GUARANTY AGREEMENT
This Guaranty Agreement (the "Guaranty"), dated as of March
31, 1998, is made by JBS International, Inc., a Barbados
corporation ("Guarantor"), in favor of The Prudential Insurance
Company of America ("Prudential") and each "Prudential Affiliate"
(as defined in the Amended Agreement referred to below) which
becomes bound by the Amended Agreement as provided therein,
together with their respective successors and assigns (each such
Prudential Affiliate together with Prudential and their
successors and assigns and each holder of a Note are herein
referred to individually and collectively as the "Lender").
RECITALS:
WHEREAS, John B. Sanfilippo & Son, Inc., a Delaware
corporation ("Borrower"), desires to enter into that certain
letter amendment dated as of the date hereof (the "Letter
Amendment") to the Second Amended and Restated Note Agreement
dated as of January 27, 1997 (as amended by such Letter Amendment
hereinafter referred to as, the "Amended Agreement") which
amended and restated in its entirety the Amended and Restated
Note Purchase and Private Shelf Agreement dated as of October 19,
1993 under which the Lender has purchased, and the Borrower has
issued and sold, the Notes (as defined in the Amended Agreement);
and
WHEREAS, all parties acknowledge that the indebtedness and
obligations contemplated by the Amended Agreement have been
incurred for and will inure, in part, to the benefit of the
Guarantor; and
WHEREAS, in order to enter into the Letter Amendment, Lender
has required, among other things, that this Guaranty be executed
and delivered.
NOW THEREFORE, for value received, to satisfy one of the
conditions precedent to the Letter Amendment, to induce any
Transferee to accept the transfer of all or any part of any Note,
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Guarantor agrees
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, the
term "Indebtedness" shall mean all of the indebtedness,
obligations and liabilities existing on the date hereof or
arising from time to time hereafter, whether direct or indirect,
joint or several, actual, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured,
arising by contract, operation of law or otherwise, of the
Borrower to the Lender and all other holders of Notes under or in
respect of the Amended Agreement, the Notes or any one or more of
the other Ancillary Agreements, including, without limitation,
the principal of and interest and Yield-Maintenance Amount, if
any, on the Notes.
SECTION 1.2 OTHER DEFINITIONS. Capitalized terms that are
used in this Guaranty and not defined in this Guaranty shall have
the meaning ascribed to them in the Amended Agreement; provided,
that, the terms "Environmental Laws", "CERCLA" and "Pension
Plan", shall have the meanings given such terms in the Bank
Agreement, as in effect on the date hereof, and such definitions
are incorporated by reference herein as though set forth fully
herein.
ARTICLE II
THE GUARANTY
SECTION 2.1 GUARANTY OF PAYMENT AND PERFORMANCE OF
OBLIGATIONS. Guarantor absolutely, unconditionally and
irrevocably guarantees the full and prompt payment in United
States currency when due (whether at maturity, a stated
prepayment date or earlier by reason of acceleration or
otherwise) and at all times thereafter, and the due and punctual
performance, of all Indebtedness together with all costs and
expenses, including without limitation all court costs and
expenses and attorneys' fees, paid or incurred by Lender in
endeavoring to enforce this Guaranty or in pursuing any action
against Borrower or Guarantor or enforcing any rights of Lender
in the security for the Indebtedness or for liabilities of the
Guarantor hereunder, and any taxes, fees or penalties which may
be paid or payable in connection therewith. This is a continuing
guaranty of payment and performance not of collection.
Upon an Event of Default, Lender may, at its sole election
and without notice, proceed directly and at once against
Guarantor to seek and enforce performance of, and to collect and
recover, the Indebtedness, or any portion thereof, without first
proceeding against Borrower, any other Person, or any security
for the Indebtedness or for the liability of any such other
Person or the Guarantor hereunder. Lender shall have the
exclusive right to determine the application of payments and
credits, if any, from Guarantor, Borrower or from any other
Person on account of the Indebtedness or otherwise.
