EXHIBIT 4.6(b)
JOINT AND SEVERAL GUARANTY
THIS JOINT AND SEVERAL GUARANTY, dated as of July 15, 1997 (as amended
or restated from time to time, this "Guaranty"), by each of Xxxxx Meat Group,
Inc., a Delaware corporation (together with its successors and assigns,
"Xxxxx"), Xxxxxxx'x Old Fashioned Country Hams, Inc., a Delaware corporation
(together with its successors and assigns, "Country Hams"), Valleydale Foods,
Inc., a Delaware corporation, (together with its successors and assigns,
"Valleydale"), Copaz Packing Corporation, an Ohio corporation (together with its
successors and assigns, "Copaz"), Sunnyland, Inc., a Georgia corporation
(together with its successors and assigns, "Sunnyland"), Smithfield Packing-
Landover, Inc., a Delaware corporation (together with its successors and
assigns, "Landover", and together with Xxxxx, Country Hams, Valleydale, Copaz
and Sunnyland, individually, a "Guarantor" and collectively, the "Guarantors"),
in favor of each of the Noteholders (as such term is hereinafter defined).
1. PRELIMINARY STATEMENT.
1.1 Smithfield Foods, Inc. (together with its successors and assigns,
the "Company"), a Delaware corporation, has authorized, pursuant to those
certain Note Purchase Agreements (collectively, as may be amended or restated
from time to time, the "Note Purchase Agreement"), each dated as of July 15,
1996, entered into separately between the Company and, respectively, each of the
purchasers of the Notes named on Annex 1 to the Note Purchase Agreement (the
"Purchasers"), the issuance of:
(a) $2,825,000 in aggregate principal amount of its six and
twenty-four one-hundredths percent (6.24%) Series A Senior Secured
Notes Due November 1, 1998 (as they may be amended, restated or
otherwise modified from time to time, the "Series A Notes," such term
to include each Series A Note delivered from time to time in accordance
with any of the Note Purchase Agreements);
(b) $9,852,942 in aggregate principal amount of its eight and
forty-one one-hundredths percent (8.41%) Series B Senior Secured Notes
Due August 1, 2006 (as they may be amended, restated or otherwise
modified from time to time, the "Series B Notes," such term to include
each Series B Note delivered from time to time in accordance with any
of the Note Purchase Agreements);
(c) $40,000,000 in aggregate principal amount of its eight and
thirty-four one-hundredths percent (8.34%) Series C Senior Secured
Notes Due August 1, 2003 (as they may be amended, restated or otherwise
modified from time to time, the "Series C Notes," such term to include
each Series C Note delivered from time to time in accordance with any
of the Note Purchase Agreements);
(d) $9,000,000 in aggregate principal amount of its nine and
eighty one-hundredths percent (9.80%) Series D Senior Secured Notes Due
August 1, 2003 (as they may be amended, restated or otherwise modified
from time to time, the "Series D Notes," such term to include each
Series D Note delivered from time to time in accordance with any of the
Note Purchase Agreements);
(e) $9,250,000 in aggregate principal amount of its ten and
seventy five one-hundredths percent (10.75%) Series E Senior Secured
Notes Due August 1, 2005 (as they may be amended, restated or otherwise
modified from time to time, the "Series E Notes," such term to include
each Series E Note delivered from time to time in accordance with any
of the Note Purchase Agreements);
(f) $100,000,000 in aggregate principal amount of its eight
and fifty-two one-hundredths percent (8.52%) Series F Senior Secured
Notes Due August 1, 2006 (as they may be amended, restated or otherwise
modified from time to time, the "Series F Notes," such term to include
each Series F Note delivered from time to time in accordance with any
of the Note Purchase Agreements);
(g) $14,000,000 in aggregate principal amount of its nine and
eighty-five one-hundredths percent (9.85%) Series G Senior Secured
Notes Due November 1, 2006 (as they may be amended, restated or
otherwise modified from time to time, the "Series G Notes," such term
to include each Series G Note delivered from time to time in accordance
with any of the Note Purchase Agreements); and
(h) $14,779,412 in aggregate principal amount of its eight and
forty-one one-hundredths percent (8.41%) Series H Senior Secured Notes
Due August 1, 2004 (as they may be amended, restated or otherwise
modified from time to time, the "Series H Notes," such term to include
each Series H Note delivered from time to time in accordance with any
of the Note Purchase Agreements).
The Series A Notes, the Series B Notes, the Series C Notes, the Series D Notes,
the Series E Notes, the Series F Notes, the Series G Notes and the Series H
Notes are herein referred to, individually, as a "Note," and collectively, as
the "Notes."
