TLMA No. FMC0211
GUARANTY OF PAYMENT, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
This Guaranty of Payment, Nondisturbance and Attornment
Agreement, dated as of June ___, 1995 ("the Agreement"), is between
and among IBM Credit Corporation ("Lessor"), GSI Outsourcing
Corporation ("Lessee"), and Kash n' Karry Food Stores, Inc.
("Guarantor"). Lessor, Lessee and Guarantor may sometimes be
referred to in this Agreement collectively as the Parties.
1. In consideration of and to induce Lessor to enter into,
and act as lessor under, the Term Lease Master Agreement referenced
above, as now in effect, including any Supplements thereto (the
"TLMA"), and to extend credit to Lessee, and subject to the
conditions set forth below, the undersigned Guarantor, who will
directly and indirectly benefit from the TLMA and such credit
arrangement and from the credit extended as a result of this
Guaranty, for itself, its successors and assigns, agrees as
follows:
1.1 Guarantor hereby guarantees the full, prompt, and
complete payment of all sums, obligations, liabilities and
indebtedness not to exceed in principal amount Seven Million
Dollars ($7,000,000.00) for the Point of Sale equipment to be
acquired by Lessee and used in Guarantor's stores, as described on
Exhibit A to this Agreement (the "Guaranteed Obligations"), that
are, as of the date of this Agreement, due from Lessee under the
TLMA.
1.2 This Guaranty is a continuing and irrevocable guaranty
and shall (i) remain in full force and effect until the payment in
full of the Guaranteed Obligations and (ii) be binding upon the
Guarantor, its successors and assigns.
1.3 Subject to the consent of Guarantor, which consent may
not be unreasonably withheld, Lessor may renew, compromise or
extend the Guaranteed Obligations without waiving, limiting or
otherwise affecting Guarantor's liability hereunder and Guarantor
expressly waives and releases any defenses or claims it may have
arising from or on account of any such renewal, compromise or
extension.
1.4 This Guaranty shall survive any and all bankruptcy or
insolvency proceedings of Guarantor.
1.5 Lessor shall not be obligated to elect remedies first
which are available to Lessor in the TLMA and may secure payment
first from Guarantor, provided Lessor performs its obligations
under this Agreement.
2. In consideration of and to induce Guarantor to enter
into, and act as Guarantor hereunder, and pursuant to Lessee's
obligations under Section 18.12 of the Services Agreement between
Lessee and Guarantor dated March 1, 1995, as amended (the "Services
Agreement"), the undersigned Lessor and Lessee agree as follows:
2.1 Notwithstanding any provision in the TLMA to the
contrary, and prior to the exercise of Lessor's rights and remedies
under the TLMA, Lessor shall provide to Guarantor written notice of
the occurrence of any nonpayment by Lessee, or any other event
which, with the giving of notice or the passage of time, would
become an event of default by Lessee under the TLMA.
2.2 If, within 15 days after receipt of such written
notice, Lessee or Guarantor cures any such event or Guarantor
assumes the obligations of Lessee under the TLMA, Lessor agrees not
to declare the occurrence of an event of default under the TLMA, or
to exercise any of its remedies under the TLMA by reason of the
occurrence of such event.
2.3 If Guarantor cures any nonpayment or other event on
behalf of Lessee, and, in any event, upon the termination of the
Services Agreement, and in the event Lessee shall assign under the
Services Agreement to Guarantor all of Lessee's rights, title, and
interest in the TLMA, including the exclusive use, possession and
quiet enjoyment of the equipment, software, service agreements and
property subject to the TLMA, Guarantor shall assume all of the
obligations of Lessee under the TLMA.
2.4 Lessor hereby consents to any such assignment and
assumption of the TLMA by Guarantor, and agrees that, upon the
execution and delivery by Guarantor of an assumption instrument,
and for so long thereafter as no event of default shall have
occurred and be continuing under the TLMA, Lessor agrees not to
disturb Guarantor's use, possession or quiet enjoyment of the
equipment, software, service agreements and other property subject
to the TLMA.
