Exhibit 4.5
Conformed Copy
PARENT GUARANTY
This PARENT GUARANTY (this "Guaranty"), dated as of April
18, 1997, is executed by DEL MONTE FOODS COMPANY, a Maryland
corporation (the "Guarantor"), in favor of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, in its capacity as
administrative agent for the Lender Parties referred to below (in
such capacity, together with its successors in such capacity, the
"Administrative Agent").
W I T N E S S E T H
WHEREAS, Del Monte Corporation, a New York corporation and
a wholly-owned Subsidiary of the Guarantor (the "Company"), has
entered into a Credit Agreement dated as of even date herewith
(as amended, supplemented, restated or otherwise modified from
time to time, the "Credit Agreement"; terms used but not defined
herein are used herein as defined in the Credit Agreement) with
various financial institutions, the Administrative Agent, Bankers
Trust Company, as documentation agent, and The First National
Bank of Boston, Citicorp USA, Inc., General Electric Capital
Corporation and The Long-Term Credit Bank of Japan, Ltd., Los
Angeles Agency, as co-agents, pursuant to which such financial
institutions have agreed to make available to the Company term
loans and a revolving credit facility with a letter of credit
subfacility;
WHEREAS, as a condition to the making of extensions of
credit under the Credit Agreement, the Guarantor has authorized
the execution, delivery and performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to
execute this Guaranty inasmuch as the Guarantor will derive
substantial direct and indirect benefits from the making of loans
and issuance of letters of credit pursuant to the Credit
Agreement, and the Guarantor is willing to guarantee the
Liabilities (as defined below) as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby unconditionally and irrevocably, as primary
obligor and not merely as surety, guarantees to the
Administrative Agent for its benefit and the benefit of the
Lender Parties the full and prompt payment and performance when
due (taking into consideration any applicable grace periods given
under the Credit Agreement), whether by acceleration or
otherwise, and at all times thereafter, of (i) all Obligations
owing by the Company, Parent or any Subsidiary (including
post-petition interest), and (ii) all Permitted Swap Obligations
(monetary or otherwise) of the Company under any Swap Contract
with a Lender Party (other than Swap Contracts that, by their
terms, are unsecured) (all the foregoing being herein
collectively called the "Liabilities"); provided, however, that
the liability of the Guarantor hereunder shall be limited to the
maximum amount which the Guarantor may incur
without violating any fraudulent conveyance or fraudulent
transfer law (plus all reasonable costs and expenses paid or
incurred by the Administrative Agent or any Lender Party in
enforcing this Guaranty against the Guarantor); provided,
further, that the term "Liabilities" shall not include any
obligations arising under any Environmental Indemnity. As used
herein, (i) the term "Lender Party" means each Agent and each
Lender under and as defined in the Credit Agreement and any
Affiliate of such a Lender which is a party to a Swap Contract
with the Company, and (ii) the term "Obligor" means the Company,
the Guarantor and any other Person (other than any Agent or any
Lender or their permitted successors and assigns) obligated under
any Loan Document, and their permitted successors and assigns.
The Guarantor agrees that upon the occurrence of any Event
of Default under Section 9.1(f) or (g)} of the Credit Agreement
with respect to the Company, the Parent or any Material
Subsidiary, and if such event shall occur at a time when any of
the Liabilities may not then be due and payable, the Guarantor
will pay to the Administrative Agent for the account of the
Lender Parties forthwith the full amount which would be payable
hereunder by the Guarantor if all Liabilities were then due and
payable.
This Guaranty shall in all respects be a continuing,
irrevocable, absolute and unconditional guaranty of payment, and
not a guaranty of collection, and shall remain in full force and
effect (notwithstanding, without limitation, the dissolution of
the Guarantor or the Company or any other Obligor or that at any
time or from time to time no Liabilities are outstanding) until,
subject to the next paragraph, the payment in full of all the
Liabilities (other than Liabilities in the nature of contingent
continuing indemnification obligations), the expiration or
termination of all Letters of Credit and Permitted Swap
Obligations (monetary or otherwise) of the Company under any Swap
Contract with a Lender Party (other than Swap Contracts that, by
their terms, are unsecured).
All obligations of the Guarantor hereunder are secured by,
among other things, that certain Security Agreement dated as of
April 18, 1997 (as amended, supplemented, restated or otherwise
modified from time to time, the "Security Agreement") among the
Company, the Guarantor and the Administrative Agent and by that
certain Parent Pledge Agreement dated as of April 18, 1997 (as
amended, supplemented, restated or otherwise modified from time
to time, the "Parent Pledge Agreement"), between the Guarantor
and the Administrative Agent.
The Guarantor further agrees that if at any time all or any
part of any payment theretofore applied by the Administrative
Agent or any Lender Party to any of the Liabilities is or must be
rescinded or returned by the Administrative Agent or such Lender
Party for any reason whatsoever (including, the insolvency,
bankruptcy or reorganization of the Company or the Guarantor or
any other Obligor), such Liabilities shall, for the purposes of
this Guaranty, to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by the Administrative Agent or
such Lender Party, and this Guaranty shall continue to be
effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application by the Administrative
Agent or such Lender Party had not been made.
