EXHIBIT 99.11
GUARANTEE
January 30, 2003
Westernbank Puerto Rico (Business Credit Division)
Westernbank World Plaza, Xxxxx 000
Xxxx Xxx, XX 00000
Re: Pueblo International, LLC.
Xtra Super Food Centers, Inc.,
Pueblo Entertainment, Inc.,
Xtra Merger Corporation,
All Truck, Inc. and
Caribad, Inc.
(Singly a "Borrower" and
collectively "Borrowers")
Gentlemen:
Westernbank Puerto Rico (Business Credit Division) ("Lender") and
Borrowers have entered into certain financing arrangements pursuant to which
Lender may make loans and advances and provide other financial accommodations to
Borrower as set forth in the Extension and Modification And Security Agreement,
dated as of the date hereof, by and between Borrowers and Nutritional Sourcing
Corporation and Lender (as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, the "Extension
Agreement"), and other agreements, documents and instruments referred to therein
or at any time executed and/or delivered in connection therewith or related
thereto, including, but not limited to, this Guarantee (all of the foregoing,
together with the Extension Agreement, as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, being
collectively referred to herein as the "Financing Agreements").
Due to the close business and financial relationships between Xxxxxxxxx
and each and all of the undersigned ("Guarantor"), in consideration of the
benefits which will accrue to Guarantor and as an inducement for and in
consideration of Lender making loans and advances and providing other financial
accommodations to Borrower pursuant to the Extension Agreement and the other
Financing Agreements, Xxxxxxxxx agrees in favor of Xxxxxx as follows:
1. Guarantee.
(a) Guarantor absolutely and unconditionally, guarantees
and agrees to be liable for the full and indefeasible payment and performance
when due of the following (all of which are collectively referred to herein as
the "Guaranteed Obligations"): (i) all obligations, liabilities and indebtedness
of any kind, nature and description of Borrower to Lender and/or its affiliates,
including principal, interest, charges, fees, costs and expenses, however
evidenced, whether as principal, surety, endorser, guarantor or otherwise,
whether arising under the Extension Agreement, the other Financing Agreements or
otherwise, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of the Extension Agreement or
after the commencement of any case with respect to Borrower under the United
States Bankruptcy Code or any similar statute (including, without limitation,
the payment of interest and other amounts,
which would accrue and become due but for the commencement of such case,
whether or not such amounts are allowed or allowable in whole or in part in any
such case and including loans, interest, fees, charges and expenses related
thereto and all other obligations of Borrowers or their successors to Lender
arising after the commencement of such case), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and however acquired by
Lender and (ii) all expenses (including, without limitation, attorneys' fees
and legal expenses) incurred by Lender in connection with the preparation,
execution, delivery, recording, administration, collection, liquidation,
enforcement and defense of Borrowers' obligations, liabilities and indebtedness
as aforesaid to Lender, the rights of Lender in any collateral or under this
Guarantee and all other Financing Agreements or in any way involving claims by
or against Lender directly or indirectly arising out of or related to the
relationship between any Borrower Guarantor or any other Obligor (as hereafter
defined) and Lender, whether such expenses are incurred before, during or after
the initial or any renewal term of the Extension Agreement and the other
Financing Agreements or after the commencement of any case with respect to any
Borrower or Guarantor under the United States Bankruptcy Code or any similar
statute.
(b) This Guarantee is a guaranty of payment and not of
collection. Xxxxxxxxx agrees that Xxxxxx need not attempt to collect any
Guaranteed Obligations from any Borrower, Guarantor or any other Obligor or to
realize upon any collateral, but may require Guarantor to make immediate payment
of all of the Guaranteed Obligations to Lender when due, whether by maturity,
acceleration or otherwise, or at any time thereafter. Lender may apply any
amounts received in respect of the Guaranteed Obligations to any of the
Guaranteed Obligations, in whole or in part (including attorneys' fees and legal
expenses incurred by Lender with respect thereto or otherwise chargeable to
Borrowers or Guarantor) and in such order as Lender may elect.
