CONFORMED COPY
GUARANTEE AGREEMENT dated as of July 25, 1997 among each of
the subsidiaries listed on Schedule I hereto (each such
subsidiary individually, a "GUARANTOR" and collectively, the
"GUARANTORS") of FLEMING COMPANIES, INC., an Oklahoma corporation
(the "BORROWER"), and THE CHASE MANHATTAN BANK, a New York
banking corporation, as collateral agent ("COLLATERAL AGENT") for
the Secured Parties (as defined in the Security Agreement of the
date hereof).
A. Reference is made to the Credit Agreement dated as of July 25,
1997 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among the Borrower, the Lenders from time to time party
thereto, The Chase Manhattan Bank, as Administrative Agent for the Lenders
and Collateral Agent, BancAmerica Securities, Inc., as Syndication Agent, and
Societe Generale, as Documentation Agent.
B. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
C. The Lenders have agreed to make Loans to the Borrower, and the
Issuing Banks have agreed to issue Letters of Credit for the account of the
Borrower, pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. Each of the Guarantors is a Subsidiary
of the Borrower and acknowledges that it will derive substantial benefit from
the making of the Loans by the Lenders, and the issuance of the Letters of
Credit by the Issuing Banks. The obligations of the Lenders to make Loans
and of the Issuing Banks to issue Letters of Credit are conditioned on, among
other things, the execution and delivery by the Guarantors of a Guarantee
Agreement in the form hereof. As consideration therefor and in order to
induce the Lenders to make Loans and the Issuing Banks to issue Letters of
Credit, the Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. GUARANTEE. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) the principal of
and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral
and (iii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Borrower to the Secured Parties under the Credit
Agreement and the other Loan Documents, (b) the due and punctual performance
of all covenants, agreements, obligations and liabilities of the Borrower
under or pursuant to the Credit Agreement and the other Loan Documents, (c)
the due and punctual payment and performance of all the covenants,
agreements, obligations and liabilities of each Loan Party under or pursuant
to this Agreement and the other Loan Documents and (d) the due and punctual
payment and performance of all obligations of the Borrower under each Hedging
Agreement entered into with any counterparty that was a Lender at the time
such Hedging Agreement was entered into or that is a Lender on the date
hereof (all the monetary and other obligations described in the preceding
clauses (a) through (d) being collectively called the "OBLIGATIONS"). Each
Guarantor further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice to or further assent from it, and that it
will remain bound upon its guarantee notwithstanding any extension or renewal
of any Obligation.
SECTION 2. OBLIGATIONS NOT WAIVED. To the fullest extent
permitted by applicable law, each Guarantor waives presentment to, demand of
payment from and protest to the Borrower of any of the Obligations, and also
waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the
obligations of each Guarantor hereunder shall not be affected by (a) the
failure of the Collateral Agent or any other Secured Party to assert any
claim or demand or to enforce or exercise any right or remedy against the
Borrower or any other Guarantor under the provisions of the Credit Agreement,
any other Loan Document or otherwise, (b) any rescission, waiver, amendment
or modification of, or any release from any of the terms or provisions of
this Agreement, any other Loan Document, any Guarantee or any other
agreement, including with respect to any other Guarantor under this Agreement
or (c) the failure to perfect any security interest in, or the release of,
any of the security held by or on behalf of the Collateral Agent or any other
Secured Party.
SECTION 3. SECURITY. Each of the Guarantors authorizes the
Collateral Agent and each of the other Secured Parties, to (a) take and hold
security, as provided for in the Security Agreement and Pledge Agreement, for
the payment of this Guarantee and the Obligations and exchange, enforce,
waive and release any such security, (b) apply such security and direct the
order or manner of sale thereof as they in their sole discretion may
determine in accordance with the Security Agreement and Pledge Agreement and
(c) release or substitute any one or more endorsees, other guarantors or
other obligors.
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SECTION 4. GUARANTEE OF PAYMENT. Each Guarantor further agrees
that its guarantee constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Collateral Agent or any
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other Secured Party to any of the security held for payment of the
Obligations or to any balance of any deposit account or credit on the books
of the Collateral Agent or any other Secured Party in favor of the Borrower
or any other person.
SECTION 5. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE. The
obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than
the indefeasible payment in full in cash of the Obligations), including any
claim of waiver, release, surrender, alteration or compromise of any of the
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality
or unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of
the Collateral Agent or any other Secured Party to assert any claim or demand
or to enforce any remedy under the Credit Agreement, any other Loan Document
or any other agreement, by any waiver or modification of any provision of any
thereof, by any default, failure or delay, wilful or otherwise, in the
performance of the Obligations, or by any other act or omission that may or
might in any manner or to any extent vary the risk of any Guarantor or that
would otherwise operate as a discharge of each Guarantor as a matter of law
or equity (other than the indefeasible payment in full in cash of all the
Obligations).
SECTION 6. DEFENSES OF BORROWER WAIVED. To the fullest extent
permitted by applicable law, each of the Guarantors waives any defense based
on or arising out of any defense of the Borrower or the unenforceability of
the Obligations or any part thereof from any cause, or the cessation from any
cause of the liability of the Borrower, other than the final and indefeasible
payment in full in cash of the Obligations. The Collateral Agent and the
other Secured Parties may, at their election, foreclose on any security held
by one or more of them by one or more judicial or nonjudicial sales, accept
an assignment of any such security in lieu of foreclosure, compromise or
adjust any part of the Obligations, make any other accommodation with the
Borrower or any other guarantor or grantor or exercise any other right or
remedy available to them against the Borrower or any other guarantor or
grantor, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Obligations have been fully,
finally and indefeasibly paid in cash. Pursuant to applicable law, each of
the Guarantors waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy
of such Guarantor against the Borrower or any other Guarantor or guarantor or
grantor, as the case may be, or any security.