SECTION 2.2 OBLIGATION, UNCONDITIONAL. The obligations of
Guarantor under this Guaranty shall be continuing, absolute and
unconditional, irrespective of (i) the invalidity or
unenforceability of any part or all of the Amended Agreement or
any other Ancillary Agreement; (ii) the absence of any attempt by
Lender to collect the Indebtedness or any portion thereof from
Borrower or other action to enforce the same; (iii) the waiver or
consent by Lender with respect to any provision of the Amended
Agreement or any other Ancillary Agreement or applicable law;
(iv) any failure by Lender to acquire, perfect or maintain any
security interest or lien in, or take any steps to preserve its
rights to any security for the Indebtedness or any portion
thereof or for the liability of Guarantor hereunder; (v) any
defense arising by reason of any disability or other defense
(other than a defense of payment, unless the payment on which
such defense is based was or is subsequently invalidated,
declared to be fraudulent or preferential, otherwise avoided
and/or required to be repaid to Borrower, the Guarantor, the
estate of either the Borrower or the Guarantor, a trustee,
receiver or any other Person under any bankruptcy law, state or
federal law, common law or equitable cause, in which case there
shall be no defense of payment with respect to such payment) of
Borrower or any other Person liable on the Indebtedness or any
portion thereof; (vi) Lender's election, in any proceeding
instituted under Chapter 11 of Title 11 of the Federal Bankruptcy
Code (11 U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the
application of Section llll(b)(2) of the Bankruptcy Code; (vii)
any borrowing or grant of a security interest to Lender by
Borrower, as debtor-in-possession, or extension of credit, under
Section 364 of the Bankruptcy Code; (viii) the disallowance or
avoidance of all or any portion of Lender's claim(s) for
repayment of the Indebtedness under the Bankruptcy Code or any
similar state law or the avoidance of any security for the
Indebtedness or any security for the liability of the Guarantor
hereunder; (ix) any amendment to, waiver or modification of, or
consent under any provision of the Amended Agreement or any other
Ancillary Agreement; (x) any change in any provision of any
applicable law or regulation; (xi) any order, judgment, writ,
award or decree of any court, arbitrator or governmental
authority, domestic or foreign, binding on or affecting Guarantor
or Borrower or any of their assets; (xii) the charter or by-laws
of Guarantor or Borrower; (xiii) any mortgage, indenture, lease,
contract, or other agreement (including without limitation any
agreement with stockholders), instrument or undertaking to which
Guarantor or Borrower is a party or which purports to be binding
on or affect Guarantor or Borrower or any of their assets; or
(xiv) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
SECTION 2.3 LENDER'S FREEDOM TO ACT. Lender is authorized,
without notice and without affecting the liability of Guarantor
hereunder, from time to time to (i) renew, extend, accelerate or
otherwise change the time for payment of, or other terms relating
to, the Indebtedness or any portion thereof, or otherwise modify,
amend or change the terms of the Amended Agreement or any of the
other Ancillary Agreements; (ii) accept partial payments on the
Indebtedness; (iii) take and hold security or additional
guaranties or sureties for the Indebtedness or any portion
thereof or any other liabilities of Borrower, the obligations of
Guarantor under this Guaranty and the obligations under any other
guaranties and sureties of the Indebtedness, and exchange,
enforce, waive, release, sell, transfer, assign or otherwise deal
with any such security, guaranty or surety; (iv) apply such
security and direct the order or manner of sale thereof as Lender
may determine in its sole discretion; (v) settle, release,
compromise, collect or otherwise liquidate the Indebtedness or
any portion thereof and any security therefor in any manner; (vi)
extend additional loans, credit and financial accommodations and
otherwise create additional Indebtedness; (vii) waive strict
compliance with the terms of the Amended Agreement or the other
Ancillary Agreements and otherwise forbear from asserting
Lender's rights and remedies thereunder; (viii) enforce or
forbear from enforcing the guaranty or surety of any other
guarantor or surety of the Indebtedness, any portion thereof or
release any such guarantor or surety; and (ix) assign this
Guaranty in part or in whole in connection with any assignment of
the Indebtedness or any portion thereof.
SECTION 2.4 WAIVERS OF GUARANTOR. Guarantor waives all
set-offs and counterclaims and all presentments, demands for
performance, notices of nonperformance, protests, notices of
protest, notices of dishonor and diligence with respect to the
Indebtedness and the obligations of Guarantor hereunder, the
filing of any claims with a court in the event of receivership or
bankruptcy of Borrower, and notices of acceptance of this
Guaranty. Guarantor further waives all notices that the
principal amount, any payment or any portion thereof, any
interest or Yield- Maintenance Amount on the Indebtedness or any
portion thereof is due, notices of any and all proceedings to
collect from Borrower, anyone primarily or secondarily liable
with respect to the Indebtedness or any portion thereof, or from
anyone else, and, to the extent permitted by law, notices of
exchange, sale, surrender or other handling of any security
securing payment of the Indebtedness or this Guaranty. The
Guarantor agrees that the Lender shall not be under any
obligation to marshall any assets in favor of Guarantor or
against or in payment of any or all of the Indebtedness.
