Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 170 804K
Business-Combination Transaction
2: EX-1.1 Placement Agreement 26 97K
3: EX-2.1 Articles of Merger 6 33K
4: EX-3.1.A Certificate of Incorporation 17 70K
5: EX-3.1.B Certificate of Amendment 2 17K
14: EX-3.10 Restated By-Laws 20 80K
6: EX-3.2.A Certificate of Incorporation 2 19K
7: EX-3.2.B Certificate of Correction 1 16K
8: EX-3.4 Articles of Incorporation 3 20K
9: EX-3.5 Certificate of Incorporation 3 19K
10: EX-3.6 Amended and Restated By-Laws 22 88K
11: EX-3.7 Amended and Restated By-Laws 20 84K
12: EX-3.8 Restated By-Laws 23 94K
13: EX-3.9 Restated By-Laws 23 94K
15: EX-4.1.A Indenture 106 411K
16: EX-4.1.B Specimen Certificate 12 47K
17: EX-4.2 Registration Rights Agreement 21 82K
18: EX-4.3.A Credit Agreement 73 278K
19: EX-4.3.B First Amendment to Credit Agreement 15 59K
20: EX-4.3.C Second Amendment to Credit Agreement 8 41K
21: EX-4.3.D Third Amendment to Credit Agreement 5 28K
22: EX-4.3.E Fourth Amendment to Credit Agreement 27 102K
23: EX-4.3.F Fifth Amendment to Credit Agreement 13 55K
24: EX-4.3.G Guaranty Agreement 7 39K
25: EX-5.1 Opinion of Blackwell Sanders Peper Martin LLP 2 20K
26: EX-10.1 1999 Equity Incentive Plan 20 77K
36: EX-10.10 Stock Purchase Agreement 47 184K
37: EX-10.11 Market Hog Contract Grower Agreement 9 44K
27: EX-10.2 Long-Term Incentive Plan 9 32K
28: EX-10.3 Executive Level Severance Plan 13 54K
29: EX-10.4 Vice President Level Severance Plan 13 54K
30: EX-10.5 Special Executive Retirement Plan 16 69K
31: EX-10.6.A Premium Standard Farms Deferred Compensation Plan 17 71K
32: EX-10.6.B Amendment No.1 Psf Deferred Compensation Plan 2 17K
33: EX-10.7 Consulting Agreememt 8 36K
34: EX-10.8 Services Agreement 10 47K
35: EX-10.9 Consulting Agreement 4 22K
38: EX-12.1 Statement Re Computation of Ratio of Earnings 1 17K
39: EX-21.1 Subsidiaries 1 14K
40: EX-23.2 Consent of Arthur Andersen LLP 1 14K
41: EX-23.3 Consent of Kpmg LLP 1 14K
42: EX-25.1 Form T-1 29 98K
43: EX-25.2 Statement of Eligibility and Qualification on T-1 30 100K
44: EX-99.1 Form of Letter 2 22K
45: EX-99.2 Form of Letter of Transmittal 9 42K
46: EX-99.3 Form of Notice of Guaranteed Delivery 4 24K
47: EX-99.4 Form of Instructions 2 20K
48: EX-99.5 Form of Letter to Clients 2± 16K
49: EX-99.6 Guidelines 4± 23K
EXHIBIT 4.3(g)
GUARANTY
(Corporate)
THIS GUARANTY, dated as of May 13,1998 is made and given by PSF GROUP
HOLDINGS, INC., a Delaware corporation (the "GUARANTOR"), in favor of U.S.
BANCORP AG CREDIT, INC. (f/k/a FBS Ag Credit, Inc.), a Colorado corporation, as
agent (the "AGENT") for itself and the other "LENDERS" named in that certain
Credit Agreement of even date herewith (as the same may be amended, replaced,
restated and/or supplemented from time to time, the "CREDIT AGREEMENT") among
the Agent, the Lenders and PREMIUM STANDARD FARMS, INC., a Delaware corporation,
and CGC ASSET ACQUISITION CORP., a Delaware corporation (collectively, the
"BORROWER").
