GUARANTY AGREEMENT
Guaranty Agreement (the "Agreement") dated April 25, 1997, among
Feed-Rite Ltd., a Manitoba corporation (the "Guarantor"), Xxxxx Xxxx Pet Food
Acquisition Co., a Minnesota corporation (the "Seller") and Xxxxx Xxxx Pet
Food Company, Inc. a Delaware corporation ("Xxxxx Xxxx").
W I T N E S S E T H:
WHEREAS, Feed-Rite (US) Animal Feeds, Inc., a Minnesota
corporation and wholly-owned indirect subsidiary of the Guarantor (the
"Purchaser"), the Seller and Xxxxx Xxxx are contemporaneously with the
execution and delivery of this Agreement entering into an Asset Purchase
Agreement (the "Purchase Agreement") pursuant to which the Seller has agreed
to sell and the Purchaser has agreed to purchase, subject to the terms and
conditions of the Asset Purchase Agreement, the Business and the Transferred
Assets, as defined therein; and
WHEREAS, the Guarantor has agreed to guarantee performance by the
Purchaser of the Purchase Agreement in accordance with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the Guarantor, the Seller and Xxxxx Xxxx hereby
agree as follows:
1. Representations of the Guarantor. The Guarantor hereby
represents and warrants to the Seller and Xxxxx Xxxx as follows:
1.1. The Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of the province of Manitoba and
has the corporate power and authority to own, lease and operate all of its
properties and assets and to carry on its business as it is now being
conducted.
1.2. The Guarantor has the corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
The execution, delivery and performance of this Agreement have been duly and
effectively authorized by the Guarantor. This Agreement constitutes the
legal, valid and binding obligation of the Guarantor, enforceable against it
in accordance with its terms.
1.3. Neither the execution and delivery of this Agreement by the
Guarantor, nor the performance by it of the obligations and covenants
contained herein, will conflict with or result in a breach of the articles or
certificate of incorporation or by-laws of the Guarantor, or require any
filing with, or consent or approval of any governmental authority having
jurisdiction over any of the business or assets of the Guarantor, or violate
any statute, regulation, injunction, judgment or order to which the Guarantor
is subject, or result in a breach of, or constitute a default or an event
which, with the passage of time or the giving of notice or both would
constitute a default, which would give rise to a right of termination,
cancellation or acceleration, create any entitlement to any payment or
benefit, require the consent of any third party or result in the creation of
any lien on the assets of the Guarantor.
1.4. The Guarantor has received and reviewed a copy of the
Purchase Agreement.
2. Guaranty of Purchase Agreement.
2.1. The Guarantor hereby unconditionally and irrevocably
guarantees to the Seller and Xxxxx Xxxx the prompt, full and complete
performance of all obligations and covenants of the Purchaser under the
Purchase Agreement (including payment of the amounts described in Section 2.5
of the Purchase Agreement), in accordance with the terms thereof.
2.2. If the Purchaser defaults in the performance of its
obligations or covenants under the Purchase Agreement according to their
terms, the Guarantor shall pay to the Seller, Xxxxx Xxxx, their respective
successors, assigns and representatives (as defined in the Purchase
Agreement) all Damages (as defined in the Purchase Agreement) that such
persons are entitled to recover from the Purchaser by reason of such default.
2.3. The Guarantor agrees that this Agreement is and shall be an
open and continuing guaranty and all obligations and covenants to which it
applies or may apply shall be conclusively presumed to have been created in
reliance on this Agreement.
2.4. Except as provided in Section 2.7, until the obligations and
covenants of the Purchaser referred to in Sections 2.1 and 2.2 have been
satisfied and discharged, the occurrence of the following events shall not
discharge or impair the guaranty set forth herein.
(a) the waiver, compromise, settlement, release or termination of
any of the obligations or agreements of the Purchaser under the Purchase
Agreement;
(b) the extension of the time for performance of any of the
obligations or agreements of the Purchaser under the Purchase Agreement;
(c) the modification or amendment of any obligation or agreement
of the Purchaser set forth in the Purchase Agreement;
(d) the taking of, or the omission to take, any actions under or
referred to in the Purchase Agreement;
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(e) any failure, omission or delay on the part of the Seller or
Xxxxx Xxxx in enforcing, asserting or exercising any right, power or remedy,
whether or not conferred on the Seller or Xxxxx Xxxx under the Purchase
Agreement; or
(f) any bankruptcy, insolvency, reorganization, liquidation or
similar proceeding affecting the Purchaser.
2.5. In the event of a default by the Purchaser in the
performance of any of its obligations or covenants under the Purchase
Agreement, the Seller or Xxxxx Xxxx may proceed hereunder against the
Guarantor and the Seller and Xxxxx Xxxx shall have, in their sole discretion,
the right to proceed first and directly against the Guarantor under this
Agreement without proceeding first or concurrently against the Purchaser or
exhausting any other remedies it may have. This is a guaranty of payment and
performance and not of collection.
2.6. The Guarantor shall have the full benefit of any defenses to
payment or performance that may be available to the Purchaser in respect of
the Purchaser's obligations to Xxxxx Xxxx or the Seller under the Purchase
Agreement.
2.7. Notwithstanding any other provision of this Agreement, the
Guarantor's obligations under this Agreement shall automatically terminate
and this Agreement shall be null and void upon the closing of the purchase
and sale contemplated by the Purchase Agreement.
3. Miscellaneous.
3.1. The Guarantor hereby expressly waives notice in writing or
otherwise from Xxxxx Xxxx and the Seller of their acceptance and reliance on
this Agreement. The Guarantor agrees to pay all reasonable costs, expenses
and fees, including all reasonable attorneys' fees, that may be incurred in
enforcing or attempting to enforce this Agreement following any default by
the Guarantor hereunder, whether the same may be enforced by suit or
otherwise.
3.2. This Agreement is entered into by the Guarantor for the
benefit of Xxxxx Xxxx and the Seller, their successors and assigns.
3.3. This Agreement constitutes the entire agreement between the
parties hereto with respect to the matters provided for herein. No waiver,
change, amendment or discharge of any term or condition hereof and no consent
on the part of any party hereto shall be of any force or effect unless made
in writing and signed by a duly authorized agent of the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be
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deemed to or shall constitute a waiver of any other provisions hereof nor
shall such waiver constitute a continuing waiver.
3.4. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
3.5. (a) All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and mailed or
facsimiled or delivered by hand or courier service:
(i) If to the Seller or Xxxxx Xxxx, to:
Xxxxx Xxxx Pet Food Acquisition Co.
c/o Dartford Partnership, L.L.C.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
With a copy to:
Xxxxxxxx & O'Neil, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxxxxxx, Esq.
Facsimile: 000-000-0000
Telephone: 000-000-0000
(ii) If to the Guarantor, to:
Feed-Rite Ltd.
00 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx
Xxxxxx X0X 0X0
Attention: M.E. Xxxxxxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
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With a copy to:
Xxxxxx & Whitney LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Facsimile: 000-000-0000
Telephone: 000-000-0000
(b) All notices and other communications required or permitted
under this Agreement which are addressed as provided in this Section 3.5 (i)
if delivered personally against proper receipt or by confirmed facsimile
transmission shall be effective upon delivery and (ii) if delivered (A) by
certified or registered mail with postage prepaid shall be effective five
business days or (B) by Federal Express or similar courier service with
courier fees paid by the sender, shall be effective two business days
following the date when mailed or couriered, as the case may be. Any party
hereto may from time to time change its address for the purpose of notices to
such party by a similar notice specifying a new address, but no such change
shall be deemed to have been given until it is actually received by the party
sought to be charged with its contents.
3.6. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute one and the same instrument.
3.7. The headings herein are for convenience reference only, do
not constitute a part of this Agreement, and shall not be deemed to limit or
affect any of the provisions hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed all as of the date first above written.
FEED-RITE LTD.
By /s/ M.E. Xxxxxxx
-------------------------------------
M.E. Xxxxxxx
President and Chief Executive Officer
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XXXXX XXXX PET FOOD ACQUISITION CO.
By /s/ Xxx Xxxxx
-------------------------------------
Xxx Xxxxx
Executive Vice President
XXXXX XXXX PET FOOD COMPANY, INC.
By /s/ Xxx Xxxxx
-------------------------------------
Xxx Xxxxx
Executive Vice President
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