EXHIBIT 4(b)
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SUBSIDIARY GUARANTY
Dated as of July 28, 2004
Re: $30,000,000 3.74% Senior Notes, Series A, due July 28, 2007
$40,000,000 4.61% Senior Notes, Series B, due July 28, 2010
$95,000,000 5.12% Senior Notes, Series C, due July 28, 2014
$25,000,000 5.67% Senior Notes, Series D, due July 28, 2016
of
BEF Holding Co., Inc.
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
Parties................................................................. 1
Recitals................................................................ 1
SECTION 1. DEFINITIONS................................................ 2
SECTION 2. GUARANTY OF NOTES AND NOTE PURCHASE AGREEMENT.............. 2
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE........................ 3
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY................ 3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR............ 8
SECTION 6. AMENDMENTS, WAIVERS, CONSENTS AND TERMINATION.............. 9
SECTION 7. NOTICES.................................................... 10
SECTION 8. MISCELLANEOUS.............................................. 10
Signature............................................................... 12
SUBSIDIARY GUARANTY
Re : $30,000,000 3.74% Senior Notes, Series A, due July 28, 2007
$40,000,000 4.61% Senior Notes, Series B, due July 28, 2010
$95,000,000 5.12% Senior Notes, Series C, due July 28, 2014
$25,000,000 5.67% Senior Notes, Series D, due July 28, 2016
of
BEF Holding Co., Inc.
THIS SUBSIDIARY GUARANTY dated as of July 28, 2004 (the "Guaranty") is
entered into by the undersigned, MIMI'S CAFE, LLC, a Delaware limited liability
company (the "Guarantor").
RECITALS
A. The Guarantor is an indirect Subsidiary of Xxx Xxxxx Farms, Inc., a
Delaware corporation (the "Company").
B. In order to raise funds to repay existing indebtedness of BEF Holding
Co., Inc., a Delaware corporation (the "Issuer"), under that certain Loan
Agreement dated as of June 6, 2004 between the Issuer and National City Bank
(the "Credit Agreement"), which had been incurred to finance the acquisition of
all of the capital stock of SWH Corporation by the Guarantor, and for general
corporate purposes, the Company and the Issuer have entered into the Note
Purchase Agreement dated as of July 28, 2004 (as amended, restated, supplemented
or otherwise modified from time to time, the "Note Purchase Agreement"), among
the Company, the Issuer and each of the institutional investors named in
Schedule A attached thereto (the "Note Purchasers"), providing for, among other
things, the issue and sale by the Issuer to the Note Purchasers of (i) the
$30,000,000 3.74% Senior Notes, Series A, due July 28, 2007, (ii) $40,000,000
4.61% Senior Notes, Series B, due July 28, 2010, (iii) the $95,000,000 5.12%
Senior Notes, Series C, due July 28, 2014, and (iv) the $25,000,000 5.67% Senior
Notes, Series D, due July 28, 2016 (the "Notes"). The Note Purchasers, together
with their successors and assigns and any subsequent transferees of the Notes in
accordance with the terms of the Note Purchase Agreement, are hereinafter
collectively referred to as the "Holders."
C. The Note Purchasers have required as a condition of their purchase of
the Notes to be purchased by them that the Company and the Issuer cause the
undersigned to enter into this Guaranty as security for the Notes, and the
Company and the Issuer have agreed to cause the undersigned to execute this
Guaranty in order to induce the Note Purchasers to purchase the Notes and
thereby benefit the Company, the Issuer and their Affiliates by providing funds
to enable the Issuer to repay such existing indebtedness and for the Issuer to
have funds available for general corporate purposes of the Company, the Issuer
and their Subsidiaries.
D. The Guarantor is engaged in related businesses with the Company and the
Issuer and is desirous that the Note Purchasers enter into the Note Purchase
Agreement and purchase the Notes, and acknowledges that by doing so the Note
Purchasers will be conferring substantial financial and other benefits on the
Guarantor.
NOW, THEREFORE, as required by the Note Purchase Agreement and in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, the Guarantor does
hereby covenant and agree, jointly and severally with any other guarantor of
such obligations, as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein shall have the meanings set forth in the
Note Purchase Agreement unless herein defined or the context shall otherwise
require.
SECTION 2. GUARANTY OF NOTES AND NOTE PURCHASE AGREEMENT.
(a) The Guarantor does hereby irrevocably, absolutely and unconditionally
guarantee unto the Holders: (1) the full and prompt payment of the principal of,
Make-Whole Amount, if any, and interest on the Notes from time to time
outstanding, as and when such payments shall become due and payable, whether by
lapse of time, upon redemption or prepayment, by extension or by acceleration or
declaration or otherwise (including (to the extent legally enforceable) interest
due on overdue payments of principal, Make-Whole Amount, if any, and interest)
in Federal or other immediately available funds of the United States of America
which at the time of payment or demand therefor shall be legal tender for the
payment of public and private debts, (2) the full and prompt performance and
observance by the Issuer of each and all of the obligations, covenants and
agreements required to be performed or owed by the Issuer under the terms of the
Notes and the Note Purchase Agreement and (3) the full and prompt payment, upon
demand by any Holder, of all costs and expenses, legal or otherwise (including
reasonable attorneys' fees), if any, as shall have been expended or incurred in
the protection or enforcement of any rights, privileges or liabilities in favor
of the Holders under or in respect of the Notes, the Note Purchase Agreement or
in any action in connection therewith or herewith and in each and every case
irrespective of the validity, regularity, or enforcement of any of the Notes or
Note Purchase Agreement or any of the terms thereof or any other like
circumstance or circumstances.
(b) The liability of the Guarantor under this Guaranty shall not exceed an
amount equal to a maximum amount as will, after giving effect to such maximum
amount and all other liabilities of the Guarantor, contingent or otherwise,
result in the performance of the obligations of the Guarantor hereunder not
constituting a fraudulent transfer, obligation or conveyance and will in no
event exceed an amount which can be guaranteed by the Guarantor under applicable
Federal and state law relating to insolvency of debtors.
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is a guarantee of payment and performance and the Guarantor hereby
waives, to the fullest extent permitted by law, any right to require that any
action on or in respect of any Note or the Note Purchase Agreement be brought
against the Issuer or any other Person or that resort be had to any direct or
indirect security for the Notes or for this Guaranty or any other remedy. Any
Holder may, at its option, proceed hereunder against the Guarantor in the first
instance to collect monies when due, the payment of which is guaranteed hereby,
without first proceeding against the Issuer or any other Person and without
first resorting to any direct or indirect security for the Notes or for this
Guaranty or any other remedy. The liability of the Guarantor hereunder shall in
no way be affected or impaired by any acceptance by any Holder of any direct or
indirect security for, or other guaranties of, any Indebtedness, liability or
obligation of the Issuer or any other Person to any Holder or by any failure,
delay, neglect or omission by any Holder to realize upon or protect any such
guarantees, Indebtedness, liability or obligation or any notes or other
instruments evidencing the same or any direct or indirect security therefor or
by any approval, consent, waiver, or other action taken, or omitted to be taken
by any such Holder.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) The Guarantor hereby consents and agrees that any Holder or Holders
from time to time may, without in any manner affecting the liability of the
Guarantor under this Guaranty, and upon such terms and conditions as any such
Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify,
increase, change, compromise, release or extend the duration of the time
for the performance or payment of any Indebtedness, liability or
obligation of the Issuer or of any other Person secondarily or otherwise
liable for any Indebtedness, liability or obligations of the Issuer on the
Notes, or waive any Default with respect thereto, or waive, modify, amend
or change any provision of any other agreement or this Guaranty (to the
extent permitted by Section 6); or
(2) sell, release, surrender, modify, impair, exchange or substitute
any and all property, of any nature and from whomsoever received, held by,
or for the benefit of, any such Holder as direct or indirect security for
the payment or performance of any Indebtedness, liability or obligation of
the Issuer or of any other Person secondarily or otherwise liable for any
Indebtedness, liability or obligation of the Issuer on the Notes; or
(3) settle, adjust or compromise any claim of the Issuer against any
other Person secondarily or otherwise liable for any Indebtedness,
liability or obligation of the Issuer on the Notes.
The Guarantor hereby ratifies and confirms any such extension, renewal,
change, sale, release, waiver, surrender, exchange, modification, amendment,
impairment, substitution, settlement, adjustment or compromise and that the same
shall be binding upon it, and hereby waives, to the fullest extent permitted by
law, any and all defenses, counterclaims or offsets
which it might or could have by reason thereof, it being understood that the
Guarantor shall at all times be bound by this Guaranty and remain liable
hereunder.
(b) The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the
creation, renewal or accrual of any liability of the Issuer, present or
future, or of the reliance of such Holders upon this Guaranty (it being
understood that all Indebtedness, liabilities and obligations described in
Section 2 hereof shall conclusively be presumed to have been created,
contracted or incurred in reliance upon the execution of this Guaranty);
and
(2) demand of payment by any Holder from the Issuer or any other
Person indebted in any manner on or for any of the Indebtedness,
liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of
the Notes or any other instrument, protest thereof and notice of its
dishonor to any party thereto and to the Guarantor.
The obligations of the Guarantor under this Guaranty and the rights of any
Holder to enforce such obligations by any proceedings, whether by action at law,
suit in equity or otherwise, shall not be subject to any reduction, limitation,
impairment or termination, whether by reason of any claim of any character
whatsoever or otherwise and shall not be subject to any defense, set-off,
counterclaim (other than any compulsory counterclaim), recoupment or termination
whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the
Guarantor and its successors and assigns, and shall remain in full force and
effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the
Notes, the Note Purchase Agreement or any other agreement or any of the
terms of any thereof, the continuance of any obligation on the part of the
Issuer, any other guarantor or any other Person on or in respect of the
Notes or under the Note Purchase Agreement or any other agreement or the
power or authority or the lack of power or authority of the Issuer to
issue the Notes or the Company or the Issuer to execute and deliver the
Note Purchase Agreement or any other agreement or to perform any of its
obligations hereunder or the existence or continuance of the Issuer or any
other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the
performance by the Issuer or any other Person of any obligations of any
kind or character whatsoever under the Notes, the Note Purchase Agreement
or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the the Issuer, any other guarantor or any other
Person or in respect of the property of the Issuer, any other guarantor or
any other Person or any merger,
consolidation, reorganization, dissolution, liquidation, the sale of all
or substantially all of the assets of or winding up of the Issuer, any
other guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the
Issuer, any other guarantor or any other Person of its obligations under
the Notes, the Note Purchase Agreement or any other agreements; or
(5) in respect of the Issuer, any other guarantor or any other
Person, any change of circumstances, whether or not foreseen or
foreseeable, whether or not imputable to the Issuer, any other guarantor
or any other Person, or other impossibility of performance through fire,
explosion, accident, labor disturbance, floods, droughts, embargoes, wars
(whether or not declared), civil commotion, acts of God or the public
enemy, delays or failure of suppliers or carriers, inability to obtain
materials, action of any federal or state regulatory body or agency,
change of law or any other causes affecting performance, or any other
force majeure, whether or not beyond the control of the Issuer, any other
guarantor or any other Person and whether or not of the kind hereinbefore
specified; or
(6) any attachment, claim, demand, charge, Lien, order, process,
encumbrance or any other happening or event or reason, similar or
dissimilar to the foregoing, foreseen or unforeseen, and whether or not
valid, incurred by or against the Issuer or any other Person or any
claims, demands, charges or Liens of any nature, foreseen or unforeseen,
incurred by any Person, or against any sums payable in respect of the
Notes or under the Note Purchase Agreement or this Guaranty, so that such
sums would be rendered inadequate or would be unavailable to make the
payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or
not valid) of any court of any nation or of any political subdivision
thereof or any body, agency, department, official or administrative or
regulatory agency of any thereof or any other action, happening, event or
reason whatsoever which shall delay, interfere with, hinder or prevent, or
in any way adversely affect, the performance by the Issuer or any other
Person of its respective obligations under or in respect of the Notes, the
Note Purchase Agreement or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a
result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection,
failure in presentment or demand for payment, protest, notice of protest,
notice of default and of nonpayment, any failure to give notice to the
Guarantor of failure of the Issuer, any other guarantor or any other
Person to keep and perform any obligation, covenant or agreement under the
terms of the Notes, the Note Purchase Agreement or any other agreement or
failure to resort for payment to the Issuer, any other guarantor or to any
other Person or to any other guaranty or to any property, security, Liens
or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty,
the advance of additional money to the Issuer or any other Person, the
renewal or extension of the Notes or amendments, modifications, consents
or waivers with respect to the Notes, the Note Purchase Agreement or any
other agreement, or the sale, release, substitution or exchange of any
security for the Notes; or
(11) any change in the ownership of any shares or other equity
interests of the Issuer, the Guarantor, any other guarantor or any other
Person; or
(12) any defense whatsoever that: (i) the Issuer or any other Person
might have to the payment of the Notes (principal, Make-Whole Amount, if
any, or interest), other than payment thereof in Federal or other
immediately available funds, or (ii) the Issuer or any other Person might
have to the performance or observance of any of the provisions of the
Notes, the Note Purchase Agreement or any other agreement, whether through
the satisfaction or purported satisfaction by the Issuer, any other
guarantor or any other Person of its debts due to any cause such as
bankruptcy, insolvency, receivership, merger, consolidation,
reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note
Purchase Agreement, this Guaranty or any other agreement or anything which
might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Guarantor or any other Person
in respect of the obligations of the Guarantor or other Person under this
Guaranty or any other agreement other than the final and indefeasible
payment in full in cash of the Notes;
provided that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned above, it being the purpose and intent of this
Guaranty that the obligations of the Guarantor shall be absolute, irrevocable
and unconditional and shall not be discharged, impaired or varied except by the
payment of the principal of, Make-Whole Amount, if any, or any other premium,
and interest on the Notes in accordance with their respective terms whenever the
same shall become due and payable as in the Notes provided and all other sums
due and payable under the Note Purchase Agreement, at the place specified in and
all in the manner and with the effect provided in the Notes and the Note
Purchase Agreement, as each may be amended or modified from time to time.
Without limiting the foregoing, it is understood that repeated and successive
demands may be made and recoveries may be had hereunder as and when, from time
to time, the Issuer shall default under or in respect of the terms of the Notes
or the Note Purchase Agreement and that notwithstanding recovery hereunder for
or in respect of any given default or defaults by the Issuer under the Notes or
the Note Purchase Agreement or the guaranty obligations of the other guarantor
under the Note Purchase Agreement, this Guaranty shall remain in full force and
effect and shall apply to each and every subsequent default.
(d) Subject to the deemed representations by a transferee set forth in
Section 14.2, all rights of any Holder hereunder may be transferred or assigned
at any time and shall be
considered to be transferred or assigned at any time or from time to time upon
the transfer of any Note whether with or without the consent of or notice to the
Guarantors under this Guaranty or to the Company or the Issuer (except as
provided in Section 14 of the Note Purchase Agreement).
(e) To the extent of any payments made under this Guaranty, the Guarantor
shall be subrogated to the rights of the Holder upon whose Notes such payment
was made, but the Guarantor covenants and agrees that such right of subrogation
shall be subordinate in right of payment to the prior indefeasible final payment
in cash in full of all amounts due and owing by the Issuer with respect to the
Notes and the Note Purchase Agreement, and the Guarantor shall not take any
action to enforce such right of subrogation, and the Guarantor shall not accept
any payment in respect of such right of subrogation, until all amounts due and
owing by the Issuer under or in respect of the Notes and the Note Purchase
Agreement and all amounts due and owing by the Guarantor hereunder have
indefeasibly been finally paid in cash in full. If any amount shall be paid to
the Guarantor in violation of the preceding sentence at any time prior to the
later of the indefeasible payment in cash in full of the Notes and all other
amounts payable under the Notes and this Guaranty, such amount shall be held in
trust for the benefit of the Holders and shall forthwith be paid to the Holders
to be credited and applied to the amounts due or to become due with respect to
the Notes and all other amounts payable under the Note Purchase Agreement and
this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it
has received direct and indirect benefits from the financing arrangements
contemplated by the Note Purchase Agreement and that the waiver set forth in
this paragraph (e) is knowingly made as a result of the receipt of such
benefits.
(f) The Guarantor agrees that to the extent the Issuer, any other
guarantor or any other Person makes any payment on any Note, which payment or
any part thereof is subsequently invalidated, voided, declared to be fraudulent
or preferential, set aside, recovered, rescinded or is required to be retained
by or repaid to a trustee, receiver, or any other Person under any bankruptcy
code, common law, or equitable cause, then and to the extent of such payment,
the obligation or the part thereof intended to be satisfied shall be revived and
continued in full force and effect with respect to the Guarantor's obligations
hereunder, as if said payment had not been made. The liability of the Guarantor
hereunder shall not be reduced or discharged, in whole or in part, by any
payment to any Holder from any source that is thereafter paid, returned or
refunded in whole or in part by reason of the assertion of a claim of any kind
relating thereto, including, but not limited to, any claim for breach of
contract, breach of warranty, preference, illegality, invalidity, or fraud
asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to xxxxxxxx any assets in
favor of the Guarantor or in payment of any or all of the liabilities of the
Company under or in respect of the Notes or the obligations of the Guarantor
hereunder or (2) to pursue any other remedy that the Guarantor may or may not be
able to pursue itself and that may lighten the Guarantor's burden, any right to
which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor under this Guaranty rank pari passu
in right of payment with all other Indebtedness of the Guarantor which is not
secured or which is not expressly subordinated in right of payment to any other
Indebtedness of the Guarantor.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.
The Guarantor represents and warrants to each Holder that:
(a) The Guarantor is a limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign limited liability company and
is in good standing in each jurisdiction in which such qualification is required
by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on (1) the ability of
the Guarantor to perform its obligations under this Guaranty, or (2) the
validity or enforceability of this Guaranty (herein in this Section 5, a
"Material Adverse Effect"). The Guarantor has the power and authority to own or
hold under lease the properties it purports to own or hold under lease, to
transact the business it transacts, to execute and deliver this Guaranty and to
perform the provisions hereof.
(b) This Guaranty has been duly authorized by all necessary organizational
action on the part of the Guarantor or the Company, as the case may be, and this
Guaranty constitutes a legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, except as such
enforceability may be limited by (1) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or other similar
laws affecting the enforcement of creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) The execution, delivery and performance by the Guarantor of this
Guaranty will not (1) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of the Guarantor under its corporate charter or by-laws, or other equivalent
formation or governing document, or except for contraventions, breaches or
defaults which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, under any indenture, mortgage, deed
of trust, loan, purchase or credit agreement, lease, or any other agreement or
instrument to which the Guarantor or any of its subsidiaries is bound or by
which the Guarantor or any of its subsidiaries or any of their respective
properties may be bound or affected, (2) conflict with or result in a breach of
any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to the
Guarantor or (3) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Guarantor.
(d) No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Guarantor of this Guaranty.
(e) Subject to the limitation set forth in Section 2(b) of this Guaranty,
the Guarantor has assets which exceed the aggregate amount of its liabilities,
has capital not unreasonably small in relation to its business or any
contemplated or undertaken transaction and has assets having a value both at
fair valuation and at present fair salable value (under normal business
conditions) greater than the amount required to pay its liabilities (including
contingent and unliquidated liabilities) as they become due and greater than the
amount that will be required to pay its probable liability on its existing
liabilities as they become absolute and matured. The Guarantor does not intend
to incur, or believe that it will incur, debts beyond its ability to pay such
debts as they become due. Subject to the limitation set forth in Section 2(b) of
this Guaranty, the Guarantor will not be rendered insolvent by the execution and
delivery of, and performance of its obligations under, this Guaranty. The
Guarantor does not intend to hinder, delay or defraud its creditors by or
through the execution and delivery of, or performance of its obligations under,
this Guaranty.
SECTION 6. AMENDMENTS, WAIVERS, CONSENTS AND TERMINATION.
(a) This Guaranty may be amended, and the observance of any term hereof
may be waived (either retroactively or prospectively), with (and only with) the
written consent of the Guarantor and the Required Holders, except that (1) no
amendment or waiver of any of the provisions of Section 2, 3 or 4, or any
defined term (as it is used therein), will be effective as to any Holder unless
consented to by such Holder in writing, and (2) no such amendment or waiver may,
without the written consent of each Holder, (i) change the percentage of the
principal amount of the Notes the Holders of which are required to consent to
any such amendment or waiver, or (ii) amend this Section 6.
(b) The Guarantor will provide each Holder (irrespective of the amount of
Notes then owned by it) with sufficient information, sufficiently far in advance
of the date a decision is required, to enable such Holder to make an informed
decision with respect to any proposed amendment, waiver or consent in respect of
any of the provisions hereof. The Guarantor will deliver executed or true and
correct copies of each amendment, waiver or consent effected pursuant to the
provisions of this Section 6 to each Holder promptly following the date on which
it is executed and delivered by, or receives the consent or approval of, the
requisite Holders.
(c) The Guarantor agrees it will not directly or indirectly pay or cause
to be paid any remuneration, whether by way of fee or otherwise, or grant any
security, to any Holder as consideration for or as an inducement to the entering
into by any Holder of any waiver or amendment of any of the terms and provisions
hereof unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each Holder even if such
Holder did not consent to such waiver or amendment.
(d) Any amendment or waiver consented to as provided in this Section 6
applies equally to all Holders and is binding upon them and upon each future
holder and upon the Guarantor. No such amendment or waiver will extend to or
affect any obligation, covenant or agreement not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Guarantor
and any Holder nor any delay in exercising any rights hereunder shall operate as
a waiver of any rights of any Holder. As used herein, the term "this Guaranty"
and references thereto shall mean this Guaranty as it may from time to time be
amended or supplemented.
(e) Subject to Section 4(f), this Guaranty shall automatically terminate
and the Guarantor shall cease to have any obligations hereunder when all amounts
due by the Issuer in respect of the Notes have been paid in full in cash.
SECTION 7. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telefacsimile if the sender on the same day sends a confirming
copy of such notice by a recognized overnight delivery service (charges
prepaid), or (b) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(1) if to a Note Purchaser, to such Note Purchaser at the address
specified for such communications on Schedule A to the Note Purchase
Agreement, or at such other address as such Note Purchaser shall have
specified to the Guarantor or the Company in writing,
(2) if to any other Holder, to such Holder at such address as such
Holder shall have specified to the Guarantor or the Company in writing, or
(3) if to a Guarantor, to the Guarantor c/o Xxx Xxxxx Farms, Inc.,
0000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, to the attention of the Chief
Financial Officer, or at such other address as the Guarantor shall have
specified to the Holders in writing.
Notices under this Section 7 will be deemed given only when actually received
(whether or not accepted).
SECTION 8. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any Holder is intended
to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given under this Guaranty now or hereafter existing at law or in equity. No
delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof but any such right or power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle any Holder to exercise any remedy reserved to it under the
Guaranty, it shall not be necessary for such Holder to physically produce its
Note in any proceedings instituted by it or to give any notice, other than such
notice as may be herein expressly required.
(b) The Guarantor will pay all sums becoming due under this Guaranty by
the method and at the address specified for such purpose in the Note Purchase
Agreement, or by such other reasonable method or at such other address as any
Holder shall have from time to time specified to the Guarantor in writing for
such purpose, without the presentation or surrender of this Guaranty or any
Note.
(c) Any provision of this Guaranty that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
(d) This Guaranty shall be binding upon the Guarantor and its successors
and assigns and shall inure to the benefit of each Holder and its successors and
assigns (including, without limitation, any subsequent holder of a Note) whether
so expressed or not, so long as its Notes remain outstanding and unpaid.
(e) This Guaranty may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
(f) This Guaranty shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by the law of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed by an authorized representative as of date first written above.
MIMI'S CAFE, LLC
By:/s/ Xxx Xxxxxxxxxx
------------------------
Name Xxx Xxxxxxxxxx
Title Manager and Assistant Treasurer
