LESSEE GUARANTEE
dated as of March 11, 1998
made by
FRED MEYER, INC.
as Lessee Guarantor
in favor of
FMS TRUST 1997-1,
as Lessor
BANKERS TRUST COMPANY,
as Administrative Agent
THE CHASE MANHATTAN BANK,
as Syndication Agent
THE VARIOUS FINANCIAL INSTITUTIONS
IDENTIFIED AS LENDERS IN THE PARTICIPATION AGREEMENT,
as Lenders
and
THE VARIOUS FINANCIAL INSTITUTIONS
IDENTIFIED AS INVESTORS IN THE PARTICIPATION AGREEMENT
HEREIN,
as Investors
LESSEE Guarantee
THIS GUARANTEE (this "Guarantee"), dated as of March 11, 1998, is made by
FRED MEYER, INC., a Delaware corporation (the "Lessee Guarantor"), in favor of
FMS TRUST 1997-1, as Lessor; BANKERS TRUST COMPANY, as Administrative Agent (the
"Administrative Agent") under the Participation Agreement (as defined below);
THE CHASE MANHATTAN BANK, as Syndication Agent (the "Syndication Agent"); each
of the financial institutions as are or may from time to time become Lenders
pursuant to the terms of the Participation Agreement (the "Lenders"); and each
of the financial institutions as are or may from time to time become Investors
pursuant to the terms of the Participation Agreement, as Investors (the
"Investors") (each of the Lenders, the Lessor, the Investors, the Administrative
Agent and the Syndication Agent being referred to herein collectively as the
"Guaranteed Parties").
W I T N E S S E T H:
WHEREAS, as a condition to the occurrence of the Initial Closing Date under
the Participation Agreement dated as of the date hereof (together with all
amendments, supplements, amendments and restatements and other modifications, if
any, from time to time thereafter made thereto, the "Participation Agreement"),
among the Lessee Guarantor and Construction Agent, the Lessor, the Owner
Trustee, the Investors, the Administrative Agent, the Syndication Agent and the
Lenders, the Lessee Guarantor is required to execute and deliver this Guarantee
in favor of the Guaranteed Parties;
WHEREAS, the Lessee Guarantor has duly authorized the execution, delivery
and performance of this Guarantee; and
WHEREAS, it is in the best interests of the Lessee Guarantor to execute
this Guarantee inasmuch as the Lessee Guarantor will derive substantial benefits
from the transactions contemplated by the Participation Agreement and the other
Operative Agreements;
NOW, THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, and in order to induce the Guaranteed Parties to enter into
the Participation Agreement, the Lessee Guarantor agrees, for the benefit of the
Guaranteed Parties, as follows:
LESSEE GUARANTEE
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used but not otherwise defined
in this Guarantee have the respective meanings specified in Annex A to the
Participation Agreement. The rules of usage set forth in Annex A to the
Participation Agreement shall apply to this Guarantee.
SECTION 1.2. U.C.C. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the Uniform
Commercial Code as in affect in the State of New York are used in this
Guarantee, including its preamble and recitals, with such meanings.
ARTICLE II
GUARANTEE PROVISIONS
SECTION 2.1. Guarantee. The Lessee Guarantor, as primary obligor and not as
surety, hereby absolutely, unconditionally and irrevocably guarantees to each of
the Guaranteed Parties the following obligations (collectively, the "Guaranteed
Obligations"):
(a) the due, punctual and full payment by each Loan Party (other than
the Lessee Guarantor), the Lessor and the Owner Trustee (for purposes of
this Guarantee, each an "Obligor" and collectively the "Obligors"),
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations and amounts to be
paid by such Obligor (except to the extent such payment is to be made by
the Trust Company in its individual capacity) pursuant to any Operative
Agreement to which such Obligor is or is to be a party, whether for Inves-
tor Contributions, Investor Yield, principal, interest, fees, expenses or
otherwise (including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of Sections 502(b)
and 506(b) of the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and
ss.506(b));
(b) the due, prompt and faithful performance of, and compliance with,
all other obligations, covenants, terms, conditions and undertakings of
each Obligor (except to the extent such performance and/or compliance
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LESSEE GUARANTEE
is to be made by the Trust Company in its individual capacity) contained in
each Operative Agreement to which such Obligor is or is to be a party in
accordance with the terms thereof.
Notwithstanding the foregoing, the Lessee Guarantor shall not be obligated
to make any payment hereunder in respect of principal of any Tranche B Loans or
outstanding fundings of Investor Contribution unless at such time a Default or
Event of Default has occurred and is continuing.
The Lessee Guarantor further agrees that it shall indemnify and hold
harmless each Guaranteed Party for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Guaranteed Party in
enforcing any rights under this Guarantee after the occurrence of an Event of
Default.