(c) Payment by Guarantor shall be made to Lender at the
office of Lender from time to time on demand as Guaranteed Obligations become
due. Guarantor shall make all payments to Lender on the Guaranteed Obligations
free and clear of, and without deduction or withholding for or on account of,
any setoff, counterclaim, defense, duties, taxes, levies, imposts, fees,
deductions, withholding, restrictions or conditions of any kind. One or more
successive or concurrent actions may be brought hereon against Guarantor either
in the same action in which Borrower or any of the other Guarantors or any other
Obligor is sued or in separate actions. In the event any claim or action, or
action on any judgment, based on this Guarantee is brought against Guarantor,
Guarantor agrees not to deduct, set-off, or seek any counterclaim for or recoup
any amounts which are or may be owed by Lender to Guarantors.
2. Waivers and Consents.
(a) Notice of acceptance of this Guarantee, the making of
loans and advances and providing other financial accommodations to Borrowers and
presentment, demand, protest, notice of protest, notice of nonpayment or default
and all other notices to which Borrower or Guarantor are entitled are hereby
waived by Guarantor also waives notice of and hereby consents to, (i) any
amendment, modification, supplement, extension, renewal, or restatement of the
Extension Agreement and any of the other Financing Agreements, including,
without limitation, extensions of time of payment of or increase or decrease in
the amount of any of the Guaranteed Obligations, the interest rate, fees, other
charges, or any collateral, and the guarantee made herein shall apply to the
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Extension Agreement and the other Financing Agreements and the Guaranteed
Obligations as so amended, modified, supplemented, renewed, restated or
extended, increased or decreased, (ii) the taking, exchange, surrender and
releasing of collateral or guarantees now or at any time held by or available to
Lender for the obligations of Borrowers or any other party at any time liable on
or in respect of the Guaranteed Obligations or who is the owner of any property
which is security for the Guaranteed Obligations (individually, an "Obligor" and
collectively, the "Obligors"), (iii) the exercise of, or refraining from the
exercise of any rights against Borrower, Guarantor or any other Obligor or any
collateral, (iv) the settlement, compromise or release of, or the waiver of any
default with respect to, any of the Guaranteed Obligations and (v) any financing
by Lender of a Borrower under Section 364 of the United States Bankruptcy Code
or consent to the use of cash collateral by Lender under Section 363 of the
United States Bankruptcy Code. Guarantor agrees that the amount of the
Guaranteed Obligations shall not be diminished and the liability of Guarantor
hereunder shall not be otherwise impaired or affected by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of
all or any part of the Guaranteed Obligations shall affect, impair or be a
defense to this Guarantee, nor shall any other circumstance which might
otherwise constitute a defense available to or legal or equitable discharge of
Borrowers in respect of any of the Guaranteed Obligations, or Guarantor in
respect of this Guarantee, affect, impair or be a defense to this Guarantee.
Without limitation of the foregoing, the liability of Guarantor hereunder shall
not be discharged or impaired in any respect by reason of any failure by Lender
to perfect or continue perfection of any lien or security interest in any
collateral or any delay by Lender in perfecting any such lien or security
interest. As to interest, fees and expenses, whether arising before or after the
commencement of any case with respect to a Borrower under the United States
Bankruptcy Code or any similar statute. Guarantor shall be liable therefor, even
if Borrower's liability for such amounts does not, or ceases to, exist by
operation of law. Guarantor acknowledges that Xxxxxx has not made any
representations to Guarantor with respect to Borrowers, any other Obligor or
otherwise in connection with the execution and delivery by Guarantors of this
Guarantee and Guarantor is not in any respect relying upon Lender or any
statements by Lender in connection with this Guarantee.
(c) Guarantor hereby irrevocably and unconditionally
waives and relinquishes all statutory, contractual, common law, equitable and
all other claims against Borrowers, any collateral for the Guaranteed
Obligations or other assets of Borrowers or any other Obligor, for subornation,
reimbursement, exoneration, contribution, indemnification, setoff or other
recourse in respect to sums paid or payable to Lender by Guarantor hereunder and
Guarantor hereby further irrevocably and unconditionally waives and relinquishes
any and all other benefits which Guarantor might otherwise directly or
indirectly receive or be entitled to receive by reason of any amounts paid by or
collected or due from Guarantor, Borrowers or any other Obligor upon the
Guaranteed Obligations or realized from their property.
3. Subordination. Payment of all amounts now or hereafter owed to
Guarantor by any Borrower or any other Obligor is hereby subordinated in right
of payment to the indefeasible payment in full to Lender of the Guaranteed
Obligations and all such amounts and any security and guarantees therefor are
hereby assigned to Lender as security for the Guaranteed Obligations.
4. Acceleration. Notwithstanding anything to the contrary
contained herein or any of the
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terms of any of the other Financing Agreement or Credit Documents, the liability
of Guarantor for the entire Guaranteed Obligations shall mature and become
immediately due and payable, even if the liability of Borrowers or any other
Obligor therefor does not, upon the occurrence of any act, condition or event
which constitutes an Event of Default as such term is defined in the Extension
Agreement.
5. Account Stated. The books and records of Lender showing the
account between Xxxxxx and Borrowers shall be admissible in evidence in any
action or proceeding against or involving Guarantors as prima facie proof of the
items therein set forth, and the monthly statements of Lender rendered to
Borrowers, to the extent to which no written objection is made within thirty
(30) days from the date of sending thereof to Borrowers, shall be deemed
conclusively correct and constitute an account stated between Xxxxxx and
Borrowers and be binding on Guarantors.
6. Termination. This Guarantee is continuing, unlimited, absolute
and unconditional. All Guaranteed Obligations shall be conclusively presumed to
have been created in reliance on this Guarantee. Guarantor shall continue to be
liable hereunder until one of Xxxxxx's officers actually receives a written
termination notice from Guarantor sent to Lender at its address set forth above
by certified mail, return receipt requested and thereafter as set forth below.
Revocation or termination hereof by Guarantor shall not affect, in any manner,
the rights of Lender or any obligations or duties of Guarantor under this
Guarantee with respect to (a) Guaranteed Obligations which have been created,
contracted, assumed or incurred prior to the receipt by Lender of such written
notice of revocation or termination as provided herein, including, without
limitation, (i) all amendments, extensions, renewals and modifications of such
Guaranteed Obligations (whether or not evidenced by new or additional
agreements, documents or instruments executed on or after such notice of
revocation or termination), (ii) all interest, fees and similar charges accruing
or due on and after revocation or termination, and (iii) all attorneys' fees and
legal expenses, costs and other expenses paid or incurred on or after such
notice of revocation or termination in attempting to collect or enforce any of
the Guaranteed Obligations against any Borrower, Guarantor or any other Obligor
(whether or not suit be brought), or (b) Guaranteed Obligations which have been
created, contracted, assumed or incurred after the receipt by Lender of such
written notice of revocation or termination as provided herein pursuant to any
contract entered into by Lender prior to receipt of such notice. The sole effect
of such revocation or termination by Guarantor shall be to exclude from this
Guarantee the liability of such Guarantor for those Guaranteed Obligations
arising after the date of receipt by Lender of such written notice which are
unrelated to Guaranteed Obligations arising or transactions entered into prior
to such date. Without limiting the foregoing, this Guarantee may not be
terminated and shall continue so long as the Extension Agreement shall be in
effect (whether during its original term or any renewal, substitution or
extension thereof).
7. Reinstatement. If after receipt of any payment of, or proceeds
of collateral applied to the payment of, any of the Guaranteed Obligations,
Lender is required to surrender or return such payment or proceeds to any Person
for any reason, then the Guaranteed Obligations intended to be satisfied by such
payment or proceeds shall be reinstated and continue and this Guarantee shall
continue in full force and effect as if such payment or proceeds had not been
received by Lender. Guarantor shall be liable to pay to Lender, and does
indemnify and hold Lender harmless for the amount of any payments or proceeds
surrendered or returned. This Section 7 shall remain effective notwithstanding
any contrary action which may be taken by Xxxxxx in reliance upon such payment
or proceeds. This Section 7 shall survive the termination or revocation of this
Guarantee.
