EXHIBIT 10.4
CONFORMED COPY
Foodbrands America, Inc.
$320,000,000 Credit Agreement
dated as of
December 11, 1995
Guarantee Agreement
GUARANTEE AGREEMENT dated as of December 11, 1995,
among each subsidiary party hereto (individually, a
"Subsidiary Guarantor" and collectively, the
"Subsidiary Guarantors") of Foodbrands America, Inc., a
Delaware corporation (the "Borrower"), and CHEMICAL
BANK, a New York banking corporation ("Chemical Bank"),
as collateral agent (the "Collateral Agent") for the
Secured Parties (as defined in the Credit Agreement
referred to below).
Reference is made to the Credit Agreement dated as of
December 11, 1995 (as amended or modified from time to time, the
"Credit Agreement"), among the Borrower, the financial
institutions party thereto, as lenders (the "Lenders"), Chemical
Bank, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders and as issuing lender (in
such capacity, the "Issuing Lender"), and Citibank, N.A., as
managing agent.
The Lenders have agreed to make Loans to the Borrower,
and the Issuing Lender has agreed to issue Letters of Credit for
the account of the Borrower, pursuant to, and upon the terms and
subject to the conditions specified in, the Credit Agreement.
The obligations of the Lenders to make Loans, and of the Issuing
Lender to issue Letters of Credit are conditioned on, among other
things, the execution and delivery by the Subsidiary Guarantors
of a guarantee agreement in the form hereof. Capitalized terms
used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement or, to the extent
not defined in the Credit Agreement, in the other Loan Documents.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Subsidiary Guarantor
unconditionally guarantees, jointly with the other Subsidiary
Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment of (i) the principal
of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership
or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set
for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any
Letter of Credit, when and as due, including payments in respect
of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral and (iii) all other
monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership
or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Borrower and the Subsidiary
Guarantors to the Secured Parties under the Credit Agreement and
the other Loan Documents and (b) the due and punctual performance
of all covenants, agreements, obligations and liabilities of the
Borrower and the Subsidiary Guarantors under or pursuant to the
Credit Agreement and the other Loan Documents (all the
obligations referred to in this clause (b) and in the preceding
clause (a) being collectively called the "Obligations"). Each
Subsidiary Guarantor 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 its
guarantee notwithstanding any extension or renewal of any
Obligation.
SECTION 2. Obligations Not Waived. To the fullest
extent permitted by applicable law, each Subsidiary Guarantor
waives presentment to, demand of payment from and protest of any
of the Obligations, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the
failure of the Collateral Agent or any other Secured Party to
assert any claim or demand or to enforce any right or remedy
against the Borrower or any other Subsidiary Guarantor pursuant
to the provisions of this Agreement, any Loan Document or
otherwise; (b) any rescission, waiver, amendment or modification
of, or any release from any of the terms or provisions of this
Agreement, any other Loan Document, any guarantee or any other
agreement, including with respect to any other Subsidiary
Guarantor under this Agreement; (c) the release of any security
held by the Collateral Agent or any other Secured Party for the
Obligations or any of them; or (d) the failure of the Collateral
Agent or any other Secured Party to exercise any right or remedy
against any other Subsidiary Guarantor or guarantor of the
Obligations.
SECTION 3. Security. Each of the Subsidiary Guarantors
authorizes the Collateral Agent and each of the other Secured
Parties, in accordance with the terms and subject to the
conditions set forth in the Security Documents to which such
Subsidiary Guarantor is a party, to (a) take and hold security
for the payment of this guarantee or 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, other guarantors or other
obligors.
SECTION 4. Guarantee of Payment. Each Subsidiary
Guarantor further agrees that its guarantee constitutes a
guarantee 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 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 the Borrower or any other Person.
SECTION 5. No Discharge or Diminishment of Guarantee.
The obligations of each Subsidiary Guarantor 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
setoff, counterclaim, recoupment or termination 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 Subsidiary Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the
failure of the Collateral Agent or any other Secured Party to
assert any claim or demand or to enforce any remedy under the
Credit Agreement, any other Loan Document, any other guarantee or
any other agreement, by any waiver or modification of any
provision of any thereof, 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 Subsidiary Guarantor or that
would otherwise operate as a discharge of any Subsidiary
Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations).
SECTION 6. Defenses Waived. (a) To the fullest extent
permitted by applicable law, each of the Subsidiary Guarantors
waives any defense based on or arising out of any defense of the
Borrower or any other Subsidiary Guarantor or the
unenforceability of the Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the
Borrower or any other Subsidiary Guarantor, other than final and
indefeasible payment in full in cash of the Obligations. The
Collateral Agent and the other Secured Parties may, at their
election, in accordance with the terms and subject to the
conditions set forth in the Security Documents to which such
Subsidiary Guarantor is a party, foreclose on any security held
by one or more of them by one or more judicial or non-judicial
sales, or exercise any other right or remedy available to them
against the Borrower or any other Subsidiary Guarantor, or any
security, without affecting or impairing in any way the liability
of such Subsidiary Guarantor hereunder except to the extent the
Obligations have been fully, finally and indefeasibly paid. Each
of the Subsidiary Guarantors waives any defense arising out of
any such election even though such election operates to impair or
to extinguish any right of reimbursement or subrogation or other
right or remedy of such Subsidiary Guarantor against the Borrower
or any other Subsidiary Guarantor, as the case may be, or any
security.
(b) The Guarantor (each Subsidiary Guarantor) waives
all rights and defenses arising out of an election of remedies by
the Creditor (each Secured Party) even though that election of
remedies, such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed the
Guarantor's rights of subrogation and reimbursement against the
principal (the Borrower or a Subsidiary Guarantor) by the
operation of Section 580d of the California Code of Civil
Procedure or otherwise.
SECTION 7. Continued Effectiveness. Each Subsidiary
Guarantor further agrees that its guarantee hereunder shall
continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or
interest on any Obligation is rescinded or must otherwise be
restored by the Collateral Agent or any other Secured Party upon
the bankruptcy or reorganization of the Borrower, any other
Subsidiary Guarantor or otherwise.
SECTION 8. Subrogation. In furtherance of the
foregoing and not in limitation of any other right that the
Collateral Agent or any other Secured Party has at law or in
equity against any Subsidiary Guarantor by virtue hereof, upon
the failure of the Borrower or any other Subsidiary Guarantor to
pay any Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment or
otherwise, each Subsidiary Guarantor shall, upon receipt of
written demand by the Collateral Agent, forthwith pay, or cause
to be paid, to the Collateral Agent or such other Secured Party
as is designated thereby in cash the amount of such unpaid
Obligations, and thereupon the Collateral Agent or the other
Secured Party that shall have received any part of such payment
shall, assign the amount of the Obligations owed to it and paid
by such Subsidiary Guarantor pursuant to this guarantee to such
Subsidiary Guarantor, such assignment to be pro tanto to the
extent to which the Obligations in question were discharged by
such Subsidiary Guarantor, or make such other disposition thereof
as such Subsidiary Guarantor shall direct (all without recourse
to the Collateral Agent or such other Secured Party, and without
any representation or warranty by the Collateral Agent or such
other Secured Party); provided, however, that none of the
Subsidiary Guarantors shall have any right by way of subrogation
or otherwise as a result of the payment of any sums hereunder
prior to the indefeasible payment in full of the Obligations to
the Collateral Agent and the other Secured Parties. If (a) any
Subsidiary Guarantor shall make payment to the Collateral Agent
or any Secured Party of all or any part of the Obligations, (b)
all the Obligations and all other amounts payable under this
Agreement shall be indefeasibly paid in full and (c) the
Commitments and the LC Commitment shall have expired or
terminated, the Collateral Agent will, at such Subsidiary
Guarantor's request, execute and deliver to such Subsidiary
Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by
subrogation to such Subsidiary Guarantor of an interest in the
Obligations resulting from such payment by the Subsidiary
Guarantor.
SECTION 9. Information. Each of the Subsidiary
Guarantors assumes all responsibility for being and keeping
itself informed of the 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 Subsidiary Guarantor assumes and incurs
hereunder, and agrees that none of the Collateral Agent and the
other Secured Parties will have any duty to advise any of the
Subsidiary Guarantors of information known to it or any of them
regarding such circumstances or risks.
