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EXHIBIT 10-1
GUARANTY
Dated as of July 5, 1995
among
Xxxxxxx Family Restaurants, L.P.,
Xxxxxxx Restaurants Operating Company, L.P.
and
BancBoston Leasing Inc.
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TABLE OF CONTENTS
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GUARANTY
GUARANTY, dated as of July 5, 1995 by Xxxxxxx Family Restaurants, L.P. and
Xxxxxxx Restaurants Operating Company, L.P., jointly and severally
(collectively, the "Guarantors") in favor of BancBoston Leasing Inc. ("BBL").
WHEREAS, the Guarantors have requested that BBL arrange and provide lease
financing for equipment to be installed in the Xxxxxxx Family Restaurants
listed on Exhibit A attached hereto by Perk Development Corporation, a
franchisee of the Guarantors (the "Franchisee"); and
WHEREAS, BBL has agreed to consider providing such financing to the Franchisee
pursuant to agreements, substantially in the form of the Master Lease Finance
Agreement and the related agreements, schedules and certificates attached
hereto as Exhibit B, which have been jointly approved by the Guarantors and
which approval has been certified as provided in Exhibit C attached hereto,
(collectively, the "Agreements" and individually, an "Agreement"), such
Agreements to be entered into during the period from the date hereof through
September 30, 1996 and in an aggregate amount not to exceed $1,350,000; and
WHEREAS, it is a condition precedent to BBL's providing any such financing to
the Franchisee, that the Guarantors jointly and severally guaranty payment by
the Franchisee of its obligations under the Agreements, on the terms and
conditions provided herein; and
WHEREAS, the Guarantors wish to guaranty the Franchisee's obligations to BBL as
provided herein;
NOW, THEREFORE, each of the Guarantors hereby agrees with BBL as follows:
Section Definitions.
The term "Obligations" shall mean all Daily Rent, Monthly Rent and all other
amounts payable under or in respect of any of the Agreements, including,
without limitation, all fees and expenses of BBL. All capitalized terms used
herein without definition shall have the respective meanings provided therefor
in the Agreements.
Section Guaranty of Payment and Performance.
The Guarantors hereby jointly and severally guarantee to BBL the full and
punctual payment when due (whether at stated maturity, by required pre-payment,
by acceleration or otherwise), of all of the Obligations including all such
which would become due but for the operation of the automatic stay pursuant to
Section 362(a) of the Federal Bankruptcy Code and the operation of Section
Section 502(b) and 506(b) of the Federal Bankruptcy Code. This Guaranty is an
absolute, unconditional and continuing guaranty of the full and punctual
payment of all of the Obligations and not of their collectibility only and is
in no way conditioned upon any requirement that BBL first attempt to collect
any of the Obligations from the Franchisee or any other guarantor of the
Obligations, or resort to any collateral security or other means of obtaining
payment, provided, however, that during any period of a Significant Continuing
Default (as defined below), upon request of the Guarantors (but without
limiting BBL's rights absent such request), BBL will use its usual efforts to
collect the Obligations subject to such Significant Continuing Default. Should
the Franchisee default in the payment or performance of any of the Obligations
and such default shall continue for 91 days, the joint and several obligations
of the Guarantors hereunder with respect to such Obligations in default shall
become immediately due and payable to BBL, upon demand. Payments by the
Guarantors hereunder may be required by BBL on any number of occasions.
Demands by BBL in respect of any defaulted Monthly Rent payments by the
Franchisee may be satisfied by the Guarantors hereunder by paying the amount of
Monthly Rent then in default; however, if the Guarantors have paid eight out of
any twelve consecutive Monthly Rent payments in respect of any Agreement (with
respect to such Agreement, a "Significant Continuing Default"), upon any
further Event of Default under such Agreement, the Guarantors shall, upon
demand for payment under this Guaranty, repay all Obligations under such
Agreement, provided, that the Guarantors may satisfy such obligations, at their
option, in either manner provided in Exhibit D attached hereto.
Section Guarantor's Agreement to Pay Enforcement Costs, Etc. The Guarantors
further agree, as the principal obligors and not as guarantors only, to pay to
BBL, on demand, all costs and expenses (including court costs and legal
expenses) incurred or expended by BBL in connection with this Guaranty and the
enforcement thereof, together with interest on amounts recoverable under this
Section 3 from the time when such amounts become due until payment, whether
before or after judgment, at the rate of interest for overdue amounts set forth
in the Agreements, provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall be reduced
to such maximum permitted amount.
Section Limitation of Liability.
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The Guarantors' joint and several obligations under Section 2 of this Guaranty
shall be limited, as of the time of any demand hereunder, to an amount equal to
the Applicable Percentage (as defined below) of the then outstanding aggregate
Obligations under all Agreements (the "Guarantors' Liability"). The
"Applicable Percentage" on any date of determination shall be the applicable
percentage set forth on Exhibit E attached hereto on such date. Each payment
under this Guaranty shall reduce the Guarantors' Liability by the amount of
such payment. In the event that, after one or more payments are made by a
Guarantor hereunder in respect of any Agreement, either Guarantor recovers all
or a portion of the amount paid from the Franchisee, from proceeds of the
underlying equipment or from payments made to or proceeds recovered by BBL,
whether by means of subrogation or otherwise, or by reassignment of the
applicable Agreement as provided in Exhibit D attached hereto, the amount
recovered (but not more than the amount paid under this Guaranty in respect of
the Franchisee's Agreement) shall be added to the then applicable Guarantors'
Liability, as if such payments under this Guaranty had not been made. The
Guarantors' obligations under Section 3 of this Guaranty shall be in addition
to the amounts specified in this Section 4.
Section Waivers by Guarantors; BBL's Freedom to Act.
Except as expressly provided in Section 2 hereof, ttthe Guarantors agree that
the Obligations will be paid strictly in accordance with their respective
terms, regardless of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of BBL with respect
thereto. The Guarantors waive promptness, diligence, presentment, demand,
protest, notice of acceptance, notice of any Obligations incurred and (except
as expressly provided for herein) all other notices of any kind, all defenses
which may be available by virtue of any valuation, stay, moratorium law or
other similar law now or hereafter in effect, any right to require the
marshaling of assets of the Franchisee or any other entity or other person
primarily or secondarily liable with respect to any of the Obligations, and all
suretyship defenses generally. Without limiting the generality of the
foregoing, the Guarantors agree to the provisions of the Agreements evidencing,
securing or otherwise executed in connection with any Obligation and agree that
the obligations of the Guarantors hereunder shall not be released or
discharged, in whole or in part, or otherwise affected by (a) the failure of
BBL to assert any claim or demand or to enforce any right or remedy against the
Franchisee or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations; (b) (except to the extent provided
below) any extensions, compromise, refinancing, consolidation or renewals of
any Obligation; (c) (except to the extent provided below) any change in the
time, place or manner of payment of any of the Obligations or any rescissions,
waivers, compromise, refinancing, consolidation, amendments or modifications of
any of the terms or provisions of the Agreements evidencing, securing or
otherwise executed in connection with any of the Obligations; (d) the addition
(but not release) of any entity or other person primarily or secondarily liable
for any Obligation; (e) except to the extent provided below, the adequacy of
any rights which BBL may have against any collateral security or other means of
obtaining repayment of any of the Obligations; (f) except to the extent
provided below, the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve
any rights which BBL might have in such collateral security or the loss or
destruction of any such collateral security; or (g) any other act or omission
which might in any manner or to any extent vary the risk of the Guarantors or
otherwise operate as a release or discharge of the Guarantors all of which may
be done without notice to the Guarantors, provided, that BBL agrees to act in a
commercially reasonable manner and provided, further, that BBL will not,
without the consent of the Guarantors, which will not be unreasonably withheld,
agree with the Franchisee to (i) extend the time for payment of any Obligation,
(ii) increase the amount of any payment of Daily Rent or Monthly Rent or the
aggregate principal amount due under any Agreement, (iii) amend or modify in
any material way any other provision of any Agreement, if the effect of such
amendment or modification could be to increase the liability or exposure of the
Guarantors in respect of such Agreement, or (iv) release, settle or otherwise
compromise any claims against the Franchisee or any other guarantor of the
payment or performance of any Agreement, and BBL agrees that it will not
materially change any provisions in the forms of the Agreements attached hereto
as Exhibit B insofar as such forms relate to Obligations guaranteed hereunder,
without first notifying the Guarantors and affording the Guarantors an
opportunity to comment on any proposed changes. To the fullest extent
permitted by law, the Guarantors hereby expressly waive any and all rights or
defenses arising by reason of (A) any "one action" or "anti-deficiency" law
which would otherwise prevent BBL from bringing any action, including any claim
for a deficiency, or exercising any other right or remedy (including any right
of set-off), against the Guarantors before or after BBL's commencement or
completion of any foreclosure action, whether judicially, by exercise of
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power of sale or otherwise, or (B) any other law which in any other way would
otherwise require any election of remedies by BBL.
Section Unenforceability of Obligations Against Franchisee.
If for any reason the Franchisee has no legal existence or is under no legal
obligation to discharge any of the Obligations, or if any of the Obligations
have become irrecoverable from the Franchisee by reason of the Franchisee's
insolvency, bankruptcy or reorganization or by other operation of law or for
any other reason, this Guaranty shall nevertheless be binding on the Guarantors
to the same extent as if the Guarantors at all times had been the principal
obligors on all such Obligations. In the event that acceleration of the time
for payment of any of the Obligations is stayed upon the insolvency, bankruptcy
or reorganization of the Franchisee, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of the Agreements evidencing,
securing or otherwise executed in connection with any Obligation shall be
immediately due and payable by the Guarantors upon demand. Upon payment in
full by the Guarantors of the Obligations in respect of any Agreement, the
related Agreement shall be assigned to the Guarantors as provided in Exhibit D
attached hereto.
Section Subrogation; Subordination.
Section Waiver of Rights Against Franchisee. SUBJECT TO THE EXCEPTIONS
CONTAINED IN SUBSECTION 7.3 HEREOF, until the final payment in full of all
Obligations of the Franchisee, the Guarantors shall not exercise any rights
against the Franchisee arising as a result of payment by a Guarantor
hereunder, by way of subrogation, reimbursement, restitution, contribution or
otherwise, and will not prove any claim in competition with BBL in respect of
any payment hereunder in any bankruptcy, insolvency or reorganization case or
proceedings of any nature; the Guarantors will not claim any setoff,
recoupment or counterclaim against the Franchisee in respect of any liability
of the Guarantors to the Franchisee; and the Guarantors waive any benefit of
and any right to participate in any collateral security which may be held by
BBL.
Section Subordination. SUBJECT TO THE EXCEPTIONS CONTAINED IN SUBSECTION 7.3
HEREOF, the payment of any amounts due with respect to any indebtedness of the
Franchisee now or hereafter owed to the Guarantors is hereby subordinated to
the prior payment in full of all of the Obligations of the Franchisee. The
Guarantors agree that, after the occurrence of any default in the payment of
any of the Obligations, neither of the Guarantors will demand, xxx for or
otherwise attempt to collect any such indebtedness of the Franchisee to either
Guarantor until all of the Obligations of the Franchisee shall have been paid
in full. If, notwithstanding the foregoing sentence, either Guarantor shall
collect, enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by the Guarantors as trustee
for BBL and be paid over to BBL on account of the Obligations without affecting
in any manner the liability of the Guarantors under the other provisions of
this Guaranty.
Section Exception. The provisions of subsections 7.1 and 7.2 hereof shall
not apply to any royalty, marketing fund or other advertising payments made
under any franchise or license agreement between the Franchisee and the
Guarantors (or any notes or other evidences of indebtedness given in payment
therefor) or payments for any products, materials, or supplies purchased from
the Guarantors by the Franchisee in the ordinary course of business.
Section Provisions Supplemental. The provisions of this Section 7 shall be
supplemental to and not in derogation of any rights and remedies of BBL or any
affiliate of BBL under any separate subordination agreement which BBL or such
affiliate may at any time and from time to time enter into with either
Guarantor.
Section Security; Setoff. The Guarantors grant to BBL, as security for the
full and punctual payment and performance of all of the Guarantors' obligations
hereunder, a continuing lien on and security interest in all securities or
other property belonging to each Guarantor now or hereafter held by BBL and its
affiliates and in all deposits (general or special, time or demand, provisional
or final) and other sums credited by or due from BBL or its affiliates to a
Guarantor or subject to withdrawal by a Guarantor. Regardless of the adequacy
of any collateral security or other means of obtaining payment of any of the
Obligations, BBL is hereby authorized at any time and from time to time,
without notice to either Guarantor (any such notice being expressly waived by
the Guarantors) and to the fullest extent permitted by
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law, to set off and apply such deposits and other sums against the obligations
of the Guarantors under this Guaranty, whether or not BBL shall have made any
demand under this Guaranty.
Section Further Assurances; Provision of Collateral. (A) The Guarantors
agree that they will from time to time, at the request of BBL, provide to BBL
the Guarantors' most recent audited and unaudited balance sheets and related
statements of income and cash flows (prepared on a consolidated basis with each
Guarantor's subsidiaries, if any) and such other information relating to the
business and affairs of the Guarantors as BBL may reasonably request. The
Guarantors agree to do all such things and execute all such documents as BBL
may reasonably consider necessary or desirable to give full effect to this
Guaranty and to perfect and preserve the rights and powers of BBL hereunder.
The Guarantors acknowledge and confirm that the Guarantors themselves have
established their own adequate means of obtaining from the Franchisee on a
continuing basis all information desired by the Guarantors concerning the
financial condition of the Franchisee and that the Guarantors will look to the
Franchisee and not to BBL in order for the Guarantors to keep adequately
informed of changes in the Franchisee's financial condition.
(b) In the event that an Event of Default caused by noncompliance with any
covenant contained in Section 9 of that certain Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of June 29, 1994, among the
Guarantors, The First National Bank of Boston, The Bank of Tokyo, Ltd., First
American National Bank, such other lenders as may become parties thereto from
time to time, and The First National Bank of Boston, as agent, as such
agreement may be amended, supplemented, restated and in effect from time to
time, shall continue for a period of two consecutive fiscal quarters (a
"Collateral Event"), the Guarantors hereby agree to provide, immediately upon
demand by BBL made at any time after the occurrence of a Collateral Event, cash
or cash equivalents satisfactory to BBL in an amount at least equal to the
Guarantors' Liability from time to time in effect in pledge to secure the
Guarantors' obligations hereunder, pursuant to a cash collateral pledge
agreement in form and substance satisfactory to BBL. BBL shall be entitled to
retain such cash collateral until all obligations of the Guarantors hereunder
have been irrevocably paid in full in cash.
Section Termination; Reinstatement. Subject to Section 4 hereof, this
Guaranty shall remain in full force and effect until the Obligations have been
irrevocably paid in full in cash. This Guaranty shall continue to be effective
or be reinstated, if at any time any payment made or value received with
respect to any Obligation is rescinded or must otherwise be returned by BBL
upon the insolvency, bankruptcy or reorganization of the Franchisee, or
otherwise, all as though such payment had not been made or value received.
Section Successors and Assigns. This Guaranty shall be binding upon BBL and
the Guarantors, their successors, transferees and assigns, and shall inure to
the benefit of and be enforceable by BBL and the Guarantors and their
successors, transferees and assigns. Without limiting the generality of the
foregoing sentence, BBL may, with the consent of the Guarantors, which shall
not be unreasonably withheld, assign or otherwise transfer any of the
Agreements or any other agreement or note held by it evidencing, securing or
otherwise executed in connection with the Obligations, or sell participations
in any interest therein, to any other entity or other person, and such other
entity or other person shall thereupon become vested, to the extent set forth
in the agreement evidencing such assignment, transfer or participation, with
all the rights in respect thereof granted to BBL herein.
Section Amendments and Waivers. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the Guarantors therefrom shall be
effective unless the same shall be in writing and signed by BBL. No failure on
the part of BBL to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right.
Section Notices. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or
mailed first class, postage prepaid, or, in the case of telegraphic or telexed
notice, when transmitted, answer back received, addressed as follows: if to a
Guarantor, at the address set forth beneath its signature hereto, and if to
BBL, at the address for notices to BBL set forth in the Agreement, or at such
address as either party may designate in writing to the other.
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Section Governing Law; Consent to Jurisdiction. THE GUARANTY IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. Each Guarantor
agrees that any suit for the enforcement of this Guaranty may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting
therein and consents to the nonexclusive jurisdiction of such court and to
service of process in any such suit being made upon the Guarantors by mail at
the address specified by reference in Section 13 hereof. The Guarantors hereby
waive any objection that they may now or hereafter have to the venue of any
such suit or any such court or that such suit was brought in an inconvenient
court.
Section Waiver of Jury Trial. EACH OF THE GUARANTORS HEREBY WAIVES ITS RIGHT
TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE
IN CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
each of the Guarantors hereby waives any right which it may have to claim or
recover in any litigation referred to in the preceding sentence any special,
exemplary, punitive or consequential damages or any damages other than, or in
addition to, actual damages. The Guarantors (a) certify that neither BBL nor
any representative, agent or attorney of BBL has represented, expressly or
otherwise, that BBL would not, in the event of litigation, seek to enforce the
foregoing waivers and (b) acknowledge that, in entering into the Agreements and
the other documents to which BBL is a party, BBL is relying upon, among other
things, the waivers and certifications contained in this Section 15.
Section Miscellaneous. This Guaranty constitutes the entire agreement of the
Guarantors with respect to the matters set forth herein. The rights and
remedies herein provided are cumulative and not exclusive of any remedies
provided by law or any other agreement, and this Guaranty shall be in addition
to any other guaranty of or collateral security for any of the Obligations.
The invalidity or unenforceability of any one or more sections of this Guaranty
shall not affect the validity or enforceability of its remaining provisions.
Captions are for the ease of reference only and shall not affect the meaning of
the relevant provisions. The meanings of all defined terms used in this
Guaranty shall be equally applicable to the singular and plural forms of the
terms defined.
IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty to be
executed and delivered as of the date first above written.
XXXXXXX FAMILY RESTAURANTS, L.P.
By: Perkins Management
Company, Inc., its
general partner
By:
----------------------------------
Title:
XXXXXXX RESTAURANTS OPERATING
COMPANY, L.P.
By: Perkins Management
Company, Inc., its
general partner
By:
----------------------------------
Title:
8
BANCBOSTON LEASING INC.
By:
----------------------------------
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By:
----------------------------------
Title:
9
EXHIBIT B
[Master Lease and related agreements.]
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EXHIBIT C
Form of
Certificate of Acceptance
The undersigned Xxxxxxx Family Restaurants, L.P. and Xxxxxxx
Restaurants Operating Company, L.P. (collectively, the "Guarantors") hereby
certify and agree with reference to the Guaranty (the "Guaranty"), dated
_______________, 1995 among the Guarantors and BancBoston Leasing Inc. ("BBL"),
as follows:
1. BBL has informed the Guarantors that Perk Development
Corporation (the "Franchisee"), a franchisee of the Guarantors'
restaurant business, has requested a lease (the "Lease") in an amount
not to exceed $__________ for a period of Forty-Eight (48) months,
covering equipment listed on Schedule 1 attached hereto (the
"Equipment"), to be used at the address(s) set forth on Schedule 1,
and that BBL is willing to enter into such lease of the Equipment
with Perk Development Corporation, subject to Guarantors' acceptance
of the Lease as an "Agreement" under the Guaranty.
2. The Guarantors hereby certify to and agree with BBL that the
Lease will constitute an "Agreement" as defined in and covered by the
Guaranty.
3. After giving effect to the Obligations under the above Lease,
the maximum aggregate Obligations presently covered by the Guaranty
do not exceed $____________ based on balances as of the most recent
month end.
IN WITNESS WHEREOF, the undersigned have executed this Certificate as
of the _____ day of _________, 1995.
XXXXXXX FAMILY RESTAURANTS, L.P.
By:
-------------------------------------
Title:
XXXXXXX RESTAURANTS
OPERATING COMPANY, L.P.
By:
--------------------------------------
Title:
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EXHIBIT E
Except as provided below, the Applicable Percentage on any date of
determination shall be 100%.
The Applicable Percentage shall reduce to 70% or, if the Applicable
Percentage has already been reduced to 70% in accordance with the terms hereof,
40% or, if the Applicable Percentage has already been reduced to 40% in
accordance with the terms hereof 10% if, and only if:
(i) the Franchisee certifies in writing to BBL (a) that a
Guaranty Reduction Event (as defined below) has occurred, (b) the
amount of the net proceeds received by the Franchisee in cash in
connection with the occurrence of such Guaranty Reduction Event (the
"Actual Net Proceeds"), (c) if the amount of the Actual Net Proceeds
is not equal to or greater than 90% of the Target Net Proceeds (as
defined below) for such Guaranty Reduction Event, that a Make-Whole
Event (as defined below) has also occurred, and (d) that the
Franchisee has not defaulted in the payment or performance of any of
its Obligations; and
(ii) the Franchisee delivers to BBL and the Guarantors copies
of all such documents and instruments as BBL and the Guarantors may
reasonably request in order to confirm the occurrence of the Guaranty
Reduction Event and, if applicable, the Make-Whole Event and the
amount of the Actual Net Proceeds;
provided, that a Guaranty Reduction Event or a Make-Whole Event which is the
subject of the certificate delivered pursuant to the forgoing clause (i) may
only be certified by the Franchisee to BBL and the Guarantors on one occasion.
For purposes hereof, the following terms shall have the following meanings:
Guaranty Reduction Event - means any one of the following events
(which BBL and the Guarantors may agree to amend from time to time):
(a) the Franchisee has entered into a sale-leaseback transaction
for the ten Xxxxxxx Family Restaurants previously disclosed to BBL, on
terms and conditions satisfactory to BBL and the Guarantors in all
respects, and the amount of the net proceeds received by the
Franchisee in cash in connection with such sale-leaseback transaction
is equal to or in excess of $1,135,000; or
(b) the Franchisee sells its Elmridge Property on terms and
conditions which are satisfactory to BBL and the Guarantors in all
respects and the amount of the net proceeds received by the Franchisee
in cash in connection with such sale is equal to or in excess of
$1,484,714; or
(c) the Franchisee sells its Baytowne Property on terms and
conditions which are satisfactory to BBL and the Guarantors in all
respects and the net proceeds received by the Franchisee in cash in
connection with such sale is equal to or in excess of $731,000.
Make-Whole Event - means any one of the following events:
(a) the Franchisee shall have entered into a forbearance
arrangement with [Fleet Bank, N.A.] ("Fleet") with respect to the
principal amount of $660,000 owed to Fleet pursuant to that certain
[Plaza line of credit] and the Franchisee shall have entered into a
forbearance arrangement with [The Chase Manhattan Bank, N.A.]
("Chase") with respect to principal and interest in an aggregate
amount equal to $175,000 owed
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to Chase pursuant that certain [Plaza line of credit], and in each
case the forbearance arrangement shall be satisfactory to BBL and the
Guarantors in all respects; or
(b) the Franchisee sells its Gateway Property on terms and
conditions which are satisfactory to BBL and the Guarantors in all
respects and the amount of the net proceeds received by the Franchisee
in cash in connection with such sale is equal to or in excess of
($10,000); or
(c) the Franchisee sells its Xxxxxx Property on terms and
conditions which are satisfactory to BBL and the Guarantors in all
respects and the amount of the net proceeds received by the Franchisee
in cash in connection with such sale is equal to or in excess of
$296,450;
provided, that no Make-Whole Event shall be deemed to have occurred unless and
until the Make-Whole Event described in clause (a) of this definition has
occurred.
Target Net Proceeds - means, with respect to any Guaranty Reduction
Event, the minimum net proceeds required to be received by the
Franchisee in cash in connection with such Guaranty Reduction Event.