The Guarantor hereby waives and releases the Borrower from
any and all "claims" (as defined in Section 101(4) of the
Bankruptcy Code) to which the Guarantor is or would at any time
be entitled by virtue of its obligations under this Guaranty,
including, without limitation, any right of subrogation (whether
contractual, under Section 509 of the Bankruptcy Code or
otherwise), reimbursement, contribution, indemnity, exoneration
or similar right against the Borrower. Guarantor further waives
any right to demand security from Borrower and any benefit of,
and any right to participate in, any security given to Lender to
secure payment of the Indebtedness or any other liability of
Borrower to Lender.
SECTION 2.5 REVIVAL. To the extent that Borrower or
Guarantor makes a payment or payments, or a transfer of an
interest in any property to Lender or Lender enforces its rights
in any security for the liabilities of Guarantor hereunder or
exercises its right of set-off, and such payment, payments,
transfer, or the proceeds of such enforcement or set-off, or any
portion of such payment, payments, transfer or proceeds are
subsequently invalidated, declared to be fraudulent or
preferential, set aside, otherwise avoided or required to be
repaid to Borrower, Guarantor, the estate of Borrower or
Guarantor, a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable
cause, then to the extent of such recovery, avoidance or
repayment, the obligation or part of such obligation originally
intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such
payment, enforcement or set-off had not occurred.
SECTION 2.6 OBLIGATION TO KEEP INFORMED. Guarantor shall
be responsible for keeping itself informed of the financial
condition of Borrower and any other Persons primarily or
secondarily liable on the Indebtedness or any portion thereof,
and of all other circumstances bearing upon the risk of
nonpayment of the Indebtedness or any portion thereof, and
Guarantor agrees that Lender shall have no duty to advise
Guarantor of information known to Lender regarding such condition
or any such circumstance. If Lender, in its discretion,
undertakes at any time or from time to time to provide any such
information to Guarantor, Lender shall not be under any
obligation (i) to undertake any investigation, whether or not a
part of its regular business routine, (ii) to disclose any
information which Lender wishes to maintain confidential, or
(iii) to make any other or future disclosures of such information
or any other information to Guarantor.
SECTION 2.7 BANKRUPTCY. If any Event of Default specified
in clauses (viii) to (x), inclusive, of paragraph 7A of the
Amended Agreement shall occur and be continuing, any and all
obligations of the Guarantor shall forthwith become due and
payable without notice.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The undersigned represents, covenants and warrants as
follows:
SECTION 3.1 ORGANIZATION. The Guarantor is a corporation
duly organized and existing in good standing under the laws of
Barbados. The Guarantor is duly qualified and authorized to
transact business as a foreign corporation and is in good
standing in every jurisdiction in which the nature of the
business conducted by it or the ownership of its properties or
assets makes such qualification necessary, except where the
failure to be in good standing or to be so qualified or
authorized would not have a material adverse effect on the
business, condition (financial or otherwise) or operations of the
Guarantor.
SECTION 3.2 POWER AND AUTHORITY. The Guarantor has all
requisite corporate power to conduct its business as currently
conducted and as currently proposed to be conducted. The
Guarantor has all requisite corporate power to execute, deliver
and perform its obligations under this Guaranty and all other
Ancillary Agreements to which it is a party. The execution,
delivery and performance by the Guarantor of this Guaranty and
all other Ancillary Agreements to which it is a party have been
duly authorized by all requisite corporate action on the part of
the Guarantor. The Guarantor has duly executed and delivered
this Guaranty and all other Ancillary Agreements to which it is a
party and this Guaranty and all other Ancillary Agreements to
which it is a party constitute the legal, valid and binding
obligations of the Guarantor, enforceable against the Guarantor
in accordance with their terms.