2.5 Lessor and Lessee agree that upon Guarantor making
any payment with respect to Guaranteed Obligations, the Guarantor
shall be subrogated to the rights of Lessor against the Lessee with
respect to such payment.
2.6 The obligations of Guarantor to Lessee under the
Services Agreement will be reduced dollar for dollar for any sums
actually paid to Lessor with respect to the Guaranteed Obligations,
and for any other obligations of Lessee under the TLMA expressly
assumed by Guarantor pursuant to this Agreement.
3. If any Party undergoes any change in its ownership or
organizational structure or otherwise assigns, transfers or
delegates its obligations to any assignee or transferee resulting
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from the operation of any assignment or transfer permitted pursuant
to the TLMA, this Guaranty shall continue to extend to all sums due
from or for the account of Lessee or the new or substituted legal
entity.
4. This Agreement has been duly authorized, executed and
delivered by the Parties and constitutes a legal, valid and binding
obligation of each Party, enforceable in accordance with its terms.
The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with or
constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of any party to this Agreement pursuant to any contract,
indenture, mortgage, loan agreement, note, lease, or other
instrument to which Lessor, Lessee or Guarantor is a party or by
which any one of them may be bound, or to which any of the property
or assets of any party is subject, nor will such action result in
any violation of the provisions of the certificate or articles of
incorporation or organizing documents or by-laws of any party, or
any applicable law, administrative regulation or administrative or
court decree known to it after reasonable investigation.
5. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS. THE EXCLUSIVE AND
SOLE VENUE FOR ANY LEGAL ACTION ARISING OUT OF THIS AGREEMENT SHALL
BE HILLSBOROUGH COUNTY, FLORIDA.
6. This Agreement constitutes the entire agreement between
the Parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, this agreement has been signed by an
authorized officer of the parties.
LESSOR: IBM Credit Corporation
By: /s/ Daniel H. Ransdell
--------------------------------
Name: Daniel H. Ransdell
Title: Director, Customer Financing
Marketing, Southern Area 7
Address: 4111 Northside Parkway
Lakeside - L08J16
Atlanta, GA 30327
Telephone: 404-238-6901
Date: July 12, 1995
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LESSEE: GSI Outsourcing Corporation
By: /s/ Philippe Guionnet
--------------------------------
Name: Philippe Guionnet
Title: Vice President
Address: 6401 Harney Road
Tampa, FL 33610
Telephone: 813-621-0402
Date: June 29, 1995
GUARANTOR: Kash n' Karry Food Stores, Inc.
By: /s/ R. P. Springer
--------------------------------
Name: Raymond P. Springer
Title: S. V. P.\Administration-CFO
Address: 6422 Harney Road
Tampa, FL 33610
Telephone: 813-621-0200
Date: June 28, 1995
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Appendix A to Guaranty of Payment, Nondisturbance and Attornment
Agreement.
Device Configurations for Installation Management Services
PC Workstation - 9577 ANG Personal Computer
8504-021 Display
2380-002 Printer
IBM Keyboard
(1) Token-Ring 16/4 Adapt
(1) POS Expansion Adapt
(2) MPCA
(1) Comm. Adapt Cable
(1) TR Adapt. Cable
PC Workstation - 9556 DBA Personal Computer
8504-021 Display
2380-002 Printer
IBM Keyboard
(1) Token-Ring 16/4 Adapt
(1) POS Expansion Adapt
(1) TR Adapt. Cable
4693-3S1 Point of Sale Terminal (Lane Master)
4693-3S1
0149 Token-Ring Adapt 16/4 MBpS
3315 Retail POS Keyboard
3326 Distributed Keyboard Cable
3330 Keybutton Kit Retail Format
3345 Distributed Cable Assembly
3348 40 Character VFD Post Extension
3360 Cash Drawer Asmno Till
3365 Distributed Cash Drawer Cable
3390 Token-Ring Cable
3501 40 Character Vac Fluo Disp II
3879 Fixed Till
4635 Battery, Standard Duration
4654 4MB Memory (Plant Only)
4800 Model 4 Printer
4922 Model 4 Printer Distrib Cable
4923 Model 4 Printer Ribbon/Paper
9200 Plug, Non Operating Loc
9204 Lock
9206 Lock
9300 Flat Top for Distrib Sys
9316 Token Ring Speed 16MBP
9450 Keyboard Legend Sheet (English)
9510 Line Cord 4.3M Non-Lock
9534 Software Usage 4690 OS
9605 Non POS Display
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4693-3S1 Point of Sale Terminal (Area Master)
4693-3S1
0149 Token-Ring Adapt 16/4 MBpS
3315 Retail POS Keyboard
3325 Integrated Keyboard Cable
3330 Keybutton Kit Retail Format
3344 Integrated Cable Assembly
3348 40 Character VFD Post Extension
3360 Cash Drawer Asmno Till
3364 Integrated Cash Drawer Cable
3390 Token-Ring Cable
3502 2 Sided Vac Fluo Disp II
3879 Fixed Till
4635 Battery, Standard Duration
4654 4MB Memory (Plant only)
4800 Model 4 Printer
4920 Model 4 Printer Integrated Cable
4923 Model 4 Printer Ribbon/Paper
9200 Plug, Non Operating Loc
9204 Lock
9206 Lock
9305 System Unit IO Integrated Kit
9316 Token Ring Speed 16MBP
9450 Keyboard Legend Sheet (English)
9510 Line Cord 4.3M Non-Lock
9534 Software Usage 4690 OS
9605 Non POS Display
4693-2S2 Point of Sale Terminal (Lane Slave)
4693-2S2
3315 Retail POS Keyboard
3326 Distributed Keyboard Cable
3330 Keybutton Kit Retail Format
3345 Distributed Cable Assembly
3348 40 Character VFD Post Extension
3360 Cash Drawer Asmno Till
3365 Distributed Cash Drawer Cable
3501 40 Char Vac Fluo Disp II
3879 Fixed Till
4034 Mod 2X2 Base Unit Cable 4M
4800 Model 4 Printer
4922 Model 4 Printer Distributed Cable
4923 Model 4 Printer Ribbon/Paper
9200 Plug, Non Operating Loc
9204 Lock
9206 Lock
9300 Flat Top for Distributed System
9450 Keyboard Legend Sheet (Sheet)
9510 Line Cord 4.3M Non-Lock
9534 Software Usage 4690 OS
4693-2S2 Point of Sale Terminal (Area Slave)
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4693-2S2
3315 Retail POS Keyboard
3325 Integrated Keyboard Cable
3330 Keybutton Kit Retail Format
3344 Integrated Cable Assembly
3348 40 Character VFD Post Extension
3360 Cash Drawer Asmno Till
3364 Integrated Cash Drawer Cable
3502 2 Sided Vac Fluo Disp II
3879 Fixed Till
4034 Mod 2X2 Base Unit Cable 4M
4800 Model 4 Printer
4920 Model 4 Printer Integrated Cable
4923 Model 4 Printer Ribbon/Paper
9200 Plug, Non Operating Loc
9204 Lock
9206 Lock
9305 System Unit IO Integr Kit
9450 Keyboard Legend Sheet (English)
9510 Line Cord 4.3M Non-Lock
9534 Software Usage 4690 OS
Software
Datachecker Store Conversion (73 Stores)
IBM 4680-4690 Supermarket Application V2.0
IBM 4690 Operating System
IBM 4690 Remote Operator
Upgrade Store (26 Stores)
IBM 4680-4690 Supermarket Application V2.0
IBM 4690 Operating System Upgrade
IBM 4690 Remote Operator
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