EXHIBIT 10.10
EXECUTION VERSION
GENERAL CONTINUING GUARANTY
This GENERAL CONTINUING GUARANTY (this "GUARANTY"), dated as of July
7, 2003, is executed and delivered by each of the undersigned subsidiaries of
XXXXXX'X RESTAURANT GROUP, INC., a Delaware corporation (such subsidiaries, each
a "GUARANTOR", and individually and collectively, and jointly and severally, the
"GUARANTORS"), in favor of XXXXX FARGO FOOTHILL, INC., a California corporation
("LENDER"), in light of the following:
WHEREAS, Xxxxxx'x Restaurant Group, Inc., a Delaware corporation
("BORROWER"), and the Lender are, contemporaneously herewith, entering into that
certain Loan and Security Agreement of even date herewith (as amended, restated,
supplemented or otherwise modified from time to time, the "LOAN AGREEMENT");
WHEREAS, in order to induce Lender to extend financial accommodations
to Borrower pursuant to the Loan Agreement, and in consideration thereof, and in
consideration of any loans or other financial accommodations heretofore or
hereafter extended by Lender to Borrower pursuant to the Loan Agreement or any
Loan Document, each Guarantor has agreed to guaranty the Guarantied Obligations;
WHEREAS, each Guarantor is a Subsidiary of Borrower; and
WHEREAS, each Guarantor will benefit by virtue of the financial
accommodations from Lender to Borrower.
NOW, THEREFORE, in consideration of the foregoing, each Guarantor
hereby agrees in favor Lender and the Bank Product Providers, as follows:
1. DEFINITIONS AND CONSTRUCTION.
(a) DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Loan Agreement.
The following terms, as used in this Guaranty, shall have the following
meanings:
"BORROWER" has the meaning set forth in the recitals to this
Guaranty.
"GUARANTIED OBLIGATIONS" means, with respect to each Guarantor:
(a) the due and punctual payment of the principal of, and interest
(including, any and all interest which, but for the application of the
provisions of the Bankruptcy Code, would have accrued on such amounts
irrespective of whether a claim therefor is allowed) on, any and all
premium on, and any and all fees, costs, indemnities and expenses incurred
in connection with or on, the Indebtedness owed by Borrower to Lender
pursuant to the terms of the Loan Agreement and the other Loan Documents;
(b) the due and punctual payment of the principal of, and interest
(including, any and all interest which, but for the application of the
provisions of the Bankruptcy Code,
would have accrued on such amounts irrespective of whether a claim therefor
is allowed) on, any and all premium on, and any and all fees, costs,
indemnities and expenses incurred in connection with or on, the
Indebtedness owed by Borrower to Bank Product Providers pursuant to the
terms of the Loan Documents; and (c) the due and punctual payment of all
other present or future Indebtedness owing by Borrower to Bank Product
Providers.
"GUARANTOR" and "GUARANTORS" have the respective meanings set
forth in the preamble to this Guaranty.
"GUARANTY" has the meaning set forth in the preamble to this
Guaranty.
"INDEBTEDNESS" means any and all obligations (including the
Obligations), indebtedness, or liabilities of any kind or character owed by
Borrower and arising directly or indirectly out of or in connection with
the Loan Agreement or the other Loan Documents, including all such
obligations, indebtedness, or liabilities, whether for principal, interest
(including any and all interest which, but for the application of the
provisions of the Bankruptcy Code, would have accrued on such amounts
irrespective of whether a claim therefor is allowed), premium,
reimbursement obligations, fees, costs, expenses (including attorneys'
fees), or indemnity obligations, whether heretofore, now, or hereafter
made, incurred, or created, whether voluntarily or involuntarily made,
incurred, or created, whether secured or unsecured (and if secured,
regardless of the nature or extent of the security), whether absolute or
contingent, liquidated or unliquidated, or determined or indeterminate,
whether Borrower is liable individually or jointly with others, and whether
recovery is or hereafter becomes barred by any statute of limitations or
otherwise becomes unenforceable for any reason whatsoever, including any
act or failure to act by Lender or the Bank Product Providers.
