EXHIBIT 10.2
EXHIBIT L-2,
AS EXECUTED
FORM OF DMFC GUARANTY
Dated as of December 20,2002
From
DEL MONTE FOODS COMPANY
and
as Guarantor
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
TABLE OF CONTENTS
SECTION PAGE
Section 1. Guaranty......................................................... 1
Section 2. Guaranty Absolute................................................ 2
Section 3. Waivers and Acknowledgments...................................... 3
Section 4. Subrogation...................................................... 4
Section 5. Payments Free and Clear of Taxes, Etc............................ 4
Section 6. Representations and Warranties................................... 6
Section 7. Covenants........................................................ 6
Section 8. Amendments, Guaranty Supplements, Etc............................ 9
Section 9. Notices, Etc..................................................... 9
Section 10. No Waiver; Remedies.............................................. 10
Section 11. Right of Set-off................................................. 10
Section 12. Indemnification.................................................. 11
Section 13. Subordination.................................................... 11
Section 14. Continuing Guaranty, Assignments under the Credit Agreement...... 12
Section 15. Execution in Counterparts........................................ 13
Section 16. Effective Date................................................... 13
Section 17. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc........... 13
GUARANTY
GUARANTY, dated as of DECEMBER 20, 2002, made by DEL MONTE
FOODS COMPANY (the "GUARANTOR") in favor of the Secured Parties (as defined in
the Credit Agreement referred to below).
PRELIMINARY STATEMENT. SKF Foods Inc. (to be known after the
consummation of the Merger as Del Monte Corporation), a Delaware corporation
(the "BORROWER"), is party to a Credit Agreement, dated as of December 20,2002
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"; the capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined), with certain
Lenders party thereto, Bank of America, N.A. ("BANK OF AMERICA") as
Administrative Agent, Collateral Agent, Swingline Lender and Issuing Lender,
JPMorgan Chase Bank, as Syndication Agent, Xxxxxx Trust and Savings Bank, Xxxxxx
Xxxxxxx & Co. Incorporated and UBS Warburg LLC, as Co-Documentation Agents and
Banc of America Securities LLC and X.X. Xxxxxx Securities Inc., as Joint Book
Managers. The Guarantor will derive substantial direct and indirect benefits
from the transactions contemplated by the Credit Agreement. It is a condition
precedent to the making of Loans and the issuance of Letters of Credit by the
Lenders under the Credit Agreement and the entry by any Lender or Affiliate
thereof into any Permitted Secured Swap Contract with any Loan Party or
Subsidiary thereof (each such Swap Contract being a "SECURED SWAP CONTRACT")
from time to time after the occurrence of the Time of Merger that the Guarantor
shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lenders to make Loans and to issue Letters of Credit under the
Credit Agreement and the Secured Parties to enter into Secured Swap Contracts
from time to time, the Guarantor hereby agrees as follows:
Section 1. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each other Loan Party
or Subsidiary Guarantor now or hereafter existing under or in respect of the
Loan Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such Obligations being the "GUARANTEED
OBLIGATIONS"), and agrees to pay any and all reasonable expenses (including,
without limitation, fees and expenses of counsel) incurred by the Administrative
Agent or any other Secured Party in enforcing any rights under this Guaranty or
any other Loan Document to the extent such Secured Party is entitled to
reimbursement of any such expenses by any Loan Party or Subsidiary Guarantor
pursuant to the terms of the relevant Loan Document. Without limiting the
generality of the foregoing, each Guarantor's liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Loan Party or Subsidiary Guarantor to any Secured Party under or in
respect of the Loan Documents but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party or Subsidiary Guarantor.