RECITALS
A. The Borrower, the Agent and the Lenders have entered into the First
Amendment to Credit Agreement of substantially even date herewith pursuant to
which the Agent and the Lenders have agreed to extend to the Borrower certain
credit accommodations consisting of a revolving line of credit of $90,000,000
and $30,000,000 of term debt.
B. It is a condition precedent to the obligations of the Agent and the
Lenders to extend credit accommodations pursuant to the terms of the First
Amendment to Credit Agreement that this Guaranty be executed and delivered by
the Guarantor.
C. The Guarantor is the owner of 100% of the issued and outstanding stock
of the Borrower.
D. Accordingly, the Guarantor expects to derive benefits from the extension
of credit accommodations to the Borrower by the Agent and the Lenders and finds
it advantageous, desirable and in its best interests to execute and deliver this
Guaranty to the Agent for the ratable benefit of the Lenders.
NOW, THEREFORE, in consideration of the credit accommodations to be
extended to the Borrower and for other good and valuable consideration, the
Guarantor hereby covenants and agrees with the Agent and the Lenders as follows:
Section 1. The Guaranty. The Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to the Agent and the Lenders the payment when due
(whether at a stated maturity or earlier by reason of acceleration or otherwise)
and performance of all of the indebtedness, liabilities and obligations of the
Borrower to the Agent or the Lenders due or to become due, direct or indirect,
absolute or contingent, joint or several, now existing or hereafter at any time
created, arising or incurred under or in connection with the Credit Agreement
and the notes issued thereunder and any reissuance, renewal, or extension
thereof (the "NOTES"), and any other sums now or hereafter owing by the Borrower
to the Agent or the Lenders (including without limitation, principal, interest,
reimbursement obligations for letters of credit issued by the Agent or which the
Agent causes to be issued by one of its affiliates for the account of the
Borrower, any commitment or other fees, attorneys' fees, filing and recording
costs, out-of-pocket expenses, collection costs and all other liabilities and
obligations of the Borrower to the
Agent or the Lenders) thereunder, all of the foregoing hereinafter referred to
as the "OBLIGATIONS."
Section 2. Continuing Guaranty. This Guaranty is an absolute,
unconditional, complete and continuing guaranty of payment and performance of
the Obligations, and the obligations of the Guarantor hereunder shall not be
released, in whole or in part, by any action or thing which might, but for this
provision of this Guaranty, be deemed a legal or equitable discharge of a surety
or guarantor, other than irrevocable payment and performance in full of the
Obligations. No notice of the Obligations to which this Guaranty may apply, or
of any renewal or extension thereof need be given to the Guarantor and none of
the foregoing acts shall release the Guarantor from liability hereunder. The
Guarantor hereby expressly waives (a) demand of payment, presentment, protest,
notice of dishonor, nonpayment or nonperformance on any and all forms of the
Obligations; (b) notice of acceptance of this Guaranty and notice of any
liability to which it may apply; (c) all other notices and demands of any kind
and description relating to the Obligations now or hereafter provided for by any
agreement, statute, law, rule or regulation; and (d) any and all defenses of the
Borrower pertaining to the Obligations except for the defense of discharge by
payment. The Guarantor shall not be exonerated with respect to its liabilities
under this Guaranty by any act or thing except irrevocable payment and
performance of the Obligations, it being the purpose and intent of this Guaranty
that the Obligations constitute the direct and primary obligations of the
Guarantor and that the covenants, agreements and all obligations of the
Guarantor hereunder be absolute, unconditional and irrevocable. The Guarantor
shall be and remain liable for any deficiency remaining after foreclosure of any
mortgage, deed of trust or security agreement securing all or any part of the
Obligations, whether or not the liability of the Borrower or any other Person
(as defined below) for such deficiency is discharged pursuant to statute,
judicial decision or otherwise. The acceptance of this Guaranty by the Agent or
the Lenders is not intended and does not release any liability previously
existing of any guarantor or surety of any indebtedness of the Borrower to the
Agent.