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8. Amendments and Waivers. Neither this Guarantee nor any
provision hereof shall be amended, modified, waived or discharged orally or by
course of conduct, but only by a written agreement signed by an authorized
officer of Lender. Lender shall not by any act, delay, omission or otherwise be
deemed to have expressly or impliedly waived any of its rights, powers and/or
remedies unless such waiver shall be in writing and signed by an authorized
officer of Lender. Any such waiver shall be enforceable only to the extent
specifically set forth therein. A waiver by Lender of any right, power and/or
remedy on any one occasion shall not be construed as a bar to or waiver of any
such right, power and/or remedy which Lender would otherwise have on any future
occasion, whether similar in kind or otherwise.
9. Corporate Existence, Power and Authority. Guarantor is a
corporation duly organized and in good standing under the laws of its state or
other jurisdiction of incorporation and is duly qualified as a foreign
corporation and in good standing in all states or other jurisdictions where the
nature and extent of the business transacted by it or the ownership of assets
makes such qualification necessary, except for those jurisdictions in which the
failure to so qualify would not have a material adverse effect on the financial
condition, results of operation or businesses of Guarantor or the rights of
Lender hereunder or under any of the other Financing Agreements. The execution,
delivery and performance of this Guarantee is within the corporate powers of
Guarantor, have been duly authorized and are not in contravention of law or the
terms of the certificates of incorporation, by-laws, or other organizational
documentation Guarantor, or any indenture, agreement or undertaking to which
Guarantor is a party or by which Guarantor or its property are bound. This
Guarantee constitutes the legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms. The Guarantor signing this Guarantee
shall be bound hereby whether or not any of the other Guarantors or any other
person signs this Guarantee at any time.
10. Governing Law; Choice of Forum; Service of Process; Jury Trial
Waiver.
(a) The validity, interpretation and enforcement of this
Guarantee and any dispute arising out of the relationship between Guarantor and
Lender, whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the Commonwealth of Puerto Rico (without giving effect to
principles of conflicts of law).
(b) Guarantor hereby irrevocably consents and submits to
the non-exclusive jurisdiction of the Court of First Instance (Superior Court),
San Xxxx Section of Puerto Rico and the United States District Court for the
District of Puerto Rico and waives any objection based on venue or forum non
conveniens with respect to any action instituted therein arising under this
Guarantee or any of the other Financing Agreements or in any way connected with
or related or incidental to the dealings of Guarantor and Lender in respect of
this Guarantee or any of the other Financing Agreements or the transactions
related hereto or thereto, in each case whether now existing or hereafter
arising and whether in contract, tort, equity or otherwise, and agrees that any
dispute arising out of the relationship between Guarantor or any Borrower and
Lender or the conduct of any such persons in connection with this Guarantee, the
other Financing Agreements or otherwise shall be heard only in the courts
described above (except that Lender shall have the right to bring any action or
proceeding against Guarantor or its property in the courts of any other
jurisdiction which Lender deems necessary or appropriate in order to realize on
collateral at any time granted by Borrowers or Guarantor to Lender or to
otherwise enforce its rights against any of Guarantors or its property).
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(c) Guarantor hereby waives personal service of any and
all process upon it and consents that all such service of process may be made by
certified mail (return receipt requested) directed to its address set forth on
the signature pages hereof and service so made shall be deemed to be completed
five (5) days after the same shall have been so deposited in the U.S. mails, or,
at Lender's option, by service upon any of Guarantors in any other manner
provided under the rules of any such courts. Within thirty (30) days after such
service, Guarantor so served shall appear in answer to such process, failing
which such Guarantor shall be deemed in default and judgment may be entered by
Lender against Guarantor for the amount of the claim and other relief requested.
(d) GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS GUARANTEE OR
ANY OF THE OTHER FINANCING AGREEMENTS OR CREDIT DOCUMENTS; OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF GUARANTOR AND XXXXXX
IN RESPECT OF THIS GUARANTEE OR ANY OF THE OTHER FINANCING AGREEMENTS OR CREDIT
DOCUMENTS; OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT GUARANTOR OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF XXXXXXXXX AND
XXXXXX TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Lender shall not have any liability to Guarantor
(whether in tort, contract, equity or otherwise) for losses suffered by
Guarantor in connection with, arising out of, or in any way related to the
transactions or relationships contemplated by this Guarantee, or any act,
omission or event occurring in connection herewith, unless it is determined by a
final and non-appealable judgment or court order binding on Lender that the
losses were the result of acts or omissions constituting gross negligence or
willful misconduct. In any such litigation, Xxxxxx shall be entitled to the
benefit of the rebuttable presumption that it acted in good faith and with the
exercise of ordinary care in the performance by it of the terms of the Extension
Agreement and the other Financing Agreements.