1.2 The Company has agreed, pursuant to the Note Purchase Agreement,
that the Guarantors are required to guaranty unconditionally all of the
obligations of the Company under and in respect of the Notes and the Note
Purchase Agreement pursuant to the terms and provisions hereof.
1.3 The Guarantors and the Company are operated as part of one
consolidated business entity and are directly dependent upon each other for and
in connection with their respective business activities and their respective
financial resources. Each Guarantor will receive direct and indirect economic,
financial and other benefits from the indebtedness incurred under the Note
Purchase Agreement and the Notes by the Company, and under this Guaranty by such
Guarantor, and the incurrence of such indebtedness is in the best interests of
such Guarantor. The Company and the Guarantors have explicitly induced the
Purchasers to purchase the Notes based on and in reliance on the consolidated
financial condition of the Company and its subsidiaries, including the
Guarantors.
1.4 All acts and proceedings required by law and by the certificates
or articles of incorporation, as the case may be, and bylaws of each Guarantor
necessary to constitute this Guaranty a valid and binding agreement for the uses
and purposes set forth herein in accordance with its terms have been done and
taken, and the execution and delivery hereof has been in all respects duly
authorized by each Guarantor.
2. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS
2.1 Guarantied Obligations.
Each Guarantor, in consideration of the execution and delivery of the
Note Purchase Agreement by the Purchasers and the purchase of the Notes and/or
exchange of certain promissory notes previously issued by certain of the
Guarantors for the Notes, hereby irrevocably, unconditionally, absolutely,
jointly and severally guarantees, on a continuing basis, to each Noteholder, as
and for such Guarantor's own debt, until final and indefeasible payment has been
made:
(a) the due and punctual payment by the Company of the
principal of, and interest, and the Make-Whole Amount (if any) on, the
Notes at any time outstanding and the due and punctual payment of all
other amounts payable, and all other indebtedness owing, by the Company
to the Noteholders under the Note Purchase Agreement and the Notes, in
each case when and as the same shall become due and payable, whether at
maturity, pursuant to mandatory or optional prepayment, by acceleration
or otherwise, all in accordance with the terms and provisions hereof
and thereof; it being the intent of each Guarantor that the guaranty
set forth herein shall be a continuing guaranty of payment and not a
guaranty of collection; and
(b) the punctual and faithful performance, keeping,
observance, and fulfillment by the Company of all duties, agreements,
covenants and obligations of the Company contained in the Note Purchase
Agreement and the Notes.
All of the obligations set forth in subsection (a) and subsection (b) of this
Section 2.1 are referred to herein as the "Guarantied Obligations" and the
guaranty thereof contained herein is referred to herein as the "Unconditional
Guaranty". This Unconditional Guaranty is a primary, original and immediate
obligation of each Guarantor and is an absolute, unconditional, continuing and
irrevocable guaranty of payment and performance and shall remain in full force
and effect until the full, final and indefeasible payment of the Guarantied
Obligations.
2.2 Performance Under the Note Purchase Agreement.
In the event the Company fails to pay, perform, keep, observe, or
fulfill any Guarantied Obligation in the manner provided in the Notes or in the
Note Purchase Agreement, each of the Guarantors shall cause forthwith to be paid
the moneys, or to be performed, kept, observed, or fulfilled each of such
obligations, in respect of which such failure has occurred in accordance with
the terms and provisions of the Note Purchase Agreement and the Notes. In
furtherance of the foregoing, if an Event of Default shall exist, all of the
Guarantied Obligations shall, in the manner and subject to the limitations
provided in the Note Purchase Agreement for the acceleration of the maturity of
the Notes, forthwith become due and payable without notice, regardless of
whether the acceleration of the maturity of the Notes shall be stayed, enjoined,
delayed or otherwise prevented.
2.3 Undertakings in Note Purchase Agreement.
Each of the Guarantors will comply with each of the undertakings of the
Company in the Note Purchase Agreement in respect of which the Company
undertakes to cause the Guarantors (in their capacity as Guarantors and as
Subsidiaries) to comply with such undertakings, as if such undertakings (as they
apply to the Guarantors) were set forth at length herein as the undertakings of
each such Guarantor.