Section 3. Other Transactions. The Agent is expressly authorized (a) to
exchange, surrender or release with or without consideration any or all
collateral and security which may at any time be placed with it by the Borrower
or by any other Person, or to forward or deliver any or all such collateral and
security directly to the Borrower for collection and remittance or for credit,
or to collect the same in any other manner without notice to the Guarantor, and
(b) to amend, modify, extend or supplement the Credit Agreement, the Notes or
other agreement with respect to the Obligations, waive compliance by the
Borrower or any other Person with the respective terms thereof and settle or
compromise any of the Obligations without notice to the Guarantor and without in
any manner affecting the absolute liabilities of the Guarantor hereunder. No
invalidity, irregularity or unenforceability of all or any part of the
Obligations or of any security therefor or other recourse with respect thereto
shall affect, impair or be a defense to this Guaranty. The liabilities of the
Guarantor hereunder shall not be affected or impaired by any failure, delay,
neglect or omission on the part of the Agent to realize upon any of the
Obligations of the Borrower to the Agent, or upon any collateral or security for
any or all of the Obligations, nor by the taking by the Agent of (or the failure
to take) any other guaranty or guaranties to secure the Obligations, nor by the
taking by the Agent of (or the failure to take or the failure to perfect its
security interest in) collateral or security of any kind. No act or omission of
the Agent, whether or not such action or failure to act varies or increases the
risk of, or affects the rights or remedies of the Guarantor, shall affect or
impair the obligations of the
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Guarantor hereunder. The Guarantor acknowledges that this Guaranty is in effect
and binding without reference to whether this Guaranty is signed by any other
Person or Persons, that possession of this Guaranty by the Agent shall be
conclusive evidence of due delivery hereof by the Guarantor and that this
Guaranty shall continue in full force and effect, both as to the Obligations
then existing and/or thereafter created, notwithstanding the release of or
extension of time to any other guarantor of the Obligations or any part thereof.
Section 4. Actions Not Required. The Guarantor hereby waives any and all
right to cause a marshalling of the assets of the Borrower or any other action
by any court or other governmental body with respect thereto or to cause the
Agent to proceed against any security for the Obligations or any other recourse
which the Agent may have with respect thereto and further waives any and all
requirements that the Agent institute any action or proceeding at law or in
equity, or obtain any judgment, against the Borrower or any other Person, or
with respect to the Notes, or any collateral security therefor, as a condition
precedent to making demand on or bringing an action or obtaining and/or
enforcing a judgment against, the Guarantor upon this Guaranty. The Guarantor
further acknowledges that time is of the essence with respect to it's
obligations under this Guaranty. Any remedy or right hereby granted which shall
be found to be unenforceable as to any Person or under any circumstance, for any
reason, shall in no way limit or prevent the enforcement of such remedy or right
as to any other Person or circumstance, nor shall such unenforceability limit or
prevent enforcement of any other remedy or right hereby granted.
Section 5. No Subrogation. Notwithstanding any payment or payments made by
the Guarantor hereunder or any setoff or application of funds of the Guarantor
by the Agent, the Guarantor shall not be entitled to be subrogated to any of the
rights of the Agent against the Borrower or any other guarantor or any
collateral security or guaranty or right of offset held by the Agent for the
payment of the Obligations, nor shall the Guarantor seek or be entitled to seek
any contribution or reimbursement from the Borrower or any other guarantor in
respect of payments made by the Guarantor hereunder.
Section 6. Application of Payments. Any and all payments upon the
Obligations made by the Guarantor or by any other Person, and/or the proceeds of
any or all collateral or security for any of the Obligations, may be applied by
the Agent on such items of the Obligations as the Agent may elect.
Section 7. Recovery of Payment. If any payment received by the Agent or any
of the Lenders and applied to the Obligations is subsequently set aside,
recovered, rescinded or required to be returned for any reason (including
without limitation, the bankruptcy, insolvency or reorganization of the Borrower
or any other obligor), the Obligations to which such payment was applied shall
for the purposes of this Guaranty be deemed to have continued in existence,
notwithstanding such application, and this Guaranty shall be enforceable as to
such Obligations as fully as if such application had never been made. References
in this Guaranty to amounts "irrevocably paid" or to "irrevocable payment" refer
to payments that cannot be set aside, recovered, rescinded or required to be
returned for any reason.