11. Notices. All notices, requests and demands hereunder shall be
in writing and (a) made to Lender at its address set forth above and to
Guarantor at its chief executive office set forth below, or to such other
address as either party may designate by written notice to the other in
accordance with this provision, and (b) deemed to have been given or made; if
delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next business day, one (1) business day after sending; and if by
certified mail, return receipt requested, five (5) days after mailing.
12. Partial Invalidity. If any provision of this Guarantee is held
to be invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guarantee as a whole, but this Guarantee shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced
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only to such extent as shall be permitted by applicable law.
13. Entire Agreement. This Guarantee the other Financing
Agreements and the Credit Documents (as hereafter defined) represent the entire
agreement and understanding of this parties concerning the subject matter
hereof, and supersedes all other prior agreements, (except the Credit Documents)
understandings, negotiations and discussions, representations, warranties,
commitments, proposals, offers and contracts concerning the subject matter
hereof, whether oral or written.
14. Successors and Assigns. This Guarantee shall be binding upon
Guarantor and their its successors and assigns and shall inure to the benefit of
Lender and its successors, endorsees, transferees and assigns. The liquidation,
dissolution or termination of Guarantor shall not terminate this Guarantee as to
such entity.
15. Construction. All references to the term "Guarantor" wherever
used herein shall mean each and all of Guarantors and their respective
successors and assigns, individually and collectively, jointly and severally
(including, without limitation, any receiver, trustee or custodian for Guarantor
or any of their respective assets or any of Guarantors in its capacity as debtor
or debtor-in-possession under the United States Bankruptcy Code). All
references to the term "Lender" wherever used herein shall mean Lender and its
successors and assigns and all references to the term "Borrowers" wherever used
herein shall mean Borrowers and their successors and assigns (including, without
limitation, any receiver, trustee or custodian for a Borrower or any of its
assets or a Borrower in its capacity as debtor or debtor-in-possession under
the United States Bankruptcy Code). All references to the term "Person" or
"person" wherever used herein shall mean any individual, sole proprietorship,
partnership, corporation (including, without limitation, any corporation which
elects subchapter S status under the Internal Revenue Code of 1986, as amended),
limited liability company, limited liability partnership, business trust,
unincorporated association, joint stock corporation, trust, joint venture or
other entity or any government or any agency or instrumentality of political
subdivision thereof. All references to the plural shall also mean the singular
and to the singular shall also mean the plural.
(b) This Guaranty is intended to supplement the Credit
Documents and shall not result in any cancellation, novation or termination of
any Credit Document.
(c) In the event of any conflict or inconsistency between
any term or provision of this Guaranty and any term or provision of any of the
Credit Documents, that which is most favorable to Lender shall control.
(d) All rights and remedies granted to Lender hereunder
and under any of the other Financing Agreements are in addition to those granted
under the Credit Documents, and are cumulative, not exclusive and enforceable in
Lender's discretion alternatively, successively or concurrently on any one or
more occasions.
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IN WITNESS WHEREOF, each of Guarantors has executed and delivered this
Guarantee as of the day and year first above written.
Nutritional Sourcing Corporation
By: /s/ Xxxxxx X. X'Xxxxx
------------------------
Xxxxxx X. X'Xxxxx
Executive Vice President
Attest:
[SEAL] Chief Executive Office
000 Xxxxxxxx Xxx - Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Commonwealth of Puerto Rico )
)ss.:
Municipality of San Xxxx )
On this 30th day of January 2003, before me personally came Xxxxxx X.
X'Xxxxx, to me personally known, of legal age, married, executive and resident
of Florida, who stated that he is the Executive Vice President of Nutritional
Sourcing Corporation, the corporations described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of said corporation at San Xxxx, Puerto Rico.
Xxxxxx X. Xxxxx Xxxxxxxx
------------------------
Notary Public
Affidavit No. 20476
[SEAL]
CODE: PUEBLO-CORP.GUARANTY-1
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