2.4 Releases.
Each of the Guarantors consents and agrees that, without any notice
whatsoever to or by the Guarantors and without impairing, releasing, abating,
deferring, suspending, reducing, terminating or otherwise affecting the
obligations of any of the Guarantors hereunder, each Noteholder, by action or
inaction, may:
(a) compromise or settle, renew or extend the period of
duration or the time for the payment, or discharge the performance of,
or may refuse to, or otherwise not, enforce, or may, by action or
inaction, release all or any one or more parties to, any one or more of
this Guaranty, the Notes, the Note Purchase Agreement, any other
guaranty or agreement or instrument related thereto or hereto;
(b) assign, sell or transfer, or otherwise dispose of, any one
or more of the Notes;
(c) grant waivers, extensions, consents and other indulgences
of any kind whatsoever to the Company or any other guarantor in respect
of any one or more of this Guaranty, the Notes, the Note Purchase
Agreement, any other guaranty or any agreement or instrument related
thereto or hereto;
(d) amend, modify or supplement in any manner whatsoever and
at any time (or from time to time) any one or more of the Notes, the
Note Purchase Agreement, any other guaranty or any agreement or
instrument related hereto;
(e) release or substitute any one or more of the endorsers or
guarantors of the Guarantied Obligations, whether parties hereto or
not; and
(f) sell, exchange, release, surrender or enforce, by action
or inaction, any Property at any time pledged or granted as security in
respect of the Guarantied Obligations in accordance with the terms and
conditions of the agreements and instruments pursuant to which such
Property was pledged or granted (as such agreements and instruments may
be amended from time to time, and without any requirement of notice of
such amendment to any Guarantor), whether so pledged or granted by the
Company, any Guarantor or another guarantor of the Company's
obligations under the Note Purchase Agreement, the Notes, any other
guaranty or any agreement or instrument related hereto.
2.5 Waivers.
To the fullest extent permitted by law, each of the Guarantors does
hereby waive:
(a) any notice of
(i) acceptance of this Unconditional Guaranty;
(ii) any purchase of the Notes under the Note
Purchase Agreement, or the creation, existence or acquisition
of any of the Guarantied Obligations, or the amount of the
Guarantied Obligations, subject to the Guarantors' right to
make inquiry of each Noteholder to ascertain the amount of the
Guarantied Obligations owing to such Noteholder at any
reasonable time, provided that the Guarantors will look solely
to the Company for the determination of the identities of the
Noteholders;
(iii) any transfer of Notes from one holder to
another;
(iv) any adverse change in the financial condition of
the Company or any other fact that might increase, expand or
affect any of the Guarantors' risk hereunder;
(v) presentment for payment, demand, protest,
and notice thereof as to the Notes or any other instrument;
(vi) any Default or Event of Default; and
(vii) any kind or nature whatsoever to which any of
the Guarantors might otherwise be entitled, other than those
specifically required to be given to each of such Guarantors
pursuant to the terms of this Guaranty;
(b) the right by statute or otherwise to require any
Noteholder to institute suit against the Company, any Guarantor, or any
other guarantor or to exhaust the rights and remedies of any Noteholder
against the Company, any Guarantor or any other guarantor;
(c) the benefit of any stay (except in connection with a
pending appeal), valuation, appraisal, redemption or extension law now
or at any time hereafter in force which, but for this waiver, might be
applicable to any sale of Property of any Guarantor made under any
judgment, order or decree based on this Guaranty, and each Guarantor
covenants that it will not at any time insist upon or plead, or in any
manner claim or take the benefit or advantage of such law;
(d) any defense or objection to the absolute, primary,
continuing nature, or the validity, enforceability or amount, of this
Unconditional Guaranty, including, without limitation, any defense
based on (and the primary, continuing nature, and the validity,
enforceability and amount, of this Unconditional Guaranty shall be
unaffected by), any of the following:
(i) any change in future conditions;
(ii) any change of law;
(iii) any invalidity or irregularity with respect to
the issuance or assumption of any obligations (including,
without limitation, the Note Purchase Agreement, the Notes or
any agreement or instrument related hereto) by the Company or
any other Person;
(iv) the execution and delivery of any agreement at
any time hereafter (including, without limitation, the Note
Purchase Agreement, the Notes or any agreement or instrument
related hereto) of the Company or any other Person,
(v) the genuineness, validity, regularity or
enforceability of any of the Guarantied Obligations;
(vi) any default, failure or delay, willful or
otherwise, in the performance of any obligations by the
Company or any Guarantor;
(vii) any creditors' rights, bankruptcy, receivership
or other insolvency proceeding of the Company or any
Guarantor, or sequestration or seizure of any Property of the
Company or any Guarantor, or any merger, consolidation,
reorganization, dissolution, liquidation or winding up or
