Exhibit 10(au)
EXHIBIT B
KASH N' XXXXX GUARANTY
KASH N' XXXXX GUARANTY dated as of September 6, 2001 by KASH N' XXXXX FOOD
STORES, INC., a Delaware corporation (with its successors, the "Guarantor") in
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favor of XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent
(with its successors, the "Administrative Agent").
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W I T N E S S E T H :
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WHEREAS, Delhaize America Inc., a North Carolina corporation (with its
successors, the "Borrower"), certain lenders (the "Lenders") and the
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Administrative Agent are parties to a $500,000,000 5-Year Credit Agreement dated
as of January 26, 2000 (as the same may be amended from time to time, the
"Credit Agreement"); and
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WHEREAS, the Borrower holds 100% of the voting equity of the Guarantor;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. The following additional terms, as used herein, have the following
respective meanings:
"Guaranteed Obligations" means: (i) all principal of and interest
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(including, without limitation, any interest which accrues after or would accrue
but for the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrower, whether or not allowed
or allowable as a claim in any such proceeding) on any loan under, or any note
issued pursuant to, the Credit Agreement, (ii) all other amounts payable by the
Borrower under the Loan Documents and (iii) any amendments, restatements,
renewals, extensions or modifications of any of the foregoing.
"Obligor" means any party to any Loan Document, other than the
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Administrative Agent or any Lender.
ARTICLE 2
Representations and Warranties
The Guarantor represents and warrants that:
Section 2.01. Organization; Powers. The Guarantor is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect on the Guarantor, is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required.
Section 2.02. Authorization; Enforceability. This Agreement is within the
Guarantor's powers and has been duly authorized by all necessary limited
liability company action and, if required, action on the part of its members.
This Agreement has been duly executed and delivered by the Guarantor and
constitutes a legal, valid and binding obligation of the Guarantor, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
Section 2.03. Corporate and Governmental Authorization; No Contravention.
This Agreement (a) does not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except
consents, approvals, registrations or filings as have been obtained or made and
are in full force and effect, (b) will not violate any applicable law or
regulation or the limited liability company agreement or other organizational
documents of the Guarantor or any order of any Governmental Authority, (c) will
not violate or result in a default under any indenture, agreement or instrument
binding upon the Borrower or any of its Subsidiaries or its assets, other than
defaults or violations for which consents or waivers have been obtained, or
which individually or in the aggregate could not reasonably be expected to
result in a Material Adverse Effect on the Borrower or the Guarantor, (d) will
not give rise to a right under any indenture, agreement or other instrument
binding upon the
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Borrower or any of its Subsidiaries or its assets to require any payment to be
made by the Borrower or any of its Subsidiaries other than any payments
contemplated to be made in connection with the Transactions and (e) will not
result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries.
Section 2.04. Rank of Debt. The obligations of the Guarantor under this
Agreement to pay the Guaranteed Obligations constitute direct and unconditional
obligations of the Guarantor and rank at least pari passu in right of payment
with all other unsecured, unsubordinated Debt of the Guarantor.
Section 2.05. No Set-Off. The obligations of the Guarantor under this
Agreement are not subject to any defense, set-off or counterclaim by the
Guarantor or any other Person or any circumstance whatsoever which might
constitute a legal or equitable discharge from its obligations thereunder.
ARTICLE 3
The Guaranty
Section 3.01. The Guaranty. The Guarantor hereby unconditionally guarantees
the full and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the Guaranteed Obligations. Upon failure by the Borrower to pay
punctually any Guaranteed Obligation, the Guarantor agrees that it shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in the Credit Agreement or the other relevant Loan Document, as the
case may be.
