Exhibit
10.6


 


GUARANTY


(Continuing
Debt-Unlimited)


 


 


DATE. The date of this Guaranty is
June 30, 2004.


 


LENDER:


 


TEXAS
STATE BANK


3900 North 10th
Street


McAllen, Texas 78501-1719


Telephone:  (956)
631-5401


 


BORROWER:


 


THE
WORNICK COMPANY, a Delaware corporation


10825 Kenwood Road


Cincinnati, Ohio 45242


 


GUARANTOR:


 


RIGHT
AWAY MANAGEMENT CORPORATION, a Delaware corporation


c/o Veritas Capital
Management II L.L.C.


Attention: Robert B.
McKeon


660 Madison Avenue


New York, New York, 10021


 


THE
WORNICK COMPANY RIGHT AWAY DIVISION, a Delaware corporation


c/o Veritas Capital
Management II L.L.C.


Attention: Robert B.
McKeon


660 Madison Avenue


New York, New York, 10021


 


THE WORNICK COMPANY RIGHT AWAY
DIVISION, L.P., a Delaware limited partnership


200 North 1st
Street


McAllen, Texas 78501


 


1. 
DEFINITIONS.  As
used in this Guaranty, the terms have the following meanings:


 


A. Pronouns.  The pronouns “I”, “me” and “my” refer to
all persons or entities signing this Guaranty, individually and together with
their heirs, successors and assigns.  “You” and “your” refer to the
Lender, with its participants or syndicator, successors and assigns, or any
person or company that acquires an interest in the Debt.


 





















 


B. Note.  “Note” refers to any promissory note
instrument that evidences the Borrower’s indebtedness, and any extensions,
renewals, modifications and substitutions of such promissory notes.


 


C. Debt.  “Debt” refers to debts, liabilities, and
obligations of the Borrower (including, but not limited to, amounts agreed to
be paid under the terms of any notes or agreements securing the payment of any
debt, loan, liability or obligation, overdrafts, letters of credit, guaranties,
advances for taxes, insurance, repairs and storage, and all extensions,
renewals, refinancings and modifications of these debts) whether now existing
or created or incurred in the future, due or to become due, or absolute or
contingent, including obligations and duties arising from the terms of all
documents prepared or submitted for the transaction such as applications,
security agreements, disclosures, the Note, this Guaranty, the Loan Agreement,
or any of the other Loan Documents.


 


D. Property.  “Property” means any property,
real, personal or intangible, that secures performance of the obligations of
the Note, Debt, or this Guaranty.


 


Capitalized terms not
otherwise defined in this Guaranty have the meaning assigned to such terms in
the Loan Agreement of even date herewith executed by Lender, Borrower,
Guarantor, and TWC Holding, LLC.


 


2. 
AGREEMENT TO GUARANTY.  For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and to induce you, at your option,
to make loans or engage in any other transactions with the Borrower from time
to time, I absolutely and unconditionally promise to pay and guaranty the full
and prompt payment of all Debt of every type, purpose and description that the
Borrower may now or at any time in the future owe you (whether at maturity or
upon acceleration), including without limitation, all principal, accrued
interest, attorneys’ fees and collection costs, when allowed by law, that may
become due from the Borrower to you in collecting the Debt and in enforcing
this Guaranty and all other agreements with respect to the Borrower, including
the Loan Agreement; provided, however, that anything herein or in
any other Loan Document to the contrary notwithstanding, the maximum liability
hereunder and under the other Loan Documents of Guarantor shall in no event
exceed an amount equal to the largest amount that would not render Guarantor’s
obligations hereunder subject to avoidance under Section 548 of the
Federal Bankruptcy Code.


 


3. 
EXTENSIONS.  I
consent to all renewals, extensions, modifications and substitutions of the
Debt which may be made by you upon such terms and conditions as you may see fit
from time to time without further notice to me and without limitation as to the
number of renewals, extensions, modifications or substitutions.


 


4. 
PRIMARY LIABILITY.  I am primarily liable under this Guaranty, regardless of whether or not
you pursue any of your remedies against the Borrower, against any other maker,
surety, guarantor or endorser of the Debt or against any Property. You may sue
me alone, or anyone else who is obligated on this Guaranty, or any number of us
together, to collect the Debt. My liability is not


 


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conditioned on the signing of this Guaranty by any
other person and further is not subject to any condition not expressly set
forth in this Guaranty or any instrument executed in connection with the Debt.
My obligation to pay according to the term of this Guaranty shall not be
affected by the illegality, invalidity or unenforceability or any notes or
agreements evidencing the Debt, the violation of any applicable usury laws,
forgery, or any other circumstances which make the indebtedness unenforceable
against the Borrower. I will remain obligated to pay on this Guaranty even if
any other person who is obligated to pay the Debt, including the Borrower, has such
obligation discharged in bankruptcy, foreclosure, or otherwise discharged by
law.