SECTION 10. Subordination. Upon payment by any
Subsidiary Guarantor of any sums to the Collateral Agent or any
other Secured Party, as provided above, all rights of such
Subsidiary Guarantor against the Borrower, arising as a result
thereof by way of right of subrogation or otherwise shall in all
respects be subordinated and junior in right of payment to the
prior indefeasible payment in full in cash of all the Obligations
to the Collateral Agent and the other Secured Parties; provided,
however, that any right of subrogation that such Subsidiary
Guarantor may have pursuant to the Credit Agreement is subject to
the proviso contained in Section 8 hereof.
SECTION 11. Representations and Warranties. Each of
the Subsidiary Guarantors represents and warrants as to itself
that all representations and warranties relating to it contained
in the Credit Agreement are true and correct.
SECTION 12. Termination. The guarantees made
hereunder shall terminate when all the Obligations have been
indefeasibly paid in full in cash and the Lenders have no further
commitment to lend under the Credit Agreement, the LC Exposure
and the KPR LC Exposure have been reduced to zero and the Issuing
Lender has no further obligation to issue Letters of Credit under
the Credit Agreement.
SECTION 13. Binding Agreement; Assignments. Whenever
in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns
of such party; and all covenants, promises and agreements by or
on behalf of the Subsidiary Guarantors that are contained in this
Agreement shall bind and inure to the benefit of each party
hereto and their respective successors and assigns. This
Agreement shall become effective as to any Subsidiary Guarantor
when a counterpart hereof executed on behalf of such Subsidiary
Guarantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the
Collateral Agent, and thereafter shall be binding upon such
Subsidiary Guarantor and the Collateral Agent and their
respective successors and assigns, and shall inure to the benefit
of such Subsidiary Guarantor, the Collateral Agent and the other
Secured Parties, and their respective successors and assigns,
except that no Subsidiary Guarantor shall have the right to
assign its rights or obligations hereunder or any interest herein
or in the Collateral (and any such attempted assignment shall be
void), except as expressly contemplated by this Agreement or the
other Loan Documents. It shall not be a condition to the
effectiveness of this Agreement against any Subsidiary Guarantor
that any other Subsidiary Guarantor shall have executed this
Agreement.
SECTION 14. Waivers; Amendment. (a) No failure or
delay of the Collateral Agent in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of
the Collateral Agent hereunder and of the other Secured Parties
under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise
have. No waiver of any provisions of this Agreement or consent
to any departure by any Subsidiary Guarantor 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 or demand on any Subsidiary Guarantor in
any case shall entitle such Subsidiary Guarantor to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to a written
agreement entered into between the Subsidiary Guarantors and the
Collateral Agent, with the prior written consent of the Required
Lenders.
SECTION 15. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 16. Notices. All communications and notices
hereunder shall be in writing and given as provided in Section
10.01 of the Credit Agreement.
SECTION 17. Survival of Agreement; Severability. (a)
All covenants, agreements, representations and warranties made by
the Subsidiary Guarantors herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant
to this Agreement or any other Loan Document shall be considered
to have been relied upon by the Collateral Agent and the other
Secured Parties and shall survive the making by the Lenders of
the Loans and the issuance of the Letters of Credit by the
Issuing Lender, and the execution and delivery to the Lenders of
the Notes evidencing such loans, 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 principal of or
any accrued interest on any Loan or any other fee or amount
payable under any this Agreement or any other Loan Document is
outstanding and unpaid and as long as the Commitments have not
been terminated.
(b) If any one or more of the provisions contained in
this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired
thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 18. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together,
shall constitute but one instrument, and shall become effective
as provided in Section 13.
SECTION 19. Rules of Interpretation. The rules of
interpretation specified in Section 1.02 of the Credit Agreement
shall be applicable to this Agreement.
SECTION 20. Jurisdiction; Consent to Service of
Process. (a) Each Subsidiary Guarantor irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal
court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the
other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect
any right that the Collateral Agent or any other Secured Party
may otherwise have to bring any action or proceeding relating to
this Agreement or the other Loan Documents against any Subsidiary
Guarantor or its properties in the courts of any jurisdiction.