"LENDER" has the meaning set forth in the preamble to this
Guaranty.
"LOAN AGREEMENT" has the meaning set forth in the recitals to
this Guaranty.
"VOIDABLE TRANSFER" has the meaning set forth in SECTION 9 of
this Guaranty.
(b) CONSTRUCTION. Unless the context of this Guaranty clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the terms "include" and "including" are not
limiting, and the term "or" has, except where otherwise indicated, the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and other similar terms in this Guaranty refer to this
Guaranty as a whole and not to any particular provision of this Guaranty.
Section, subsection, clause, schedule and exhibit references herein are to this
Guaranty unless otherwise specified. Any reference in this Guaranty to any of
the following documents includes any and all alterations, amendments, changes,
extensions, modifications,
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renewals, replacements, substitutions, joinders, and supplements thereto or
thereof, as applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements set forth therein): the Loan Agreement;
this Guaranty; and the other Loan Documents. Neither this Guaranty nor any
uncertainty or ambiguity herein shall be construed or resolved against Lender,
any Bank Product Provider, or Guarantor, whether under any rule of construction
or otherwise. On the contrary, this Guaranty has been reviewed by Guarantor,
Lender, and the Bank Product Providers, and their respective counsel, and shall
be construed and interpreted according to the ordinary meaning of the words used
so as to fairly accomplish the purposes and intentions of Lender, any Bank
Product Provider and Guarantor. Any reference herein to the payment in full of
the Guarantied Obligations shall mean the payment in full in cash of all
Guarantied Obligations other than contingent indemnification obligations and any
Bank Product Obligations that, at such time, are allowed by the applicable Bank
Product Provider to remain outstanding and are not required to be repaid or cash
collateralized pursuant to the provisions of the Loan Agreement, and the
termination of all Commitments of Lender under the Loan Agreement. Any reference
herein to any Person shall be construed to include such Person's successors and
assigns. Any requirement of a writing contained herein shall be satisfied by the
transmission of a Record and any Record transmitted shall constitute a
representation and warranty as to the accuracy and completeness of the
information contained therein. The captions and headings are for convenience of
reference only and shall not affect the construction of this Guaranty.
2. GUARANTIED OBLIGATIONS. Subject to the terms and conditions of this
Guaranty, each Guarantor, jointly and severally with each other Guarantor,
hereby irrevocably and unconditionally guaranties to Lender and the Bank Product
Providers, as and for its own debt, until payment in full thereof has been made,
(a) the payment of the Guarantied Obligations, in each case when and as the same
shall become due and payable, whether at maturity, pursuant to a mandatory
prepayment requirement, by acceleration, or otherwise; it being the intent of
each Guarantor that the guaranty set forth herein shall be a guaranty of payment
and not a guaranty of collection; and (b) the punctual and faithful performance,
keeping, observance, and fulfillment by Borrower of all of the agreements,
conditions, covenants, and obligations of Borrower contained in the Loan
Agreement and under each of the other Loan Documents.
3. CONTINUING GUARANTY. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To the maximum
extent permitted by law, each Guarantor hereby waives any right to revoke this
Guaranty as to future Indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees
that (a) no such revocation shall be effective until written notice thereof has
been received by Lender, (b) no such revocation shall apply to any Guarantied
Obligations in existence on such date (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate,
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payment terms, or other terms and conditions thereof), (c) no such revocation
shall apply to any Guarantied Obligations made or created after such date to the
extent made or created pursuant to a legally binding commitment of Lender in
existence on the date of such revocation, (d) no payment by a Guarantor,
Borrower, or from any other source, prior to the date of such revocation shall
reduce the maximum obligation of such Guarantor hereunder, and (e) any payment
by Borrower or from any source other than such Guarantor subsequent to the date
of such revocation shall first be applied to that portion of the Guarantied
Obligations as to which the revocation is effective and which are not,
therefore, guarantied hereunder, and to the extent so applied shall not reduce
the maximum obligation of such Guarantor hereunder.