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Section 2. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party with respect thereto. The Obligations of the Guarantor under or in
respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party or Subsidiary Guarantor under or in
respect of the Loan Documents, and a separate action or actions may be brought
and prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
Subsidiary Guarantor or whether the Borrower or any other Loan Party or
Subsidiary Guarantor is joined in any such action or actions. The liability of
the Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and the Guarantor hereby irrevocably waives any
defenses it may now have or hereafter acquire in any way relating to, any or all
of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party or Subsidiary
Guarantor under or in respect of the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any
Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of
any Collateral or any other collateral, or any taking, release or
amendment or waiver of, or consent to departure from, any other
guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other
collateral, or proceeds thereof, to all or any of the Guaranteed
Obligations, or any manner of sale or other disposition of any
Collateral or any other collateral for all or any of the Guaranteed
Obligations or any other Obligations of any Loan Party or Subsidiary
Guarantor under the Loan Documents or any other assets of any Loan
Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the
corporate structure or existence of any Loan Party or any of its
Subsidiaries;
(f) any failure of any Secured Party to disclose to any
Loan Party or Subsidiary Guarantor any information relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party or Subsidiary Guarantor
now or hereafter known to such Secured Party (the Guarantor waiving any
duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver
any other guaranty or agreement or the release or reduction of
liability of any Subsidiary Guarantor or other guarantor or surety with
respect to the Guaranteed Obligations; or
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(h) any other circumstance (including, without
limitation, any statute of limitations) or any existence of or reliance
on any representation by any Secured Party that might otherwise
constitute a defense available to, or a discharge of any Loan Party,
Subsidiary Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower, any other Loan Party
or any Subsidiary Guarantor or otherwise, all as though such payment had not
been made.
Sections. 3. Waivers and Acknowledgments. (a) The Guarantor
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party,
any Subsidiary Guarantor or any other Person or any Collateral.
(b) The Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
(c) The Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an
election of remedies by any Secured Party that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the Guarantor or other
rights of the Guarantor to proceed against any of the other Loan Parties, any
Subsidiary Guarantor, any other guarantor or any other Person or any Collateral
and (ii) any defense based on any right of set-off or counterclaim against or in
respect of the Obligations of the Guarantor hereunder.
(d) The Guarantor acknowledges that the Collateral Agent may,
without notice to or demand upon such Guarantor and without affecting the
liability of the Guarantor under this Guaranty, foreclose under any mortgage by
nonjudicial sale, and the Guarantor hereby waives any defense to the recovery by
the Collateral Agent and the other Secured Parties against the Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be
afforded by applicable law.
(e) The Guarantor hereby unconditionally and irrevocably
waives any duty on the part of any Secured Party to disclose to the Guarantor
any matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other Loan
Party or any of its Subsidiaries now or hereafter known by such Secured Party.
(f) The Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and the Secured
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Swap Contracts and that the waivers set forth in Section 2 and this Section 3
are knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or
hereafter acquire against the Borrower, any other Loan Party, any Subsidiary
Guarantor or any other insider guarantor that arise from the existence, payment,
performance or enforcement of the Guarantor's Obligations under or in respect of
this Guaranty or any other Loan Document, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of any
Secured Party against the Borrower, any other Loan Party, any Subsidiary
Guarantor or any other insider guarantor or any Collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Borrower, any other Loan Party, any Subsidiary Guarantor or any other insider
guarantor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim, remedy or right,
unless and until all of the Guaranteed Obligations and all other amounts payable
under this Guaranty shall have been paid in full in cash, all Letters of Credit
and all Secured Swap Contracts shall have expired or been terminated and the
Commitments shall have expired or been terminated. If any amount shall be paid
to the Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the latest
date of expiration, cancellation or termination of all Letters of Credit and all
Secured Swap Contracts (or the cash collateralization thereof in a manner
satisfactory to the Secured Parties) and (c) the termination of all Commitments,
such amount shall be received and held in trust for the benefit of the Secured
Parties, shall be segregated from other property and funds of the Guarantor and
shall forthwith be paid or delivered to the Administrative Agent in the same
form as so received (with any necessary endorsement or assignment) to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(i) all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, (ii) all of the Commitments have
terminated and (iii) all Letters of Credit and all Secured Swap Contracts shall
have expired or been cancelled or terminated (or have been cash collateralized
in a manner satisfactory to the Secured Parties), the Secured Parties will, at
the Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by the
Guarantor pursuant to this Guaranty.
