EXHIBIT 10.2
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (as amended, restated, supplemented or otherwise
modified, this "Guaranty"), dated as of October 16, 2001 is made by certain
subsidiaries of PERFORMANCE FOOD GROUP COMPANY, a Tennessee corporation (the
"Borrower"), party hereto on the Closing Date or otherwise joined as a party
hereto (such subsidiaries collectively, the "Guarantors", and each, a
"Guarantor"), in favor of FIRST UNION NATIONAL BANK, a national banking
association, as Administrative Agent (the "Administrative Agent") for the
ratable benefit of itself and the financial institutions (the "Lenders") from
time to time parties to the Credit Agreement (as defined below).
STATEMENT OF PURPOSE
Pursuant to the terms of the Credit Agreement of even date herewith (as
amended, restated, supplemented or otherwise modified, the "Credit Agreement"),
by and among the Borrower, the Lenders and the Administrative Agent, the Lenders
have agreed to extend certain credit facilities to the Borrower as more
specifically described in the Credit Agreement.
The Borrower and the Guarantors, though separate legal entities, are a
part of a common business enterprise, and all Extensions of Credit under the
Credit Agreement to the Borrower will inure, directly or indirectly, to the
benefit of each of the Guarantors.
In connection with the transactions contemplated by the Credit Agreement
and as a condition precedent thereto, the Lenders have requested that each
Guarantor execute and deliver this Guaranty, and each of the Guarantors has
agreed to do so pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, and to induce the Administrative Agent and the Lenders to
enter into and to make available Extensions of Credit pursuant to the Credit
Agreement, each Guarantor hereby agrees with the Administrative Agent for the
ratable benefit of the Administrative Agent and the Lenders as follows:
SECTION 1. Definitions. Capitalized terms used and not otherwise defined
in this Guaranty, including the preambles and recitals hereof, shall have the
meanings ascribed to them in the Credit Agreement. In the event of a conflict
between capitalized terms defined herein and in the Credit Agreement, the Credit
Agreement shall control.
SECTION 2. Terms of the Guaranty.
(a) Guaranty of Obligations of Guarantors. Each Guarantor hereby, jointly
and severally with the other Guarantors, unconditionally guarantees to the
Administrative Agent for the ratable benefit of itself and the Lenders, and
their respective permitted successors, endorsees, transferees and assigns, the
prompt payment and performance of all Obligations, whether primary or secondary
(whether by way of endorsement or otherwise), whether now existing or hereafter
arising, whether or not from time to time reduced or extinguished (except by
payment
thereof) or hereafter increased or incurred, whether enforceable or
unenforceable as against the Borrower, whether or not discharged, stayed or
otherwise affected by any bankruptcy, insolvency or other similar law or
proceeding, whether created directly with the Administrative Agent or any Lender
or acquired by the Administrative Agent or any Lender through assignment or
endorsement, whether matured or unmatured, whether joint or several, as and when
the same become due and payable (whether at maturity or earlier, by reason of
acceleration, mandatory repayment or otherwise), in accordance with the terms of
any such instruments evidencing any such Obligations, including all renewals,
extensions or modifications thereof (all Obligations to the Administrative Agent
or any Lender, including all of the foregoing, being hereinafter collectively
referred to as the "Guaranteed Obligations").