 


5. 
BANKRUPTCY.  If
a bankruptcy petition should at any time be filed by or against the Borrower,
the maturity of the Debt, so far as my liability is concerned, shall be
accelerated and the Debt shall be immediately payable by me. I acknowledge and
agree that this Guaranty, and the Debt secured hereby, will remain in full
force and effect at all times, notwithstanding any action or undertakings by,
or against, you or against any Property, in connection with any obligation in
any proceeding in the United States Bankruptcy Courts. Such action or
undertaking includes, without limitation, valuation of Property, election of
remedies or imposition of secured or unsecured claim status upon claims by you
pursuant to the United States Bankruptcy Code, as amended. In the event that
any payment of principal or interest received and paid by any other guarantor,
borrower, surety, endorser or co-maker is deemed, by final order of a court of
competent jurisdiction, to have been a voidable preference under the bankruptcy
or insolvency laws of the United States or otherwise, then my obligation will
remain as an obligation to you and will not be considered as having been
extinguished.


 


6. 
REVOCATION.  I
agree that this is an absolute and unconditional Guaranty. I agree that this
Guaranty will remain binding on me, whether or not there are any debts
outstanding, until you have actually received written notice of my revocation
of this Guaranty.  Notice of revocation will not affect my obligation
under this Guaranty with respect to any Debt incurred by or for which you have
made a commitment to Borrower before you actually receive such notice, and all
renewals, extensions, refinancing, and modifications of such Debt.  I
agree that if any other person signing this Guaranty provides a notice of
revocation to you, I will still be obligated under this Guaranty until I
provide such a notice of revocation to you.


 


7.  
PROPERTY.  I
agree that any Property may be assigned, exchanged, released in whole or in
part or substituted without notice to me and without defeating, discharging or
diminishing my liability. My obligation is absolute and your failure to perfect
any security interest or any act or omission by you which impairs the Property
will not relieve me or my liability under this Guaranty. You are under no duty
to preserve or protect any Property until you are in actual or constructive
possession. For purpose of this paragraph, you will only be in “actual”
possession when you have physical, immediate and exclusive control over the
Property and have accepted such control in writing. Further, you will only be
deemed to be in “constructive” possession when you have both the power and
intent to exercise control over the Property.


 


8. 
DEFAULT.  I
will be in default if any of the following occur:


 


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A. 
Payments.  I
fail to make a payment in full when due.


B.  Insolvency.  I make an assignment for the benefit of
creditors or become insolvent, either because my liabilities exceed my assets
or I am unable to pay my debts as they become due.


C. Failure to Perform.  I fail to perform any condition or
to keep any promise or covenant of this Guaranty.


D.  Other Documents.  A default occurs under the terms of any
other transaction document, including an Event of Default under the Loan
Agreement or any other Loan Documents.


E.  Other Agreements.  I am in default on any other debt or
agreement I have with you.


F. Misrepresentation.  I make any verbal or written statement or
provide any financial information that is untrue, inaccurate, or conceals a
material fact at the time it is made or provided.


G.  Judgment.  I fail to satisfy or appeal any judgment
against me.


H.   Forfeiture.  The Property is used in a manner or for a
purpose that threatens confiscation by legal authority.


I.  Name Change.  I change my name or assume an additional
name without notifying you before making such a change.


J.  Property Transfer.  I transfer all or a substantial part of
my money or property.


K.  Property Value.  The value of the Property declines or is
impaired in any material respect.


L.  Insecurity.  You reasonably believe you are insecure.


 


9. 
WAIVERS AND CONSENT.  To the extent not prohibited by law, I waive protest, presentment
for payment, demand, notice of acceleration, notice of intent to accelerate and
notice of dishonor.


 


A.  Additional Waivers.  In addition, to the extent
permitted by law, I consent to certain actions you may take, and generally
waive defenses that may be available based on these actions or based on the
status of a party to the Debt or this Guaranty.


 


(1) You may renew or extend payment on the Debt,
regardless of the number of such renewals or extensions.


(2) You may release any borrower, endorser, guarantor,
surety, accommodation maker or any other co-signer.