This Guarantee constitutes a guarantee of payment when due and not of
collection, and the Lessee Guarantor specifically agrees that it shall not be
necessary or required that any Guaranteed Party exercise any right, assert any
claim or demand or enforce any remedy whatsoever against any Loan Party (or any
other Person) before or as a condition to the obligations of the Lessee
Guarantor hereunder.
SECTION 2.2. Guarantee Absolute, etc. This Guarantee shall in all respects
be a continuing, absolute, unconditional and irrevocable guarantee of payment,
and shall remain in full force and effect until all Guaranteed Obligations have
been paid in full and all obligations of the Lessee Guarantor hereunder shall
have been paid in full. The Lessee Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of each Operative
Agreement under which they arise, in each case regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Guaranteed Party. The liability of the Lessee
Guarantor under this Guarantee shall be absolute, unconditional and irrevocable
irrespective of:
(a) any lack of validity, legality or enforceability of any Operative
Agreement;
(b) the failure of any Guaranteed Party:
(i) to assert any claim or demand or to enforce any right or
remedy against the Lessee, the Owner Trustee or the Lessor or any
other Person (including any other guarantor) under the provisions of
any Operative Agreement or otherwise, or
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LESSEE GUARANTEE
(ii) to exercise any right or remedy against any other guarantor
of, or collateral securing, any Guaranteed Obligations;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations, or any other
extension, compromise or renewal of any of the Guaranteed Obligations;
(d) any reduction, limitation, impairment or termination of the
Guaranteed Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
(and the Lessee Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity, compro-
mise, unenforceability of, or any other event or occurrence affecting, the
Guaranteed Obligations;
(e) any amendment to, rescission, waiver, or other modification of, or
any consent to departure from, any of the terms of any Operative Agreement;
(f) any addition, exchange, release, surrender or nonperfection of any
collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guarantee, held by any Guaranteed
Party securing any of the Guaranteed Obligations; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any Loan Party, any
surety or any guarantor.
SECTION 2.3. Reinstatement, etc. The Lessee Guarantor agrees that this
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time any payment (in whole or in part) of any of the Guaranteed
Obligations is rescinded or must otherwise be restored by any Guaranteed Party,
upon the insolvency, bankruptcy or reorganization of any Loan Party or
otherwise, as though such payment had not been made.
SECTION 2.4. Waiver, etc. The Lessee Guarantor hereby waives (i)
promptness, diligence, notice of acceptance and any other notice (other than
those provided for in the Operative Agreements) with respect to any of the
Guaranteed Obligations and this Guarantee, (ii) any requirement that any
Guaranteed Party protect, secure, perfect or insure any security interest or
Lien, or any property subject thereto, or exhaust any right or take any action
against any Loan Party or
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LESSEE GUARANTEE
any other Person (including any other guarantor or entity or any collateral
securing the Guaranteed Obligations).
SECTION 2.5. Waiver of Subrogation. So long as any of the Guaranteed
Obligations remain unpaid, the Lessee Guarantor hereby agrees that it will not
claim and hereby irrevocably waives for such period any claim or other rights
which it may now or hereafter acquire against any Loan Party that arise from the
existence, payment, performance or enforcement of the Lessee Guarantor's
obligations under this Guarantee or any other Operative Agreement, including any
right of subrogation, reimbursement, exoneration, or indemnification, any right
to participate in the claim or remedy of the Guaranteed Parties against any
Lessee or any collateral which the Administrative Agent or the Lessor now has or
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including the right to take or receive
from such Loan Party, directly or indirectly, in cash or other property or by
set-off or in any manner, payment or security on account of such claim or other
rights until all Guaranteed Obligations are satisfied. If any amount shall be
paid to the Lessee Guarantor in violation of the preceding sentence and the
Guaranteed Obligations shall not have been paid in cash in full until all
Guaranteed Obligations are satisfied, such amount shall be deemed to have been
paid to the Lessee Guarantor for the benefit of, and held in trust for, the
Guaranteed Parties, and shall forthwith be paid to the Guaranteed Parties to be
credited and applied upon the Guaranteed Obligations, whether matured or
unmatured. The Lessee Guarantor acknowledges that it will receive benefits from
the financing and other arrangements contemplated by the Operative Agreements
and that the waiver set forth in this Section is knowingly made in contemplation
of such benefits.
SECTION 2.6. Consent to Jurisdiction; Waiver of Immunities. The Lessee
Guarantor hereby acknowledges and agrees that:
(a) It irrevocably submits to the jurisdiction of any federal court
sitting in the Southern District of New York in any action or proceeding
arising out of or relating to this Guarantee, and the Lessee Guarantor
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such federal court. The Lessee
Guarantor hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding. The Lessee Guarantor agrees that a final,
unappealable judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
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LESSEE GUARANTEE
(b) Nothing in this Section shall affect the right of any Guaranteed
Party to serve legal process in any manner permitted by law or affect the
right of any Guaranteed Party to bring any action or proceeding against the
Lessee Guarantor or its property in the courts of any other jurisdictions.