Section 8. Borrower's Financial Condition. The Guarantor acknowledges its
familiarity with the financial condition of the Borrower and that the Guarantor
has executed and
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delivered this Guaranty based on its own judgment and not in reliance upon any
statement or representation of the Agent. The Agent shall have no obligation to
provide the Guarantor with any advice whatsoever or to inform the Guarantor at
any time of the Agents actions, evaluations or conclusions on the financial
condition or any other matter concerning the Borrower.
Section 9. Remedies. All remedies afforded to the Agent by reason of this
Guaranty are separate and cumulative remedies and it is agreed that no one of
such remedies, whether or not exercised by the Agent, shall be deemed to be in
exclusion of any of the other remedies available to the Agent and shall in no
way limit or prejudice any other legal or equitable remedy which the Agent may
have hereunder and with respect to the Obligations. Mere delay or failure to act
shall not preclude the exercise or enforcement of any rights and remedies
available to the Agent.
Section 10. Bankruptcy of the Borrower. The Guarantor expressly agrees that
its liabilities and obligations under this Guaranty shall not in any way be
impaired or otherwise affected by the institution by or against the Borrower or
any other Person of any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or any other similar proceedings for relief under any
bankruptcy law or similar law for the relief of debtors and that any discharge
of any of the Obligations pursuant to any such bankruptcy or similar law or
other law shall not diminish, discharge or otherwise affect in any way the
obligations of the Guarantor under this Guaranty, and that upon the institution
of any of the above actions, such obligations shall be enforceable against the
Guarantor.
Section 11. Costs and Expenses. The Guarantor will pay or reimburse the
Agent and the Lenders on demand for all out-of-pocket expenses (including in
each case all reasonable fees and expenses of counsel) incurred by the Agent or
any of the Lenders arising out of or in connection with the enforcement of this
Guaranty against the Guarantor or arising out of or in connection with any
failure of the Guarantor to fully and timely perform the obligations of the
Guarantor hereunder.
Section 12. Waivers and Amendments. This Guaranty can be waived, modified,
amended, terminated or discharged only explicitly in a writing signed by the
Agent. A waiver so signed shall be effective only in the specific instance and
for the specific purpose given.
Section 13. Notices. Any notice or other communication to any party in
connection with this Guaranty shall be in writing and shall be sent by manual
delivery, telegram, telex, facsimile transmission, overnight courier or United
States mail (postage prepaid) addressed to such party at the address specified
on the signature page hereof, or at such other address as such party shall have
specified to the other party hereto in writing. All periods of notice shall be
measured from the date of delivery thereof if manually delivered, from the date
of sending thereof if sent by telegram, telex or facsimile transmission, from
the first business day after the date of sending if sent by overnight courier,
or from four days after the date of mailing if mailed.
Section 14. Guarantor Acknowledgements. The Guarantor hereby acknowledges
that (a) it has been advised by counsel in the negotiation, execution and
delivery of this Guaranty, (b) the Agent has no fiduciary relationship to the
Guarantor, the relationship being
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solely that of debtor and creditor, and (c) no joint venture exists between the
Guarantor and the Agent.
Section 15. Representations and Warranties. The Guarantor hereby represents
and warrants to the Agent that:
15(a) The Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization and has
the power and authority and the legal right to own and operate its properties
and to conduct the business in which it is currently engaged.
15(b) The Guarantor has the power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Guaranty and has
taken all necessary action to authorize such execution, delivery and
performance.
15(c) This Guaranty constitutes a legal, valid and binding obligation of
the Guarantor enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
15(d) The execution, delivery and performance of this Guaranty will not (i)
violate any provision of any law, statute, rule or regulation or any order,
writ, judgment, injunction, decree, determination or award of any court,
governmental agency or arbitrator presently in effect having applicability to
the Guarantor, (ii) violate or contravene any provision of the articles of
organization, operating agreement or other governing document of the Guarantor,
or (iii) result in a breach of or constitute a default under any indenture, loan
or credit agreement or any other agreement, lease or instrument to which the
Guarantor is a party or by which it or any of its properties may be bound or
result in the creation of any lien thereunder. The Guarantor is not in default
under or in violation of any such law, statute, rule or regulation, order, writ,
judgment, injunction, decree, determination or award or any such indenture, loan
or credit agreement or other agreement, lease or instrument in any case in which
the consequences of such default or violation could have a material adverse
effect on the business, operations, properties, assets or condition (financial
or otherwise) of the Guarantor.