Section 3.02. Guaranty Unconditional. The obligations of the Guarantor
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of any other Obligor or any other Person under any
Loan Document, by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Credit Agreement
or any other Loan Document;
(c) any release, impairment, non-perfection or invalidity of any direct or
indirect security for any obligation of the Borrower, the Guarantor or any other
Person under any Loan Document;
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(d) any change in the corporate existence, structure or ownership of the
Borrower, the Guarantor or any other Person or any of their respective
Subsidiaries, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower, the Guarantor or any other Person or any of
their assets or any resulting release or discharge of any obligation of the
Borrower, the Guarantor or any other Person contained in any Loan Document;
(e) the existence of any claim, set-off or other rights which the
Guarantor may have at any time against the Borrower, the Administrative Agent,
any Lender or any other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against the
Borrower, any other Obligor or any other Person for any reason of the Credit
Agreement or any other Loan Document, or any provision of applicable law or
regulation purporting to prohibit the payment by the Borrower, of the principal
or the interest or any other amount payable by the Borrower under any Loan
Document; or
(g) any other act or omission to act or delay of any kind by the Borrower,
the Administrative Agent, any other Person or any other circumstance whatsoever
which might, but for the provisions of this paragraph, constitute a legal or
equitable discharge of or defense to obligations of the Guarantor hereunder.
Section 3.03. Effectiveness of Guaranty; Reinstatement in Certain
Circumstances; Release of the Guarantor. (a) The Guarantor's obligations
hereunder shall remain in full force and effect until the repayment in full of
all Guaranteed Obligations and the termination of the Commitments under the
Credit Agreement. If at any time any payment of Guaranteed Obligations payable
by the Borrower is rescinded or must be otherwise restored or returned upon the
insolvency or receivership of the Borrower or otherwise, the Guarantor's
obligations hereunder with respect thereto shall be reinstated as though such
payment had been due but not made at such time.
(b) At any time prior to the termination of the Guarantor's obligations
hereunder, in accordance with subsection (a), the Administrative Agent may
release the Guarantor from its obligations hereunder in accordance with Section
9.02(c) of the Credit Agreement.
Section 3.04. Waiver of the Guarantor. The Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not
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provided for herein, as well as any requirement that at any time any action be
taken by any corporation or person against the Borrower or any other Person.
Section 3.05. Subrogation. Upon making any payment with respect to the
Borrower hereunder, the Guarantor shall be subrogated to the rights of the payee
against the Borrower with respect to such payment; provided that the Guarantor
shall not enforce any payment by way of subrogation until the repayment in full
of all Guaranteed Obligations and the termination of the Commitments under the
Credit Agreement.
Section 3.06. Stay of Acceleration. In the event that acceleration of the
time for payment of any Guaranteed Obligation is stayed upon insolvency or
receivership of the Borrower or otherwise, all such Guaranteed Obligations
otherwise subject to acceleration under the terms of any Loan Document shall
nonetheless be payable by the Guarantor hereunder forthwith on demand.
Section 3.07. Limit of Liability. The obligations of the Guarantor
hereunder shall be limited to an aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provisions of
any applicable state law.
ARTICLE 4
Miscellaneous
Section 4.01. Amendments. Neither this Agreement nor any provision hereof
may be changed, waived, discharged or terminated orally, but only in writing in
accordance with Section 9.02(c) of the Credit Agreement.
Section 4.02. Notices. All notices and other communications provided for
herein shall be in writing and shall be delivered in accordance with Section
9.01 of the Credit Agreement.
Section 4.03. No Waiver; Remedies. No failure on the part of the
Administrative Agent to exercise, and no delay in exercising and no course of
dealing with respect to, any right under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent of any right under this Agreement or any other Loan Document preclude any
other or further exercise thereof or the exercise of any other right. The rights
in this Agreement and the other Loan Documents are cumulative and are not
exclusive of any other remedies provided by law.
