Exhibit 10(d)
UNCONDITIONAL GUARANTY
OF PAYMENT AND PERFORMANCE
THIS UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE (this
"Guaranty") is made as of October 29, 2002, by X. XXXXXXXXX'X CORPORATION, a
Tennessee corporation ("Guarantor"), for the benefit of JAX REAL ESTATE, LLC, a
Delaware limited liability company (together with its successors and assigns
under the Lease (as defined below), "Lessor").
1. For valuable consideration, the receipt of which is hereby
acknowledged, Guarantor unconditionally, absolutely and irrevocably guarantees
and promises to pay Lessor, or order, any and all amounts, including, without
limitation, Base Annual Rental, Base Monthly Rental, taxes, insurance premiums,
impounds, reimbursements, late charges, default interest, damages, indemnity
obligations and all other amounts, costs, fees, expenses and charges of any kind
or type whatsoever, which may or at any time be due to Lessor pursuant to the
following agreements (collectively, the "Documents"):
A. Master Lease (the "Lease"), dated as of the date
hereof, between Lessor and X. Xxxxxxxxx'x Restaurants, Inc., a
Tennessee corporation ("Lessee"), by which Lessor leases the properties
corresponding to the FFC File Numbers and addresses identified on
Exhibit A attached hereto (collectively, the "Premises") to Lessee;
B. Any other document, agreement, instrument or
certificate contemplated by the Lease, or any other documents,
agreements, instruments or certificates now or hereafter entered into
between Lessor and Lessee with respect to the Lease; and
C. Any amendment of the foregoing documents, agreements,
instruments or certificates now or hereafter entered into between
Lessor and Lessee.
2. Guarantor also unconditionally guarantees the truthfulness and
accuracy of all representations, warranties and certifications of Lessee, the
satisfaction of all conditions by Lessee and the full and timely performance of
all obligations to be performed by Lessee, under or pursuant to the Documents
(the matters which are guaranteed pursuant to Sections 1 and 2 are hereinafter
collectively referred to as the "Obligations"). The obligations of Guarantor
under this Guaranty are primary, joint and several and independent of the
obligations of Lessee and any and every other guarantor of the Obligations, and
a separate action or actions may be brought and executed against Guarantor or
any other such guarantor, whether or not such action is brought against Lessee
or any other such guarantor and whether or not Lessee or any other such
guarantor be joined in such action or actions.
3. This is an absolute and unconditional guaranty of payment and
performance and not of collection and Guarantor unconditionally (a) waives any
requirement that Lessor first make demand upon, or seek to enforce or exhaust
remedies against, Lessee or any other person or entity (including any other
guarantor) or any of the collateral or property of Lessee or such other person
or entity before demanding payment from, or seeking to enforce this Guaranty
against, Guarantor; (b) waives and agrees not to assert any and all rights,
benefits and defenses which might otherwise be available under the provisions of
Ariz. Rev. Stat. ss. 12-1641 and ss.12 -1642 et seq., 44-141, 44-142 or 47-3605,
Arizona Rules of Civil Procedure Rule 17(f), or any other Arizona statutes or
rules (including any statutes or rules amending, supplementing or supplanting
same) which might operate, contrary to Guarantor's agreements in this Guaranty,
to limit Guarantor's liability under, or the enforcement of, this Guaranty; (c)
covenants that this Guaranty will not be discharged until all of the Obligations
are fully satisfied; and (d) agrees that this Guaranty shall remain in full
effect without regard to, and shall not be affected or impaired by, any
invalidity, irregularity or unenforceability in whole or in part of any of the
Documents, or any limitation of the liability of Lessee or Guarantor thereunder,
or any limitation on the method or terms of payment thereunder which may now or
hereafter be caused or imposed in any manner whatsoever.
4. This Guaranty is a continuing guaranty, and the obligations,
undertakings and conditions to be performed or observed by Guarantor under this
Guaranty shall not be affected or impaired by reason of the
happening from time to time of the following with respect to the Documents, all
without notice to, or the further consent of, Guarantor: (a) the waiver by
Lessor of the observance or performance by Lessee or Guarantor of any of the
obligations, undertakings, conditions or other provisions contained in any of
the Documents, except to the extent of such waiver; (b) the extension, in whole
or in part, of the time for payment of any amount owing or payable under the
Documents; (c) the modification or amendment (whether material or otherwise) of
any of the obligations of Lessee under, or any other provisions of, any of the
Documents, except to the extent of such modification or amendment; (d) the
taking or the omission of any of the actions referred to in any of the Documents
(including, without limitation, the giving of any consent referred to therein);
(e) any failure, omission, delay or lack on the part of Lessor to enforce,
assert or exercise any provision of the Documents, including any right, power or
remedy conferred on Lessor in any of the Documents or any action on the part of
Lessor granting indulgence or extension in any form; (f) the assignment to or
assumption by any third party of any or all of the rights or obligations of
Lessee under all or any of the Documents; (g) the release or discharge of Lessee
from the performance or observance of any obligation, undertaking or condition
to be performed by Lessee under any of the Documents by operation of law,
including any rejection or disaffirmance of any of the Documents in any
bankruptcy or similar proceedings; (h) the receipt and acceptance by Lessor or
any other person or entity of notes, checks or other instruments for the payment
of money and extensions and renewals thereof; (i) any action, inaction or
election of remedies by Lessor which results in any impairment or destruction of
any subrogation rights of Guarantor, or any rights of Guarantor to proceed
against any other person or entity for reimbursement; (j) any setoff, defense,
counterclaim, abatement, recoupment, reduction, change in law or any other event
or circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor, indemnitor or surety under the laws of the State of
Arizona, the state in which the Premises are located or any other jurisdiction;
and (k) the termination or renewal of any of the Obligations or any other
provision thereof.
5. Guarantor represents and warrants to Lessor that: (a) neither
the execution nor delivery of this Guaranty nor fulfillment of nor compliance
with the terms and provisions hereof will conflict with, or result in a breach
of the terms or conditions of, or constitute a default under, any agreement or
instrument to which Guarantor is now a party or by which Guarantor may be bound,
or result in the creation of any lien, charge or encumbrance upon any property
or assets of Guarantor, which conflict, breach, default, lien, charge or
encumbrance could result in a material adverse change in the financial condition
of Guarantor; (b) no further consents, approvals or authorizations are required
for the execution and delivery of this Guaranty by Guarantor or for Guarantor's
compliance with the terms and provisions of this Guaranty; (c) this Guaranty is
the legal, valid and binding agreement of Guarantor and is enforceable against
Guarantor in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, liquidation, reorganization and
other laws affecting the rights of creditors generally and subject to general
principles of equity; (d) Guarantor has the full power, authority, capacity and
legal right to execute and deliver this Guaranty, and, to the extent Guarantor
is a corporation, partnership, limited liability company or other form of
entity, the parties executing this Guaranty on behalf of Guarantor are fully
authorized and directed to execute the same to bind Guarantor; (e) Guarantor is
not a "foreign individual," "foreign corporation," "foreign partnership,"
"foreign limited liability company," "foreign trust," or "foreign estate," as
those terms are defined in the U.S. Internal Revenue Code and the regulations
promulgated thereunder; Guarantor's Social Security Number or Federal Tax
Identification Number is accurately set forth herein next to the signature of
Guarantor; (f) Guarantor has delivered to Lessor either audited consolidated
financial statements of Guarantor and its affiliates or, if Guarantor does not
have audited financial statements, certified financial statements; such
financial statements and other information relating to Guarantor heretofore
delivered to Lessor are true, correct and complete in all material respects as
of the date of this Guaranty; Guarantor understands that Lessor is relying upon
such information, and Guarantor represents that such reliance is reasonable; and
the financial statements of Guarantor delivered by Lessee to Lessor pursuant to
the Lease have been prepared in accordance with generally accepted accounting
principles consistently applied and accurately reflect, as of the date of this
Guaranty, the financial condition of Guarantor; (g) during the term of this
Guaranty, Guarantor will not transfer or dispose of any material part of its
assets except for reasonably equivalent value; furthermore, Guarantor will
furnish Lessor annually, within ninety (90) days after the close of each
calendar year, a financial statement consisting of a balance sheet and such
other financial information as Lessor may reasonably request; and (h) the
Documents are conclusively presumed to have been signed in reliance on this
Guaranty, and the assumption by Guarantor of its obligations under this Guaranty
results in direct financial benefit to Guarantor.
6. This Guaranty shall commence upon execution and delivery of
any of the Documents and shall continue in full force and effect until all of
the Obligations are duly, finally and permanently paid, performed and
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discharged and are not subject to any right of reborrowing or extension by
Lessee, and Lessor gives Guarantor written notice of the full and final
satisfaction of the Obligations. The Obligations shall not be considered fully
paid, performed and discharged unless and until all payments by Lessee to Lessor
are no longer subject to any right on the part of any person whomsoever,
including but not limited to Lessee, Lessee as a debtor-in-possession and/or any
trustee in bankruptcy, to disgorge such payments or seek to recoup the amount of
such payments or any part thereof. This Guaranty shall remain in full force and
effect and continue to be effective in the event that (i) any petition is filed
by or against Lessee or Guarantor for liquidation or reorganization, including,
without limitation, under Title 11 of the United States Code, 11 U.S.C. Sec. 101
et seq. (the "Code"), (ii) Lessee or Guarantor becomes insolvent or makes an
assignment for the benefit of creditors or (iii) a receiver or trustee is
appointed for all or any significant part of Lessee's or Guarantor's assets.
This Guaranty shall continue to be effective or be reinstated, as applicable, if
at any time payment and performance of the Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by Lessor, whether as a "voidable preference", "fraudulent
conveyance" or otherwise, all as though such payment or performance had not been
made. In the event that any payment of the Obligations, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall be reinstated
and deemed reduced only by such amount paid to Lessor and not so rescinded,
reduced, restored or returned.
7. Until the Obligations have been satisfied in full, Guarantor
shall neither have any right of subrogation, indemnity or reimbursement nor hold
any other claim against Lessee with respect to this Guaranty and, until the
Obligations have been satisfied in full, Guarantor shall not have the right to
enforce any and all claims by Guarantor now or hereafter arising against Lessee.
Furthermore, Guarantor hereby unconditionally and irrevocably waives (a) any
right to participate in any security now or hereafter held by Lessor or in any
claim or remedy of Lessor or any other person against Lessee with respect to the
Obligations, (b) any statute of limitations affecting Guarantor's liability
hereunder, (c) all principles and provisions of law which conflict with the
terms of this Guaranty, and (d) diligence, presentment, protest, demand for
performance, notice of nonperformance, notice of intent to accelerate, notice of
acceleration, notice of protest, notice of dishonor, notice of execution of any
Documents, notice of extension, renewal, alteration or amendment, notice of
acceptance of this Guaranty, notice of defaults under any of the Documents and
all other notices whatsoever.
8. Notwithstanding the preceding Section 7, in the event that
Guarantor shall have any claims against Lessee, any indebtedness of Lessee now
or hereafter held by Guarantor is hereby subordinated to the indebtedness of
Lessee to Lessor. Any such indebtedness of Lessee to Guarantor, if Lessor so
requests, shall be collected, enforced and received by Guarantor as trustee for
Lessor and be paid over to Lessor on account of the Obligations, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty.
9. It is not necessary for Lessor to inquire into the powers of
Lessee or its officers, directors, partners or agents acting or purporting to
act on its behalf, and Guarantor shall be liable for the Obligations in
accordance with their terms notwithstanding any lack of authorization or defect
in execution or delivery by Lessee.
10. In addition to the amounts guaranteed under this Guaranty,
Guarantor agrees to pay (i) all of Lessor's reasonable attorneys' fees and other
reasonable costs and expenses which may be incurred by Lessor in the enforcement
of this Guaranty and (ii) interest (including postpetition interest to the
extent a petition is filed by or against Lessee under the Code) at the Default
Rate (as defined in the Lease) on any Obligations not paid within five (5) days
of when due. Guarantor hereby agrees to indemnify and hold harmless Lessor for,
from and against any loss, cause of action, claim, cost, expense or fee,
including but not limited to reasonable attorney's fees and court costs,
suffered or occasioned by the failure of Lessee to satisfy its obligations under
the Documents. The agreement to indemnify Lessor contained in this paragraph
shall be enforceable notwithstanding the invalidity or unenforceability of the
Documents or any of them or the invalidity or unenforceability of any other
paragraph contained in this Guaranty. All moneys available to Lessor for
application in payment or reduction of the liabilities of Lessee under the
Documents may be applied by Lessor to the payment or reduction of such
liabilities of Lessee, in such manner, in such amounts and at such time or times
as Lessor may elect.
11. All notices, demands, requests, consents, approvals or other
instruments required or permitted to be given pursuant to this Guaranty shall be
in writing and given by (i) hand delivery, (ii) express overnight delivery
service or (iii) certified or registered mail, return receipt requested, and
shall be deemed to have been delivered upon
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(a) receipt, if hand delivered, (b) the next Business Day (as defined in the
Lease), if delivered by express overnight delivery service or (c) the third
Business Day following the day of deposit of such notice with the United States
Postal Service, if sent by certified or registered mail, return receipt
requested. Notices shall be provided to the addresses (or facsimile numbers, as
applicable) specified below:
If to Guarantor: X. Xxxxxxxxx'x Corporation
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxx
With a copy to: GE Capital Franchise Finance Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
If to Lessor: JAX Real Estate, LLC
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxx
or to such other address or such other person as either Guarantor or Lessor may
from time to time hereafter specify to the other party in a notice delivered in
the manner provided above.
12. This Guaranty is delivered in the State of Arizona, and it is
the intent of Guarantor and Lessor that this Guaranty shall be deemed to be a
contract made under and governed by the internal laws of the State of Arizona,
without regard to its principles of conflicts of law. For purposes of any action
or proceeding involving this Guaranty, Guarantor submits to the jurisdiction of
all federal and state courts located in the State of Arizona and consents that
it may be served with any process or paper by registered mail or by personal
service within or without the State of Arizona in accordance with applicable
law. Furthermore, Guarantor waives and agrees not to assert in any such action,
suit or proceeding that it is not personally subject to the jurisdiction of such
courts, that the action, suit or proceeding is brought in an inconvenient forum
or that venue of the action, suit or proceeding is improper. Nothing contained
in this section shall limit or restrict the right of Lessor to commence any
proceeding in the federal or state courts located in the state in which the
Premises are located and/or where Guarantor maintains its chief executive office
to the extent Lessor deems such proceeding necessary or advisable to exercise
remedies available under the Documents.
13. Guarantor intends for the Lease to be a "true lease" and not a
financing lease, capital lease, mortgage, equitable mortgage, deed of trust,
security agreement or other financing or trust arrangement, and the economic
realities of the Lease are those of a true lease. Guarantor shall not challenge
the validity, enforceability or characterization of the transactions
contemplated by the Lease, and Guarantor shall support the intent of Guarantor,
Lessee and Lessor that the Lease is a "true lease" and does not create a joint
venture, partnership, equitable mortgage, trust, financing device or
arrangement, trust agreement, security interest or the like. Guarantor
acknowledges that Lessor did not prepare or assist in the preparation of any of
the projected financial figures used by Lessee in analyzing the economic
viability and feasibility of the transactions contemplated by the Lease.
14. All of Lessor's rights and remedies under the Documents and
this Guaranty are intended to be distinct, separate and cumulative and no such
right and remedy is intended to be in exclusion of or a waiver of any of the
others.
15. This Guaranty and all obligations of Guarantor hereunder shall
be binding upon the successors and assigns of Guarantor (including, a
debtor-in-possession on behalf of Guarantor) and shall, together with the rights
and remedies of Lessor, hereunder, inure to the benefit of Lessor, all future
holders of any instrument evidencing any of the Obligations and its successors
and assigns. No sales, participations, assignments, transfers or other
dispositions of any agreement governing or instrument evidencing the Obligations
or any portion thereof or interest
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therein shall in any manner affect the rights of Lessor or its successors and
assigns hereunder. Guarantor may not assign, sell, hypothecate or otherwise
transfer any interest in or obligation under this Guaranty.
16. If any provision of this Guaranty is unenforceable, the
enforceability of the other provisions shall not be affected and they shall
remain in full force and effect. Guarantor agrees to take such action and to
sign such other documents as may be appropriate to carry out the intent of this
Guaranty. This Guaranty may be executed in one or more counterparts, each of
which shall be deemed an original.
17. LESSOR, BY ACCEPTING THIS GUARANTY, AND GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY LESSOR OR GUARANTOR AGAINST THE
OTHER OR THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS GUARANTY, THE RELATIONSHIP OF LESSOR, LESSEE AND/OR
GUARANTOR, LESSEE'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR
INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY LESSOR
AND GUARANTOR OF ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED
AND IS A MATERIAL INDUCEMENT FOR LESSOR ACCEPTING THIS GUARANTY. FURTHERMORE,
EACH OF LESSOR AND GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES FROM THE OTHER OR ANY OF THE OTHER'S AFFILIATES, OFFICERS,
DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL
ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY
EITHER PARTY AGAINST THE OTHER OR ANY OF THE OTHER'S AFFILIATES, OFFICERS,
DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY MATTER
ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY DOCUMENTS CONTEMPLATED
HEREIN OR RELATED HERETO. THE WAIVER BY GUARANTOR OF ANY RIGHT THEY MAY HAVE TO
SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED
AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
18. Guarantor shall be liable under this Guaranty for the maximum
amount of such liability that can be incurred hereby without rendering this
Guaranty, as it relates to Guarantor, voidable under applicable laws relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount.
Guarantor agrees that the Obligations may at any time and from time to time
exceed the amount of the liability of Guarantor hereunder without impairing this
Guaranty or affecting the rights and remedies of Lessor hereunder.
19. This Guaranty is executed and delivered to induce Lessor to
enter into the Lease and is solely for the benefit of Lessor and its successors
and assigns, including, without limitation, GE Capital Franchise Finance
Corporation, a Delaware corporation ("Lender"), and its successors and assigns
under the Loan Documents (as defined in the Lease), and is not intended to nor
shall it be deemed to be for the benefit of any other third party, including,
without limitation, Lessee. This Guaranty is a continuing Guaranty and shall be
binding upon Guarantor and its successors and assigns; provided, however,
without the prior written consent of Lender, Guarantor shall not assign this
Guaranty or any of the rights or obligations of Guarantor hereunder.
20. Guarantor acknowledges and agrees that (i) Lessor intends to
collaterally assign all of its right, title and interest under the Lease and
this Guaranty to Lender pursuant to the Loan Documents and (ii) upon the
exercise of Lender's remedies set forth in such Loan Documents, all of the
rights, powers and privileges of Lessor shall be deemed the rights, powers and
privileges of Lender and Lender shall be entitled to exercise all of the rights
and remedies of "Lessor" under this Guaranty, the Lease and the Loan Documents.
Guarantor hereby consents to, and no further consent by Guarantor shall be
required for, any further assignment of rights of Lessor hereunder or in
connection with any transfer by Lessor. All notices, certificates, reports or
other information required to be delivered to Lessor under this Guaranty shall
be delivered simultaneously to Lender. Notwithstanding any provision herein to
the contrary, this Guaranty shall not be deemed to create any obligation of or
liability for Lender. Guarantor intends that Lender shall be an intended third
party beneficiary of this Guaranty but without any corresponding responsibility,
liability or obligation to Guarantor.
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IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty effective as of the date set forth in the introductory paragraph of
this Guaranty.
GUARANTOR:
Social Security or
Federal Tax I.D. Number: X. XXXXXXXXX'X CORPORATION, a Tennessee
corporation
00-0000000
By: /s/ R. Xxxxxxx Xxxxx
-----------------------------------
R. Xxxxxxx Xxxxx
Its Vice President, Chief Financial
Officer and Secretary
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on this _____ day
of October 29, 2002 by R. Xxxxxxx Xxxxx, Vice President, Chief Financial
Officer and Secretary of X. Xxxxxxxxx'x Corporation, a Tennessee corporation, on
behalf of the corporation.
/s/ Notary Public
--------------------------------------
Notary Public
My Commission Expires:
February 29, 2004
------------------------------------
EXHIBIT A
DESCRIPTION OF PREMISES
FFC NO. UNIT NO. ADDRESS CITY COUNTY STATE
-------- -------- ------- ---- ------ -----
8001-4145 2 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxxx XX
0000-0000 3 0000 Xxxxxxxxxx Xxxxxxx Xx. Xxxxxx Xxxxxxxxxx XX
0000-0000 4 0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxxxx XX
0000-0000 5 0000 00xx Xxxxxx Xxx Xxxxx Du Page IL
8001-4149 7 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
0000-0000 9 00000 Xxxxxxx Xxxxxx Xxxxxxxx Xxxx Xxxxxxx XX
0000-0000 13 0000 Xxxxxxxx Xxxxx Xxxx. Xxxxxxxxxxx Xxxxxxxx XX
0000-0000 14 0000 Xxxxx Xxxxxxxxxx Xxxx. Xxxxxxx Xxxxxx XX
0000-0000 17 00000 Xxxxxxxx Xxxx Xxxxxxx Xxxxx XX