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The Guarantor represents and warrants to the Administrative
Agent and each Lender Party that (i) it is a corporation duly
organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, (ii) it is engaged solely
in the business of being a holding company for the Company, (iii)
the execution and delivery of this Guaranty and the performance
by it of its obligations hereunder are within its corporate
powers, have been duly authorized by all necessary corporate
action (including, without limitation, any necessary shareholder
approval), have received all necessary governmental approvals (if
any shall be required), and do not and will not contravene or
conflict with any Requirement of Law or of any Contractual
Obligation binding upon or applicable to it or any of its
property, and (iv) this Guaranty is its legal, valid and binding
obligation, enforceable against it in accordance with its terms
except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors' rights generally and equitable principles relating to
enforceability.
The Guarantor further represents and warrants to the
Administrative Agent and the Lender Parties that it now has and
will continue to have independent means of obtaining information
concerning the affairs, financial condition and business of the
Company. Neither the Administrative Agent nor any Lender Party
shall have any duty or responsibility to provide the Guarantor
with any credit or other information concerning the affairs,
financial condition or business of the Company.
The Guarantor covenants that (i) it will not permit any
change to be made in the character of its business as carried on
the date hereof and will not engage in any business or activity
of any kind or enter into any transaction or indenture, mortgage,
instrument, agreement, contract, lease or other undertaking other
than in the ordinary course of its business as the holding
company for the Company or as expressly contemplated by this
Guaranty, (ii) it will not merge or consolidate with or into, or
sell, lease or otherwise dispose of (whether in one transaction
or a series of transactions) substantially all of its assets
(whether now or hereafter acquired) to any other Person, (iii) it
will have no material assets other than capital stock of the
Company, (iv) it will have no material liabilities other than
liabilities arising directly as a result of its ownership of the
Company and in any event will not incur or suffer to exist any
Indebtedness for borrowed money or any Guaranty Obligations
(other than pursuant to this Guaranty or pursuant to the
Subordinated Indenture, provided that the Guaranty Obligations
that arise pursuant to the Subordinated Indenture are
subordinated to the Guaranty Obligations that arise pursuant to
this Guaranty on substantially the same terms as the Subordinated
Debt is subordinated to the Liabilities), (v) it will comply with
Sections 8.1, 8.11, 8.12, 8.13, 8.14, and 8.15 of the Credit
Agreement, (vi) it will not, and will not permit any of its
Subsidiaries to, (a) declare or make any dividend payment or
other distribution on account of any shares of the TPG
Acquisition Preferred Stock other than a distribution made solely
of additional shares of TPG Acquisition Preferred Stock, or (1))
make any redemptions, prepayments, defeasances or repurchases
(collectively, "Redemptions") of any shares of TPG Acquisition
Preferred Stock other than, so long as no Event of Default or
Unmatured Event of Default of the type specified in Section
9.1((f) or (g) of the Credit Agreement has occurred and is
continuing, Redemptions made with the Net Cash Proceeds of an
equity issuance by, or capital contribution to, the Guarantor and
(vii) it will not issue any TPG Acquisition Preferred Stock for a
price per share less than the
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liquidation preference thereof (i.e., $1,000 per share), other
than in payment of regularly scheduled dividends thereon.
The Administrative Agent or any Lender Party may, from time
to time, at its sole discretion and without notice to the
Guarantor, take any or all of the following actions without
impairing the obligations of the Guarantor under this Guaranty:
(a) retain or obtain a security interest in any property to
secure any of the Liabilities or any obligation hereunder, (b)
retain or obtain the primary or secondary obligation of any
obligor or obligors, in addition to the Guarantor, with respect
to any of the Liabilities, (c) extend or renew any of the
Liabilities for one or more periods (whether or not longer than
the original period), alter, modify or exchange any of the
Liabilities, or release or compromise any obligation of the
Guarantor hereunder or any obligation of any nature of any other
obligor with respect to any of the Liabilities, (d) release or
fail to perfect its security interest in, or impair, surrender,
release or permit any substitution or exchange for, all or any
part of any property securing any of the Liabilities or any
obligation hereunder, or extend or renew for one or more periods
(whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of
any obligor with respect to any such property, and (e) resort to
the Guarantor for payment of any of the Liabilities when due,
whether or not the Administrative Agent or such Lender Party
shall have resorted to any property securing any of the
Liabilities or any obligation hereunder or shall have proceeded
against the Guarantor or any other obligor primarily or
secondarily obligated with respect to any of the Liabilities (all
of the foregoing being expressly waived by the Guarantor to the
extent permitted by applicable law).
The Guarantor hereby expressly waives (a) notice of the
acceptance by the Administrative Agent or any Lender Party of
this Guaranty, (b) notice of the existence or creation or
non-payment of all or any of the Liabilities, (c) presentment,
demand, notice of dishonor, notice of intent to accelerate,
notice of acceleration, notice of intent to foreclose, protest,
and all other notices whatsoever and (d) all diligence in
collection or protection of or realization upon any Liabilities
or any security for or guaranty of any Liabilities.