Sections 5. Payments Free and Clear of Taxes, Etc. (a) Unless
otherwise required by law, any and all payments made by the Guarantor under or
in respect of this Guaranty or any other Loan Document shall be made, in
accordance with Section 4.1 of the Credit Agreement, free and clear of and
without deduction for any and all present or future Taxes. If the Guarantor
shall be required by any law to deduct any Taxes from or in respect of any sum
payable under this Guaranty or any other Loan Document to any Secured Party, (i)
the sum payable by the Guarantor shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 5), such Secured Party
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receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Guarantor shall make all such deductions, (iii)
the Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) within
30 days after the date of such payment, the Guarantor shall furnish to the
Administrative Agent (which shall forward the same to the relevant Secured
Party) the original or a certified copy of a receipt evidencing payment thereof
or other evidence of payment satisfactory to the Administrative Agent.
(b) In addition, the Guarantor agrees to pay any and all
present or future Other Taxes that arise from any payment made by or on behalf
of the Guarantor under or in respect of this Guaranty or any other Loan Document
or from the execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Guaranty and the other Loan Documents.
(c) If the Guarantor shall be required to deduct or pay any
Taxes or Other Taxes from or in respect of any sum payable under any Loan
Document to any Secured Party, the Guarantor, as the case may be, shall also pay
to the relevant Secured Party, at the time interest is paid, such additional
amount that such Secured Party specifies is necessary to preserve the after-tax
yield (after factoring in all taxes, including taxes imposed on or measured by
net income) that such Secured Party would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Guarantor will indemnify each Secured Party for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section 5)
paid by such Secured Party, (ii) amounts payable under Section 5(c), and (iii)
any liability (including additions to tax, penalties interest and expenses)
arising therefrom or with respect thereto, in each case whether or not such
Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Payment under this Section 5(d) shall be made
within 30 days from the date such Secured Party makes demand therefor.
(e) If the Guarantor is required to pay additional amounts to
any Secured Party pursuant to this Section 5, then such Secured Party shall use
reasonable efforts (consistent with internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to reduce
or eliminate any such additional payment by the Guarantor which may thereafter
accrue, if such change in the good faith judgment of such Secured Party is not
otherwise material disadvantageous to such Secured Party.
(f) If the Guarantor pays any additional amounts in respect of
any Taxes or Other Taxes pursuant to this Section 5 which results in any Secured
Party actually receiving from the taxing authority impose such Taxes or Other
Taxes a refund of such Taxes or Other Taxes, such Lender shall within 90 days of
receipt of such refund pay to the Guarantor an amount equal to the amount of
such refund actually received by such Secured Party and reasonably attributable
to Taxes or Other Taxes that have been paid by the Guarantor under this Section
5 with respect to such refund, net of all out of pocket expenses, and without
any interest; provided that each Secured Party shall only be required to pay to
the Guarantor such amounts as such Secured Party
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in its good faith judgment, determines are attributable to Taxes or Other Taxes
paid by the Guarantor.
(g) Without prejudice to the survival of any other agreement
of the Guarantor hereunder or under any other Loan Document, the agreements and
obligations of the Guarantor contained in this Section 5 shall survive the
payment in full of the Guaranteed Obligations.
Section 6. Representations and Warranties. The Guarantor
hereby makes with respect to itself each representation and warranty made in the
Loan Documents by the Borrower and the Guarantor hereby further represents and
warrants as follows:
(a) It is engaged solely in the business of being a
holding company for the Borrower and holds no Equity Interests in any
other Person.
(b) Other than the occurrence of the Time of Merger,
there are no conditions precedent to the effectiveness of this Guaranty
that have not been satisfied or waived.
