Exhibit 10.5


 


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


 


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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]


 


8
















 


	
   

  	
  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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