Notwithstanding any payment made by or for the account of
the Guarantor pursuant to this Guaranty, the Guarantor shall not
be subrogated to any right of the Administrative Agent or any
Lender Party until such time as the Administrative Agent and the
Lender Parties shall have received final payment in cash of the
full amount of all Liabilities and all Commitments and all
Letters of Credit shall have terminated or expired.
The Guarantor further agrees to pay all reasonable expenses
(including Attorney Costs) paid or incurred by the Administrative
Agent or any Lender Party in endeavoring to collect the
Liabilities of the Guarantor, or any part thereof, and in
enforcing this Guaranty against the Guarantor.
The creation or existence from time to time of additional
Liabilities to the Administrative Agent or the Lender Parties or
any of them is hereby authorized, without notice to the
Guarantor, and shall in no way affect or impair the rights of the
Administrative Agent or the Lender Parties
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or the obligations of the Guarantor under this Guaranty,
including the Guarantor's guaranty of such additional
Liabilities.
The Administrative Agent and any Lender Party may from time
to time without notice to the Guarantor, assign or transfer any
or all of the Liabilities or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and
remain Liabilities for the purposes of this Guaranty, and each
and every immediate and successive assignee or transferee of any
of the Liabilities or of any interest therein shall, to the
extent of the interest of such assignee or transferee in the
Liabilities, be entitled to the benefits of this Guaranty to the
same extent as if such assignee or transferee were an original
Lender Party.
No delay on the part of the Administrative Agent or any
Lender Party in the exercise of any right or remedy shall operate
as a waiver thereof, and no single or partial exercise by the
Administrative Agent or any Lender Party of any right or remedy
shall preclude other or further exercise thereof or the exercise
of any other right or remedy; nor shall any modification or
waiver of any provision of this Guaranty be binding upon the
Administrative Agent or the Lender Parties except as expressly
set forth in writing duly signed and delivered on behalf of the
Administrative Agent. No action of the Administrative Agent or
any Lender Party permitted hereunder shall in any way affect or
impair the rights of the Administrative Agent or any Lender Party
or the obligations of the Guarantor under this Guaranty.
Notwithstanding anything herein to the contrary, the guarantee by
the Guarantor of the Liabilities shall not be subject to any
right or power of the Company or anyone else to assert any claim
or defense as to the invalidity or unenforceability of any such
Liabilities, and no such claim or defense shall affect or impair
the obligations of the Guarantor hereunder.
Pursuant to the Credit Agreement, (a) this Guaranty has
been delivered to the Administrative Agent and (b) the
Administrative Agent has been authorized to enforce this Guaranty
on behalf of itself and each of the Lender Parties. All payments
by the Guarantor pursuant to this Guaranty shall be made to the
Administrative Agent for the ratable benefit of the Lender
Parties.
This Guaranty shall be binding upon the Guarantor and the
successors and assigns of the Guarantor; and to the extent that
the Company or the Guarantor is either a partnership or a
corporation, all references herein to the Company and to the
Guarantor, respectively, shall be deemed to include any successor
or successors, whether immediate or remote, to such partnership
or corporation.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. Wherever
possible each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
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This Guaranty may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, and
each such counterpart shall be deemed to be an original but all
such counterparts shall together constitute one and the same
Guaranty. At any time after the date of this Guaranty, one or
more additional Persons may become parties hereto by executing
and delivering to the Administrative Agent a counterpart of this
Guaranty. Immediately upon such execution and delivery (and
without any further action), each such additional Person will
become a party to, and will be bound by all of the terms of, this
Guaranty.
To the extent that any provisions of this Guaranty conflict
with any provisions of the Credit Agreement, the provisions of
the Credit Agreement control.
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
GUARANTY, THE GUARANTOR, AND BY ACCEPTING THE BENEFITS HEREOF,
THE ADMINISTRATIVE AGENT AND EACH LENDER PARTY, CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURTS. THE GUARANTOR, THE ADMINISTRATIVE
AGENT AND EACH LENDER PARTY 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 GUARANTY OR ANY DOCUMENT RELATED
HERETO. THE GUARANTOR, THE ADMINISTRATIVE AGENT AND EACH LENDER
PARTY EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
THE GUARANTOR, AND (BY ACCEPTING THE BENEFITS HEREOF) EACH
OF THE ADMINISTRATIVE AGENT AND EACH LENDER PARTY, EACH WAIVE
THEIR 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, THE ADMINISTRATIVE AGENT AND
THE LENDER PARTIES EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR 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
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PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
GUARANTY 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.
THIS WRITTEN GUARANTY, THE CREDIT AGREEMENT, THE NOTES, THE
OTHER LOAN DOCUMENTS, AND THE INSTRUMENTS AND DOCUMENTS EXECUTED
IN CONNECTION HEREWITH, REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, this Guaranty has been duly executed and
delivered as of the day and year first above written.
DEL MONTE FOODS COMPANY
By: /s/ Xxx X. Xxxxxx
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Title: Assistant Treasurer
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