(b) Each Subsidiary Guarantor irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court. Each of the
parties hereto irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in
Section 16. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 21. Waiver of Jury Trial. Each party hereto
waives, to the fullest extent permitted by applicable law, any
right it may have to a trial by jury in respect of any litigation
directly or indirectly arising out of, under or in connection
with this Agreement. 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 Agreement by, among other
things, the mutual waivers and certifications in this Section.
SECTION 22. Additional Subsidiary Guarantors.
Pursuant to Section 6.10 of the Credit Agreement, certain
Subsidiaries of the Borrower are required to enter into this
Agreement as Subsidiary Guarantors within the applicable time
period specified by the Credit Agreement. Upon execution and
delivery, after the date hereof, by the Collateral Agent and a
subsidiary of an instrument in the form of Annex 1, such
subsidiary shall become a Subsidiary Guarantor hereunder with the
same force and effect as if originally named as a Subsidiary
Guarantor herein. The execution and delivery of any instrument
adding an additional Subsidiary Guarantor as a party to this
Agreement shall not require the consent of any Subsidiary
Guarantor hereunder. The rights and obligations of each
Subsidiary Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Subsidiary
Guarantor as a party to this Agreement.
SECTION 23. Right of Setoff. If an Event of Default
shall have occurred and be continuing and the Administrative
Agent shall have declared, or the Required Lenders shall have
requested the Administrative Agent to declare, the Loans
immediately due and payable pursuant to Article VIII of the
Credit Agreement, each Lender (including the Issuing Lender in
its capacity as such) is 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 Indebtedness at
any time owing by such Lender to or for the credit or the account
of any Subsidiary Guarantor against any of and all the
obligations of such Subsidiary Guarantor now or hereafter
existing under the Credit Agreement and the other Loan Documents
held by such Lender, irrespective of whether or not such Lender
shall have made any demand under the Credit Agreement or any such
other Loan Document and although such obligations may be
unmatured. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of
setoff) that such Lender may have; provided, however, that no
Lender shall exercise any right of setoff under this Section
10.06, or any other right of setoff, without the prior written
consent of the Administrative Agent, and each Lender shall
exercise any right of setoff available to it upon the written
direction of the Administrative Agent.
SECTION 24. Impairment of Subrogation Rights. Upon
the occurrence and during the continuance of an Event of Default
the Collateral Agent may elect to nonjudicially or judicially
foreclose against any real or personal property security it holds
for the Obligations or any part thereof, or accept an assignment
of any such security in lieu of foreclosure or compromise or
adjust any part of the Obligations, or make any other
accommodation with the Borrower or any Subsidiary Guarantor, or
exercise any other remedy against the Borrower or any Subsidiary
Guarantor or any security, in accordance with and subject to the
provisions of the Security Documents. No such action by the
Collateral Agent will release or limit the liability of any
Subsidiary Guarantor to the Collateral Agent, even if the effect
of that action is to deprive a Subsidiary Guarantor of the right
to collect reimbursement from the Borrower or any other
Subsidiary Guarantor for any sums paid to the Collateral Agent.
SECTION 25. Headings. Section headings used herein
are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Guarantee Agreement as of the day and year first
above written.
RKR-GP, INC.
By: /S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
CONTINENTAL DELI FOODS, INC.
/S/ XXXXXX X. XXXXX
Name Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXXX SPECIALTY BRANDS COMPANY
/S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
PAFCO IMPORTING COMPANY, INC.,
/S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
NATIONAL SERVICE CENTER, INC.,
/S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXXX FOOD SERVICE COMPANY,
L.L.C. by
CONTINENTAL DELI FOODS, INC. ,
manager
/S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
KPR HOLDINGS, L.P.
by
RKR-GP, INC., general partner
/S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXX CERTIFIED EXPRESS, INC.,
/S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
FBAI INVESTMENTS CORPORATION,
/S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXX PACKING CO., INC.
/S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
CHEMICAL BANK, as Collateral Agent,
/S/ XXXXXX XXXXXX
Name: Xxxxxx Xxxxxx
Title: Managing Director