(c) The Guarantor has, independently and without reliance
upon any Secured Party and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to
enter into this Guaranty and each other Loan Document to which it is or
is to be a party, and the Guarantor has established adequate means of
obtaining from each other Loan Party and Subsidiary Guarantor on a
continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the business,
condition (financial or otherwise), operations, performance, properties
and prospects of such other Loan Party or Subsidiary Guarantor.
Section 7. Covenants. The Guarantor covenants and agrees that,
so long as any party of the Guaranteed Obligations shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender shall have any Commitment or
any Secured Hedge Party shall have any obligation under any Secured Hedge
Contract, the Guarantor shall, unless the Required Lenders shall otherwise
consent in writing:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation and preserve and maintain in full force
and effect all governmental rights, privileges, qualifications,
permits, licenses and franchises, in each case which are material and
which are necessary or desirable in the normal conduct of its business;
(b) preserve or renew all of its registered patents,
copyrights, trademarks, trade names and service marks, the
non-preservation of which would reasonably be expected to have a
Material Adverse Effect;
(c) perform or observe, and cause the Borrower and each
of its Subsidiaries to perform or observe, all of the terms, covenants
and agreements that the Loan Documents state that the Guarantor or the
Borrower or any other Loan Party or Subsidiary Guarantor is to perform
or observe or that the Guarantor or the Borrower is to cause any Loan
Party's Subsidiaries to perform or observe;
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(d) maintain and preserve all property material to the
normal conduct of its business in good working order and condition,
ordinary wear and tear excepted, other than obsolete, worn out or
surplus equipment;
(e) maintain with financially sound and reputable
independent insurers, insurance with respect to its properties and
business against loss or damage of kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar circumstances by
such other Persons;
(f) pay and discharge as the same shall become due and
payable, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP
are being maintained by the Guarantor in respect thereof, all of its
obligations and liabilities, including, without limitation, all tax
liabilities, assessments and governmental charges or levies upon it or
its properties or assets, all lawful claims which, if unpaid, would be
law become a Lien upon its properties or assets;
(g) comply in all material respects with all Requirements
of Law of any Governmental Authority having jurisdiction over it or its
business (including the Federal Fair Labor Standards Act), except such
as may be contested in good faith or as to which a bona fide dispute
may exist;
(h) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other
Federal or state law, cause each Plan which is qualified under Section
401 (a) of the Code to maintain such qualification, and make all
required contributions to any Plan subject to Section 412 of the Code;
(i) maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters
involving the assets and business of the Guarantor, the Borrower and
each of its Subsidiaries;
(j) permit representatives and independent contractors of
any Secured Party to visit and inspect its properties, examine its
corporate, financial and operating records and make copies thereof or
abstracts therefrom and to discuss its affairs, finances and accounts
with any of its directors, officers or independent public accountants;
(k) not designate any Indebtedness as "Guarantor
Designated Senior Debt" pursuant to the terms of the Existing
Subordinated Indenture or the New Subordinated Notes Indenture (or make
any comparable designation with respect to any Subordinated Debt
Document);
(1) not enter into or conduct any business, or engage in
any activity (including, without limitation, any action or transaction
that is required or restricted with respect to the Borrower and its
Subsidiaries under Articles VII and VIII of the Credit Agreement
without regard to any of the enumerated exceptions to such covenants),
other than:
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(i) the holding of Equity Interests in the
Borrower and the performance of activities otherwise permitted
under the Credit Agreement that arise in the ordinary course
of its business as the holding company for the Borrower;
