GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") dated as of March
1, 1999 is given by PERFORMANCE FOOD GROUP COMPANY, a Tennessee
corporation (the "Guarantor") for the benefit of FIRST UNION
NATIONAL BANK, a national banking association organized under the
laws of the United States (the "Bank"). Unless otherwise herein
defined or the context hereof shall otherwise require, the
capitalized terms used herein shall have the respective meanings
specified in the Letter of Credit and Reimbursement Agreement,
dated as of March 1, 1999 (the "Reimbursement Agreement"),
between KMB Produce, Inc. (the "Borrower") and the Bank.
W I T N E S S E T H; T H A T:
WHEREAS, the Carrollton Payroll Development Authority (the
"Issuer") intends to issue its Industrial Development Revenue
Bonds (KMB Produce, Inc. Project), Series 1999, in the principal
amount of $9,000,000 (the "Bonds"); and
WHEREAS, the Bonds are to be issued under and pursuant to
Trust Indenture, dated as of even date herewith (the
"Indenture"), by and between the Issuer and First Union National
Bank, Richmond, Virginia, as trustee (the "Trustee"), a true and
correct copy of which has been delivered to the Guarantor, and
the Bonds are more particularly described in the Indenture; and
WHEREAS, the proceeds derived from the issuance of the Bonds
shall be loaned to the Borrower under a Loan Agreement, dated as
of March 1, 1999, between the Borrower and the Issuer, in order
to finance a manufacturing facility (the "Project"); and
WHEREAS, the Borrower has requested that the Bank issue an
irrevocable, direct-pay letter of credit (the "Letter of Credit")
pursuant to the Reimbursement Agreement; and
WHEREAS, the Borrower has agreed, inter alia, to reimburse
the Bank with respect to the obligations of the Borrower under
the Reimbursement Agreement; and
WHEREAS, as further security, the Borrower will enter into a
Deed to Secure Debt and Security Agreement, dated as of March 1,
1999, with the Bank and a Pledge Agreement, dated as of March 1,
1999, with the Bank (collectively, the "Security Documents"); and
WHEREAS, as additional security, the Bank has requested that
the Guarantor, who is an affiliate of the Borrower, guaranty the
obligations of the Borrower under the Reimbursement Agreement;
and
WHEREAS, the Guarantor desires that the Bank issue the
Letter of Credit as aforesaid and is willing to enter into this
Guaranty in order to induce the Bank to issue the Letter of
Credit;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration and in order to induce the Bank
to issue the Letter of Credit, the Guarantor DOES HEREBY AGREE
with the Bank as follows:
ARTICLE I.
REPRESENTATIONS
Section 1.1. Representations of Guarantor. The Guarantor
makes the following representations as the basis for the
undertakings on its part herein contained:
(a) Authority. The Guarantor is a validly organized
and existing corporation under the laws of the State of
Tennessee with the power to enter into this Guaranty.
(b) Pending Litigation. There are no proceedings
pending, or to the knowledge of the Guarantor threatened,
against or affecting the Guarantor, in any court or before
any governmental authority or arbitration board or tribunal
which involve the possibility of materially and adversely
affecting the properties, business, prospects, profits or
condition (financial or otherwise) of any Guarantor, or the
ability of the Guarantor to perform its obligations under
this Guaranty. The Guarantor is not in a material default
with respect to any order of any court or governmental
authority or arbitration board or tribunal which would
materially and adversely affect its business, financial
condition or ability to perform its obligations hereunder.
(c) Agreements Are Legal and Authorized. The
execution and delivery by the Guarantor of this Guaranty and
the compliance by the Guarantor with all of the provisions
hereof and thereof (i) is within the power of the Guarantor,
and (ii) will not conflict with or result in any breach of
any of the provisions of, or constitute a default under, or
result in the creation of any lien, charge or encumbrance
upon any property of the Guarantor under the provisions of,
law, any agreement or other instrument to which the
Guarantor is a party or by which the Guarantor may be bound,
or any license, judgment, decree, law, statute, order, rule
or regulation of any court or governmental agency, its
charter or by-laws, or body having jurisdiction over the
Guarantor or any of its respective activities or properties.
(d) Governmental Consent. The Guarantor nor any of
its businesses or properties, nor any relationship between
the Guarantor and any other person, nor any circumstances in
connection with the execution, delivery and performance by
the Guarantor of this Guaranty or the offer, issue, sale or
delivery of the Bonds, is such as to require the consent,
approval or authorization of, or the filing, registration or
qualification with, any governmental authority on the part
of the Guarantor other than those already obtained.
(e) No Defaults. No event has occurred and no
condition exists with respect to the Guarantor that would
constitute an "event of default" under this Guaranty or
which, with the lapse of time or with the giving of notice
or both, would become an "event of default" under this
Guaranty. The Guarantor is not in violation in any material
respect of any agreement or other instrument to which they
are a party or by which it may be bound, the violation of
which may have a material adverse effect on the Guarantor.
(f) Compliance with Law. The execution of this
Guaranty will not violate any laws, ordinances, governmental
rules or regulations to which the Guarantor is subject and
the Guarantor has not failed to obtain any licenses,
permits, franchises or other governmental authorizations
necessary to the ownership of any of its properties or to
the conduct of any of its businesses, which violation or
failure to obtain might materially and adversely affect the
properties, business, prospects, profits or condition
(financial or otherwise) of the Guarantor.
(g) Restrictions on the Guarantor. The Guarantor is
not a party to any contract or agreement, or subject to any
restriction, that materially and adversely affects the
businesses of the Guarantor.
(h) Disclosure. Neither the representations of the
Guarantor contained in this Guaranty, nor any written
statement relating to the Guarantor furnished by or on
behalf of the Guarantor to the Bank in connection with the
transactions contemplated hereby, contains any untrue
statement of a material fact or omits to state a material
fact necessary to make the statements contained herein or
therein not misleading. There is no fact that the Guarantor
has not disclosed to the Bank in writing that materially and
adversely affects or in the future may (so far as the
Guarantor can now reasonably foresee) materially and
adversely affect the Project, or the properties, business,
prospects, profits or condition (financial or otherwise) of
the Guarantor, or the ability of the Guarantor to perform
its obligations under this Guaranty or any documents or
transactions contemplated hereby.
(i) Consideration. This Guaranty is necessary to
promote and further the business of the Borrower and the
assumption by the Guarantor of its obligations hereunder
will result in direct financial benefits to the Guarantor.
(j) Validity and Binding Effect. This Guaranty is a
valid and binding obligation of the Guarantor enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of
general application relating to or affecting the enforcement
of creditor's rights generally.
(k) Financial Information. The (i) consolidated
balance sheets of the Guarantor and its subsidiaries as of
December 31, 1997 and the related statements of income and
retained earnings and cash flow for the fiscal years then
ended and the (ii) unaudited consolidated balance sheet of
the Guarantor and its subsidiaries as of December 31, 1998
and related unaudited interim statements of revenue and
retained earnings, copies of which have been furnished to
the Bank, are complete and correct and fairly represent the
assets, liabilities and financial position of the Guarantor
and its subsidiaries as of such dates, and the results of
the operations and changes of financial position for the
periods then ended. All such financial statments including
the related schedules and notes thereto, have been prepared
in accordance with generally accepted accounting principles.
The Guarantor and its subsidiaries have no Debt (as defined
in the Credit Agreement), obligation or other unusual
forward or long-term commitment which is note fairly
reflected in the foregoing financial statements and the
notes thereto.
ARTICLE II.
GUARANTIES
Section 2.1. Guaranty of Payment. The Guarantor hereby
absolutely and unconditionally guarantees to the Bank the full
and timely payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations (as defined in the
Reimbursement Agreement) of the Borrower now or hereafter
existing under the Reimbursement Agreement or any of the Security
Documents, whether for principal, interest, fees, expenses or
otherwise. The Guarantor further agrees to pay any and all
expenses (including without limitation reasonable attorney's fees
and expenses) incurred by the Bank in enforcing or protecting its
rights against the Guarantor under the Reimbursement Agreement or
any of the Security Documents.
If the Bank shall fail to receive any such payment as and
when said payment becomes due and payable after any applicable
cure periods have expired, the Guarantor shall immediately pay to
the Bank at its office in Richmond, Virginia, in lawful money of
the United States of America, an amount equal to the required
payment. This Guaranty is an absolute, unconditional, continuing
and irrevocable guarantee of payment and not of collectability or
performance and is in no way conditioned or contingent upon any
attempt to collect from the Borrower. This Guaranty shall remain
in full force and effect without respect to future changes in
conditions, including change in law, until the Letter of Credit
shall have been canceled or shall have expired in accordance with
its terms. Subject to the provisions of Section 5.2 and unless
the Letter of Credit shall have been canceled or shall have
expired in accordance with its terms, each and every default in
payment by the Borrower pursuant to the terms of the
Reimbursement Agreement shall give rise to a separate cause of
action hereunder to the extent that each such default by the
Borrower would give rise to a separate claim or cause of action
under the Reimbursement Agreement and separate suits may be
brought hereunder as each cause of action arises.
The Guarantor hereby waives (i) notice of the acceptance
hereof, of any action taken or omitted in reliance hereon and of
any defaults by the Borrower in the payment of any such sums,
(ii) any presentment, demand, notice or protest of any kind,
(iii) any other act or thing or omission or delay to do any other
act or thing which might in any manner or to any extent vary the
risk of the Guarantor or which might otherwise operate as a
discharge of the Guarantor, and (iv) any right to require that
any action be brought against the Borrower or to require that
resort be had to any security whether held by or available to the
Bank or to any other guaranty, and any other applicable law to
require the Bank to attempt to recover against or realize upon
any Collateral (as defined in the Reimbursement Agreement).
The Guarantor agrees that it will not exercise any rights
that it may acquire by way of subrogation under the Reimbursement
Agreement, by any payment made under the Guaranty or otherwise,
until all the Obligations of the Borrower under the Reimbursement
Agreement then due and not paid or not performed shall have been
paid or performed in full. If any amount shall be paid to the
Guarantor on account of such subrogation rights at any time when
all the Obligations of the Borrower under the Reimbursement
Agreement then due and not paid or not performed shall not have
been paid or performed in full, such amount shall be held in
trust for the benefit of the Bonds and shall forthwith be paid to
the Bank to be credited and applied upon the Obligations of the
Borrower under the Reimbursement Agreement, whether matured or
unmatured, in accordance with the terms thereof.
This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any
of the Obligations of the Borrower under the Reimbursement
Agreement is rescinded or is otherwise returned by the Bank upon
the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, all as though such payment had not been made.
Section 2.2. Nature of Obligations. All obligations of the
Guarantor under this Guaranty shall be absolute, unconditional,
continuing and irrevocable irrespective of the genuineness,
validity, regularity or enforceability of the Reimbursement
Agreement, the Security Instruments or the Bonds and shall remain
in full force and effect until all amounts payable by the
Borrower pursuant to the terms of the Reimbursement Agreement
shall have been paid or shall be deemed to have been paid in
accordance with the terms thereof and, until such payment, or the
occurrence of those conditions upon which payment shall be deemed
to have occurred, shall not be affected, modified, impaired or
discharged upon the happening from time to time of any event,
including, without limitation, any of the following, whether or
not with notice to or the consent of the Guarantor:
(a) any lack of validity or enforceability of the
Letter of Credit, the Bonds, any of the other Bond
Documents (as defined in the Reimbursement Agreement),
any of the Security Instruments (as defined in the
Reimbursement Agreement) or any other agreement or
instrument related thereto;
(b) any amendment or waiver of or any consent to
departure from the terms of the Letter of Credit, the
Bonds, any of the other Bond Documents, any of the
Security Instruments or any other agreement or
instrument related thereto;
(c) the existence of any claim, set off, defense
or other right which any of the Guarantor or the
Borrower may have at any time against the Trustee, any
beneficiary or any transferee of the Letter of Credit
(or any person for whom the Trustee, any such
beneficiary or any such transferee may be acting), the
Bank or any other person, whether in connection with
Reimbursement Agreement, the Security Instruments, the
Letter of Credit, the Bond Documents, the Project (as
defined in the Reimbursement Agreement) or any
unrelated transaction;
(d) any statement, draft or other document
presented by or on behalf of the Borrower or the
Guarantor under the Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any
respect, or any statement therein being untrue or
inaccurate in any respect whatsoever;
(e) the surrender, exchange or impairment of any
security for the performance or observance of any of
the terms of Reimbursement Agreement; or
(f) any other circumstance which might otherwise
constitute a defense available to, or a discharge of,
the Borrower or the Guarantor, except subject to the
qualification that obligations may be reinstated upon
bankruptcy, notwithstanding payment in full of the
Borrower's obligations to the Bank.
Notwithstanding anything herein to the contrary, the waivers
extended by the Guarantor above shall not be construed to prevent
the Guarantor from pursuing in a separate and unrelated action
any claims that the Guarantor may have against the Bank.
ARTICLE III
AFFIRMATIVE COVENANTS
Section 3.1 Financial Statements, Reports and Documents.
The Guarantor will deliver the following to the Bank:
(a) Annual Statements. As soon as available and in any
event within 120 days after the end of each Fiscal Year, review
quality financial statements reflecting their operations during
such Fiscal year, including, without limitation, a balance sheet,
profit and loss statement and statement of cash flows, with
supporting schedules, all in reasonable detail and reviewed by an
independent certified public accountant acceptable to the Bank.
(b) Quarterly Reports. As soon as available and in
any event within 45 days after the end of each quarters of each
Fiscal Year, unaudited management-prepared quarterly financial
statements, including, without limitation, a balance sheet,
profit and loss statement and statement of cash flows, with
supporting schedules, all in reasonable detail and prepared in
conformity with GAAP.
(c) No-Default Certificate. Simultaneously with the
delivery of each set of financial statements referred to in
clauses (a) and (b) above, a certificate of an officer of the
Guarantor stating whether any Default or Event of Default exists
on the date of such certificate and, if any Default or Event of
Default then exists, setting forth the details thereof and the
action which the Guarantor is taking or proposes to take with
respect thereto.
(d) Proxy Statements. Promptly upon the mailing
thereof to the shareholders of the Guarantor generally, copies of
all financial statements, reports, proxy statement so mailed,
provided that copies of financial statements and other reports
delivered solely to shareholders who are also officers or
employees of the Guarantor in their capacities as such need not
be delivered hereunder unless included within the scope of a
request for additional information made pursuant to Section 5.1
(g) hereof.
(e) SEC Reports. Promptly upon filing thereof, copies
of all registration statements (other than the exhibits thereto
and any registration statements on Form S-8 or its equivalent)
and annual, quarterly or monthly reports which the Guarantor
shall have filed with the Securities Exchange Commission.
(f) Tax Returns. Within 30 days of filing, (i)
complete copies of federal and state tax returns, as applicable,
together with all schedules thereto, each of which shall be
signed and certified by an officer of the Guarantor to be true,
correct and complete copies of such returns, and (ii) any
extensions or requests for extensions filed with the appropriate
taxing body.
(g) Additional Information. From time to time, such
additional information regarding the financial position or
business of the Guarantor as the Bank may reasonably request.
Section 3.2. Incorporation of Covenants. The Guarantor
shall observe and remain in compliance with the covenants,
agreements, ratios and other matters contained in Articles VIII,
IX and X of the that certain Credit Agreement, dated as of March
5, 1999 (the "Credit Agreement"), by and among the Guarantor, the
lenders therein named and the Bank, as administrative agent, as
amended from time to time. In the event that the Credit
Agreement shall expire or otherwise be terminated, the covenants,
agreements, ratios and other matters contained in Articles VIII,
IX and X of the Credit Agreement (and any similar provisions
added in a supplement) shall be incorporated herein and made a
part hereof in the form contained immediately preceding such
expiration or termination date.
ARTICLE IV.
ACTIONS AND PROCEEDINGS
Section 4.1. Actions and Proceedings. Any legal action or
proceeding against the Guarantor with respect to this Guaranty
may be brought in such of the courts of competent jurisdiction of
the state or federal courts located in the Commonwealth of
Virginia as the Bank or its successors and assigns, as the case
may be, may elect, and, by execution and delivery of this
Guaranty, the Guarantor irrevocably submits to the nonexclusive
jurisdiction of such courts for purposes of legal actions and
proceedings hereunder and, in case of any such legal action or
proceeding brought in the above-named Virginia courts, hereby
irrevocably consent, during such time, to the service of process
out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by personal service
to the Guarantor, or by any other means permitted by applicable
law. If it becomes necessary for the purpose of service of
process out of any such courts, the Guarantor shall take all such
action as may be required to authorized a special agent to
receive, for and on behalf of them, service of process in any
such legal action or proceeding, and shall take all such action
as may be necessary to continue said appointment in full force
and effect so that the Guarantor will at all times have an agent
for service of process for the above purposes in any Virginia
Court. To the extent permitted by law, final judgment (a copy
certified by the court that has rendered the judgment shall be
conclusive evidence of the fact and of the amount of any
indebtedness of the Guarantor to the Bank) against the Guarantor
in any such legal action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on an unsatisfied
judgment. To the extent that Guarantor has or hereafter may
acquire any immunity from jurisdiction of any of the above-named
courts or from any legal process therein, the Guarantor hereby
irrevocably waives such immunity, and the Guarantor hereby
irrevocably waives and agrees not to assert by way of motion, as
a defense, or otherwise, in any legal action or proceeding
brought hereunder in any of the above-named courts, (i) the
defense of sovereign immunity, (ii) any claim that it is not
personally subject to the jurisdiction of the above-named courts
by reason of sovereign immunity or otherwise, (iii) that such
action or proceeding is brought in an inconvenient forum, that
venue for the action or proceeding is improper or that this
Guaranty or the Reimbursement Agreement may not be enforced in or
by such courts, or (iv) any defense that would hinder or delay
the levy, execution or collection of any amount to which any
party hereto is entitled pursuant to a final judgment of any
court having jurisdiction. Nothing in these provisions shall
limit any right of the Bank to bring actions, suits or
proceedings in the courts of any other jurisdiction. The
Guarantor expressly acknowledges that the foregoing waiver is
intended to be irrevocable under the laws of the Commonwealth of
Virginia and of the United States of America.
ARTICLE V.
EVENTS OF DEFAULT AND REMEDIES
Section 5.1. Events of Default. If any of the following
events occurs and is continuing, it is hereby defined and
declared to be and constitute an "event of default":
(a) failure by the Guarantor to make any payment
required to be made under Section 2.1 as and when the same
shall become due and payable;
(b) any representation or warranty made by Guarantor
under this Guaranty or under any document, report,
certificate or financial statement furnished by Guarantor in
connection herewith or therewith or pursuant hereto or
thereto shall prove to have been false or misleading as at
the time made; provided, however, to the extent such
misrepresentation was not a material inducement to the Bank
to enter into the Reimbursement Agreement and is reasonably
susceptible to cure, it shall not constitute an Event of
Default hereunder so long as the Guarantor proceed in good
faith and with due diligence to effect a cure and is able to
cure such misrepresentation within thirty (30) days from the
date of notice from the Bank;
(c) failure by the Guarantor to observe or perform (or
cause to be observed or performed) any other covenant or
agreement to be performed or observed by them hereunder or
under any document or certificate furnished by the Guarantor
in connection herewith or therewith or pursuant hereto or
thereto; provided, however, if the Guarantor has undertaken
and continue to cure any such failure and such failure is
curable with future due diligence, there shall exist no
Event of Default hereunder so long as such failure is cured
within 30 days after the Guarantor has received written
notice of such failure from the Bank;
(d) the commencement of a case or other proceeding,
either voluntary or involuntary, with respect to the
Guarantor under applicable bankruptcy, insolvency or other
similar law, seeking the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator,
administrator or similar official of the Guarantor or for
all or substantially all of its property, or seeking the
winding-up, dissolution or liquidation of the Guarantor'
affairs; and
(e) the Guarantor shall have defaulted under any other
material agreement (including, without limitation, the
Credit Agreement) to which it is a party, and such default
would have a material adverse effect on its ability to
perform its obligations hereunder.
Section 5.2. Remedies. Whenever any event referred to in
Section 5.1 shall have occurred and be continuing, the Bank may
proceed immediately hereunder, and the Bank shall have the right
to proceed first and directly against the Guarantor under this
Guaranty without proceeding against or exhausting any other
remedies which it may have and without resorting to any other
security held by the Bank.
Section 5.3. No Remedy Exclusive. The rights and remedies
conferred herein shall not be considered exclusive of any other
remedies available but each of such rights and remedies shall be
cumulative and shall be in addition to any other rights and
remedies given under this Guaranty or now or hereafter existing
at law or in equity or by statute. No delay or omission to
exercise any right or remedy shall be construed to be a waiver
thereof but any such right or remedy may be exercised from time
to time and as often as may be deemed expedient.
Section 5.4. Counsel Fees and Expenses. The Guarantor
agrees to pay on demand therefor all costs, expenses and fees,
including all attorney's fees, which may be incurred by the Bank
following all applicable cure periods in enforcing or attempting
to enforce this Guaranty following any event of default hereunder
whether the same shall be enforced by suit or otherwise.
Section 5.5. Guaranty for Benefit of the Bank. This
Guaranty is entered into by the Guarantor for the benefit of the
Bank its respective successors and assigns under the
Reimbursement Agreement, all of whom shall be entitled to enforce
performance and observance of this Guaranty (subject to the
provisions of Section 5.2) and of the guaranties and other
provisions herein contained to the same extent as if they were
parties signatory hereto.
Section 5.6. Remedies Cumulative. The terms of this
Guaranty may be enforced as to any one or more breaches, either
separately or cumulatively.
ARTICLE VI.
WAIVERS, AMENDMENTS AND MISCELLANEOUS
Section 6.1. Waivers, Amendments and Modifications. If any
provision contained in this Guaranty should be breached by the
Guarantor and thereafter waived by the Bank, such waiver shall be
limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder. No waiver,
amendment, release or modification of this Guaranty shall be
established by conduct, custom or course of dealing, but solely
by an instrument in writing duly executed by the parties hereto.
Section 6.2. Effective Date. The obligations of the
Guarantor hereunder shall arise absolutely and unconditionally
when the Letter of Credit shall have been issued and delivered by
the Bank as contemplated in the Reimbursement Agreement.
Section 6.3. Governing Law. This Guaranty and the rights
and obligations of the parties hereto (including third-party
beneficiaries) shall be governed, construed and interpreted
according to the laws of the Commonwealth of Virginia.
Section 6.4. Entire Agreement; Counterparts. This Guaranty
constitutes the entire agreement, and supersedes all prior
agreements, both written and oral, between the parties with
respect to the subject matter hereof and may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the
same instrument.
Section 6.5. Severability. If any provision of this
Guaranty shall be held or deemed to be or shall, in fact, be
invalid, inoperative or unenforceable as applied in any
particular case in any jurisdiction or jurisdictions or in all
jurisdictions, or in all cases because it conflicts with any
other provision or provisions hereof or any constitution or
statute or rule of public policy, or for any other reason, such
circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in
any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable to any extent whatever.
Section 6.6. Notices. Any notice or notices which may be
or are required to be given to the Guarantor or the Bank
respecting any matter pertaining to this Guaranty shall be in
writing and shall be deemed to have been given when delivered or
mailed by first class registered or certified mail, return
receipt requested, postage prepaid, and, if given to the
Guarantor, addressed to the Guarantor at 6800 Paragron Place,
Suite 500, Richmond, Virginia 23230; or, if given to the Bank,
addressed to the Bank at First Union National Bank, 7 North 8th
Street, Richmond, Virginia 23219. Any party may, by notice given
hereunder, designate any further or different address to which
subsequent notices or other communications shall be sent and to
whose attention the same shall be directed.
Section 6.7. Captions. The captions and headings of the
several Articles and Sections of this Guaranty are for
convenience only and in no way define, limit or describe the
scope or intent of any provisions hereof.
Section 6.8. Certain Rules of Interpretation. In addition
to the words and terms defined herein, certain other words and
terms used herein shall have the same meanings as assigned them
in the Indenture unless the context or use clearly indicates
another or different meaning or intent. Words of the masculine
gender shall be deemed and construed to include correlative words
of the feminine and neuter genders.
"Herein", "hereby", "hereunder", "hereof", "hereinbefore",
"hereinafter" and other equivalent words refer to this Guaranty
and not solely to the particular Article, Section or subdivision
hereof in which such word is used.
Reference herein to an Article number (e.g., Article II) or
a Section number (e.g., Section 4.2) shall be construed to be a
reference to the designated Article number or Section number
hereof unless the context or use clearly indicates another or
different meaning or intent.
Section 6.9. Successors. This Guaranty shall be binding
upon the undersigned Guarantor and its successors and assigns and
shall inure to the benefit of, and shall be enforceable by, the
Bank and its successors and assigns until payment in full of all
amounts payable by the Issuer pursuant to the terms of the
Reimbursement Agreement.
Section 6.10. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY
AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY, THE
TRANSACTIONS CONTEMPLATED BY THE REIMBURSEMENT AGREEMENT OR THIS
GUARANTY OR ANY DEALINGS BETWEEN THE GUARANTOR AND THE BANK. The
scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate
to the subject matter of this transaction, including without
limitation, contract claims, tort claims, breach of duty claims,
and all other common law and statutory claims. The Guarantor
acknowledges that this waiver is a material inducement to the
Bank to enter into a business relationship with the Guarantor,
the Borrower and its Affiliates. The Guarantor represents and
warrants that it has reviewed this waiver with its legal counsel,
and that such waiver is knowingly and voluntarily given following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED, EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, REPLACEMENTS, REAFFIRMATIONS, SUPPLEMENTS OR
MODIFICATIONS TO THIS GUARANTY, THE REIMBURSEMENT AGREEMENT OR
ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS
CONTEMPLATED BY THE REIMBURSEMENT AGREEMENT. In the event of
litigation, this Guaranty may be filed as a written consent to a
trial by the court.
IN WITNESS WHEREOF, the Guarantor has executed this
Guaranty, and to evidence its acceptance the Bank has caused this
Guaranty to be executed all as of the date first above written.
PERFORMANCE FOOD GROUP COMPANY
By:___________________________
Name:
Title:
ACCEPTED as of March 1, 1999,
FIRST UNION NATIONAL BANK
By:___________________________
Title: