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Exhibit
10.14
SUBSIDIARY
GUARANTY
This GUARANTY is
entered into as of April 16, 2007 by the undersigned (each a
“ Guarantor ”, and together with any future
Material Subsidiaries executing this Guaranty, being collectively
referred to herein as the “ Guarantors ”), in
favor of and for the benefit of BANK OF AMERICA, N.A. , as
agent for and representative of (in such capacity herein called
“ Guarantied Party ”) the financial institutions
(“Lenders”) party to the Credit Agreement referred to
below and Swap Counterparties (as hereinafter defined), and for the
benefit of the other Beneficiaries (as hereinafter
defined).
RECITALS
A. Stater Bros. Markets, a
California corporation (“ Borrower ”), and
Stater Bros. Holdings Inc., a Delaware corporation (“
Holdings ”), have entered into that certain Second
Amended and Restated Credit Agreement dated as of April 16,
2007 with Lenders and Guarantied Party, as Administrative Agent for
Lenders (said Amended and Restated Credit Agreement, as it may
hereafter be amended, supplemented or otherwise modified from time
to time, being the “ Credit Agreement ”;
capitalized terms defined therein and not otherwise defined herein
being used herein as therein defined).
B. Borrower may from time to
time enter, or may from time to time have entered, into one or more
Swap Agreements (collectively, the “ Lender Swap
Agreements ”) with one or more Persons that are Lenders
or Affiliates of Lenders at the time such Swap Agreements are
entered into (in such capacity, collectively, the “ Swap
Counterparties ”) in accordance with the terms of the
Credit Agreement, and it is desired that the obligations of
Borrower under the Lender Swap Agreements, including without
limitation the obligation of Borrower to make payments thereunder
in the event of early termination thereof, together with all
obligations of Borrower under the Credit Agreement and the other
Loan Documents, be guarantied hereunder.
C. Guarantied Party, Lenders
and each Swap Counterparty for which Guarantied Party has received
the notice required by Section 18 hereof are sometimes
referred to herein as “ Beneficiaries
”.
D. The terms of the Credit
Agreement require that each Material Subsidiary of the Borrower
guaranty the Guarantied Obligations.
NOW, THEREFORE , based
upon the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in
order to induce Lenders and Guarantied Party to enter into the
Credit Agreement and to make Loans and other extensions of credit
thereunder and to induce the Swap Counterparties to enter into the
Lender Swap Agreements, Guarantors hereby agree as
follows:
1. Guaranty .
(a) In order to induce Lenders to extend credit to Borrower
pursuant to the Credit Agreement and the entry by Swap
Counterparties into the Lender Swap Agreements, Guarantors jointly
and severally irrevocably and unconditionally guaranty, as primary
obligors and not merely as sureties, the due and punctual payment
in full of all Guarantied Obligations (as hereinafter defined) when
the same shall become due, whether at
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stated maturity, by acceleration, demand
or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)). The term “
Guarantied Obligations ” is used herein in its most
comprehensive sense and includes any and all Obligations of
Borrower and all obligations of Borrower under Lender Swap
Agreements, now or hereafter made, incurred or created, whether
absolute or contingent, liquidated or unliquidated, whether due or
not due, and however arising under or in connection with the Credit
Agreement, the Lender Swap Agreements, this Guaranty and the other
Loan Documents, including those arising under successive borrowing
transactions under the Credit Agreement which shall either continue
such obligations of Borrower or from time to time renew them after
they have been satisfied.
Each Guarantor acknowledges
that a portion of the Guarantied Obligations are being incurred for
and will inure to its benefit.
Any interest on any portion
of the Guarantied Obligations that accrues after the commencement
of any proceeding, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of Borrower (or, if interest on any portion of the
Guarantied Obligations ceases to accrue by operation of law by
reason of the commencement of said proceeding, such interest as
would have accrued on such portion of the Guarantied Obligations if
said proceeding had not been commenced) shall be included in the
Guarantied Obligations because it is the intention of each
Guarantor and Guarantied Party that the Guarantied Obligations
should be determined without regard to any rule of law or order
that may relieve Borrower of any portion of such Guarantied
Obligations.