(3) You may release, substitute or impair any Property
securing the Debt.


(4) You, or any institution participating in the Debt,
may invoke your rights of set-off.


(5) You may enter into any sales, repurchases or
participations of the Debt to any person in any amounts and I waive notice of
such sales, repurchases or participations.


(6) I agree that Borrower is authorized to modify the
terms of the Debt or any instrument securing, guarantying or relating to the
Debt.


(7) You may undertake a valuation of any Property in
connection with any proceedings under the United States Bankruptcy Code
concerning Borrower or me, regardless of any such valuation, or actual amounts
received by you arising from the sale of such Property.


 


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(8) I agree to consent to any waiver granted the
Borrower, and agree that any delay or lack of diligence in the enforcement of
the Debt, or any failure to file a claim or otherwise protect any of the Debt,
in no way affects or impairs my liability.


(9) I agree to waive reliance on any anti-deficiency
statutes, through subrogation or otherwise, and such statutes in no way affect
or impair my liability. In addition, I waive any right of subrogation,
contribution, reimbursement, indemnification, exoneration, and any other right
I may have to enforce any remedy which you now have or in the future may have
against Borrower or another guarantor or as to any Property.


 


Any Guarantor who is an “insider,” as contemplated by
the United States Bankruptcy Code, 11 U.S.C. 101, as amended, makes these
waivers permanently. (An insider includes, among others, a director, officer,
partner, or other person in control or a close relative of any of these other
persons.) Any Guarantor who is not an insider makes these waivers until all
Debt is fully repaid.


 


B.  No Waiver By Lender.  Your course of dealing, or your
forbearance from, or delay in, the exercise of any of your rights, remedies,
privileges or right to insist upon my strict performance of any provisions
contained in the Debt instruments, shall not be construed as a waiver by you,
unless any such waiver is in writing and is signed by you.


 


C.  Waiver of Claims.  I waive all claims for loss or
damage caused by your acts or omissions where you acted reasonably and in good
faith.


 


10. 
REMEDIES.  After
the Borrower or I default, and after you give any legally required notice and
opportunity to cure the default specified in any of the Loan Documents, you may
at your option do any one or more of the following.


 


A. Acceleration.  You may make all or any part of the
amount owing by the terms of the Guaranty immediately due.


B.  Sources.  You may use any and all remedies you have
under state or federal law or in any instrument securing the Debt.


C.  Insurance Benefits.  You may make a claim for any and all
insurance benefits or refunds that may be available on default.


D.  Payment Made on the
Borrower’s Behalf.  Amounts advanced on the Borrower’s behalf will be immediately due and
may be added to the balance owing under the Debt.


E.  Set-Off.  You may use the right of set-off. This
means you may set-off any amount due and payable under the terms of this
Guaranty against any right I have to receive money from you.


 


My right to receive money from you includes any
deposit or share account balance I have with you; any money owed to me on an
item presented to you or in your possession for collection or exchange; and any
repurchase agreement or other non-deposit obligation. “Any


 


5





















 


amount due and payable under the terms of this
Guaranty” means the total amount to which you are entitled to demand payment
under the terms of this Guaranty at the time you set-off.


 


Subject to any other written contract, if my right to
receive money from you is also owned by someone who has not agreed to pay the
Debt, your right of set-off will apply to my interest in the obligation and to
any other amounts I could withdraw on my sole request or endorsement.


 


Your right of set-off does not apply to an account or
other obligation where my right arises only in a representative capacity. It
also does not apply to any Individual Retirement Account or other tax-deferred
retirement account.


 


You will not be liable for the dishonor of any check
when the dishonor occurs because you set-off against any of my accounts. I
agree to hold you harmless from any such claims arising as a result of your
exercise of your right of set-off.


 


F.  Waiver.  Except as otherwise required by law, by
choosing any one or more of these remedies you do not give up your right to use
any other remedy. You do not waive a default if you choose not to use a remedy.
By electing not to use any remedy, you do not waive your right to later
consider the event a default and to use any remedies if the default continues
or occurs again.


 


11. 
COLLECTION EXPENSES AND ATTORNEYS’ FEES.  To the extent permitted by law, I agree to pay
all expenses of collection, enforcement or protection of your rights and
remedies under this Guaranty or any instrument executed in connection with the
creation of any Debt guarantied by this Guaranty. All fees and expenses will be
secured by the Property I have granted you, if any. To the extent permitted by
the United States Bankruptcy Code, I agree to pay the reasonable attorney’s fees
you incur to collect the Debt guarantied by this Guaranty as awarded by any
court exercising jurisdiction under the Bankruptcy Code.


