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EXHIBIT 10.9
GUARANTY BY CORPORATION
________________________________, _______________
(City) (State)
December 31, 1998
_________________________________________________
For good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, and to induce Bank of Blue Valley (herein, with
its participants, successors and assigns, called "Lender"), at its option, at
any time or from time to time to make loans or extend other accommodations to or
for the account of Midwest Doughnuts, L.L.C. the ______ evidenced by the Note
comprising the Indebtedness (herein called "Borrower") or to engage in any other
transactions with Borrower, the Undersigned hereby absolutely and
unconditionally guarantees to the Lender the full and prompt payment when due,
whether at maturity or earlier by reason of acceleration or otherwise, of the
debts, liabilities and obligations described as follows:
A. If this [X] is checked, the Undersigned guarantees to Lender
the payment and performance of the debt, liability or
obligation of Borrower to Lender evidenced by or arising out
of the following: promissory note dated December 31, 1998 in
the amount of $765,000 and any extensions, renewals or
replacements thereof (hereinafter referred to as the
"Indebtedness").
B. If this [ ] is checked, the Undersigned guarantees to Lender
the payment and performance of each and every debt, liability
and obligation of every type and description which Borrower
may now or at any time hereafter owe to Lender (whether such
debt, liability or obligation now exists or is hereafter
created or incurred, and whether it is or may be direct or
indirect, due or to become due, absolute or contingent,
primary or secondary, liquidated or unliquidated, or joint,
several, or joint and several; all such debts, liabilities and
obligations being hereinafter collectively referred to as the
"Indebtedness"). Without limitation, this guaranty includes
the following described debt(s):______________________________
The term, "Indebtedness" as used in this guaranty shall not include any
obligations entered into between Borrower and Lender after the date hereof
(including any extensions, renewals, or replacements of such obligations).
The Undersigned further acknowledges and agrees with Xxxxxx that:
1. No act or thing need occur to establish the liability of the
Undersigned hereunder, and no act or thing, except full payment and discharge of
all Indebtedness, shall in any way exonerate the Undersigned or modify, reduce,
limit or release the liability of the Undersigned hereunder.
2. This is an absolute, unconditional and continuing guaranty of
payment of the Indebtedness and shall continue to be in force and be binding
upon the Undersigned, whether or not all Indebtedness is paid in full, until
this guaranty is revoked by written notice actually received by the Lender, and
such revocation shall not be effective as to Indebtedness existing or committed
for at the time of actual receipt of such notice by the Lender, or as to any
renewals, extensions and refinancings thereof.
The Undersigned represents and warrants to the Lender that the
Undersigned has a direct and substantial economic interest in Borrower and
expects to derive substantial benefits therefrom and from any loans and
financial accommodations resulting in the creation of Indebtedness guaranteed
hereby, and that this guaranty is given for a corporate purpose. The Undersigned
agrees to rely exclusively on the right to revoke this guaranty prospectively as
to future transactions, by written notice actually received by Xxxxxx if at any
time, in the opinion of the directors or officers of the Undersigned, the
corporate benefits then being received by the Undersigned in connection with
this guaranty are not sufficient to warrant the continuance of this guaranty as
to future Indebtedness. Accordingly, so long as this guaranty is not revoked
prospectively in accordance with this guaranty, the Lender may rely conclusively
on a continuing warranty, hereby made, that the Undersigned continues to be
benefited by this guaranty and the Lender shall have no duty to inquire into or
confirm the receipt of any such benefits, and this guaranty shall be effective
and enforceable by the Lender without regard to the receipt, nature or value of
any such benefits.
3. If the Undersigned shall be dissolved or shall be or become
insolvent (however defined) or revoke this guaranty, then the Lender shall have
the right to declare immediately due and payable, and the Undersigned will
forthwith pay to the Lender, the full amount of all Indebtedness, whether due
and payable or unmatured. If the Undersigned voluntarily commences or there is
commenced involuntarily against the Undersigned a case under the United States
Bankruptcy Code, the full amount of all Indebtedness, whether due and payable or
unmatured, shall be immediately due and payable without demand or notice
thereof.
4. The liability of the Undersigned hereunder shall be limited to a
principal amount of $205,000.00 of the Indebtedness (inclusive of attorney's
fees, collection of costs and enforcement expenses) (if unlimited or if no
amount is stated, the Undersigned shall be liable for all Indebtedness, without
any limitation as to amount), plus accrued interest thereon. Indebtedness may be
created and continued in any amount, whether or not in excess of such principal
amount, without affecting or impairing the liability of the Undersigned
hereunder. The Lender may apply any sums received by or available to the Lender
on account of the Indebtedness from Borrower or any other person (except the
Undersigned), from their properties, out of any collateral security or from any
other source to payment of the excess. Such application of receipts shall not
reduce, affect or impair the liability of the Undersigned hereunder. If the
liability of the Undersigned is limited to a stated amount pursuant to this
paragraph 4, any payment made by the Undersigned under this guaranty shall be
effective to reduce or discharge such liability only if accompanied by a written
transmittal document, received by the Lender, advising the Lender that such
payment is made under this guaranty for such purpose.
5. The Undersigned will pay or reimburse the Lender for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
the Lender in connection with the protection, defense or enforcement of this
guaranty in any litigation or bankruptcy or insolvency proceedings. This
guaranty includes the additional provisions on page 2 hereof, all of which are
made a part hereof.
This guaranty is [X] unsecured; [ ] secured by a mortgage or security
agreement dated ______________________;
[ ] secured by ________________________________________________________________.
IN WITNESS WHEREOF, this guaranty has been duly executed by the Undersigned the
day and year first above written. By acceptance of this guaranty, and
notwithstanding anything contained herein to the contrary, Xxxxxx agrees that it
shall not amend, extend, renew, or replace the Indebtedness in any manner which
extends the final payment date thereof, increases the interest rate thereunder
or increases the amount of the regularly scheduled payments thereunder, or
permits the delay of any regularly scheduled payment due thereunder for more
than sixty (60) days, without the prior written consent of the Undersigned. Any
such amendment, renewal or replacement made without the prior written consent
of the Undersigned shall not be binding on the Undersigned. The Undersigned
agrees that variations in the interest rate in accordance with the variable rate
feature of the above referenced Note shall not he in violation of the foregoing.
____________________________________
Krispy Kreme Doughnut Corporation
__________________________________(Title)
_________________________________________
"Undersigned" shall refer to all entities
who sign this guaranty, individually and
jointly.
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ADDITIONAL PROVISIONS
6. Whether or not any existing relationship between the Undersigned and
Borrower has been changed, or,. ended and whether or not this guaranty has been
revoked, the Lender may, but shall not be obligated to, enter Into transactions
resulting in the creation or continuance of Indebtedness, without any consent or
approval by the Undersigned and without any notice to the Undersigned. The
liability of the Undersigned shall not be affected or impaired by any of the
following acts or things (which the Lender Is expressly authorized to do, omit
or suffer from time to time, both before and after revocation of this guaranty,
without notice to or approval by the Undersigned): (I) any acceptance of
collateral security, guarantors, accommodation parties or sureties for any or
all Indebtedness; (ii) any one or more extensions or renewals of Indebtedness
(whether or not for longer than the original period) or any modification of the
interest rates, maturities or other contractual terms applicable to any
Indebtedness; (iii) any waiver adjustment, forbearance, compromise or Indulgence
granted to Borrower, any delay or lack of diligence in the enforcement of
Indebtedness, or any failure to Institute proceedings, file a claim, give any
required notices or otherwise protect any Indebtedness; (iv) any full or partial
release of, settlement with, or agreement not to sue, Borrower or any other
guarantor or other person liable in respect of any Indebtedness; (v) any
discharge of any evidence of Indebtedness or the acceptance of any Instrument in
renewal thereof or substitution therefor; (vi) any failure to obtain collateral
security (including rights of setoff) for Indebtedness, or to see to the proper
or sufficient creation and perfection thereof, or to establish the priority
thereof, or to protect, Insure, or enforce any collateral security; or any
release, modification, substitution, discharge, impairment, deterioration,
waste, or loss of any collateral security; (vii) any foreclosure or enforcement
of any collateral security; (viii) any transfer of any Indebtedness or any
evidence thereof; (ix) any order of application of any payments or credits upon
Indebtedness; (x) any election by the Lender under ss. 1111(b)(2) of the United
States Bankruptcy Code.
7. The Undersigned waives any and all defenses, claims and discharges
of Borrower or any other obligor, pertaining to Indebtedness, except the defense
of discharge by payment in full. Without limiting the generality of the
foregoing, the Undersigned will not assert, plead or enforce against the Lender
any defense of waiver, release, estoppel, statute of limitations, res judicata,
statute of frauds, fraud, forgery, incapacity, minority, usury, illegality or
unenforceability which may be available to Borrower or any other person liable
in respect of any Indebtedness, or any setoff available against the Lender to
Borrower or any such other person, whether or not on account of a rated
transaction. The Undersigned expressly agrees that the Undersigned shall be and
remain liable, to the fullest extent permitted by applicable law, for any
deficiency remaining after foreclosure of any mortgage or security interest
securing Indebtedness, whether or not the liability of Borrower or any other
obligor for such deficiency is discharged pursuant to statute or judicial
decision. The undersigned shall remain obligated, to the fullest extent
permitted by law, to pay such amounts as though Borrower's obligations had not
been discharged.
8. The Undersigned further agree(s) that the Undersigned shall be and
remain obligated to pay Indebtedness even though any other person obligated to
pay Indebtedness, Including Borrower, has such obligation discharged in
bankruptcy or otherwise discharged by law. 'Indebtedness' shall Include
post-bankruptcy petition Interest and attorneys' fees and any other amounts
which Borrower is discharged from paying or which do not accrue to Indebtedness
due to Borrower's discharge, and Undersigned shall remain obligated to pay such
amounts as fully as if Borrower's obligations had not been discharged.
9. If any payment applied by the Lender to Indebtedness Is thereafter
set aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, Insolvency or reorganization of
Borrower or any other obligor), the Indebtedness to which such payment was
applied shall for the purposes of this guaranty be deemed to have continued in
existence, notwithstanding such application, and this guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
10. Until payment of the above-referenced Note is made in full, the
Undersigned will subordinate to any claim of Lender against Borrower any claim,
remedy or other right which the Undersigned may now have or hereafter acquire
against Borrower or any other person obligated to pay Indebtedness arising out
of the creation or performance of the Undersigned's obligation under this
guaranty, Including, without limitation, any right of subrogation, contribution,
reimbursement, indemnification, exoneration or any right to participate in any
claim or remedy the Undersigned may have against the Borrower, collateral, or
other party obligated for Borrower's debt, whether or not such claim, remedy, or
right arises In equity, or under contract, statute or common law.
11. The Undersigned waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest any instrument evidencing Indebtedness. The
Lender shall not be required first to resort for payment of the indebtedness to
Borrower or other persons or their properties, or first to enforce, realize upon
or exhaust any collateral security for Indebtedness, before enforcing this
guaranty.
12. The liability of the Undersigned under this guaranty Is In addition
to and shall be cumulative with all other liabilities of the Undersigned to the
Lender as guarantor or otherwise, without any limitation as to amount, unless
the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
13. The Undersigned represents and warrants to the Lender that (i) the
Undersigned Is a corporation duly organized and existing In good standing and
has full power and authority to make and deliver this guaranty; (ii) the
execution, delivery and performance of this guaranty by the Undersigned have
been duly authorized by all necessary action of Its directors and shareholders
and do not and will not violate the provisions of, or constitute a default
under, any presently applicable law or its articles of Incorporation or by-laws
or any agreement presently binding on It; (iii) this guaranty has been duly
executed and delivered by the authorized officers of the Undersigned and
constitutes its lawful, binding and legally enforceable obligation (subject to
the United States Bankruptcy Code and other similar laws generally affecting the
enforcement of creditors' rights); and (iv) the authorization, execution,
delivery and performance of this guaranty do not require notification to,
registration with, or consent or approval by, any federal, state or local
regulatory body or administrative agency.
14. This guaranty shall be effective upon delivery to the Lender,
without further act, condition or acceptance by the Lender, shall be binding
upon the Undersigned and the successors and assigns of the Undersigned and shall
inure to the benefit of the Lender and its participants, successors and assigns.
Any invalidity or unenforceability of any provision or application of this
guaranty shall not affect other lawful provisions and application hereof, and to
this and the provisions of this guaranty are declared to be severable. Except as
allowed by the terms herein, this guaranty may not be waived, modified, amended,
terminated, released or otherwise changed except by a writing signed by the
Undersigned and the Lender. This guaranty shall be governed by the laws of the
State in which it is executed. The Undersigned waives notice of the Lender's
acceptance hereof.