SECTION 2.7. Obligations Independent. The obligations of the Lessee
Guarantor hereunder are independent of the obligations of any other guarantor or
any other Loan Party, and a separate action or actions may be brought and prose-
cuted against the Lessee Guarantor whether or not action is brought against any
other guarantor or any other Loan Party, and whether or not any other guarantor
or any other Loan Party be joined in any such action or actions.
SECTION 2.8. Bankruptcy. In the event of a rejection of the Lease or any
Lease Supplement in a bankruptcy or insolvency proceeding of any Lessee (other
than the Lessee Guarantor), the Lessee Guarantor agrees that it will pay
forthwith all payments required to be made by such Lessee under the Lease and
Lease Supplements as though such rejection had not occurred. Lessee Guarantor
confirms that it is the intention of all of the Participants that neither the
guarantee by the Lessee Guarantor pursuant to this Guarantee nor any liability
or payment by it hereunder shall (i) render the Lessee Guarantor "insolvent," or
(ii) constitute a fraudulent transfer or conveyance, or (iii) constitute a
transaction at an undervalue or preference, or (iv) give rise to any similar or
analogous event, thing or circumstance, in each case, for purposes of the
Bankruptcy Code, the Uniform Fraudulent Conveyances Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law. To effectuate the foregoing
intention, the Guaranteed Parties and Lessee Guarantor hereby irrevocably agree
that the Guaranteed Obligations of Lessee Guarantor shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of Lessee Guarantor, result in the Guaranteed Obligations of Lessee
Guarantor hereunder neither rendering the Lessee Guarantor "insolvent" nor
constituting such fraudulent transfer or conveyance, such transaction at an
undervalue or preference or such other event, thing or circumstance, in each
case, under any such law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. The Lessee Guarantor hereby
affirms the representations and warranties set forth in Section 7.3 of the
Participation Agreement, which representations and warranties are hereby
incorporated by reference.
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LESSEE GUARANTEE
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.1. Operative Agreement. This Guarantee is an Operative Agreement
executed pursuant to the Participation Agreement and shall (unless expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions of the Participation Agreement, including, without
limitation, Section 13 thereof.
SECTION 4.2. Binding on Successors, Transferees and Assigns; Assignment of
Guarantee. This Guarantee shall be binding upon the Lessee Guarantor and its
successors, transferees and assigns and shall inure to the benefit of and be
enforceable by each Guaranteed Party and their respective, permitted successors
and assigns; provided, however, that the Lessee Guarantor may not assign any of
its obligations hereunder without the prior written consent of each Participant.
SECTION 4.3. Amendments, etc. No amendment to or waiver of any provision of
this Guarantee, nor consent to any departure by the Lessee Guarantor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent and the Owner Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 4.4. Addresses for Notices to the Lessee Guarantor. All notices,
demands, requests, consents, approvals and other communications hereunder shall
be in writing and directed to the address described in, and deemed received in
accordance with the provisions of, Section 13.2 of the Participation Agreement.
SECTION 4.5. No Waiver; Remedies. In addition to, and not in limitation
of, Section 2.2 and Section 2.4, no failure on the part of any Guaranteed Party
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 4.6. Section Captions. Section captions used in this Guarantee are
for convenience of reference only, and shall not affect the construction of this
Guarantee.
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LESSEE GUARANTEE
SECTION 4.7. Setoff. In addition to, and not in limitation of, any rights
of any Guaranteed Party under applicable law, each Guaranteed Party shall, upon
the occurrence of any Lease Event of Default or any Construction Agency Agree-
ment Event of Default, have the right to appropriate and apply to the payment of
the obligations of the Lessee Guarantor owing to it hereunder, to the extent
then due, and the Lessee Guarantor hereby grants to each Guaranteed Party a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Lessee Guarantor then or thereafter maintained with
such Guaranteed Party; provided, however, that any such appropriation and
application shall be subject to the provisions of the Participation Agreement.
SECTION 4.8. Severability. Wherever possible each provision of this
Guarantee shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guarantee 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 Guarantee.
SECTION 4.9. Termination of Guarantee. The Lessee Guarantor's obligations
under this Guarantee shall terminate on the date upon which all Guaranteed
Obligations have been paid in full, and all other Obligations shall have been
fully and finally discharged.
SECTION 4.10. Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES).
SECTION 4.11. Waiver of Jury Trial. THE LESSEE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTEE. THE LESSEE GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS AND THE LESSOR
ENTERING INTO THE PARTICIPATION AGREEMENT.
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LESSEE GUARANTEE
IN WITNESS WHEREOF, the Lessee Guarantor has caused this Guarantee to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
FRED MEYER, INC.,
as Lessee Guarantor
By JAMES C. AALBERG
--------------------------------------
Name: James C. Aalberg
Title: Vice President, Treasurer
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