SECTION 3.3 CONFLICTING AGREEMENTS AND OTHER MATTERS. The
Guarantor is not a party to any contract or agreement or subject
to any charter or other corporate restriction which materially
and adversely affects its business, property or assets, or
financial condition. Neither the execution nor delivery of this
Guaranty or any of the other Ancillary Agreements to which it is
a party nor fulfillment of nor compliance with the terms and
provisions hereof or thereof, will conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the
creation of any Lien upon any of the properties or assets of the
Guarantor pursuant to, the charter or by-laws of the Guarantor,
any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment,
decree, statute, law, rule or regulation to which the Guarantor
is subject. The Guarantor is not a party to, or otherwise
subject to any provision contained in, any instrument evidencing
Indebtedness (as defined in the Amended Agreement) of the
Guarantor, any agreement relating thereto or any other contract
or agreement (including its charter) which limits the amount of,
or otherwise imposes restrictions on the creation of, any
guarantee, except under the Amended Agreement, the Bank Agreement
and the Teachers Note Agreement.
SECTION 3.4. [Intentionally Left Blank.]
SECTION 3.5 [Intentionally Left Blank.]
SECTION 3.6 LITIGATION, LABOR CONTROVERSIES ETC. There
is no pending or, to the knowledge of the Guarantor, threatened
litigation, action, proceeding, or labor controversy affecting
the Guarantor, or any of its properties, businesses, assets or
revenues, which may materially adversely affect the financial
condition, operations, assets, business, properties or prospects
of the Guarantor or which purports to affect the legality,
validity or enforceability of this Guaranty, the Amended
Agreement or any other Ancillary Agreement.
SECTION 3.7 SUBSIDIARIES. The Borrower owns not less
than 100% of the issued and outstanding shares of capital stock
of the Guarantor. The Guarantor has no Subsidiaries.
SECTION 3.8 OWNERSHIP OF PROPERTIES. The Guarantor owns
good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, of any nature
whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens, charges or
claims (including infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant
to paragraph 6A of the Amended Agreement.
SECTION 3.9 TAXES. The Guarantor has filed all tax
returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
SECTION 3.10 PENSION AND WELFARE PLANS. During the
twelve-consecutive-month period prior to the date of the
execution and delivery of this Guaranty, no steps have been taken
to terminate any Pension Plan, and no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise
to a Lien under section 302(f) of ERISA. No condition exists or
event or transaction has occurred with respect to any Pension
Plan which might result in the incurrence by the Guarantor or any
ERISA Affiliate of any material liability, fine or penalty.
Neither the Guarantor nor any ERISA Affiliate has any contingent
liability with respect to any post-retirement benefit under a
welfare plan, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.
SECTION 3.11 ENVIRONMENTAL WARRANTIES.
(a) all facilities and property (including
underlying groundwater) owned or leased by the
Guarantor have been, and continue to be, owned or
leased by the Guarantor in material compliance with all
Environmental Laws;
(b) there have been no past, and there are no
pending or threatened
(i) claims, complaints, notices or
requests for information received by the
Guarantor with respect to any alleged
violation of any Environmental Law, or
(ii) complaints, notices or inquiries to
the Guarantor regarding potential liability
under any Environmental Law;
(c) there have been no releases of hazardous
materials at, on or under any property now or
previously owned or leased by the Guarantor that,
singly or in the aggregate, have, or may reasonably be
expected to have, a material adverse effect on the
financial condition, operations, assets, business,
properties or prospects of the Guarantor;
(d) the Guarantor has been issued and is in
material compliance with all permits, certificates,
approvals, licenses and other authorizations relating
to environmental matters and necessary or desirable for
its businesses;
(e) no property now or previously owned or leased
by the Guarantor is listed or proposed for listing
(with respect to owned property only) on the National
Priorities List pursuant to CERCLA, on the CERCLIS or
on any similar state list of sites requiring
investigation or clean-up;
(f) there are no underground storage tanks,
active or abandoned, including petroleum storage tanks,
on or under any property now or previously owned or
leased by the Guarantor that, singly or in the
aggregate, have, or may reasonably be expected to have,
a material adverse effect on the financial condition,
operations, assets, business, properties or prospects
of the Guarantor;
(g) the Guarantor has not directly transported or
directly arranged for the transportation of any
hazardous material to any location which is listed or
proposed for listing on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar
state list or which is the subject of federal, state or
local enforcement actions or other investigations which
may lead to material claims against the Guarantor for
any remedial work, damage to natural resources or
personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or
friable asbestos present at any property now or
previously owned or leased by the Guarantor that,
singly or in the aggregate, have, or may reasonably be
expected to have, a material adverse effect on the
financial condition, operations, assets, business,
properties or prospects of the Guarantor; and
(i) no conditions exist at, on or under any
property now or previously owned or leased by the
Guarantor which, with the passage of tine, or the
giving of notice or both, would give rise to liability
under any Environmental Law.