(ii) the issuance of Equity Interests in the
Guarantor (provided that the Net Cash Proceeds thereof are
applied (or payment in respect thereof is made) in accordance
with the Credit Agreement), and the execution, delivery and
performance by the Guarantor of any shareholders, subscription
or other agreements relating to issuance of Equity Interests
in the Guarantor;
(iii) any actions or transactions permitted under
Section 8.6 of the Credit Agreement;
(iv) liabilities incurred in connection with its
Guaranty Obligations under the Existing Subordinated Notes
Indenture, the New Subordinated Notes Documents or any
Indebtedness incurred by the Borrower in connection with the
refinancing, renewal or extension of any of the Existing
Subordinated Notes Indenture or the New Subordinated Notes
Documents permitted under Section 8.5(e) of the Credit
Agreement;
(v) the declaration of any dividend payment or
other distribution on account of any shares of the TPG
Acquisition Preferred Stock to the extent that such
distribution is made solely with additional shares of TPG
Acquisition Preferred Stock;
(vi) so long as no Default or Event of Default of
the type described under Section 9.1 (f) or 9.1 (g) of the
Credit Agreement has occurred and is continuing, the
redemption, prepayment, defeasance or repurchase
(collectively, the "REDEMPTION") of any shares of TPG
Acquisition Preferred Stock with the Net Case Proceeds from
any issuance of Equity Interests in the Guarantor;
(vii) the issuance of any TPG Acquisition
Preferred Stock for a price greater than the liquidation
preference thereof (i.e. $1,000 per share) or in connection
with the payment of regularly scheduled dividends thereon;
(viii) the making of any future equity or debt
contributions to the Borrower to the extent not otherwise
prohibited by the Credit Agreement;
(ix) the making of any dividend payment or other
distribution with respect to any of its Equity Interests
(whether as a result of a dividend or a purchase, redemption
or other acquisition for value of any of its Equity Interests
or any warrants, rights or options in respect of such Equity
Interests, now or hereafter outstanding) with the proceeds of
any amounts received from the Borrower pursuant to Section
8.15(b)(v) of the Credit Agreement;
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(x) the purchase of any Equity Interests in the
Guarantor or any other Loan Party or Subsidiary Guarantor to
the extent permitted under Section 8.15(b)(iv) of the Credit
Agreement;
(xi) the making of any payments required to be
made under the Tax Sharing Agreement;
(xii) the performance of its obligations in
respect of employment arrangements entered into in the
ordinary course of its business as a holding company of the
Borrower;
(xiii) Contingent Obligations with respect to
obligations of the Company and its Subsidiaries permitted to
be incurred under the terms of the Credit Agreement in the
ordinary course of business, provided that the aggregate
outstanding amount of any such Contingent Obligations shall
not exceed $25,000,000; and
(xiv) the performance of its Obligations under
each of the Loan Documents to which it is a party; and
(xv) contracts, agreements or other undertakings
(including, without limitation, commitments by the Borrower or
any of its Subsidiaries to purchase or acquire Equity
Interests in other Person) related to loans, investments and
Acquisitions by the Borrower or any of its Subsidiaries to the
extent the Borrower or such Subsidiary is permitted to make
such loan, investment or Acquisition or enter into any
commitment with respect thereto under Section 8.4 of the
Credit Agreement.
Section 8. Amendments, Guaranty Supplements, Etc. No amendment
or waiver of any provision of this Guaranty and no consent to any departure by
the Guarantor therefrom shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders and the Guarantor and acknowledged
by the Administrative Agent, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall, unless in writing
and signed by all of the Lenders, (a) reduce or limit the obligations of the
Guarantor hereunder, release the Guarantor hereunder or otherwise limit the
Guarantor's liability with respect to the Obligations owing to the Secured
Parties under or in respect of the Loan Documents, (b) postpone any date fixed
for payment hereunder or (c) change the number of Secured Parties or the
percentage of (x) the Commitments, (y) the aggregate unpaid principal amount of
the Loans or (z) the aggregate Effective Amount of outstanding Letters of Credit
that, in each case, shall be required for the Secured Parties or any of them to
take any action hereunder.
Section 9. Notices, Etc. (a) Unless otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including by facsimile transmission). All such written
notices shall be mailed, faxed or delivered, if to any Guarantor, addressed to
it at the address, facsimile number or (subject to subsection (c) below),
electronic mail address set forth on the signature page hereof, if to any Agent
or any Lender, at
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its address, facsimile number or (subject to subsection (c) below), electronic
mail address specified in Section 11.2 of the Credit Agreement, if to any Lender
or Affiliate thereof party to any Secured Swap Contract, at its address,
facsimile number or (subject to subsection (c) below), electronic mail address
specified in the Secured Swap Contract to which it is a party, or, as to any
party, at such other address as shall be designated by such party in a written
notice to each other party. All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of (i) actual receipt by
the relevant party hereto and (ii) (A) if delivered by hand or by courier, when
signed for by or on behalf of the relevant party hereto; (B) if delivered by
mail, four Business Days after deposit in the mails (certified or registered),
postage prepaid; (C) if delivered by facsimile, when sent and receipt has been
confirmed by telephone; and (D) if delivered by electronic mail (which form of
delivery is subject to the provisions of subsection (c) below), when delivered.
In no event shall a voicemail message be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. This
Guaranty may be transmitted and/or signed by facsimile. The effectiveness of
such document and signatures shall, subject to applicable law, have the same
force and effect as manually-signed original and shall be binding on the
Guarantor. The Administrative Agent may also require that any such document and
signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit the
effectiveness of any facsimile document or signature.
(c) Electronic Communication. Notices and other communications
to the Secured Parties hereunder may be delivered or furnished by electronic
communications (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent. The Administrative Agent or the
Guarantor may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
Section 10. No Waiver; Remedies. No failure on the part of any
Secured Party to exercise, and no delay in exercising, any right, remedy, power
or privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
Section 11. Right of Set-off. In addition to any right or
remedy of the Secured Parties provided by law, if an Event of Default exists, or
the Loans have been accelerated, each Secured Party is authorized at any time
and from time to time, without prior notice to the Guarantor, any such notice
being waived by the Guarantor 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 by, and other indebtedness at any time owing by, such
Secured Party or any Affiliate of such Secured Party to or for the credit or the
account of the Guarantor against any and all Obligations then due and owing to
such Secured Party and each Affiliate of such Secured Party and each Secured
Party and Affiliate thereof is hereby irrevocably authorized to permit such
set-off and application. Each Secured Party agrees promptly to notify the
Guarantor and the
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Collateral Agent after any such set-off and application made by such Lender;
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
Section 12. Indemnification. (a) Without limitation on any
other Obligations of the Guarantor or remedies of the Secured Parties under this
Guaranty, and whether or not the transactions contemplated by the Credit
Agreement are consummated, the Guarantor shall, to the fullest extent permitted
by law, indemnify and hold harmless each Indemnified Person from and against any
and all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against any Indemnified Person in connection with or as
a result of any failure of any Guaranteed Obligations to be the legal, valid and
binding obligations of any Loan Party or Subsidiary Guarantor enforceable
against such Loan Party or Subsidiary Guarantor in accordance with their terms.
(b) The Guarantor hereby also agrees that none of the
Indemnified Persons shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to the Guarantor or any of its Affiliates or any of
their respective officers, directors, employees, agents and advisors, and the
Guarantor hereby agrees not to assert any claim against any Indemnified Party on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or
proposed use of the proceeds of the Loans or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated by the Transaction
Documents.
(c) Without prejudice to the survival of any of the other
agreements of the Guarantor under this Guaranty or any of the other Loan
Documents, the agreements and obligations of the Guarantor contained in Section
1 (a) (with respect to enforcement expenses), the last sentence of Section 2,
Section 5 and this Section 12 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this Guaranty.