SECTION 7. AGREEMENT TO PAY; SUBORDINATION. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Secured Party has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the
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Borrower or any other Loan Party to pay any Obligation when and as the same
shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Collateral Agent or such other Secured Party
as designated thereby in cash the amount of such unpaid Obligations. Upon
payment by any Guarantor of any sums to the Collateral Agent or any Secured
Party as provided above, all rights of such Guarantor against the Borrower
arising as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be subordinate
and junior in right of payment to the prior indefeasible payment in full in
cash of all the Obligations. In addition, any Indebtedness of the Borrower
now or hereafter held by any Guarantor is hereby subordinated in right of
payment to the prior payment in full of the Obligations. If any amount shall
erroneously be paid to any Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such
Indebtedness of the Borrower, such amount shall be held in trust for the
benefit of the Secured Parties and shall forthwith be paid to the Collateral
Agent to be credited against the payment of the Obligations, whether matured
or unmatured, in accordance with the terms of the Loan Documents.
SECTION 8. INFORMATION. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's
financial condition and assets, and of all other circumstances bearing upon
the risk of nonpayment of the Obligations and the nature, scope and extent of
the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Collateral Agent or the other Secured Parties will have any duty
to advise any of the Guarantors of information known to it or any of them
regarding such circumstances or risks.
SECTION 9. REPRESENTATIONS AND WARRANTIES. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and correct.
SECTION 10. TERMINATION. This Agreement and the Guarantees made
hereunder (a) shall terminate when all the Obligations have been indefeasibly
paid in full and the Lenders have no further commitment to lend under the
Credit Agreement, the L/C Exposure has been reduced to zero and the Issuing
Banks have no further obligation to issue Letters of Credit under the Credit
Agreement and (b) shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Obligation
is rescinded or must otherwise be restored by any Secured Party or any
Guarantor or Grantor upon the bankruptcy or reorganization of the Borrower,
any Guarantor, Subsidiary Grantor or otherwise.
SECTION 11. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such
party, and all covenants, promises and agreements by or on
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behalf of the Guarantors that are contained in this Agreement shall bind and
inure to the benefit of each party hereto and their respective successors and
assigns. This Agreement shall become effective as to any Guarantor when a
counterpart hereof executed on behalf of such Guarantor shall have been
delivered to the Collateral Agent, and a counterpart hereof shall have been
executed on behalf of the Collateral Agent, and thereafter shall be binding
upon such Guarantor and the Collateral Agent and their respective successors
and assigns, and shall inure to the benefit of such Guarantor, the Collateral
Agent and the other Secured Parties, and their respective successors and
assigns, except that no Guarantor shall have the right to assign its rights
or obligations hereunder or any interest herein (and any such attempted
assignment shall be void). If all of the capital stock of a Guarantor is
sold, transferred or otherwise disposed of pursuant to a transaction
permitted by Section 6.02 of the Credit Agreement, such Guarantor shall be
released from its obligations under this Agreement without further action.
This Agreement shall be construed as a separate agreement with respect to
each Guarantor and may be amended, modified, supplemented, waived or released
with respect to any Guarantor without the approval of any other Guarantor and
without affecting the obligations of any other Guarantor hereunder.
SECTION 12. WAIVERS; AMENDMENT. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Collateral Agent hereunder and of the other Secured Parties under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement
or consent to any departure by any Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice or demand on any Guarantor in any
case shall entitle such Guarantor to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into
between the Guarantors with respect to which such waiver, amendment or
modification relates and the Collateral Agent, with any consent required
under Section 9.02 of the Credit Agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. NOTICES. All communications and notices hereunder
shall be in writing and given as provided in Section 9.01 of
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the Credit Agreement. All communications and notices hereunder to each
Guarantor shall be given to it in care of the Borrower.
SECTION 15. SURVIVAL OF AGREEMENT; SEVERABILITY. (a) All
covenants, agreements, representations and warranties made by the Guarantors
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the Collateral Agent and the
other Secured Parties and shall survive the making by the Lenders of the
Loans and the issuance of the Letters of Credit by the Issuing Banks
regardless of any investigation made by the Secured Parties or on their
behalf, and shall continue in full force and effect until this Agreement
terminates in accordance with Section 10.
(b) In the event any one or more of the provisions contained in
this Agreement or in any other Loan Document should be held invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The
parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 16. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute a single contract, and shall become
effective as provided in Section 11. Delivery of an executed signature page
to this Agreement by facsimile transmission shall be as effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 17. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 18. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
Each Guarantor hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York
State court or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
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jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Collateral Agent
or any other Secured Party may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against any
Guarantor or its properties in the courts of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 14. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 19. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 19.
SECTION 20. ADDITIONAL GUARANTORS. Upon execution and delivery
after the date hereof by the Collateral Agent and any Subsidiary of an
instrument in the form of Annex 1, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the
consent of any other Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor as a party to this Agreement.
SECTION 21. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Secured Party is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other Indebtedness at any time
owing by such Secured Party to or for the credit or the account of any
Guarantor against any or all the obligations of such Guarantor now or
hereafter existing under this
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Agreement and the other Loan Documents held by such Secured Party,
irrespective of whether or not such Secured Party shall have made any demand
under this Agreement or any other Loan Document and although such obligations
may be unmatured. The rights of each Secured Party under this Section 21 are
in addition to other rights and remedies (including other rights of setoff)
which such Secured Party may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO,
by
/s/ John M. Thompson
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Name: John M. Thompson
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as Collateral Agent,
by
/s/ Marian N. Shulman
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Name: Marian N. Shulman
Title: Vice President
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