Subsidiary Guaranty Dated as of July 28, 2008 Re: $40,000,000 6.39% Senior Notes, Series A, Due July 28, 2014 and $30,000,000 6.39% Senior Notes, Series B, Due July 28, 2013 of BEF Holding Co., Inc.
Exhibit 4.2
Execution Copy
Dated as of July 28, 2008
Re: $40,000,000 6.39% Senior Notes, Series A, Due July 28, 2014
and
$30,000,000 6.39% Senior Notes, Series B, Due July 28, 2013
of
BEF Holding Co., Inc.
and
$30,000,000 6.39% Senior Notes, Series B, Due July 28, 2013
of
BEF Holding Co., Inc.
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
|
2 | ||||
| Section 4. | General Provisions Relating to the Guaranty
|
3 | ||||
| Section 5. | Representations and Warranties of the Guarantor
|
7 | ||||
| Section 6. | Amendments, Waivers, Consents and Termination
|
9 | ||||
| Section 7. | Notices
|
9 | ||||
| Section 8. | Miscellaneous
|
10 | ||||
| Signature | 12 | |||||
Re: $40,000,000 6.39% Senior Notes, Series A, Due July 28, 2014
and
$30,000,000 6.39% Senior Notes, Series B, Due July 28, 2013
of
BEF Holding Co., Inc.
and
$30,000,000 6.39% Senior Notes, Series B, Due July 28, 2013
of
BEF Holding Co., Inc.
This Subsidiary Guaranty dated as of July 28, 2008 (the “Guaranty”) is
entered into by the undersigned, Mimi’s Café, 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 Indebtedness under existing bank credit facilities of the
Company and its Subsidiaries, to refinance a portion of the principal of the 2004 Senior Notes, and
for general corporate purposes, the Company and BEF Holding Co., Inc., a Delaware corporation (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 $40,000,000 6.39% Senior Notes, Series A, due July 28,
2014 (the “Series A Notes”) and (ii) the $30,000,000 6.39% Senior Notes, Series B, due July 28,
2013 (the “Series B Notes” and together with the Series A Notes, 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
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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
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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 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
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(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
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(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
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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
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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.
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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:
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(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.
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(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.
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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 Café, LLC |
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| By: | /s/Xxx X. Xxxxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxxxx | |||
| Title: | Manager, Assistant Treasurer and Assistant Secretary |
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