4. PERFORMANCE UNDER THIS GUARANTY. In the event that Borrower fails to
make any payment of any Guarantied Obligations, on or before the due date
thereof, or if Borrower shall fail to perform, keep, observe, or fulfill any
other obligation under the Loan Agreement or any other Loan Document in the
manner provided therein, as applicable, each Guarantor immediately shall cause
such payment to be made or each of such obligations to be performed, kept,
observed, or fulfilled.
5. PRIMARY OBLIGATIONS. This Guaranty is a primary and original obligation
of each Guarantor, is not merely the creation of a surety relationship, and is
an absolute, unconditional, and continuing guaranty of payment and performance
which shall remain in full force and effect without respect to future changes in
conditions (other than the satisfaction in full in immediately available funds
of the Guarantied Obligations). Each Guarantor hereby agrees that it is
directly, jointly and severally with any other guarantor of the Guarantied
Obligations, liable to Lender and the Bank Product Providers, that the
obligations of such Guarantor hereunder are independent of the obligations of
Borrower or any other guarantor, and that a separate action may be brought
against such Guarantor, whether such action is brought against Borrower or any
other guarantor or whether Borrower or any other guarantor is joined in such
action. Each Guarantor hereby agrees that its liability hereunder shall be
immediate and shall not be contingent upon the exercise or enforcement by Lender
and the Bank Product Providers of whatever remedies they may have against
Borrower or any other guarantor, or the enforcement of any lien or realization
upon any security Lender and the Bank Product Providers may at any time possess.
Each Guarantor hereby agrees that any release which may be given by Lender and
the Bank Product Providers to Borrower or any other guarantor shall not release
such Guarantor. Each Guarantor consents and agrees that neither Lender nor any
Bank Product Provider shall be under any obligation to marshal any property or
assets of Borrower or any other guarantor in favor of such Guarantor, or against
or in payment of any or all of the Guarantied Obligations.
6. WAIVERS.
(a) To the fullest extent permitted by applicable law, each Guarantor
hereby waives: (i) notice of acceptance hereof; (ii) notice of any loans or
other financial accommodations made or extended under the Loan Agreement, or the
creation or existence of any Guarantied Obligations; (iii) notice of the amount
of the Guarantied Obligations,
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subject, however, to such Guarantor's right to make inquiry of Lender to
ascertain the amount of the Guarantied Obligations at any reasonable time; (iv)
notice of any adverse change in the financial condition of Borrower or of any
other fact that might increase such Guarantor's risk hereunder; (v) notice of
presentment for payment, demand, protest, and notice thereof as to any
instrument among the Loan Documents; (vi) notice of any Default or Event of
Default under the Loan Agreement; and (vii) all other notices (except if such
notice is specifically required to be given to such Guarantor under this
Guaranty or any other Loan Documents to which such Guarantor is a party) and
demands to which such Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable law, each Guarantor
hereby waives the right by statute or otherwise to require Lender or the Bank
Product Providers, to institute suit against Borrower or to exhaust any rights
and remedies which Lender or the Bank Product Providers, have/has or may have
against Borrower. In this regard, each Guarantor agrees that it is bound to the
payment of each and all Guarantied Obligations, whether now existing or
hereafter arising, as fully as if the Guarantied Obligations were directly owing
to Lender and Bank Product Providers, or its Affiliates, as applicable, by such
Guarantor. Each Guarantor further waives any defense arising by reason of any
disability or other defense (other than the defense that the Guarantied
Obligations shall have been performed and paid in full) of Borrower or by reason
of the cessation from any cause whatsoever of the liability of Borrower in
respect thereof.
(c) To the fullest extent permitted by applicable law, each Guarantor
hereby waives: (i) any rights to assert against Lender or the Bank Product
Providers, any defense (legal or equitable), set-off, counterclaim, or claim
which such Guarantor may now or at any time hereafter have against Borrower or
any other party liable to Lender or the Bank Product Providers; (ii) any
defense, set-off, counterclaim, or claim, of any kind or nature, arising
directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guarantied Obligations or any
security therefor; (iii) any defense arising by reason of any claim or defense
based upon an election of remedies by Lender or the Bank Product Providers,
including any defense based upon an election of remedies by Lender under the
provisions of Sections 580d and 726 of the California Code of Civil Procedure or
any similar laws of New York or any other jurisdiction; (iv) the benefit of any
statute of limitations affecting such Guarantor's liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of any
statute of limitations applicable to the Guarantied Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to such Guarantor's liability hereunder.
(d) Until such time as all of the Guarantied Obligations have been
paid in full: (i) each Guarantor hereby waives and postpones any right of
subrogation such Guarantor has or may have as against Borrower with respect to
the Guarantied Obligations, including under any one or more of California Civil
Code Sections 2847, 2848, and 2849 or any similar laws of New York or any other
jurisdiction; (ii) in addition, each Guarantor hereby waives and postpones any
right to proceed against Borrower or any other Person, now or hereafter, for
contribution, indemnity, reimbursement, or any other suretyship rights and
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claims (irrespective of whether direct or indirect, liquidated or contingent),
with respect to the Guarantied Obligations; and (iii) in addition, each
Guarantor also hereby waives and postpones any right to proceed or to seek
recourse against or with respect to any property or asset of Borrower.
(e) If any of the Guarantied Obligations or the obligations of any
Guarantor under this Guaranty at any time are secured by a mortgage or deed of
trust upon real property, Lender may elect, in its sole discretion, upon a
default with respect to the Guarantied Obligations or the obligations of
Guarantor under this Guaranty, to foreclose such mortgage or deed of trust
judicially or nonjudicially in any manner permitted by law, before or after
enforcing this Guaranty, without diminishing or affecting the liability of any
Guarantor hereunder. Each Guarantor understands that (a) by virtue of the
operation of California's (or any similar laws of any other jurisdiction)
antideficiency law applicable to nonjudicial foreclosures, an election by Lender
nonjudicially to foreclose such a mortgage or deed of trust probably would have
the effect of impairing or destroying rights of subrogation, reimbursement,
contribution, or indemnity of such Guarantor against Borrower or other
guarantors or sureties, and (b) absent the waiver given by such Guarantor
herein, such an election would estop Lender from enforcing this Guaranty against
such Guarantor. Understanding the foregoing, and understanding that each
Guarantor hereby is relinquishing a defense to the enforceability of this
Guaranty, each Guarantor hereby waives any right to assert against Lender or the
Bank Product Providers any defense to the enforcement of this Guaranty, whether
denominated "estoppel" or otherwise, based on or arising from an election by
Lender nonjudicially to foreclose any such mortgage or deed of trust so long as
such nonjudicial foreclosure is conducted in a commercially reasonable manner in
accordance with applicable law. Each Guarantor understands that the effect of
the foregoing waiver may be that such Guarantor may have liability hereunder for
amounts with respect to which such Guarantor may be left without rights of
subrogation, reimbursement, contribution, or indemnity against Borrower or other
guarantors or sureties. Each Guarantor also agrees that the "fair market value"
provisions of Section 580a of the California Code of Civil Procedure or any
similar laws of New York or any other jurisdiction shall have no applicability
with respect to the determination of such Guarantor's liability under this
Guaranty so long as such nonjudicial foreclosure is conducted in a commercially
reasonable manner in accordance with applicable law.
(f) Without limiting the generality of any other waiver or other
provision set forth in this Guaranty, each Guarantor waives all rights and
defenses that such Guarantor may have if all or part of the Guarantied
Obligations are secured by real property. This means, among other things:
(i) Lender or the Bank Product Providers may collect from
Guarantor without first foreclosing on any real or personal property collateral
that may be pledged by Borrower or any guarantor.
(ii) If Lender forecloses on any real property collateral that
may be pledged by Borrower or any guarantor:
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(1) the amount of the Guarantied Obligations or any
obligations of any guarantor in respect thereof may be reduced only by
the price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price.
(2) Lender may collect from each Guarantor even if Lender,
by foreclosing on the real property collateral, has destroyed any
right such Guarantor may have to collect from Borrower or any other
guarantor.
This is an unconditional and irrevocable waiver of any rights and defenses each
Guarantor may have if all or part of the Guarantied Obligations are secured by
real property. These rights and defenses are based upon Section 580a, 580b,
580d, or 726 of the California Code of Civil Procedure or any similar laws of
New York or any other jurisdiction.
(G) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR HEREBY WAIVES, TO THE
MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY LAW, ANY AND ALL BENEFITS OR DEFENSES
ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE
Sections 2787 THROUGH AND INCLUDING Section 2855, CALIFORNIA CODE OF CIVIL
PROCEDURE Sections 580a, 580b, 580c, 580d, AND 726, AND CHAPTER 2 OF TITLE 14 OF
THE CALIFORNIA CIVIL CODE OR ANY SIMILAR LAWS OF NEW YORK OR ANY OTHER
JURISDICTION.
(H) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND
DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY LENDER, EVEN THOUGH THAT
ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY
FOR A GUARANTIED OBLIGATION, HAS DESTROYED SUCH GUARANTOR'S RIGHTS OF
SUBROGATION AND REIMBURSEMENT AGAINST BORROWER BY THE OPERATION OF SECTION 580d
OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR ANY SIMILAR LAWS OF NEW YORK OR ANY
OTHER JURISDICTION OR OTHERWISE.
(i) Without affecting the generality of this Section, each Guarantor
hereby also agrees to the following waivers:
(1) Each Guarantor agrees that the Lender's right to
enforce this Guaranty is absolute and is not contingent upon the
genuineness, validity or enforceability of any of the Loan Documents.
Each Guarantor waives all benefits and defenses it may have under
California Civil Code Section 2810 or any similar laws of New York or
any other jurisdiction and agrees that Lender's rights under this
Guaranty shall be enforceable even if Borrower had
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no liability at the time of execution of the Loan Documents or later
ceases to be liable.
(2) Each Guarantor waives all benefits and defenses it may
have under California Civil Code Section 2809 or any similar laws of
New York or any other jurisdiction with respect to its obligations
under this Guaranty and agrees that Lender's rights under the Loan
Documents will remain enforceable even if the amount secured by the
Loan Documents is larger in amount and more burdensome than that for
which Borrower is responsible. The enforceability of this Guaranty
against each Guarantor shall continue until all sums due under the
Loan Documents have been paid in full and shall not be limited or
affected in any way by any impairment or any diminution or loss of
value of any security or collateral for Borrower's obligations under
the Loan Documents, from whatever cause, the failure of any security
interest in any such security or collateral or any disability or other
defense of Borrower, any other guarantor of Borrower's obligations
under the Loan Documents, any pledgor of collateral for any person's
obligations to Lender or any other person in connection with the Loan
Documents.
(3) Each Guarantor waives all benefits and defenses it may
have under California Civil Code Sections 2845, 2849 and 2850 or any
similar laws of New York or any other jurisdiction with respect to its
obligations under this Guaranty, including the right to require Lender
to (A) proceed against Borrower, any guarantor of Borrower's
obligations under the Loan Documents, any other pledgor of collateral
for any person's obligations to Lender or any other person in
connection with the Guarantied Obligations, (B) proceed against or
exhaust any other security or collateral Lender may hold, or (C)
pursue any other right or remedy for such Guarantor's benefit, and
agrees that Lender may exercise its right under this Guaranty without
taking any action against Borrower, any other guarantor of Borrower's
obligations under the Loan Documents, any pledgor of collateral for
any person's obligations to Lender or any other Person in connection
with the Guarantied Obligations, and without proceeding against or
exhausting any security or collateral Lender holds.
(j) The paragraphs in this SECTION 6 which refer to certain sections
of the California Civil Code are included in this Guaranty solely out of an
abundance of caution and shall not be construed to mean that any of the
above-referenced provisions of California law or any other applicable law are in
any way applicable to this Guaranty.
7. RELEASES. Each Guarantor consents and agrees that, without notice to or
by such Guarantor and without affecting or impairing the obligations of such
Guarantor hereunder, Lender and the Bank Product Providers may, by action or
inaction, compromise or settle, extend the period of duration or the time for
the payment, or discharge the performance of, or may refuse to, or otherwise not
enforce, or may, by action or inaction, release all or any one
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or more parties to, any one or more of the terms and provisions of the Loan
Agreement or any of the other Loan Documents or may grant other indulgences to
Borrower in respect thereof, or may amend or modify in any manner and at any
time (or from time to time) any one or more of the Loan Agreement or any of the
other Loan Documents, or may, by action or inaction, release or substitute any
other guarantor, if any, of the Guarantied Obligations, or may enforce,
exchange, release, or waive, by action or inaction, any security for the
Guarantied Obligations or any other guaranty of the Guarantied Obligations, or
any portion thereof.
8. NO ELECTION. Lender and the Bank Product Providers shall have the right
to seek recourse against each Guarantor to the fullest extent provided for
herein and no election by Lender or the Bank Product Providers to proceed in one
form of action or proceeding, or against any party, or on any obligation, shall
constitute a waiver of Lender's or the Bank Product Providers' right to proceed
in any other form of action or proceeding or against other parties unless Lender
or the Bank Product Providers has expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no action or
proceeding by Lender or the Bank Product Providers under any document or
instrument evidencing the Guarantied Obligations shall serve to diminish the
liability of any Guarantor under this Guaranty except to the extent that Lender
or the Bank Product Providers finally and unconditionally shall have realized
payment in full of the Guarantied Obligations by such action or proceeding.
9. REVIVAL AND REINSTATEMENT. If the incurrence or payment of the
Guarantied Obligations or the obligations of any Guarantor under this Guaranty
by such Guarantor or the transfer by any Guarantor to Lender of any property of
such Guarantor should for any reason subsequently be declared to be void or
voidable under any state or federal law relating to creditors' rights, including
provisions of the Bankruptcy Code relating to fraudulent conveyances,
preferences, and other voidable or recoverable payments of money or transfers of
property (collectively, a "VOIDABLE TRANSFER"), and if Lender is required to
repay or restore, in whole or in part, any such Voidable Transfer, or elects to
do so upon the reasonable advice of its counsel, then, as to any such Voidable
Transfer, or the amount thereof that Lender is required or elects to repay or
restore, and as to all reasonable costs, expenses, and attorneys' fees of Lender
related thereto, the liability of such Guarantor automatically shall be revived,
reinstated, and restored and shall exist as though such Voidable Transfer had
never been made.
10. FINANCIAL CONDITION OF BORROWER. Each Guarantor represents and warrants
to Lender and the Bank Product Providers that it is currently informed of the
financial condition of Borrower and of all other circumstances which a diligent
inquiry would reveal and which bear upon the risk of nonpayment of the
Guarantied Obligations. Each Guarantor further represents and warrants to Lender
and the Bank Product Providers that it has read and understands the terms and
conditions of the Loan Agreement and the other Loan Documents. Each Guarantor
hereby covenants that it will continue to keep itself informed of Borrower's
financial condition, the financial condition of other guarantors, if any, and of
all other
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circumstances which bear upon the risk of nonpayment or nonperformance of the
Guarantied Obligations.
11. PAYMENTS; APPLICATION. All payments to be made hereunder by any
Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by any Guarantor hereunder shall be applied as follows: first, to all reasonable
costs and expenses (including reasonable attorneys fees) incurred by Lender or
the Bank Product Providers in enforcing this Guaranty or in collecting the
Guarantied Obligations; second, to all accrued and unpaid interest, premium, if
any, and fees owing to Lender or the Bank Product Providers constituting
Guarantied Obligations; and third, to the balance of the Guarantied Obligations.
12. ATTORNEYS FEES AND COSTS. Each Guarantor agrees to pay, on demand, all
reasonable attorneys fees and all other reasonable costs and expenses which may
be incurred by Lender or the Bank Product Providers in the enforcement of this
Guaranty or in any way arising out of, or consequential to, the protection,
assertion, or enforcement of the Guarantied Obligations (or any security
therefor), irrespective of whether suit is brought.
13. NOTICES. All notices and other communications hereunder to Lender shall
be in writing and shall be mailed, sent or delivered in accordance with the Loan
Agreement. All notices and other communications hereunder to any Guarantor shall
be in writing and shall be mailed, sent or delivered in care of Borrower in
accordance with the Loan Agreement.
14. CUMULATIVE REMEDIES. No remedy under this Guaranty, under the Loan
Agreement, or any other Loan Document is intended to be exclusive of any other
remedy, but each and every remedy shall be cumulative and in addition to any and
every other remedy given under this Guaranty, under the Loan Agreement, or any
other Loan Document, and those provided by law. No delay or omission by Lender
or the Bank Product Providers to exercise any right under this Guaranty shall
impair any such right nor be construed to be a waiver thereof. No failure on the
part of Lender or the Bank Product Providers to exercise, and no delay in
exercising, any right under this Guaranty shall operate as a waiver thereof; nor
shall any single or partial exercise of any right under this Guaranty preclude
any other or further exercise thereof or the exercise of any other right.
15. SEVERABILITY OF PROVISIONS. Any provision of this Guaranty which is
prohibited or unenforceable under applicable law shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
16. ENTIRE AGREEMENT; AMENDMENTS. This Guaranty constitutes the entire
agreement between the Guarantors and Lender pertaining to the subject matter
contained herein. This Guaranty may not be altered, amended, or modified, nor
may any provision hereof be waived or noncompliance therewith consented to,
except by means of a writing executed by each Guarantor and Lender. Any such
alteration, amendment, modification, waiver, or consent shall be effective only
to the extent specified therein and for the specific purpose for which given. No
course of dealing and no delay or waiver of any right or default under this
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Guaranty shall be deemed a waiver of any other, similar or dissimilar, right or
default or otherwise prejudice the rights and remedies hereunder.
17. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of Lender and the Bank Product Providers; PROVIDED,
HOWEVER, no Guarantor shall assign this Guaranty or delegate any of its duties
hereunder without Lender's prior written consent and any unconsented to
assignment shall be absolutely void. In the event of any assignment or other
transfer of rights by Lender or the Bank Product Providers, the rights and
benefits herein conferred upon Lender and the Bank Product Providers shall
automatically extend to and be vested in such assignee or other transferee.
18. NO THIRD PARTY BENEFICIARY. This Guaranty is solely for the benefit of
Lender and the Bank Product Providers and each of their successors and assigns
and may not be relied on by any other Person.
19. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS
ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS GUARANTY AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT LENDER'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE LENDER ELECTS TO BRING SUCH ACTION OR WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GUARANTOR AND LENDER WAIVE,
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 19.
EACH GUARANTOR AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH GUARANTOR AND LENDER
LA11 -
REPRESENT THAT EACH SUCH PARTY HAS REVIEWED THIS WAIVER AND EACH SUCH PARTY
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS GUARANTY MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
20. AGREEMENT TO BE BOUND. Each Guarantor hereby agrees to be bound by each
and all of the terms and provisions of the Loan Agreement to the extent
applicable to such Guarantor. Without limiting the generality of the foregoing,
by its execution and delivery of this Guaranty, each Guarantor hereby: (a) makes
to Lender and the Bank Product Providers each of the representations and
warranties set forth in the Loan Agreement to the extent applicable to such
Guarantor fully as though such Guarantor were a party thereto, and such
representations and warranties are incorporated herein by this reference,
MUTATIS MUTANDIS; and (b) agrees and covenants for the benefit of Lender and the
Bank Product Providers (i) to do each of the things set forth in the Loan
Agreement that Borrower agrees and covenants to cause its Subsidiaries to do, to
the extent applicable to such Guarantor, and (ii) to not do each of the things
set forth in the Loan Agreement that Borrower agrees and covenants to cause its
Subsidiaries not to do, to the extent applicable to such Guarantor, in each
case, fully as though such Guarantor was a party thereto, and such agreements
and covenants are incorporated herein by this reference, MUTATIS MUTANDIS.
21. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Guaranty may be executed in
any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original,
and all of which, when taken together, shall constitute but one and the same
Guaranty. Delivery of an executed counterpart of this Guaranty by telefacsimile
shall be equally as effective as delivery of an original executed counterpart of
this Guaranty. Any party delivering an executed counterpart of this Guaranty by
telefacsimile also shall deliver an original executed counterpart of this
Agreement, but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability and binding effect of this Guaranty.
22. TERMINATION; RELEASE OF GUARANTY. Upon the full and final payment of
all Guarantied Obligations in immediately available funds and the irrevocable
termination of Lender's commitment to provide credit under the Loan Agreement,
this Guaranty shall terminate and Lender shall execute any documents,
instruments or agreements, and shall take any other action reasonably requested
by Guarantors to effect such termination.
[Signature page to follow]
LA12 -
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty as of the date first written above.
PORTERHOUSE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/ADDISON, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/ATLANTA, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/BALTIMORE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/BOCA RATON, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/BUCKHEAD, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/CHICAGO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/CINCINNATI, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/XXXXXXX, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/CLEVELAND, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/COLUMBUS, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/DALLAS, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/DENVER, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/DETROIT, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/FIFTH AVENUE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/FLAMINGO ROAD CORP., a Delaware corporation
XXXXXX'X OF CHICAGO/HOUSTON, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/MIAMI, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/MINNEAPOLIS, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/NASHVILLE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/NORTH MIAMI BEACH, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/ORLANDO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PALM BEACH INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PALM DESERT, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PHILADELPHIA, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/PHOENIX, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PITTSBURGH, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PORTLAND, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PUERTO RICO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/ROSEMONT, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/SACRAMENTO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SAN ANTONIO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SAN DIEGO, INC., a Delaware corporation
Guaranty Signature Page
XXXXXX'X OF CHICAGO/SAN FRANCISCO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SANTA XXX, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SCOTTSDALE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SEATTLE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/VIRGINIA, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/WASHINGTON D.C. INC., a Delaware corporation
XXXXXX'X OF CHICAGO/WASHINGTON SQUARE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/XXXXXXXXX, INC., an Illinois corporation
PORTERHOUSE OF LOS ANGELES, INC., a Delaware corporation
MOCGC CORP., a Virginia corporation
XXXXXX'X OF CHICAGO HOLDING, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/BOSTON LLC, a Delaware limited liability company
XXXXX XXXXXX'X OF CHICAGO/BURBANK LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/CHARLOTTE LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/CRYSTAL CITY LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/DENVER CRESCENT TOWN CENTER, LLC, a Delaware limited
liability company
XXXXX XXXXXX'X OF CHICAGO/XXXXXXXX LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/GREAT NECK LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/HACKENSACK LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/HARTFORD LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/HONOLULU LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/INDIANAPOLIS LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/JACKSONVILLE LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/KANSAS CITY LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/KING OF PRUSSIA LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/LOUISVILLE LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/NEW ORLEANS LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/PITTSBURGH LLC, a Delaware limited liability company
Guaranty Signature Page
XXXXXX'X OF CHICAGO/RESTON LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/RICHMOND LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/SCHAUMBURG LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/STAMFORD LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/WHITE PLAINS LLC, a Delaware limited liability company
ITALIAN RESTAURANTS HOLDING CORP., a Delaware corporation
XXXXXXXXX'X RESTAURANTS, INC., a Delaware corporation
XXXXXXXXX'X OF CIRCLE CENTRE, INC., a Delaware corporation
XXXXXXXXX'X/XXXX OF PRUSSIA, INC., a Delaware corporation
XXXXXXXXX'X OF LAS VEGAS, INC., a Delaware corporation
XXXXXXXXX'X AT VILLAGE SQUARE, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer of the above
corporations and limited liability
companies
ADDISON STEAKHOUSE, INC., a Texas corporation
CHICAGO STEAKHOUSE, INC., a Texas corporation
HOUSTON STEAKHOUSE, INC., a Texas corporation
SAN ANTONIO STEAKHOUSE, INC., a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