SECTION 3.12 ACCURACY OF INFORMATION. All factual
information heretofore or contemporaneously furnished by or on
behalf of the Guarantor in writing to Prudential or any Lender
for purposes of or in connection with this Guaranty or any
transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Guarantor
to Prudential or any Lender will be, true and accurate in every
material respect on the date as of which such information is
dated or certified and as of the date of execution and delivery
of this Guaranty by Prudential and such Lender, and such
information is not, or shall not be, as the case may be,
incomplete by omitting to state any material fact necessary to
make such information not misleading.
ARTICLE IV
COVENANTS
SECTION 4.1 AFFIRMATIVE COVENANTS. The Guarantor
covenants and agrees that, so long as any portion of the
Indebtedness shall remain unpaid, the Guarantor will, unless the
Required Holders shall otherwise consent in writing, perform the
obligations set forth in this Section.
SECTION 4.1.1 [Intentionally Left Blank.]
SECTION 4.1.2 COMPLIANCE WITH LAWS, ETC. The Guarantor
will comply in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include
(without limitation):
(a) the maintenance and preservation of its
corporate existence and qualification as a foreign
corporation; and
(b) the payment, before the same become
delinquent, of all taxes, assessments and governmental
charges imposed upon it or upon its property except to
the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on
its books.
SECTION 4.1.3 MAINTENANCE OF PROPERTIES. The Guarantor
will maintain, preserve, protect and keep its properties in good
repair, working order and condition, and make necessary and
proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at
all times unless the Guarantor determines in good faith that the
continued maintenance of any of its properties is no longer
economically desirable.
SECTION 4.1.4 INSURANCE. The Guarantor will maintain or
cause to be maintained with responsible insurance companies
insurance with respect to its properties and business against
such casualties and contingencies and of such types and in such
amounts as is customary in the case of similar businesses and
will, upon request of Prudential, furnish to each holder of a
Note at reasonable intervals a certificate of an Authorized
Officer of the Guarantor setting forth the nature and extent of
all insurance maintained by the Guarantor and its Subsidiaries in
accordance with this section.
SECTION 4.1.5 BOOKS AND RECORDS. The Guarantor will keep
books and records which accurately reflect all of its business
affairs and transactions and permit any holder of a Note or any
of their respective representatives, at reasonable times and
intervals, to visit all of its offices, to discuss its financial
matters with its officers and independent public accountant (and
the Guarantor hereby authorizes such independent public
accountant to discuss the Guarantor's financial matters with any
holder of a Note or its representatives whether or not any
representative of the Guarantor is present) and to examine (and,
at the expense of the Guarantor, photocopy extracts from) any of
its books or other corporate records. The Guarantor shall pay
any fees of such independent public accountant incurred in
connection with any holder's exercise of its rights pursuant to
this section.
SECTION 4.1.6 ENVIRONMENTAL COVENANT. The Guarantor will
(a) use and operate all of its facilities and
properties in material compliance with all
Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other
authorizations relating to environmental matters in
effect and remain in material compliance therewith, and
handle all hazardous materials in material compliance
with all applicable Environmental Laws;
(b) immediately notify Prudential and provide
copies upon receipt of all written claims, complaints,
notices or inquiries relating to the condition of its
facilities and properties or compliance with
Environmental Laws, and shall diligently defend to the
satisfaction of the Agent any actions and proceedings
relating to compliance with Environmental Laws; and
(c) provide such information and certifications
which Prudential may reasonably request from time to
time to evidence compliance with this section 4.1.6.
SECTION 4.2 NEGATIVE COVENANTS. The Guarantor covenants
and agrees that, so long as any portion of the Indebtedness shall
remain unpaid, the Guarantor will not, without the prior written
consent of the Required Holders, do anything prohibited in this
section.
SECTION 4.2.1 INDEBTEDNESS. The Guarantor will not create,
incur, assume or suffer to exist or otherwise become or be liable
in respect of any Indebtedness or any guaranty of any
Indebtedness other than Indebtedness under the Teachers Note
Agreement and the Bank Agreement as in effect on the date hereof.
SECTION 4.2.2 LIENS. The Guarantor will not create, incur,
assume or suffer to exist any Lien upon any of its property,
revenues or assets, whether now owned or hereafter acquired.