change in corporate constitution or corporate identity or loss
of corporate identity of the Company or any Guarantor;
(viii) any disability or other defense of the Company
or any Guarantor to payment and performance of all Guarantied
Obligations other than the defense that the Guarantied
Obligations shall have been fully and finally performed and
indefeasibly paid;
(ix) the cessation from any cause whatsoever of the
liability of the Company or any Guarantor in respect of the
Guarantied Obligations;
(x) impossibility or illegality of performance on the
part of the Company or any Guarantor under the Note Purchase
Agreement, the Notes or this Guaranty;
(xi) any change in the circumstances of the Company,
any Guarantor or any other Person, whether or not foreseen or
foreseeable, whether or not imputable to the Company or any
Guarantor, including, without limitation, impossibility of
performance through fire, explosion, accident, labor
disturbance, floods, droughts, embargoes, wars (whether or not
declared), civil commotions, acts of God or the public enemy,
delays or failure of suppliers or carriers, inability to
obtain materials, economic or political conditions, or any
other causes affecting performance, or any other force
majeure, whether or not beyond the control of the Company or
any Guarantor and whether or not of the kind hereinbefore
specified;
(xii) any attachment, claim, demand, charge, Lien,
order, process, encumbrance or any other happening or event or
reason, similar or dissimilar to the foregoing, or any
withholding or diminution at the source, by reason of any
taxes, assessments, expenses, indebtedness, obligations or
liabilities of any character, foreseen or unforeseen, and
whether or not valid, incurred by or against any Person, or
any claims, demands, charges, Liens or encumbrances of any
nature, foreseen or unforeseen, incurred by any Person, or
against any sums payable under the Note Purchase Agreement or
the Notes or any agreement or instrument related hereto so
that such sums would be rendered inadequate or would be
unavailable to make the payment as herein provided;
(xiii) any change in the ownership of the equity
securities of the Company, any Guarantor or any other Person
liable in respect of the Notes; or
(xiv) any other action, happening, event or reason
whatsoever that shall delay, interfere with, hinder or
prevent, or in any way adversely affect, the performance by
the Company or any Guarantor of any of its obligations under
the Note Purchase Agreement, the Notes or this Guaranty.
2.6 Certain Waivers of Subrogation, Reimbursement and Indemnity.
Until the Guarantied Obligations have been finally and indefeasibly
paid, none of the Guarantors shall have any right of subrogation, reimbursement,
or indemnity whatsoever in respect of the Guarantied Obligations, and no right
of recourse to or with respect to any assets or Property of the Company or any
other Guarantor.
2.7 Invalid Payments.
To the extent the Company makes a payment or payments to any
Noteholder, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required,
for any of the foregoing reasons or for any other reason, to be repaid or paid
over to a custodian, trustee, receiver or any other party or officer under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, state or federal law, or any
common law or equitable cause, then to the extent of such payment or repayment,
the obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been made and each
Guarantor shall be primarily liable for such obligation.
2.8 Marshaling.
Neither any Noteholder nor any Person acting for the benefit of any
Noteholder shall be under any obligation to marshal any assets in favor of any
of the Guarantors or against or in payment of any or all of the Guarantied
Obligations.
2.9 Subordination.
In the event that, for any reason whatsoever, the Company or a Person
obligated in respect of the Guarantied Obligations pursuant to another
agreement, is now or hereafter becomes indebted to any Guarantor in any manner
(such indebtedness referred to as an "Affiliate Obligation"), the amount of such
Affiliate Obligation, interest thereon, and all other amounts due with respect
thereto, shall, at all times during the existence of a Default or an Event of
Default, be subordinate as to time of payment and in all other respects to all
the Guarantied Obligations, and such Guarantor shall not be entitled to enforce
or receive payment thereof until all sums then due and owing to the Noteholders
in respect of the Guarantied Obligations shall have been paid in full, except
that such Guarantor may enforce (and shall enforce, at the request of the
Required Holders, and at such Guarantor's expense) any obligations in respect of
any such Affiliate Obligation owing to such Guarantor from the Company or such
indebted Person so long as all proceeds in respect of any recovery from such
enforcement shall be held by such Guarantor in trust for the benefit of the
Noteholders, to be paid to the Noteholders as promptly as reasonably possible.
If any other payment, other than pursuant to the immediately preceding sentence,
shall have been made to any Guarantor by the Company or such indebted Person on
any such Affiliate Obligation during any time that a Default or an Event of
Default exists and there are Guarantied Obligations outstanding, such Guarantor
shall hold in trust all such payments for the benefit of the Noteholders, to be
paid to the Noteholders as promptly as reasonably possible.