Section 13. Subordination. The Guarantor hereby subordinates
any and all debts, liabilities and other Obligations owed to it by each other
Loan Party and Subsidiary Guarantor (the "SUBORDINATED OBLIGATIONS") to the
Guaranteed Obligations to the extent and in the manner hereinafter set forth in
this Section 13:
(a) Prohibited Payments, Etc. Except during the
continuance of any Event of Default (including the commencement and
continuation of any Insolvency Proceeding relating to any other Loan
Party or Subsidiary Guarantor) and so long as the Administrative Agent
has delivered written notice to the Guarantor of the Required Lenders'
intent to exercise their rights under this Section 13, the Guarantor
may receive regularly scheduled payments from any other Loan Party or
Subsidiary Guarantor on account of the Subordinated Obligations. After
the occurrence and during the continuance of any Event of Default
(including the commencement and continuation of any Insolvency
Proceeding relating to any other Loan Party or Subsidiary Guarantor)
and so long as the Administrative Agent has delivered written notice to
the Guarantor of the Required Lenders' intent to exercise their rights
under this Section 13, the Guarantor
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shall not demand, accept or take any action to collect any payment on
account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any
Insolvency Proceeding relating to any other Loan Party or Subsidiary
Guarantor, the Guarantor agrees that the Secured Parties shall be
entitled to receive payment in full in cash of all Guaranteed
Obligations (including all interest and expenses accruing after the
commencement of an Insolvency Proceeding, whether or not constituting
an allowed claim in such proceeding ("POST PETITION INTEREST")) before
the Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the
continuance of any Default (including the commencement and continuation
of any Insolvency Proceeding relating to any other Loan Party or
Subsidiary Guarantor), the Guarantor shall, if the Administrative Agent
so requests in writing, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Secured
Parties and deliver such payments to the Administrative Agent on
account of the Guaranteed Obligations (including all Post Petition
Interest), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any
manner the liability of the Guarantor under the other provisions of
this Guaranty.
(d) Administrative Agent Authorization. After the
occurrence and during the continuance of any Event of Default
(including the commencement and continuation of any Insolvency
Proceeding relating to any other Loan Party or Subsidiary Guarantor)
and so long as written notice has been delivered to the Guarantor of
the Required Lenders' intent to exercise their rights under this
Section 13, the Administrative Agent is authorized and empowered (but
without any obligation to so do), in its discretion, (i) in the name of
the Guarantor, to collect and enforce, and to submit claims in respect
of, Subordinated Obligations and to apply any amounts received thereon
to the Guaranteed Obligations (including any and all Post Petition
Interest), and (ii) to require the Guarantor (A) to collect and
enforce, and to submit claims in respect of, Subordinated Obligations
and (B) to pay any amounts received on such obligations to the
Administrative Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
Section 14. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the latest of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty, (ii)
the latest date of expiration, cancellation or termination of all Letters of
Credit and all Secured Swap Contracts (or the cash collateralization thereof in
a manner satisfactory to the Secured Parties) and (iii) the termination of all
Commitments, (b) be binding upon the Guarantor, its successors and assigns and
(c) inure to the benefit of and be enforceable by the Secured Parties and their
successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, any Secured Party may assign or
otherwise transfer all or any portion of its rights and obligations under the
Credit Agreement (including, without limitation, all or any portion of its
Commitments, the Loans owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Secured Party herein or otherwise,
13
in each case as and to the extent provided in Section 11.7 of the Credit
Agreement. The Guarantor shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Secured Parties.
Section 15. Execution in Counterparts. This Guaranty and each
amendment, waiver and consent with respect hereto may be executed in any number
of counterparts and by different parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Section 16. Effective Date. This Guaranty shall become
effective, without further action or notification on the part of the Guarantor
or any Secured Party, on and as of the Time of Merger.
Section 17. Governing Law; Jurisdiction; Waiver of Jury
Trial, Etc. (a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE SECURED PARTIES SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE GUARANTOR CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS.
THE GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
GUARANTOR WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
(c) Waiver of Jury Trial THE GUARANTOR WAIVES ITS RESPECTIVE
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF
ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS OR OTHERWISE. THE GUARANTOR AGREES THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE GUARANTOR FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABELITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL,
SUPPLEMENT OR MODIFICATION TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
DEL MONTE FOODS COMPANY
By /s/ Xxx X. Xxxxxx
---------------------------
Title: XXX X. XXXXXX
ASSISTANT TREASURER
Address for Notice Purposes:
Del Monte Foods Company
One Market @ The Landmark
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Secretary
Facsimile: (000) 000-0000
Email:
