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EXHIBIT 4.5
SUBSIDIARY GUARANTY AGREEMENT
Princeton Development Corp., a Delaware corporation (such corporation,
and its successors and assigns hereunder, being herein called the "Subsidiary
Guarantor"), agrees with Fleet National Bank, as Trustee under the Indenture
referred to below, for the equal and ratable benefit of the Holders of the 11%
Senior Secured Notes due 2003 of Premium Standard Farms, Inc., a Delaware
corporation (the "Company"), as follows:
The Company, PSF Holdings, L.L.C., a Delaware limited liability
company, and Fleet National Bank, as Trustee (the "Trustee"), have entered into
an Indenture dated as of September 17, 1996 (the "Indenture"), relating to the
Securities in order to secure the Holders of the Securities. The Indenture
requires each Subsidiary existing on the date of the Indenture and each
Subsidiary which becomes or comes into existence as a Subsidiary after the date
of the Indenture to execute and deliver to the Trustee a Subsidiary Guaranty
Agreement pursuant to which such Subsidiary will guaranty payment of the
Securities on substantially the same terms and conditions as those set forth in
Article XIV of the Indenture. The undersigned is a Subsidiary and is executing
this Subsidiary Guaranty Agreement in accordance with the requirements of the
Indenture in order to become a Subsidiary Guarantor under the Indenture and as
consideration for Securities previously purchased.
Capitalized terms used herein without definition shall have the
meanings set forth in the Indenture.
ARTICLE I
Guaranty
SECTION 1.01. Guaranty. For value received, the Subsidiary Guarantor
hereby, jointly and severally with the Guarantor and each of the other
Subsidiary Guarantors, unconditionally and irrevocably guaranties to each
Holder and to the Trustee, and their respective successors and assigns, (a) the
due and punctual payment of principal of and, within applicable grace periods,
interest on the Securities when due, whether at Stated Maturity, by
acceleration, by redemption, pursuant to an Offer to Purchase or otherwise, and
all other monetary obligations of the Company under the Indenture and the
Securities and (b) the due and punctual performance within applicable grace
periods of all other obligations of the Company under the Indenture and the
Securities (all the foregoing being hereinafter collectively called the
"Obligations").
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The Subsidiary Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice of further assent from
the undersigned, and that the undersigned will remain bound hereby
notwithstanding any extension or renewal of any Obligation.
The Subsidiary Guarantor waives presentation to, demand of payment
from and protest to the Company of any of the Obligations, and also waives
notice of protest for nonpayment. The Subsidiary Guarantor waives notice of
any default under the Securities or the Obligations. The obligations of the
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Company or any other person under the Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of
any thereof; (c) any rescission, waiver, amendment or modification of any of
the terms or provisions of the Indenture, the Securities or any other
agreement; (d) the release of any security held by any Holder or the Trustee
for the Obligations or any of them; (e) the failure of any Holder or the
Trustee to exercise any right or remedy against any other guarantor of the
Obligations or (f) (except as provided in Section 1.02) any change in the
ownership of the Guarantor or any Subsidiary Guarantor.
The Subsidiary Guarantor further agrees that its Guaranty herein
constitutes a guaranty of payment, performance and compliance when due (and not
a guaranty of collection) and waives any right to require that any Holder or
the Trustee exhaust any right or take any action against the Company or any
other Person or that any resort be had by any Holder or the Trustee to any
security held for payment of the Obligations.
The obligations of the Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense of setoff, counterclaim, and recoupment
or termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the Subsidiary Guarantor herein
shall not be discharged or impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any remedy
under the Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the Obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of the Subsidiary Guarantor or would
otherwise act as a discharge of the Subsidiary Guarantor as a matter of law or
equity.
The Subsidiary Guarantor further agrees that its Guaranty herein 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 any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
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In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against the
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Obligation when and as the same shall
become due, whether at Stated Maturity, by acceleration, by redemption, Offer
to Purchase or otherwise, or to perform or comply with any other Obligation,
the Subsidiary Guarantor hereby, jointly and severally with the Guarantor and
the other Subsidiary Guarantors, promises to and will, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid principal
amount of such Obligations, (ii) accrued and unpaid interest on such
Obligations (but only to the extent not prohibited by law) and (iii) all other
monetary Obligations of the Company to the Holders and the Trustee.
The Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Obligations
guarantied hereby until payment in full of all Obligations. The Subsidiary
Guarantor further agrees that, as between the Subsidiary Guarantor, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the Obligations guarantied hereby may be accelerated as provided in Article V
of the Indenture for the purposes of the Subsidiary Guarantor's Guaranty
herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations guarantied hereby, and (y) in
the event of any declaration of acceleration of such Obligations as provided in
Article V of the Indenture, such Obligations (whether or not due and payable)
shall forthwith become due and payable by the Subsidiary Guarantor for purposes
of this Section.
The Subsidiary Guarantor also agrees, jointly and severally with the
Guarantor and any other Subsidiary Guarantors, to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section.
SECTION 1.02. Releases. Concurrently with any sale, lease, transfer
or other disposition permitted by and in accordance with the terms of the
Indenture (other than to the Company or any Affiliate of the Company), by way
of merger, consolidation or otherwise, of all or substantially all of the
assets of the Subsidiary Guarantor or all of the Capital Stock of the
Subsidiary Guarantor owned by the Company and its Affiliates, the Subsidiary
Guarantor (in the event of such a sale, lease, transfer or other disposition of
all such Capital Stock) or the corporation acquiring the property (in the event
of such a sale, lease, transfer or other disposition, by way of a merger,
consolidation or otherwise, of all or substantially all of the assets of the
Subsidiary Guarantor) shall be released and relieved of its guaranty
obligations. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale, lease,
transfer or other disposition was made by the Company as permitted by and in
accordance with the provisions of the Indenture, the Trustee shall execute any
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documents reasonably required to evidence the release of the Subsidiary
Guarantor from its guaranty obligations.
SECTION 1.03. Successors and Assigns. Except as provided in Section
1.02, this Guaranty Agreement shall be binding upon the Subsidiary Guarantor
and its successors and assigns and shall inure to the benefit of the successors
and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in the Indenture and in the Securities shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of the Indenture.
SECTION 1.04. No Waiver, etc. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Subsidiary Guaranty Agreement shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege. The rights, remedies and
benefits of the Trustee and the Holders herein expressly specified are
cumulative and not exclusive of any other rights, remedies and benefits which
either may have under this Subsidiary Guaranty Agreement at law, in equity, by
statute or otherwise.
SECTION 1.05. Modification, etc. No modification, amendment or
waiver of any provision of this Subsidiary Guaranty Agreement, nor the consent
to any departure by the Subsidiary Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on the Subsidiary
Guarantor in any case shall entitle the Subsidiary Guarantor or any other
guarantor to any other or further notice or demand in the same, similar or
other circumstances.
ARTICLE II
Miscellaneous
SECTION 2.01. Notices. Any notice or communication to the Subsidiary
Guarantor shall be in writing and delivered in person or mailed by first-class
mail addressed to the address for Subsidiary Guarantor set forth below,
SECTION 2.02. Governing Law. This Subsidiary Guaranty Agreement
shall be governed by, and construed in accordance with, the laws of the State
of New York but without giving effect to applicable principles of conflicts of
law to the extent that the application of the laws of another jurisdiction
would be required thereby.
SECTION 2.03. Successors. All agreements of the Subsidiary Guarantor
in this Subsidiary Guaranty Agreement shall bind its successors.
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SECTION 2.04. Multiple Originals. The Subsidiary Guarantor may sign
any number of copies of this Subsidiary Guaranty Agreement. Each signed copy
shall be an original, but all of them together represent the same agreement.
One signed copy is enough to prove this Subsidiary Guaranty Agreement.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be as effective as delivery of a manual executed counterpart
of the Agreement.
SECTION 2.05. Headings. The headings of the Articles and Sections of
this Subsidiary Guaranty Agreement have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.
Dated: September 17, 1996
PRINCETON DEVELOPMENT CORP.
by
/s/ X. X. Xxxxxxxxx
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Name:
Title:
Address:
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