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Section 4.04. Right of Set-Off. If the Guarantor fails to pay any
Guaranteed Obligation when due, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, 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 and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Guarantor against any and all of the obligations of the Guarantor now or
hereafter existing under the Loan Documents held by such Lender or any of its
Affiliates, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
Section 4.05. Continuing Guaranty. This Guaranty is a continuing Guaranty
and shall be binding upon the Guarantor and its respective successors and
assigns, and inure to the benefit of and be enforceable by the Administrative
Agent or each Lender and its successors, transferees and assigns. This Guaranty
is for the benefit of each Lender and its successors and assigns, and in the
event of an assignment of all or any of any Lender's interest in and to its
rights and obligations under the Credit Agreement in accordance with the Credit
Agreement, the assignor's rights hereunder, to the extent applicable to the
indebtedness or obligation so assigned, shall automatically be transferred with
such indebtedness or obligation.
Section 4.06. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 4.07. Taxes. The Guarantor agrees to comply with the provisions of
Section 2.15 of the Credit Agreement and such provisions, and all related
defined terms, are incorporated by reference into this Guaranty as if fully set
forth herein, except that (i) any references to "the Borrower" shall be deemed
to be references to the Guarantor, and (ii) any references to any obligation
under the Credit Agreement shall be deemed to be references to obligations
hereunder.
Section 4.08. Governing Law; Jurisdiction; Consent to Service of
Process.(a) This Agreement shall be construed in accordance with and governed by
the law of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of
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the State of New York sitting in New York County and of the United States
District Court for the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or the other Loan Documents against the Guarantor or its
properties in the courts of any jurisdiction.
(c) The Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 4.02. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
Section 4.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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Section 4.10. Appointment of Agent for Service of Process. (a) the
Guarantor hereby irrevocably designates, appoints, authorizes and empowers as
its agent for service of process, CT Corporation System, at its offices
currently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process
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Agent"), to accept and acknowledge for and on behalf of the Guarantor service of
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any and all process, notices or other documents that may be served in any suit,
action or proceeding relating hereto in any New York State or Federal court
sitting in the State of New York. Such designation and appointment shall be
irrevocable until all Guaranteed Obligations shall have been paid in full in
accordance with the provisions thereof. the Guarantor covenants and agrees that
it shall take any and all reasonable action, including the execution and filing
of any and all documents, that may be necessary to continue the foregoing
designations and appointments in full force and effect and to cause the Process
Agent to continue to act in such capacity.
(b) The Guarantor consents to process being served in any suit, action or
proceeding of the nature referred to in Section 4.09 by serving a copy thereof
upon the Process Agent. Without prejudice to the foregoing, the Lenders and the
Administrative Agent agree that to the extent lawful and possible, written
notice of said service upon the Process Agent shall also be mailed by registered
or certified airmail, postage prepaid, return receipt requested, to the
Guarantor at its address specified in or pursuant to Section 4.02 or to any
other address of which the Guarantor shall have given written notice to the
Administrative Agent. If said service upon the Process Agent shall not be
possible or shall otherwise be impractical after reasonable efforts to effect
the same, the Guarantor consents to process being served in any suit, action or
proceeding of the nature referred to in Section 4.09 by the mailing of a copy
thereof by registered or certified airmail, postage prepaid, return receipt
requested, to the address of the Guarantor specified in or pursuant to Section
4.02, which service shall be effective 5 days after deposit in the United States
Postal Service. The Guarantor agrees that such service (i) shall be deemed in
every respect effective service of process upon the Guarantor in any such suit,
action or proceeding and (ii) shall to the fullest extent permitted by law, be
taken and held to be valid personal service upon and personal delivery to the
Guarantor.
(c) Nothing in this Section shall affect the right of any party hereto to
serve process in any manner permitted by law, or limit any right that any party
hereto may have to bring proceedings against any other party hereto in the
courts of any jurisdiction or to enforce in any lawful manner a judgment
obtained in one jurisdiction in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be duly
executed by their respective authorized officers as of the day and year first
above written.
KASH N' XXXXX FOOD STORES, INC.
By /s/ G. Xxxx Xxxxx
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Name: G. Xxxx Xxxxx
Title: Assistant Secretary
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
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