(b) Bankruptcy Limitations on Guarantors. Notwithstanding anything to the
contrary contained in paragraph (a) above, it is the intention of each Guarantor
and the Lenders that, in any proceeding involving the bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors, dissolution
or insolvency or any similar proceeding with respect to any Guarantor or its
assets, the amount of such Guarantor's obligations with respect to the
Guaranteed Obligations shall be in, but not in excess of, the maximum amount
thereof not subject to avoidance or recovery by operation of applicable law
governing bankruptcy, reorganization, arrangement, adjustment of debts, relief
of debtors, dissolution, insolvency, fraudulent transfers or conveyances or
other similar laws (including, without limitation, 11 U.S.C. Section 547,
Section 548, Section 550 and other "avoidance" provisions of Title 11 of the
United States Code) applicable in any such proceeding to such Guarantor and this
Guaranty (collectively, "Applicable Insolvency Laws"). To that end, but only in
the event and to the extent that such Guarantor's obligations with respect to
the Guaranteed Obligations or any payment made pursuant to the Guaranteed
Obligations would, but for the operation of the first sentence of this
subsection (b), be subject to avoidance or recovery in any such proceeding under
Applicable Insolvency Laws, the amount of such Guarantor's obligations with
respect to the Guaranteed Obligations shall be limited to the largest amount
which, after giving effect thereto, would not, under Applicable Insolvency Laws,
render such Guarantor's obligations with respect to such Guaranteed Obligations
unenforceable or avoidable or otherwise subject to recovery under Applicable
Insolvency Laws. To the extent any payment actually made pursuant to the
Guaranteed Obligations exceeds the limitation of the first sentence of this
subsection (b) and is otherwise subject to avoidance and recovery in any such
proceeding under Applicable Insolvency Laws, the amount subject to avoidance
shall in all events be limited to the amount by which such actual payment
exceeds such limitation and the Guaranteed Obligations as limited by the first
sentence of this subsection (b) shall in all events remain in full force and
effect and be fully enforceable against such Guarantor. The first sentence of
this subsection (b) is intended solely to preserve the rights of the
Administrative Agent hereunder against such Guarantor in such proceeding to the
maximum extent permitted by Applicable Insolvency Laws and neither such
Guarantor, the Borrower, any other Guarantor nor any other Person shall have any
right or claim under such sentence that would not otherwise be available under
Applicable Insolvency Laws in such proceeding.
(c) Mutual Grant of Present Right of Contribution and Indemnity. To the
extent that the value as of the time of execution of this Guaranty of the
benefits received by any Guarantor by reason of matters stated in the preamble
(whether determined under a standard of "fair value,"
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"reasonably equivalent value" or any other valuation standard under Applicable
Law) is less than the sum of the Guaranteed Obligations incurred by such
Guarantor to Administrative Agent and the Lenders plus such Guarantor's
liability under this Section 2(c), then subject only to Section 11 hereof and in
addition to all other rights and remedies such Guarantor has or may have under
Applicable Law, each remaining Guarantor respectively agrees that such Guarantor
has the present right to recover the amount of such excess from the remaining
Guarantors, which right shall be enforceable jointly and severally against the
remaining Guarantors to the full extent that the Guaranteed Obligations are
enforceable against such Guarantor. Without limiting the foregoing, in the event
any Guarantor is required, by reason of this Guaranty, to pay an amount in
excess of the value of the benefit such Guarantor is deemed to have received by
reason of matters described in the preamble of this Guaranty, the remaining
Guarantors jointly and severally agree to pay such Guarantor, upon demand, the
amount of such excess. Subject only to the provisions of Section 11 hereof, such
Guarantor shall be subrogated to any and all rights of the Administrative Agent
and the Lenders against the remaining Guarantors to the extent of such excess
payment.
SECTION 3. Nature of Guaranty. Each Guarantor agrees that this Guaranty is
a continuing, unconditional 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:
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, the Credit Agreement or any other Loan
Document or any other agreement, document or instrument to which the
Borrower, any Subsidiary thereof or any Affiliate thereof is or may become
a party;
(b) the absence of any action to enforce this Guaranty, the Credit
Agreement or any other Loan Document or the waiver or consent by the
Administrative Agent or any Lender with respect to any of the provisions
of this Guaranty, the Credit Agreement or any other Loan Document;
(c) the existence, value or condition of, or failure to perfect its
Lien against, any security for or other guaranty of the Guaranteed
Obligations or any action, or the absence of any action, by the