 


12. 
WARRANTIES AND REPRESENTATIONS.  I have the right and authority to enter into this
Guaranty. The execution and delivery of this Guaranty will not violate any
agreement governing me or to which I am a party.  In addition, I represent
and warrant that this Guaranty was entered into at the request of the Borrower,
and that I am satisfied regarding the Borrower’s financial condition and
existing indebtedness, authority to borrow and the use and intended use of all
Debt proceeds.  I further represent and warrant that I have not relied on
any representations or omissions from you or any information provided by you respecting
the Borrower, the Borrower’s financial condition and existing indebtedness, the
Borrower’s authority to borrow or the Borrower’s use and intended use of all
Debt proceeds.


 


13. 
RELIANCE.  I
acknowledge that you are relying on this Guaranty in extending credit to the
Borrower, and I have signed this Guaranty to induce you to extend such credit.
I represent and warrant to you that I expect to derive substantial benefits
from any loans and financial accommodations resulting in the creation of the
Debt guarantied hereby. I agree to rely exclusively 


 


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on the right to revoke this Guaranty prospectively as
to future transactions in the manner as previously described in this Guaranty
if at any time, in my opinion, the benefit then being received by me in
connection with this Guaranty are not sufficient to warrant the continuance of
this Guaranty. You may rely conclusively on a continuing warranty that I
continue to be benefited by this Guaranty and you will have no duty to inquire
into or confirm the receipt of any such benefits, and this Guaranty will be
effective and enforceable by you without regard to the receipt, nature or value
of any such benefits.


 


14. 
APPLICABLE LAW.  This Guaranty is governed by the laws of Texas, the United States of
America and to the extent required, by the laws of the jurisdiction where the
Property is located.  Any disputes with regard to this Guaranty shall be
resolved by binding arbitration in accordance with the arbitration provisions
in the Loan Agreement.


 


15. 
AMENDMENT, INTEGRATION AND SEVERABILITY.  This Guaranty may not be amended or modified by oral
agreement. No amendment or modification of this Guaranty is effective unless
made in writing and executed by you and me. This Guaranty is the complete and
final expression of the agreement. If any provision of this Guaranty is
unenforceable, then the unenforceable provision will be severed and the
remaining provisions will still be enforceable.


 


16. 
INTERPRETATION.  Whenever used, the singular includes the plural and the plural includes
the singular. The section headings are for convenience only and are not to
be used to interpret or define the terms of this Guaranty.


 


17. 
NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS.  Unless otherwise required by law, any notice
will be given by delivering it or mailing it by first class mail to the
appropriate party’s address listed herein, or to any other address designated
in writing.  I will inform you in writing of any change in my name,
address or other application information. I will provide you any financial
statement or information you request. All financial statements and information
I give you will be correct and complete.  I agree to sign, deliver, and
file any additional documents or certifications that you may consider necessary
to perfect, continue, and preserve my obligations under this Guaranty and to
confirm your lien status on any Property. Time is of the essence.


 


18. 
CREDIT INFORMATION.  I agree that from time to time you may obtain credit
information about me from others, including other lenders and credit reporting
agencies, and report to others (such as a credit reporting agency) your credit
experience with me. I agree that you will not be liable for any claim arising
from the use of information provided to you by others or for providing such
information to others.


 


19.  
SIGNATURES. 
By signing, I agree to the terms contained in this Guaranty, the Loan Agreement
and the other Loan Documents.  I also acknowledge receipt of a copy of
this Guaranty.


 


THIS
WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.


 


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THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


[SIGNATURE PAGE
FOLLOWS]


 


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  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  RIGHT
  AWAY MANAGEMENT

  CORPORATION, a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
  By:

  	
  Robert B. McKeon

  
	
   

  	
  Its:

  	
  Chairman of the Board

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  WORNICK COMPANY RIGHT

  AWAY DIVISION, L.P., a Delaware limited

  partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Right Away Management

  Corporation, a Delaware corporation,

  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
   

  	
  By:

  	
  Robert B. McKeon

  
	
   

  	
   

  	
  Its:

  	
  Chairman of the Board

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  WORNICK COMPANY RIGHT

  AWAY DIVISION, a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
  By:

  	
  Robert B. McKeon

  
	
   

  	
  Its:

  	
  Chairman of the Board

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


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