EXHIBIT 10.1
GUARANTY AGREEMENT
This Guaranty Agreement ("Guaranty") is made and delivered as of this 9th
day of August, 2001, by Whole Foods Market, Inc., a Texas corporation
("Guarantor"), in favor of Harry's Farmers Market, Inc., a Georgia corporation
("HFM"), and Xxxxx X. Blazer individually, a resident of the State of Georgia
(the "Stockholder" and together with HFM, the "Beneficiaries" and each a
"Beneficiary").
WHEREAS, Whole Foods Market Group, Inc. ("Group"), a subsidiary of
Guarantor, has entered into an Asset Purchase Agreement, dated as of even date
herewith (the "Purchase Agreement"), with HFM; and
WHEREAS, Group will enter into a Consulting and Non-Competition Agreement
dated as of the Closing Date with the Stockholder (the "Non-Competition
Agreement); and
WHEREAS, other subsidiaries of Guarantor may become assignees of certain
rights and obligations under the Purchase Agreement or the Non-Competition
Agreement (Group and such other subsidiaries being collectively referred to
herein as "Purchaser"); and
WHEREAS, HFM would not enter into the Purchase Agreement with Purchaser
absent the execution and delivery by Guarantor of this Guaranty; and
WHEREAS, Stockholder would not enter into the Non-Competition Agreement
with Purchaser absent the execution and delivery by Guarantor of this Guaranty;
NOW, THEREFORE, for value received, Guarantor hereby agrees as follows:
1. Guarantor irrevocably and unconditionally guarantees to the
Beneficiaries the prompt payment (whether at stated maturity, by acceleration or
otherwise) and performance when due of all of the Purchaser's obligations under
the Purchase Agreement and the Non-Competition Agreement and the documents
referenced therein, including but not limited to, the payment of the Purchase
Price under the Purchase Agreement, the assumption of all Assumed Liabilities
under the Purchase Agreement, the payment of compensation to the Stockholder
under the Non-Competition Agreement and the performance of the indemnification
obligations of Purchaser thereunder (collectively the "Obligations").
2. The obligations of Guarantor under this Guaranty shall be absolute,
unconditional and irrevocable, and shall remain in full force and effect until
the Obligations shall have been satisfied in full, it being the express purpose
and intent of Guarantor that its obligations hereunder shall not be discharged
except by performance, discharge, waiver or other satisfaction in full of all of
the Obligations. Guarantor's liability hereunder shall not be in any manner
whatsoever affected, modified or impaired by the happening from time to time of
any event or action that would, in the absence of
this clause, result in the release or discharge of Guarantor, by operation of
law or otherwise, from the performance or observance of any obligation, covenant
or agreement contained in this Guaranty, or the default or failure of Guarantor
to perform fully any obligations set forth in this Guaranty. Guarantor agrees
that this Guaranty is a guaranty of payment and performance and not of
collection, and that its obligations under this Guaranty shall be primary,
absolute and unconditional, irrespective of, and unaffected by: (i) the
genuineness, validity, regularity, enforceability or any future amendment,
modification, waiver, or other change to this Guaranty, the Purchase Agreement,
the Non-Competition Agreement or any other agreement, document or instrument
executed in connection herewith or therewith or any other agreement, document or
instrument to which the Purchaser and/or Guarantor is or may become a party
(collectively, the "Documents"); (ii) the absence of any action to enforce this
Guaranty, the Purchase Agreement, the Non-Competition Agreement or any other
Document or the waiver or consent by either Beneficiary with respect to any of
the provisions in the Purchase Agreement or the Non-Competition Agreement, as
applicable, this Guaranty or the Documents; (iii) the existence, value or
condition of, or failure to perfect any lien against, any collateral for the
Obligations or any action, or the absence of any action, by either Beneficiary
in respect thereof (including, without limitation, the release of any such
security); (iv) the insolvency of the Purchaser and/or Guarantor; or (v) any
other action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being agreed by
Guarantor that its obligations under this Guaranty shall not be discharged until
the payment in full and in cash of the Obligations. Guarantor shall be regarded,
and shall be in the same position, as principal obligor with respect to the
Obligations. Guarantor agrees that any notice or directive given at any time to
either Beneficiary which is inconsistent with the waiver in the immediately
preceding sentence shall be null and void and may be ignored by such
Beneficiary.