15(e) No order, consent, approval, license, authorization or validation of,
or filing, recording or registration with, or exemption by, any governmental or
public body or authority is required on the part of the Guarantor to authorize,
or is required in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, this Guaranty.
15(f) There are no actions, suits or proceedings pending or, to the
knowledge of the Guarantor, threatened against or affecting the Guarantor or any
of its properties before any court or arbitrator, or any governmental
department, board, agency or other instrumentality which, if determined
adversely to the Guarantor, would have a material adverse effect on the
business, operations, property or condition (financial or otherwise) of the
Guarantor or on the ability of the Guarantor to perform its obligations
hereunder.
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15(g) The Guarantor expects to derive benefits from the transactions
resulting in the creation of the Obligations. The Agent and the Lenders may rely
conclusively on the continuing warranty, hereby made, that the Guarantor
continues to be benefitted by the Agent' and the Lenders' extensions of credit
accommodations to the Borrower and neither the Agent nor any of the Lenders
shall have any duty to inquire into or confirm the receipt of any such benefits,
and this Guaranty shall be effective and enforceable by the Agent without regard
to the receipt, nature or value of any such benefits.
Section 16. Continuing Guaranty: Assignments under Credit Agreement. This
Guaranty shall (a) remain in full force and effect until irrevocable payment in
full of the Obligations and the expiration of the obligations, if any, of the
Agent and the Lenders to extend credit accommodations to the Borrower, (b) be
binding upon the Guarantor, its successors and assigns and (c) inure to the
benefit of, and be enforceable by, the Agent, the Lenders and their respective
successors, transferees, and assigns. Without limiting the generality of the
foregoing clause (c), the Agent may assign or otherwise transfer all or any
portion of its rights and obligations under the Credit Agreement to any other
Persons to the extent and in the manner provided in the Credit Agreement and may
similarly transfer all or any portion of its rights under this Guaranty to such
Persons.
Section 17. Governing Law and Construction. THE VALIDITY, CONSTRUCTION AND
ENFORCEABILITY OF THIS GUARANTY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
COLORADO, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF. Whenever
possible, each provision of this Guaranty and any other statement, instrument or
transaction contemplated hereby or relating hereto shall be interpreted in such
manner as to be effective and valid under such applicable law, but, if any
provision of this Guaranty or any other statement, instrument or transaction
contemplated hereby or relating hereto shall be held to be prohibited or invalid
under such applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty or any other
statement, instrument or transaction contemplated hereby or relating hereto.
Section 18. Consent to Jurisdiction. AT THE OPTION OF THE AGENT, THIS
GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT OR COLORADO STATE COURT SITTING IN
DENVER, COLORADO; AND THE GUARANTOR CONSENTS TO THE JURISDICTION AND VENUE OF
ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT
CONVENIENT. IN THE EVENT THE GUARANTOR COMMENCES ANY ACTION IN ANOTHER
JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR
INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY, THE AGENT AT ITS
OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
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Section 19. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
Section 20. General. All representations and warranties contained in this
Guaranty or in any other agreement between the Guarantor and the Agent shall
survive the execution, delivery and performance of this Guaranty and the
creation and payment of the Obligations. The word "PERSON" as used in this
Guaranty means any natural person, corporation, limited liability company,
partnership, joint venture, firm, association, trust, unincorporated
organization, government or governmental agency or political subdivision or any
other entity, whether acting in an individual, fiduciary or other capacity.
Captions in this Guaranty are for reference and convenience only and shall not
affect the interpretation or meaning of any provision of this Guaranty.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date
first above written.
GUARANTOR:
PSF GROUP HOLDINGS, INC.,
A DELAWARE CORPORATION
By: /s/ John Meyer
------------------------------------
Title: CEO
---------------------------------
Address:
---------------------------------
---------------------------------
ADDRESS FOR THE AGENT:
U.S. BANCORP AG CREDIT, INC., AS AGENT
950 SEVENTEENTH STREET
SUITE 350
DENVER, COLORADO 80202
ATTN: JAMES A. BOSCO, PRESIDENT
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