In the event that all or any
portion of the Guarantied Obligations is paid by Borrower, the
obligations of each Guarantor hereunder shall continue and remain
in full force and effect or be reinstated, as the case may be, in
the event that all or any part of such payment(s) is rescinded or
recovered directly or indirectly from Guarantied Party or any other
Beneficiary as a preference, fraudulent transfer or otherwise, and
any such payments that are so rescinded or recovered shall
constitute Guarantied Obligations.
Subject to the other
provisions of this Section 1, upon the failure of Borrower to
pay any of the Guarantied Obligations when and as the same shall
become due, each Guarantor will upon demand pay, or cause to be
paid, in cash, to Guarantied Party for the ratable benefit of
Beneficiaries, an amount equal to the aggregate of the unpaid
Guarantied Obligations.
(b) Anything contained in
this Guaranty to the contrary notwithstanding, the obligations of
each Guarantor under this Guaranty shall be limited to a maximum
aggregate amount equal to the largest amount that would not render
its obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the
United States Code or any applicable provisions of comparable state
law (collectively, the “ Fraudulent Transfer Laws
”), in each case after giving effect to all other liabilities
of such Guarantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any
liabilities of such Guarantor (x) in respect of intercompany
indebtedness to Borrower or other affiliates of Borrower to the
extent that such indebtedness would be discharged in an amount
equal to the amount paid by such Guarantor hereunder and
(y) under any guaranty of Subordinated Indebtedness which
guaranty contains a limitation as to
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maximum amount similar to that set forth
in this Section 1(b), pursuant to which the liability of such
Guarantor hereunder is included in the liabilities taken into
account in determining such maximum amount) and after giving effect
as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement, indemnification or contribution of such
Guarantor pursuant to applicable law or pursuant to the terms of
any agreement.
(c) Each Guarantor under this
Guaranty, and each guarantor under other guaranties, if any,
relating to the Credit Agreement (the “ Related
Guaranties ”) that contain a contribution provision
similar to that set forth in this Section 1(c), together
desire to allocate among themselves (collectively, the “
Contributing Guarantors ”), in a fair and equitable
manner, their obligations arising under this Guaranty and the
Related Guaranties. Accordingly, in the event any payment or
distribution is made on any date by a Guarantor under this Guaranty
or a guarantor under a Related Guaranty, each such Guarantor or
such other guarantor shall be entitled to a contribution from each
of the other Contributing Guarantors in the maximum amount
permitted by law so as to maximize the aggregate amount of the
Guarantied Obligations paid to Beneficiaries.
2. Guaranty
Absolute; Continuing Guaranty . The obligations of each
Guarantor hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which
constitutes a legal or equitable discharge of a guarantor or surety
other than payment in full of the Guarantied Obligations. In
furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees that: (a) this Guaranty is a
guaranty of payment when due and not of collectibility;
(b) Guarantied Party may enforce this Guaranty upon the
occurrence of an Event of Default under the Credit Agreement or the
occurrence of an early termination date or similar event under any
Lender Swap Agreements notwithstanding the existence of any dispute
between Borrower and any Beneficiary with respect to the existence
of such event; (c) the obligations of each Guarantor hereunder
are independent of the obligations of Borrower under the Loan
Documents or the Lender Swap Agreements and the obligations of any
other Guarantor and a separate action or actions may be brought and
prosecuted against each Guarantor whether or not any action is
brought against Borrower or any of such other Guarantors and
whether or not Borrower is joined in any such action or actions;
and (d) a payment of a portion, but not all, of the Guarantied
Obligations by one or more Guarantors shall in no way limit,
affect, modify or abridge the liability of such or any other
Guarantor for any portion of the Guarantied Obligations that has
not been paid. This Guaranty is a continuing guaranty and shall be
binding upon each Guarantor and its successors and assigns, and
each Guarantor irrevocably waives any right (including without
limitation any such right arising under California Civil Code
Section 2815) to revoke this Guaranty as to future
transactions giving rise to any Guarantied Obligations.