SECTION 4.2.3 INVESTMENTS. The Guarantor will not make,
incur, assume or suffer to exist any Investment in any other
Person.
SECTION 4.2.4 BUSINESS; OWNERSHIP OF PROPERTY. The
Guarantor will not engage in any business or own any property
other than the property owned by the Guarantor on the date
hereof.
SECTION 4.2.5 CONSOLIDATION, MERGER, ETC. The Guarantor
will not liquidate or dissolve, consolidate with, or merge into
or with, any other corporation, or purchase or otherwise acquire
all or substantially all of the assets of any Person (or of any
division thereof), except as permitted by all of the Amended
Agreement.
SECTION 4.2.6 ASSET DISPOSITIONS ETC. The Guarantor will
not sell, transfer, lease, contribute or otherwise convey, or
grant options, warrants or other rights with respect to, all or
any part of its assets (including accounts receivable and capital
stock of Subsidiaries) to any Person, except as permitted by the
Amended Agreement.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 SUCCESSORS, ASSIGNS AND PARTICIPANTS. This
Guaranty shall be binding upon Guarantor and its successors and
assigns and shall inure to the benefit of Lender and its
successors, transferees and assigns; all references herein to
Guarantor shall be deemed to include its successors and assigns,
and all references herein to Lender shall be deemed to include
its successors and assigns. This Guaranty shall be enforceable
by Lender and any of Lender's successors, assigns and
participants, and any such successors and assigns shall have the
same rights and benefits with respect to the Borrower under this
Guaranty as the Lender hereunder.
SECTION 5.2 FURTHER ASSURANCES. Guarantor agrees, at the
sole cost and expense of Guarantor, to promptly do all such
things and execute all such documents as Lender may consider
necessary or desirable to preserve the rights and powers of
Lender hereunder.
SECTION 5.3 NOTICES. Except as otherwise expressly
provided herein, any notice required or desired to be served,
given or delivered hereunder shall be in writing, and shall be
deemed to have been validly served, given or delivered five (5)
days after deposit in the United States mails, with proper
postage prepaid, or upon delivery by courier or upon transmission
by telex, telecopy or similar electronic medium to the following
addresses:
(i) If to the Lender at:
The Prudential Insurance Company of America
c/o Prudential Capital Group
Two Prudential Plaza
Suite 5600
Chicago, Illinois 60601
Attention: Managing Director
Telecopy: (312) 540-4222
Telephone: (312) 540-4204
with a copy to:
Wiley S. Adams
Assistant General Counsel
Prudential Capital Group
Two Prudential Plaza
Suite 5600
Chicago, Illinois 60601
Telecopy: (312) 540-4222
Telephone: (312) 540-4204
(ii) If to Guarantor at:
JBS International, Inc.
c/o John B. Sanfilippo & Son, Inc.
2299 Busse Road
Elk Grove Village, Illinois 60007
Attn: Michael J. Valentine, Chairman and President
Telecopy: (847) 593-3085
Telephone: (847) 593-2300
with a copy to:
Jenner & Block
One IBM Plaza
Chicago, Illinois 60611
Attn: Timothy R. Donovan
Telecopy: (312) 527-0484
Telephone: (312)222-9350
or to such other address as each party designates to the other in
the manner herein prescribed.
SECTION 5.4 AMENDMENTS, WAIVERS and CONSENTS. No amendment
or waiver of or consent to any departure by Guarantor from any
provision of this Guaranty, shall be binding on Lender except as
expressly set forth and consented to in a writing duly signed and
delivered by the Required Holder(s), and then such amendment,
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No course
of dealing between Guarantor and Lender, nor any failure on the
part of Lender to exercise any right, power or remedy nor any
delay on the part of Lender in exercising any right, power or
remedy shall operate as a waiver thereof, and no single or
partial exercise by Lender of any right, power or remedy shall
preclude any further exercise thereof by Lender. No waiver of
any right, power or remedy shall be deemed to occur by any act or
knowledge of Lender, its agents, officers or employees or be
binding against Lender, except as expressly set forth in a
writing duly signed and delivered by the Required Holder(s). No
waiver by the Required Holder(s) of any default shall operate as
a waiver of any other default or the same default on a future
occasion, and no action by Lender permitted hereunder shall in
any way affect or impair any of Lender's rights, powers or
remedies or the obligations of Guarantor under this Guaranty.