2.10 Setoff, Counterclaim or Other Deductions.
Except as otherwise required by law, each payment by any one or more of
the Guarantors shall be made without setoff, counterclaim or other deduction.
2.11 Election by Guarantors to Perform Obligations.
Any election by any one or more of the Guarantors to pay or otherwise
perform any of the obligations of the Company under the Notes, the Note Purchase
Agreement or any agreement or instrument related hereto shall not release the
Company, any of the Guarantors or any other guarantor from such obligations or
any of such Person's other obligations under the Notes, the Note Purchase
Agreement or any agreement or instrument related hereto.
2.12 No Election of Remedies by Noteholders.
To the extent provided in the Note Purchase Agreement, each Noteholder
shall, individually or collectively, have the right to seek recourse against
each of the Guarantors to the fullest extent provided for herein for such
Guarantor's obligations under this Guaranty in respect of the Guarantied
Obligations. No election to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of such
Noteholder's right to proceed in any other form of action or proceeding or
against other parties unless such Noteholder has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no
action or proceeding by any Noteholder against the Company or any Guarantor
under any document or instrument evidencing obligations of the Company or any
Guarantor to such Noteholder shall serve to diminish the liability of any
Guarantor under this Guaranty, except to the extent that such Noteholder finally
and unconditionally shall have realized payment by such action or proceeding.
2.13 Separate Action; Other Enforcement Rights.
Each of the rights and remedies granted under this Guaranty to each
Noteholder in respect of the Notes held by such Noteholder may be exercised by
such Noteholder without notice by such Noteholder to, or the consent of or any
other action by, any other Noteholder. Each Noteholder may proceed to protect
and enforce this Unconditional Guaranty by suit or suits or proceedings in
equity, at law or in bankruptcy, and whether for the specific performance of any
covenant or agreement contained herein or in execution or aid of any power
herein granted or for the recovery of judgment for the obligations hereby
guarantied or for the enforcement of any other proper, legal or equitable remedy
available under applicable law.
2.14 Noteholder Setoff.
Each Noteholder shall have, to the fullest extent permitted by law and
this Guaranty, a right of set-off against any and all credits and any and all
other Property of each or all of the Guarantors, now or at any time whatsoever,
with or in the possession of, such Noteholder, or anyone acting for such
Noteholder, to ensure the full performance of any and all obligations of the
Guarantors hereunder.
2.15 Delay or Omission; No Waiver.
No course of dealing on the part of any Noteholder and no delay or
failure on the part of any such Person to exercise any right hereunder shall
impair such right or operate as a waiver of such right or otherwise prejudice
such Person's rights, powers and remedies hereunder. Every right and remedy
given by this Unconditional Guaranty or by law to any Noteholder may be
exercised from time to time as often as may be deemed expedient by such Person.
2.16 Restoration of Rights and Remedies.
If any Noteholder shall have instituted any proceeding to enforce any
right or remedy under this Unconditional Guaranty or under any Note held by such
Noteholder, and such proceeding shall have been dismissed, discontinued or
abandoned for any reason, or shall have been determined adversely to such
Noteholder, then and in every such case each such Noteholder, the Company and
each of the Guarantors shall, except as may be limited or affected by any
determination (including, without limitation, any determination in connection
with any such dismissal) in such proceeding, be restored severally and
respectively to its respective former positions hereunder and thereunder, and
thereafter, subject as aforesaid, the rights and remedies of such Noteholders
shall continue as though no such proceeding had been instituted.
2.17 Cumulative Remedies.
No remedy under this Guaranty, the Note Purchase Agreement or the Notes
is intended to be exclusive of any other remedy, but each and every remedy shall
be cumulative and in addition to any and every other remedy given pursuant to
this Guaranty, the Note Purchase Agreement, the Notes or the other Financing
Documents.
2.18 Limitation on Guarantied Obligations.
(a) Notwithstanding anything in Section 2.1 or elsewhere in
this Guaranty or any other Financing Document to the contrary, the
obligations of each Guarantor under this Guaranty shall at each point
in time be limited to an aggregate amount equal to the greatest amount
that would not result in such obligations being subject to avoidance,
or otherwise result in such obligations being unenforceable, at such
time under applicable law (including, without limitation, to the
extent, and only to the extent, applicable to each Guarantor, Section
548 of the Bankruptcy Code of the United States of America and any
comparable provisions of the law of any other jurisdiction, any capital
preservation law of any jurisdiction and any other law of any
jurisdiction that at such time limits the enforceability of the
obligations of such Guarantor under this Guaranty).
(b) For purposes of determining the obligations of the
Guarantors under this Guaranty it shall be assumed that: (i) any and
all stated obligations of any one or more of Guarantors in favor of one
or more commercial banks existing at any time on or after the Closing
Date and prior to July 15, 1997 were fully satisfied with the proceeds
of loans made under the Credit Facility and such loans were made on
July 15, 1997; (ii) the Guarantors received $350,000,000 of the
proceeds of loans made pursuant to the Credit Facility on July 15, 1997
and such loans remained outstanding at all times after the Closing Date
until all obligations under the Credit Facility shall have been fully
satisfied; and (iii) on July 15, 1997 the Guarantors were relieved of
obligations in an aggregate amount equal to the aggregate principal
amounts of the Notes issued on the Closing Date in consideration for
such Guarantors entering into this Guaranty."
2.19 Maintenance of Offices.
Each Guarantor will maintain an office at its address set forth in
Section 5.3 where notices, presentations and demands in respect of this Guaranty
may be made upon it. Each Guarantor will maintain its office at such address
until such time as such Guarantor shall notify the Noteholders of any change of
location of such office.
2.20 Further Assurances.
Each Guarantor will cooperate with the Noteholders and execute such
further instruments and documents as the Required Holders shall reasonably
request to carry out, to the reasonable satisfaction of the Required Holders,
the transactions contemplated by the Note Purchase Agreements, the Notes, this
Guaranty and the documents and instruments related thereto.
3. INTERPRETATION OF THIS GUARANTY
3.1 Terms Defined.
As used in this Guaranty, capitalized terms have the meaning specified
in the Note Purchase Agreement unless otherwise specified below or set forth in
the section of this Guaranty referred to immediately following such term (such
definitions, unless otherwise expressly provided, to be equally applicable to
both the singular and plural forms of the terms defined):
Affiliate Obligation -- Section 2.9.
Company -- Section 1.1.
Copaz -- has the meaning assigned to such term in the first paragraph
hereof.
Country Hams -- has the meaning assigned to such term in the first
paragraph hereof.
Guaranteeing Subsidiaries -- Section 4.3.
Guarantied Obligations -- Section 2.1.
Guarantor -- has the meaning assigned to such term in the first
paragraph hereof.
Guaranty, this -- has the meaning assigned to such term in the first
paragraph hereof.
Landover -- has the meaning assigned to such term in the first
paragraph hereof.
Xxxxx -- has the meaning assigned to such term in the first paragraph
hereof.
Note Purchase Agreement -- Section 1.1.
Noteholder -- means, at any time, each Person that is the holder of any
Note at such time.
Notes -- Section 1.1.
Purchasers -- Section 1.1.
Series A Notes -- Section 1.1.
Series B Notes -- Section 1.1.
Series C Notes -- Section 1.1.
Series D Notes -- Section 1.1.
Series E Notes -- Section 1.1.
Series F Notes -- Section 1.1.
Series G Notes -- Section 1.1.
Series H Notes -- Section 1.1.
Sunnyland -- has the meaning assigned to such term in the first
paragraph hereof.
Unconditional Guaranty -- Section 2.1.
Valleydale -- has the meaning assigned to such term in the first
paragraph hereof.
3.2 Section Headings and Construction.
(a) Section Headings, etc. The titles of the Sections appear
as a matter of convenience only, do not constitute a part hereof and
shall not affect the construction hereof. The words "herein," "hereof,"
"hereunder" and "hereto" refer to this Guaranty as a whole and not to
any particular Section or other subdivision. Unless otherwise
specified, references to Sections are to Sections of this Agreement and
references to Annexes are to Annexes to this Agreement.
(b) Construction. Each covenant contained herein shall be
construed (absent an express contrary provision herein) as being
independent of each other covenant contained herein, and compliance
with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with one or more other
covenants.
4. WARRANTIES AND REPRESENTATIONS
Each Guarantor represents and warrants to each Purchaser, as of the
date hereof, as follows:
4.1 Generally.
(a) Such Guarantor is fully aware of the financial condition
of the Company and is delivering this Guaranty based solely upon its
own independent investigation and in no part upon any representation or
statement of any Noteholder with respect thereto. Such Guarantor is in
a position to obtain, and hereby assumes full responsibility for
obtaining, any additional information concerning the financial
condition of the Company as such Guarantor may deem material to its
obligations hereunder, and such Guarantor is not relying upon, nor
expecting, any Noteholder to furnish it any information concerning the
financial condition of the Company.
(b) As of the date of the execution and delivery of this
Guaranty, the fair salable value of the assets of such Guarantor, taken
as a whole, exceeds its liabilities, taken as a whole; such Guarantor
is able to pay and discharge all of its debts (including, without
limitation, its current liabilities) as they become due and after
giving effect to the transactions contemplated by this Guaranty, such
Guarantor will not become unable to pay and discharge such debts as
they become due; there are no presently pending material court or
administrative proceedings or undischarged judgments against the
Guarantor; and no tax Liens have been filed or threatened against such
Guarantor, nor is such Guarantor in default or claimed default under
any agreement for borrowed money.
(c) Such Guarantor is a corporation duly organized and validly
existing and in good standing under the laws of its jurisdiction of
incorporation. Such Guarantor has the corporate power to own its
Properties and carry on its business as it is now being conducted. Such
Guarantor has the valid authority and the corporate power to enter into
and perform, and has taken all necessary action to authorize the entry
into, and the performance and delivery of, this Guaranty and the
transactions contemplated hereby.
(d) This Guaranty has been duly authorized by all necessary
action on the part of such Guarantor, has been duly executed and
delivered by duly authorized officers of such Guarantor, and
constitutes a legal, valid and binding obligation of such Guarantor.
(e) The entry into and performance of this Guaranty and the
transactions contemplated hereby do not and will not conflict with any
applicable law or regulation or official or judicial order, conflict
with the articles or certificate of incorporation, or bylaws, of such
Guarantor, conflict with any agreement or document to which such
Guarantor is a party or that is binding upon it or any of its
Properties, or result in the creation or imposition of any Lien on any
of its Properties pursuant to the provisions of any agreement or
document.
4.2 Nature of Business of Company and Subsidiaries.
The Company, the Guarantors, and all of the other Subsidiaries are, and
will be, as to financing and capital raising activities, operated as part of one
consolidated business entity and each Guarantor is directly or indirectly
dependent upon each other Guarantor and each other Subsidiary and the Company
for and in connection with its business activities and its financial resources.
The Company and the Subsidiaries have sought and obtained the sale of the Notes
and the related transactions based on their consolidated financial position and
the Company and the Subsidiaries understand that the Purchasers are relying on
the consolidated financial condition of the Company and the Subsidiaries in
purchasing the Notes.
4.3 Solvency.
The fair value of the business and assets of each of the Company and
each of the Guarantors will be in excess of the amount that will be required to
pay its liabilities (including, without limitation, contingent, subordinated,
unmatured and unliquidated liabilities on existing debts, as such liabilities
may become absolute and matured), in each case after giving effect to the
transactions contemplated by this Guaranty and the other the Financing
Documents. Neither the Company nor any Guarantor, after giving effect to the
transactions contemplated by the Financing Documents, will be engaged in any
business or transaction, or about to engage in any business or transaction, for
which such Person has unreasonably small assets or capital (within the meaning
of applicable law, including, without limitation, Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code), and neither the Company nor any Guarantor has any
intent to
(a) hinder, delay or defraud any entity to which it is, or
will become, on or after the Closing Date, indebted, or
(b) incur debts that would be beyond its ability to pay as
they mature.
5. MISCELLANEOUS
5.1 Successors and Assigns.
(a) Whenever any Guarantor or any of the parties to the Note
Purchase Agreement is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all the
covenants, promises and agreements contained in this Guaranty by or on
behalf of any Guarantor shall bind the successors and assigns of such
Guarantor and shall inure to the benefit of each of the Noteholders
from time to time whether so expressed or not and whether or not an
assignment of the rights hereunder shall have been delivered in
connection with any assignment or other transfer of Notes.
(b) Each of the Guarantors agrees to take such action as may
be reasonably requested by any Noteholder in connection with the
transfer of the Notes of such Noteholder in accordance with the
requirements of the Note Purchase Agreement in connection with
providing an executed copy of this Guaranty to the new Noteholder or
Noteholders of such Notes, provided that no additional obligations of
the Guarantors shall thereby be created but rather that the existing
obligations of the Guarantors shall be more particularly stated in
respect of one or more future Noteholders that are the subject of this
Guaranty.
5.2 Partial Invalidity.
The unenforceability or invalidity of any provision or provisions
hereof shall not render any other provision or provisions contained herein
unenforceable or invalid.
5.3 Communications.
(a) Method; Address. All communications hereunder shall be in
writing, shall be delivered in the manner required by the Note Purchase
Agreement, and shall be addressed, if to the Guarantors, at their
respective addresses as set forth in the Note Purchase Agreement, and
if to any of the Noteholders
(i) if such Noteholder is a Purchaser, at the address
set forth on Schedule A to the Note Purchase Agreement for
such Noteholder, and further including any parties referred to
on such Schedule A which are required to receive notices in
addition to such Noteholder, and
(ii) if such Noteholder is not a Purchaser, at the
address set forth in the register for the registration and
transfer of Notes maintained pursuant to Section 5.1 of the
Note Purchase Agreement for such Noteholder,
or to any such party at such other address as such party may designate
by notice duly given in accordance with this Section 5.3.
(b) When Given. Any communication so addressed and deposited
in the United States mail, postage prepaid, by registered or certified
mail (in each case, with return receipt requested) shall be deemed to
be received on the third (3rd) succeeding Business Day after the day of
such deposit (not including the date of such deposit). Any
communication so addressed and delivered otherwise shall be deemed to
be received when actually received at the address of the addressee.
5.4 Governing Law.
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, INTERNAL VIRGINIA LAW, EXCLUDING CHOICE-OF-LAW PROVISIONS OF
SUCH COMMONWEALTH THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A
JURISDICTION OTHER THAN SUCH COMMONWEALTH.
5.5 Effective Date.
This Guaranty shall be effective as of the date hereof.
5.6 Benefits of Guaranty Restricted.
Nothing express or implied in this Guaranty is intended or shall be
construed to give to any Person other than the Guarantors, the Noteholders and
the Security Trustee any legal or equitable right, remedy or claim under or in
respect hereof or any covenant, condition or provision herein contained; and all
such covenants, conditions and provisions are and shall be held to be for the
sole and exclusive benefit of the Guarantors, the Noteholders and the Security
Trustee.
5.7 Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein or made in writing
by the Guarantors in connection herewith shall survive the execution and
delivery hereof.
5.8 Expenses.
(a) The Guarantors shall pay when billed the reasonable costs
and expenses (including reasonable attorneys' fees) incurred by the
Noteholders and the Security Trustee in connection with the
consideration, negotiation, preparation or execution of any amendments,
waivers, consents, standstill agreements and other similar agreements
with respect hereto (whether or not any such amendments, waivers,
consents, standstill agreements or other similar agreements are
executed).
(b) At any time when any one or more of the Company or the
Guarantors and the Noteholders are conducting restructuring or workout
negotiations in respect hereof, or a Default or Event of Default
exists, the Guarantors shall pay when billed the reasonable costs and
expenses (including reasonable attorneys' fees and the reasonable fees
of professional advisors) incurred by the Noteholders in connection
with the assessment, analysis or enforcement of any rights or remedies
that are or may be available to the Noteholders.
(c) If any of the Guarantors shall fail to pay when due any
principal of, or Make-Whole Amount or interest on, any Note, each of
the Guarantors shall pay to each Noteholder, to the extent permitted by
law, such amounts as shall be sufficient to cover the costs and
expenses, including but not limited to reasonable attorneys' fees,
incurred by such Noteholder in collecting any sums due on the Notes.
5.9 Amendment.
This Guaranty may be amended only in a writing executed by each
Guarantor and the Required Holders.
5.10 Survival.
So long as the Guarantied Obligations and all payment obligations of
the Guarantors hereunder shall not have been fully and finally performed and
indefeasibly paid, the obligations of the Guarantors hereunder shall survive the
transfer and payment of any Note and the payment in full of all the Notes.
5.11 Entire Agreement.
This Guaranty constitutes the final written expression of all of the
terms hereof and is a complete and exclusive statement of those terms.
5.12 Duplicate Originals, Execution in Counterpart.
Two or more duplicate originals hereof may be signed by the parties,
each of which shall be an original but all of which together shall constitute
one and the same instrument. This Guaranty may be executed in one or more
counterparts and shall be effective when at least one counterpart shall have
been executed by each party hereto, and each set of counterparts that,
collectively, show execution by each party hereto shall constitute one duplicate
original.
[Remainder of page intentionally blank. Next page is signature page.]
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed on its behalf by a duly authorized officer of such Guarantor.
XXXXX MEAT GROUP, INC.
By________________________________
Name:
Title:
XXXXXXX'X OLD FASHIONED COUNTRY
HAMS, INC.
By________________________________
Name:
Title:
VALLEYDALE FOODS, INC.
By________________________________
Name:
Title:
COPAZ PACKING CORPORATION
By________________________________
Name:
Title:
SUNNYLAND, INC.
By________________________________
Name:
Title:
SMITHFIELD PACKING-LANDOVER, INC.
By________________________________
Name:
Title:
