNESS WHEREOF, I have executed this Certificate in the name
and on behalf of the Guarantor on February ___, 1998.
[SUBSIDIARY GUARANTOR]
By:_______________
Name:
Title:
21