Administrative Agent or any Lender in respect of such security or guaranty
(including, without limitation, the release of any such security or
guaranty);
(d) any structural change in, restructuring of or other similar
change of the Borrower or any of its Subsidiaries; or
(e) 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 each Guarantor that, subject to the first sentence in Section
2(b) hereof, its obligations under this Guaranty shall not be discharged until
the final indefeasible payment and performance, in full, of the Guaranteed
Obligations and the termination of the Aggregate
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Commitment. To the extent permitted by Applicable Law, each Guarantor expressly
waives all rights it may now or in the future have under any statute (including,
without limitation, North Carolina General Statutes Section 26-7, et seq. or
similar law), or at law or in equity, or otherwise, to compel the Administrative
Agent or any Lender to proceed in respect of the Guaranteed Obligations against
the Borrower or any other Person or against any security for or other guaranty
of the payment and performance of the Guaranteed Obligations before proceeding
against, or as a condition to proceeding against, such Guarantor. To the extent
permitted by Applicable Law, each Guarantor further expressly waives and agrees
not to assert or take advantage of any defense based upon the failure of the
Administrative Agent or any Lender to commence an action in respect of the
Guaranteed Obligations against the Borrower, such Guarantor, any other guarantor
or any other Person or any security for the payment and performance of the
Guaranteed Obligations. Each Guarantor agrees that any notice or directive given
at any time to the Administrative Agent or any Lender which is inconsistent with
the waivers in the preceding two sentences shall be null and void and may be
ignored by the Administrative Agent or such Lender, and, in addition, may not be
pleaded or introduced as evidence in any litigation relating to this Guaranty
for the reason that such pleading or introduction would be at variance with the
written terms of this Guaranty, unless the Administrative Agent and the Required
Lenders have specifically agreed otherwise in writing. The foregoing waivers are
of the essence of the transaction contemplated by the Credit Agreement and the
other Loan Documents and, but for this Guaranty and such waivers, the
Administrative Agent and Lenders would decline to enter into the Credit
Agreement and the other Loan Documents.
SECTION 4. Demand by the Administrative Agent. In addition to the terms
set forth in Section 3 hereof, and in no manner imposing any limitation on such
terms, if all or any portion of the then outstanding Guaranteed Obligations
under the Credit Agreement are declared to be immediately due and payable, then
the Guarantors shall, upon demand in writing therefor by the Administrative
Agent to the Guarantors, pay all or such portion of the outstanding Guaranteed
Obligations then declared due and payable. Payment by the Guarantors shall be
made to the Administrative Agent, to be credited and applied upon the Guaranteed
Obligations, in immediately available Dollars to an account designated by the
Administrative Agent or at the address referenced herein for the giving of
notice to the Administrative Agent or at any other address that may be specified
in writing from time to time by the Administrative Agent.
SECTION 5. Waivers. In addition to the waivers contained in Section 3
hereof, each Guarantor, to the extent permitted by Applicable Law, 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, marshalling 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 such Guarantor of its obligations under, or the
enforcement by the Administrative Agent or the Lenders of, this Guaranty. Each
Guarantor further hereby waives, to the extent permitted by Applicable Law,
diligence, presentment, demand, protest and notice (except as specifically
required herein) of whatever kind or nature with respect to any of the
Guaranteed Obligations and waives, to the extent permitted by Applicable Law,
the benefit of all provisions of law which are or might be in conflict with the
terms of this Guaranty. Each Guarantor represents, warrants and agrees that its
obligations under this Guaranty are not and
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shall not be subject to any counterclaims, offsets or defenses of any kind
against the Administrative Agent, the Lenders or the Borrower whether now
existing or which may arise in the future.
SECTION 6. Benefits of Guaranty. The provisions of this Guaranty are for
the benefit of the Administrative Agent and the Lenders and their respective
permitted successors, transferees, endorsees and assigns, and nothing herein
contained shall impair, as between the Borrower, the Administrative Agent and
the Lenders, the obligations of the Borrower under the Credit Agreement and the
other Loan Documents. In the event all or any part of the Guaranteed Obligations
are transferred, endorsed or assigned by the Administrative Agent or any Lender
to any Person or Persons as permitted under the Credit Agreement, any reference
to an "Administrative Agent", or "Lender" herein shall be deemed to refer
equally to such Person or Persons.
SECTION 7. Modification of Loan Documents etc. If the Administrative Agent
or the Lenders shall at any time or from time to time, with or without the
consent of, or notice to, the Guarantors:
(a) change or extend the manner, place or terms of payment of, or
renew or alter all or any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Credit Agreement or
the other Loan Documents in the exercise of any remedy, power or privilege
contained therein or available to any of them at law, in equity or
otherwise, or waive or refrain from exercising any such remedies, powers
or privileges;
(c) amend or modify, in any manner whatsoever, the Credit Agreement
or the other Loan Documents;
(d) extend or waive the time for performance by any Guarantor, any
other guarantor, the Borrower or any other Person of, or compliance with,
any term, covenant or agreement on its part to be performed or observed
under the Credit Agreement or any other Loan Document, or waive such
performance or compliance or consent to a failure of, or departure from,
such performance or compliance;
(e) take and hold security or collateral for the payment of the
Guaranteed Obligations or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in
which the Administrative Agent or the Lenders have been granted a Lien, to
secure any Debt of any Guarantor, any other guarantor or the Borrower to
the Administrative Agent or the Lenders;
(f) release anyone who may be liable in any manner for the payment
of any amounts owed by any Guarantor, any other guarantor or the Borrower
to the Administrative Agent or any Lender;
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(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of any
Guarantor, any other guarantor or the Borrower are subordinated to the
claims of the Administrative Agent or any Lender; or
(h) apply any sums by whomever paid or however realized to any
Guaranteed Obligations owing by any Guarantor, any other guarantor or the
Borrower to the Administrative Agent or any Lender in such manner as the
Administrative Agent or any Lender shall determine in its reasonable
discretion;
then neither the Administrative Agent nor any Lender shall incur any liability
to any Guarantor as a result thereof, and no such action shall impair or release
the obligations of any Guarantor under this Guaranty.
SECTION 8. Reinstatement. Each Guarantor agrees that, if any payment made
by the Borrower or any other Person applied to the Obligations is at any time
annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid or the proceeds of
any collateral are required to be refunded by the Administrative Agent or any
Lender to the Borrower, its estate, trustee, receiver or any other Person,
including, without limitation, any Guarantor, under any Applicable Law or
equitable cause, then, to the extent of such payment or repayment, each
Guarantor's liability hereunder (and any Lien securing such liability) shall be
and remain in full force and effect, as fully as if such payment had never been
made, and, if prior thereto, this Guaranty shall have been canceled or
surrendered (and if any Lien or collateral securing such Guarantor's liability
hereunder shall have been released or terminated by virtue of such cancellation
or surrender), this Guaranty (and such Lien) shall be reinstated in full force
and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect the obligations of such Guarantor
in respect of the amount of such payment (or any Lien securing such obligation).
SECTION 9. Representations and Warranties. To induce the Lenders to make
any Extensions of Credit, each Guarantor hereby represents and warrants that:
(a) such Guarantor has the corporate, partnership or limited
liability company right, power and authority to execute, deliver and
perform this Guaranty and has taken all necessary corporate, partnership
or limited liability company action to authorize its execution, delivery
and performance of, this Guaranty;
(b) this Guaranty constitutes the legal, valid and binding
obligation of such Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies;
(c) the execution, delivery and performance of this Guaranty will
not violate any Applicable Law or contractual obligation of such Guarantor
and will
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not result in the creation or imposition of any Lien upon or with respect
to any property or revenues of such Guarantor;
(d) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no consent of
any other Person (including, without limitation, any stockholder or
creditor of such Guarantor), is required in connection with the execution,
delivery, performance, validity or enforceability of this Guaranty;
(e) no actions, suits or proceedings before any arbitrator or
Governmental Authority are pending or, to the knowledge of such Guarantor,
threatened by or against such Guarantor or against any of its properties
with respect to this Guaranty or any of the transactions contemplated
hereby;
(f) such Guarantor has such title to the real property owned by it
and a valid leasehold interest in the real property leased by it, and has
good and marketable title to all of its personal property sufficient to
carry on its business free of any and all Liens of any type whatsoever,
except those permitted by Section 10.3 of the Credit Agreement; and
(g) as of the Closing Date (or such later date upon which such
Guarantor became a party hereto), such Guarantor (i) has capital
sufficient to carry on its business and transactions and all business and
transactions in which it engages and is able to pay its debts as they
mature, (ii) owns property having a value, both at fair valuation and at
present fair saleable value, greater than the amount required to pay its
probable liabilities (including contingencies) and (iii) does not believe
that it will incur debts or liabilities beyond its ability to pay such
debts or liabilities as they mature, subject in each case to the first
sentence in Section 2(b) hereof.
SECTION 10. Remedies. Upon the occurrence and during the continuance of
any Event of Default, with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, enforce against the Guarantors their respective
obligations and liabilities hereunder and exercise such other rights and
remedies as may be available to the Administrative Agent hereunder, under the
Credit Agreement or the other Loan Documents or otherwise.
SECTION 11. No Subrogation. Notwithstanding any payment or payments by any
of the Guarantors hereunder, or any set-off or application of funds of any of
the Guarantors by the Administrative Agent or any Lender, or the receipt of any
amounts by the Administrative Agent or any Lender with respect to any of the
Guaranteed Obligations, none of the Guarantors shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or the other Guarantors or any other guarantors or against
any collateral security held by the Administrative Agent or any Lender for the
payment of the Guaranteed Obligations nor shall any of the Guarantors seek any
reimbursement from the Borrower or any of the other Guarantors in respect of
payments made by such Guarantor in connection with the Guaranteed
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Obligations, until all amounts owing to the Administrative Agent and the Lenders
on account of the Guaranteed Obligations are paid in full and the Aggregate
Commitment is terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Administrative Agent, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned
over to the Administrative Agent in the exact form received by such Guarantor
(duly endorsed by such Guarantor to the Administrative Agent, if required) to be
applied against the Guaranteed Obligations, whether matured or unmatured, in
such order as set forth in the Credit Agreement.
SECTION 12. Expenses. All costs and expenses (including reasonable
attorneys' fees, legal expenses and court costs) incurred by the Administrative
Agent or any Lender in enforcing or protecting their rights or remedies
hereunder shall be payable by the Guarantors on demand and shall bear interest
(after as well as before judgment) until paid at the interest rate then
applicable to Base Rate Loans under the Credit Agreement and shall be additional
Guaranteed Obligations hereunder.
SECTION 13. Notices. All notices and communications hereunder shall be
given to the addresses and otherwise made in accordance with Section 13.1 of the
Credit Agreement; provided that notices and communications to the Guarantors
shall be directed to the Guarantors at the address of the Borrower set forth in
Section 13.1 of the Credit Agreement.
SECTION 14. Successors and Assigns. This Guaranty is for the benefit of
the Administrative Agent and the Lenders and their permitted successors and
assigns. This Guaranty shall be binding on each Guarantor and its successors and
assigns; provided that no Guarantor may assign any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent and the
Lenders.
SECTION 15. Amendments, Waivers and Consents. No term, covenant, agreement
or condition of this Guaranty may be amended or waived, nor may any consent be
given, except in the manner set forth in Section 13.11 of the Credit Agreement.
SECTION 16. Powers Coupled with an Interest. All authorizations and
agencies herein contained are irrevocable and powers coupled with an interest.
SECTION 17. Governing Law. This Guaranty shall be governed by, construed
and enforced in accordance with the laws of the State of North Carolina, without
reference to the conflicts or choice of law principles thereof.
SECTION 18. Jurisdiction and Venue.
(a) Jurisdiction. The Guarantors hereby irrevocably consent to the
personal jurisdiction of the state and federal courts located in Mecklenburg
County, North Carolina, in any action, claim or other proceeding arising out of
any dispute in connection with this Guaranty, any rights or obligations
hereunder, or the performance of such rights and obligations. The Guarantors
hereby irrevocably consent to the service of a summons and complaint and other
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process in any action, claim or proceeding brought by the Administrative Agent
or any Lender in connection with this Guaranty, any rights or obligations
hereunder, or the performance of such rights and obligations, on behalf of
itself or its property, in the manner specified in Section 13.1 of the Credit
Agreement. Nothing in this Section 18 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
any Lender to bring any action or proceeding against any Guarantor or its
properties in the courts of any other jurisdictions.
(b) Venue. The Guarantors hereby irrevocably waive any objection they may
have now or in the future to the laying of venue in the aforesaid jurisdiction
in any action, claim or other proceeding arising out of or in connection with
this Guaranty, any other Loan Document or the rights and obligations of the
parties hereunder. The Guarantors irrevocably waive, in connection with such
action, claim or proceeding, any plea or claim that the action, claim or other
proceeding has been brought in an inconvenient forum
SECTION 19. Binding Arbitration; Waiver of Jury Trial; Preservation of
Remedies.
(a) Binding Arbitration. Upon demand of any party, whether made before or
after institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Guaranty ("Disputes"),
between or among parties hereto shall be resolved by binding arbitration as
provided herein. Institution of a judicial proceeding by a party does not waive
the right of that party to demand arbitration hereunder. Disputes may include,
without limitation, tort claims, counterclaims, claims brought as class actions,
claims arising from this Guaranty, disputes as to whether a matter is subject to
arbitration, or claims concerning any aspect of the past, present or future
relationships arising out of or connected with this Guaranty. Arbitration shall
be conducted under and governed by the Commercial Financial Disputes Arbitration
Rules (the "Arbitration Rules") of the American Arbitration Association (the
"AAA") and the Federal Arbitration Act. All arbitration hearings shall be
conducted in Charlotte, North Carolina. The expedited procedures set forth in
Rule 51, et seq. of the Arbitration Rules shall be applicable to claims of less
than $1,000,000. All applicable statutes of limitations shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding anything foregoing to the contrary, any
arbitration proceeding demanded hereunder shall begin within ninety (90) days
after such demand thereof and shall be concluded within one hundred twenty (120)
days after such demand. These time limitations may not be extended unless a
party hereto shows cause for extension and then such extension shall not exceed
a total of sixty (60) days. The panel from which all arbitrators are selected
shall be comprised of licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The single arbitrator selected for
expedited procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted. The parties hereto do not waive any applicable Federal or state
substantive law except as provided herein.
(b) Jury Trial. THE ADMINISTRATIVE AGENT, THE LENDERS AND THE GUARANTORS
HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY
WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
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GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto preserve, without diminution,
certain remedies that such Persons may employ or exercise freely, either alone,
in conjunction with or during a Dispute. Each such Person shall have and hereby
reserves the right to proceed in any court of proper jurisdiction or by self
help to exercise or prosecute the following remedies, as applicable: (i) all
rights to foreclose against any real or personal property or other security by
exercising a power of sale granted in this Guaranty or under Applicable Law or
by judicial foreclosure and sale, including a proceeding to confirm the sale,
(ii) all rights of self help including peaceful occupation of property and
collection of rents, set off, and peaceful possession of property, and (iii)
obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and in filing an
involuntary bankruptcy proceeding. Preservation of these remedies does not limit
the power of an arbitrator to grant similar remedies that may be requested by a
party in a Dispute.
SECTION 20. Injunctive Relief; Punitive Damages.
(a) Each Guarantor recognizes that, in the event any such Person fails to
perform, observe or discharge any of its obligations or liabilities under this
Guaranty, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, each Guarantor agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) Each Guarantor hereby agrees that no such Person shall have a remedy
of punitive or exemplary damages against any other party to a Loan Document and
each such Person hereby waives any right or claim to punitive or exemplary
damages that they may now have or may arise in the future in connection with any
Dispute, whether such Dispute is resolved through arbitration or judicially.
SECTION 21. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible; and (b) the invalidity or unenforceability of any
provisions hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
SECTION 22. Headings. The various headings of this Guaranty are inserted
for convenience only and shall not affect the meaning or interpretation of this
Guaranty or any provisions hereof.
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SECTION 23. Counterparts. This Guaranty may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the Guarantors has executed and delivered this
Guaranty under seal as of the date first above written.
[CORPORATE SEAL] XXXXXXX X. XXXXXX COMPANY, INC.
By:
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Name:
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Title:
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[CORPORATE SEAL] XXXX BROTHERS SUMMIT, INC.
By:
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Name:
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Title:
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[CORPORATE SEAL] CARO FOODS, INC.
By:
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Name:
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Title:
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[CORPORATE SEAL] FRESH ADVANTAGE, INC.
By:
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Name:
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Title:
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[CORPORATE SEAL] SOUTHLAND DISTRIBUTION SYSTEMS, INC.
By:
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Name:
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Title:
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[Guaranty Agreement]
[CORPORATE SEAL] POCAHONTAS FOODS, USA, INC.
By:
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Name:
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Title:
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[CORPORATE SEAL] PERFORMANCE FOOD GROUP OF GEORGIA, INC.
By:
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Name:
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Title:
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[CORPORATE SEAL] T&S TRANSPORTATION OF RICHMOND, INC.
By:
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Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] AFI FOOD SERVICE DISTRIBUTORS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] ALLIANCE FOODSERVICE, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Guaranty Agreement]
[CORPORATE SEAL] PERFORMANCE FOOD GROUP OF TEXAS, L.P.
By: Performance Food Group Company of
Texas, Inc., as General Partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] PERFORMANCE FOOD GROUP COMPANY OF TEXAS,
INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] PFG HOLDING, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] VIRGINIA FOODSERVICE GROUP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] AFFLINK INCORPORATED
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Guaranty Agreement]
[CORPORATE SEAL] XXXXXXX COUNTY FOODS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] NORTHCENTER FOODSERVICE CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] PFG-XXXXXX BROADLINE, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] REDI-CUT FOODS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] K.C. SALAD HOLDINGS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Guaranty Agreement]
[CORPORATE SEAL] KANSAS CITY SALAD, L.L.C.
By: K.C. Salad Holdings, Inc., its
manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] K. C. SALAD REAL ESTATE L.L.C.
By K.C. Salad Holdings, Inc., its member
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] EMPIRE SEAFOOD HOLDING CORP.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] EMPIRE SEAFOOD, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] EMPIRE IMPORTS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Guaranty Agreement]
[CORPORATE SEAL] PERFORMANCE TRANSPORTATION SYSTEMS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] SPRINGFIELD FOODSERVICE CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] FRESH INTERNATIONAL CORP.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] TRANSFRESH CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[CORPORATE SEAL] FRESH EXPRESS INCORPORATED
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Guaranty Agreement]
GUARANTY AGREEMENT SUPPLEMENT
GUARANTY AGREEMENT SUPPLEMENT, dated as of __________, _____ (the
"Supplement"), made by ____________________, a __________ corporation (the "New
Guarantor"), in favor of First Union National Bank, as Administrative Agent (in
such capacity, the "Administrative Agent") under the Credit Agreement (as
defined in the Guaranty Agreement referred to below) for the ratable benefit of
itself and the Lenders (as defined in the Guaranty Agreement referred to below).
Section 1. Reference is hereby made to the Guaranty Agreement dated as of
October 16, 2001 (as amended, restated supplemented or otherwise modified as of
the date hereof, the "Guaranty Agreement"), made by certain subsidiaries of
Performance Food Group Company (the "Borrower") party thereto on the Closing
Date or otherwise joined as a party thereto (such subsidiaries collectively, the
"Guarantors", and each, a "Guarantor"), in favor of the Administrative Agent for
the benefit of itself and the Lenders. This Supplement supplements the Guaranty
Agreement, forms a part thereof and is subject to the terms thereof. Capitalized
terms used and not defined herein shall have the meanings given thereto or
referenced in the Guaranty Agreement.
Section 2. The New Guarantor hereby agrees to unconditionally guarantee to
the Administrative Agent, for the ratable benefit of itself and the Lenders, and
their respective successors, endorsees, transferees and assigns, the prompt
payment (whether at stated maturity, by acceleration or otherwise) and
performance of all Obligations of the Borrower to the same extent and upon the
same terms and conditions as are contained in the Guaranty Agreement.
Section 3. The New Guarantor hereby agrees that by executing this
Supplement it is a party to the Guaranty Agreement as if a signatory thereto on
the Closing Date of the Credit Agreement, and the New Guarantor shall comply
with all of the terms, covenants, conditions and agreements and hereby makes
each representation and warranty, in each case set forth therein. The New
Guarantor agrees that the "Guaranty Agreement" or "Guaranty" as used therein or
in any other Loan Documents shall mean the Guaranty Agreement as supplemented
hereby.
Section 4. The New Guarantor hereby acknowledges it has received a copy of
the Guaranty Agreement and that it has read and understands the terms thereof.
IN WITNESS WHEREOF, the undersigned hereby causes this Supplement to be
executed and delivered as of the date first above written.
[CORPORATE SEAL] [INSERT NAME OF NEW SUBSIDIARY]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