3. In addition to the waivers contained in paragraph 2 hereof, Guarantor
waives and agrees that it shall not at any time insist upon, plead or in any
manner whatever claim or take the benefit or advantage of, any appraisal,
valuation, stay, extension, marshaling of assets or redemption laws, or
exemption, whether now or at any time hereafter in force, which may delay,
prevent or otherwise affect the performance by Guarantor of its Obligations
under, or the enforcement by either Beneficiary of, this Guaranty. Guarantor
hereby waives diligence, presentment and demand with respect to the Obligations
and waives the benefit of all provisions of law which are or might be in
conflict with the terms of this Guaranty.
4. This Guaranty shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Purchaser or Guarantor
for liquidation or reorganization, should the Purchaser or Guarantor become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of such
Purchaser's or Guarantor's assets, and
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shall continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by either Beneficiary, whether as a "voidable preference,"
"fraudulent conveyance" or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
5. Neither Beneficiary shall, by any act, delay, omission or otherwise,
be deemed to have waived any of its rights or remedies hereunder, and no waiver
shall be valid unless in writing, signed by the applicable Beneficiary and then
only to the extent therein set forth. A waiver by a Beneficiary of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which such Beneficiary would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of
either Beneficiary, any right, power or privilege hereunder, shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Guaranty may be waived, altered, modified,
supplemented or amended except by an instrument in writing, duly executed by the
affected Beneficiary and Guarantor.
6. Payment by Guarantor shall be made to HFM at the office of HFM and to
the Stockholder at the Stockholder's home address, from time to time on demand
as Guaranteed Obligations become due to HFM or the Stockholder, as applicable.
Guarantor shall make all payments to each Beneficiary on the Obligations free
and clear of, and without deduction or withholding for or on account of, any
setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions,
withholding, restrictions or conditions of any kind. One or more successive or
concurrent actions may be brought hereon against Guarantor either in the same
action in which Purchaser is sued or in separate actions. In the event any claim
or action, or action on any judgment, based on this Guaranty is brought against
Guarantor, Guarantor agrees not to deduct, set-off, or seek any counterclaim for
or recoup any amounts which are or may be owed by such Beneficiary to Guarantor.
7. Guarantor is a corporation duly organized and in good standing under
the laws of Texas. The execution, delivery and performance of this Guaranty is
within the corporate powers of Guarantor, have been duly authorized and are not
in contravention of law or the terms of the articles of incorporation, by-laws,
or other organizational documentation of Guarantor, or any indenture, agreement
or undertaking to which
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Guarantor is a party or by which Guarantor or its property are bound. This
Guaranty constitutes the legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms. Guarantor represents, warrants and
agrees that, as of the date of this Guaranty, its obligations under this
Guaranty are not subject to any offsets or defenses against either Beneficiary
or Purchaser of any kind and further agrees that its obligations under this
Guaranty shall not be subject to any counterclaims, offsets or defenses against
either Beneficiary or against Purchaser of any kind which may arise in the
future.
8. Guarantor agrees to pay all costs, expenses and fees which may be
incurred by either Beneficiary in enforcing this Guaranty or in protecting the
rights of either Beneficiary following any default on the part of Guarantor
hereunder, whether the same shall be enforced by suit or otherwise.
9. This Guaranty is and shall be in every particular available to the
successors and assigns of each Beneficiary and is and shall always be fully
binding upon the successors and assigns of Guarantor, provided that Guarantor
shall not assign any of its rights or obligations hereunder without the written
consent of each Beneficiary.
10. This Guaranty shall be governed by and construed in accordance with
the laws of the State of Texas.
[signatures on following page]
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Executed as of the date first written above.
Whole Foods Market, Inc.
By: /s/XXX SUD
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Name: Xxx Sud
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Title: Vice President
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Accepted:
/s/ XXXXX X. BLAZER
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Xxxxx X. Blazer
Harry's Farmers Market, Inc.
By /s/ XXXXX X. BLAZER
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Name: Xxxxx X. Blazer
Title: President and Chief Executive Officer
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