Any determination by a court of competent jurisdiction of the
amount of any part of the Indebtedness shall be conclusive and
binding on Guarantor irrespective of whether Guarantor was a
party to the suit or action in which such determination was made.
As used herein, the term "this Guaranty" and references thereto
shall mean this Guaranty as it may from time to time be amended
or supplemented.
SECTION 5.5 GOVERNING LAW. THIS GUARANTY HAS BEEN
DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN MADE AT CHICAGO,
ILLINOIS AND SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF
THE STATE OF ILLINOIS.
SECTION 5.6 SUBMISSION TO JURISDICTION. THE GUARANTOR
HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF COOK, STATE OF ILLINOIS, AND
IRREVOCABLY AGREES THAT, SUBJECT TO THE LENDER'S SOLE AND
ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS RELATING TO THIS
GUARANTY OR THE OTHER ANCILLARY AGREEMENTS TO WHICH THE GUARANTOR
IS A PARTY SHALL BE LITIGATED IN SUCH COURTS, AND THE GUARANTOR
WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR
FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH
COURT AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT,
AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MAIL OR
MESSENGER ON JOHN B. SANFILIPPO & SON, INC. AT THE ADDRESS SET
FORTH IN SECTION 5.3 ABOVE AND THAT SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR FIVE
(5) DAYS AFTER THE SAME SHALL HAVE BEEN POSTED TO THE GUARANTOR'S
ADDRESS AS SET FORTH IN SECTION 5.3. THE LENDER AND THE
GUARANTOR ACKNOWLEDGE THAT THE TIME AND EXPENSE REQUIRED FOR
TRIAL BY JURY EXCEED THE TIME AND EXPENSE REQUIRED FOR A BENCH
TRIAL AND HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY
JURY, AND WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND
WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE LENDER.
NOTHING CONTAINED IN THIS SUBSECTION 5.6 SHALL AFFECT THE RIGHT
OF THE LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF THE LENDER TO BRING ANY
ACTION OR PROCEEDING AGAINST THE GUARANTOR OR ITS PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTION.
SECTION 5.7 COUNTERPARTS. This Guaranty may be executed in
any number of counterparts, each of which shall be an original
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
SECTION 5.8 INTERPRETATION; PARTIAL INVALIDITY. Whenever
possible each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
SECTION 5.9 NO USURY. Nothing contained in this Guaranty
shall be construed or shall so operate either presently or
prospectively to require Guarantor to pay any amount under this
Guaranty on account of the Indebtedness that constitutes interest
in excess of the maximum amount of interest permitted by law to
be charged on all or any portion of the Indebtedness and to be
guaranteed by Guarantor hereunder. If any interest in excess of
the maximum amount of interest permitted by law to be charged and
to be guaranteed hereunder is provided for, or is adjudicated to
be provided for, with respect to all or any portion of the
Indebtedness, then in such event (i) the provisions of this
Section 5.9 shall govern and control; (ii) Guarantor shall not be
obligated to pay any amount under this Guaranty that constitutes
interest in excess of that so permitted on all or any portion of
the Indebtedness; (iii) any amount paid by Guarantor to Lender
under this Guaranty that constitutes interest in excess of that
so permitted on all or any portion of the Indebtedness shall, at
the option of Lender, be (A) applied as a credit against the then
unpaid but due and owing amount under this Guaranty, (B) refunded
to the Guarantor or (C) applied or refunded pursuant to any
combination of the foregoing; (iv) this Guaranty shall have been
deemed to have been, and shall be, reformed and modified to
reflect, the Guarantor's guarantee hereunder of the payment of
the Indebtedness to the extent interest included therein is
permitted by law to be charged and to be guaranteed by Guarantor
hereunder; and (v) Guarantor shall not have any action against
Lender for any damages whatsoever arising out of the payment or
collection of any such amount.
SECTION 5.10 MISCELLANEOUS. The section headings used in
this Guaranty are for convenience of reference only and shall not
define or limit the provisions of this Guaranty. All remedies
under this Guaranty are cumulative and are not exclusive of any
other remedies provided by law.
[Signature pages to follow]
IN WITNESS WHEREOF, Guarantor and Prudential have caused
this Guaranty to be duly executed as of the date first above
written.
JBS INTERNATIONAL, INC.
By:/s/ Michael J. Valentine
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Title: President
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THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Mark Hoffmeister
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Senior Vice President
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