3. Actions by
Beneficiaries . Any Beneficiary may from time to time, without
notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any limitation,
impairment or discharge of any Guarantor’s liability
hereunder, (a) renew, extend, accelerate or otherwise change
the time, place, manner or terms of payment of the Guarantied
Obligations, (b) settle, compromise, release or discharge, or
accept or refuse any offer of performance with respect to, or
substitutions for, the Guarantied Obligations or any agreement
relating thereto and/or subordinate the payment of the same to the
payment of any
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other obligations, (c) request and
accept other guaranties of the Guarantied Obligations and take and
hold security for the payment of this Guaranty or the Guarantied
Obligations, (d) release, exchange, compromise, subordinate or
modify, with or without consideration, any security for payment of
the Guarantied Obligations, any other guaranties of the Guarantied
Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and apply any security
now or hereafter held by or for the benefit of any Beneficiary in
respect of this Guaranty or the Guarantied Obligations and direct
the order or manner of sale thereof, or exercise any other right or
remedy. that Guarantied Party or the other Beneficiaries, or any of
them, may have against any such security, as Guarantied Party in
its discretion may determine consistent with the Credit Agreement,
the Lender Swap Agreements and any applicable security agreement,
including foreclosure on any such security pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable, and (f) exercise any
other rights available to Guarantied Party or the other
Beneficiaries, or any of them, under the Loan Documents or the
Lender Swap Agreements.
4. No Discharge
. This Guaranty and the obligations of Guarantors hereunder shall
be valid and enforceable and shall not be subject to any
limitation, impairment or discharge for any reason (other than
payment in full of the Guarantied Obligations), including without
limitation the occurrence of any of the following, whether or not
any Guarantor shall have had notice or knowledge of any of them:
(a) any failure to assert or enforce or agreement not to
assert or enforce, or the stay or enjoining, by order of court, by
operation of law or otherwise, of the exercise or enforcement of,
any claim or demand or any right, power or remedy with respect to
the Guarantied Obligations or any agreement relating thereto, or
with respect to any other guaranty of or security for the payment
of the Guarantied Obligations, (b) any waiver or modification
of, or any consent to departure from, any of the terms or
provisions of the Credit Agreement, any of the other Loan
Documents, the Lender Swap Agreements or any agreement or
instrument executed pursuant thereto, or of any other guaranty or
security for the Guarantied Obligations, (c) the Guarantied
Obligations, or any agreement relating thereto, at any time being
found to be illegal, invalid or unenforceable in any respect,
(d) the application of payments received from any source to
the payment of indebtedness other than the Guarantied Obligations,
even though Guarantied Party or the other Beneficiaries, or any of
them, might have elected to apply such payment to any part or all
of the Guarantied Obligations, (e) any failure to perfect or
continue perfection of a security interest in any collateral which
secures any of the Guarantied Obligations, (1) any defenses,
set-offs or counterclaims which Borrower may assert against
Guarantied Party or any Beneficiary in respect of the Guarantied
Obligations, including but not limited to failure of consideration,
breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury, and (g) any
other act or thing or omission, or delay to do any other act or
thing, which may or might in any manner or to any extent vary the
risk of a Guarantor as an obligor in respect of the Guarantied
Obligations.
5. Waivers .
Each Guarantor waives, for the benefit of Beneficiaries:
(a) any right to require Guarantied Party or the other
Beneficiaries, as a condition of payment or performance by such
Guarantor, to (i) proceed against Borrower, any other
guarantor (including any other Guarantor) of the Guarantied
Obligations or any other Person, (ii) proceed against or
exhaust
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