EXHIBIT 4(b)
GUARANTY OF PAYMENT
This GUARANTY OF PAYMENT, dated as of July 7, 2004 (as the same may
from time to time be amended, restated or otherwise modified or supplemented,
this "Guaranty"), made by XXX XXXXX FARMS, INC., a Delaware corporation (the
"Parent"), Mimi's Cafe, LLC, a Delaware limited liability company (the
"Acquisition Subsidiary" and together with the Parent individually each a
"Guarantor" and collectively, the "Guarantors"), in favor of NATIONAL CITY BANK
(the "Lender"):
RECITALS:
A. Except as otherwise defined herein, terms used herein and
defined in the Loan Agreement (as defined below) shall be used herein as therein
defined.
B. This Guaranty is made pursuant to the Loan Agreement, dated as
of the date hereof (herein, as amended or otherwise modified, restated or
replaced from time to time, the "Loan Agreement"), between BEF HOLDING CO.,
INC., a Delaware corporation (herein, together with its successors and assigns,
the "Borrower") and the Lender.
C. The Parent owns directly or indirectly all of the issued and
outstanding capital stock of the Borrower and all of the membership interests of
the Acquisition Subsidiary.
D. Concurrently herewith the Acquisition Subsidiary is acquiring
all of the issued and outstanding capital stock of SWH in accordance with terms
and conditions of the SWH Purchase Agreement and the other SWH Acquisition
Documents.
E. The Borrower has requested that the Lender make the Loan to
the Borrower in accordance with the terms and conditions of the Loan Agreement,
the proceeds of which will be used by the Borrower to assist the Acquisition
Subsidiary in consummating the Acquisition.
F. Each Guarantor deems it to be in its direct pecuniary interest
for the Borrower to obtain the Loan in accordance with the terms of the Loan
Agreement.
G. It is a condition to the making of the Loan under the Loan
Agreement that each Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Lender and hereby covenants and agrees with the Lender as
follows:
Section 1. Guaranty by the Guarantors.
(a) Each Guarantor, jointly and severally, irrevocably
and unconditionally guarantees to the Lender the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of all of the
Obligations. Such guaranty is an absolute, unconditional, present and continuing
guaranty of payment and not of collectibility and is in no way conditioned or
contingent upon any attempt to collect from the Borrower or any other Subsidiary
or Affiliate of the Borrower, or any other action, occurrence or circumstance
whatsoever. If an Event of Default shall occur and be continuing under the Loan
Agreement, each Guarantor will, within two Business Days following its receipt
of written notice from the Lender demanding payment hereunder, pay to the
Lender, in immediately available funds, such amount of the Obligations as the
Lender shall specify in such notice.
(b) In addition to the foregoing, each Guarantor also,
jointly and severally, irrevocably and unconditionally guarantees that each of
the terms, conditions, covenants and agreements of the Borrower under the Loan
Agreement, and of the Borrower and each other Guarantor under the other Loan
Documents, will be duly and punctually performed and observed strictly in
accordance with the terms thereof and that if for any reason whatsoever the
Borrower or the other Guarantors shall fail to do so, such Guarantor shall duly
and punctually perform and observe, or cause the Borrower or such other
Guarantor, as applicable, to duly and punctually perform and observe, the same.
Such guaranty is an absolute, unconditional, present and continuing guaranty of
performance and is in no way conditioned or contingent upon any attempt to
enforce performance by the Borrower or any other Subsidiary or Affiliate of the
Borrower, or any other act, occurrence or circumstance whatsoever.
(c) In addition to the foregoing, each Guarantor, jointly
and severally, unconditionally and irrevocably, guarantees to the Lender the
payment of any and all Obligations, whether or not due or payable by the obligor
thereon, upon the occurrence in respect of the Borrower or other applicable
obligor of any bankruptcy or insolvency proceeding or case under the Bankruptcy
Code, and unconditionally and irrevocably, jointly and severally, promises to
pay such Obligations to the Lender on demand, in such currency and otherwise in
such manner as is provided in the Loan Documents.
(d) As a separate, additional and continuing obligation,
each Guarantor unconditionally and irrevocably undertakes and agrees, for the
benefit of the Lender, that, should any amounts constituting Obligations not be
recoverable from the Borrower or any other Obligor for any reason whatsoever
(including, without limitation, by reason of any provision of any Loan Document
or any other agreement or instrument executed in connection therewith being or
becoming, at any time, voidable, void, unenforceable, or otherwise invalid under
any applicable law), then notwithstanding any notice or knowledge thereof by the
Lender or any other Person, each Guarantor, jointly and severally, as sole,
original and independent obligor, upon demand by the Lender, will make payment
to the Lender of all such Obligations not so recoverable by way of full
indemnity, in such currency and otherwise in such manner as is provided in the
Loan Documents.
(e) Each Guarantor understands, agrees and confirms that
the Lender may enforce this Guaranty up to the full amount of the Obligations
against any Guarantor without proceeding against any other Guarantor, the
Borrower or any other Person, or against any security or other collateral.
Section 2. Guarantors' Obligations Absolute, etc. The obligations of
each Guarantor under this Guaranty shall be absolute and unconditional, shall
not be subject to any counterclaim, setoff, deduction or defense based on any
claim such Guarantor may have against the Borrower or any other Person,
including, without limitation, the Lender or any other Guarantor, and shall
remain in full force and effect without regard to, and shall not be released,
suspended, abated, deferred, reduced, limited, discharged, terminated or
otherwise impaired or adversely affected by any circumstance or occurrence
whatsoever, other than indefeasible payment in full of, and complete performance
of, all of the Obligations, including, without limitation:
(a) any increase in the amount of the Obligations
outstanding from time to time, including, without limitation, any increase in
the aggregate outstanding amount of the Loan, and any increase in any interest
rate, fee or other amount applicable to any portion of the Obligations or
otherwise payable under any Loan Document;
(b) any direction as to the application of any payment by
the Borrower or by any other Person;
2
(c) any incurrence of additional Obligations at any time
or under any circumstances, including, without limitation, (i) during the
continuance of a Default or Event of Default, (ii) at any time when all
conditions to such incurrence have not been satisfied, or (iii) in excess of any
borrowing base, sublimit or other limitations contained in the Loan Agreement or
any of the other Loan Documents;
(d) any renewal or extension of the time for payment or
maturity of any of the Obligations, or any amendment or modification of, or
addition or supplement to, or deletion from, the Loan Agreement, any other Loan
Document, or any other instrument or agreement applicable to the Borrower or any
other Person, or any part thereof, or any assignment, transfer or other
disposition of any thereof;
(e) any failure of the Loan Agreement, any other Loan
Document, or any other instrument or agreement applicable to the Borrower or any
other party thereto, to constitute the legal, valid and binding agreement or
obligation of any party thereto, enforceable in accordance with its terms, or
any irregularity in the form of any Loan Document;
(f) any failure on the part of the Borrower or any other
Person to perform or comply with any term or provision of the Loan Agreement,
any other Loan Document, or any such other instrument or agreement;
(g) any waiver, consent, extension, indulgence or other
action or inaction (including, without limitation, any lack of diligence, any
failure to mitigate damages or xxxxxxxx assets, or any election of remedies)
under or in respect of (i) the Loan Agreement, any other Loan Document, or any
such other instrument or agreement, or (ii) any obligation or liability of the
Borrower or any other Obligor;
(h) any exercise or non-exercise of any right, power or
remedy under or in respect of the Loan Agreement, any other Loan Document, or
any such other instrument or agreement, or any such obligation or liability,
including, without limitation, (i) any failure of the Lender to give notice of
any Default or Event of Default under any Loan Document, or to advance funds for
the protection or preservation of, or provision of insurance for, or payment of
taxes on, any property that is collateral security for any of the Obligations,
and (ii) any act or failure to act on the part of the Lender, in any manner
referred to in this Guaranty, or otherwise, that may deprive such Guarantor of
its right to (A) subrogation against the Borrower to recover full reimbursement
or indemnity for any payments made pursuant to this Guaranty, or (B)
contribution from any other Guarantor for any such payments made by it, or that
otherwise may adversely affect the amount recoverable upon the exercise of any
such right of subrogation or contribution;
(i) any application of any amounts by whomsoever paid or
howsoever realized to the Obligations or any other liabilities owed to the
Lender, regardless of the order or priority of any such application, and
regardless of what liabilities of the Borrower or any other Obligor remain
unpaid;
(j) any settlement or compromise of any of the
Obligations, any security therefor or guaranty thereof;
(k) any payment made to the Lender on the Obligations
that the Lender repays, returns or otherwise restores to the Borrower or any
other applicable Obligor pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding;
3
(l) any subordination of any of the claims of the Lender
to any claims of any creditors of the Borrower or any other Person, or any
subordination of any liens or security interests in favor of the Lender to any
liens or security interests of any other Person;
(m) any sale, exchange, release, surrender or foreclosure
of, or any realization upon, or other dealing with, in any manner and in any
order, any property, rights or interests by whomsoever at any time granted,
assigned, pledged or mortgaged to secure, or howsoever securing, the
Obligations, or any other liabilities or obligations (including any of those
hereunder), or any portion of any thereof;
(n) the existence of any right of setoff, offset or
banker's lien, or any failure to exercise rights in respect thereof, or any
release thereof;
(o) any furnishing of any new or additional security or
any new or additional guaranty to or for the benefit of the Lender, or any
acceptance thereof, including, without limitation, any addition of any Guarantor
to this Guaranty;
(p) any release of any security or any guaranty by or at
the direction of the Lender, or any release or discharge of, or limitation of
recourse against, any Person furnishing any security or guaranty, including,
without limitation, any release or discharge of any Guarantor from this
Guaranty;
(q) any limitation on any Person's liability or
obligation under the Loan Agreement, any other Loan Document, or any such other
instrument or agreement, or any such obligation or liability, or any
termination, cancellation, avoidance, commercial or other frustration,
impracticability, invalidity, unenforceability or ineffectiveness, in whole or
in part, of the Loan Agreement, any other Loan Document, or any such other
instrument or agreement or any such obligation or liability or any term or
provision of any thereof;
(r) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition, arrangement or other
similar proceeding relating to the Borrower or to any of its properties or
assets, or any such proceeding by, among or on behalf of any of its creditors,
as such, or any proceeding for the voluntary liquidation or dissolution or other
winding up of the Borrower, whether or not insolvency or bankruptcy proceedings,
or any assignment for the benefit of its creditors, or any other marshaling of
its assets, or any action taken by any trustee or receiver or by any court in
any such proceeding;
(s) any disallowance or limitation of any claim of the
Lender or any other Person, in any such proceeding;
(t) any change in the ownership of all or any part of the
capital stock of, or other equity interests in, the Borrower, the Parent or any
of its Subsidiaries or Affiliates, or any other Person, or any merger or
consolidation involving the Borrower, the Parent or any of its Subsidiaries or
Affiliates, or any other Person, or any purchase, acquisition, sale, lease or
disposition by the Borrower, the Parent or any of its Subsidiaries or
Affiliates, or any other Person, of any assets or properties;
(u) any breach by the Borrower or any other Obligor of
any of their representations or warranties contained in any of the Loan
Documents or any other certificate or document executed and delivered in
connection therewith;
(v) any inability of the Borrower to create or incur any
Indebtedness, or the existence of any contractual or other restriction upon the
ability of the Borrower to issue and sell shares of its
4
capital stock, to purchase, sell, lease or otherwise dispose of assets, to incur
Indebtedness, or to otherwise conduct its business affairs;
(w) any assignment, transfer or other disposition, in
whole or in part, by the Borrower or any other Person of its interest in any of
the property, rights or interests constituting security for all or any portion
of the Obligations or any other Indebtedness, liabilities or obligations;
(x) any failure of any of the Loan Documents, or any
other agreement or instrument securing all or any portion of the Obligations, to
effectively subject any property, rights or interests to any liens or security
interests purported to be granted or created thereby, or any failure of any such
liens or security interests to be or become perfected or to establish or
maintain the priority over other liens and security interests contemplated
thereby;
(y) any condemnation or taking of, or any encumbrance on
or interference with any use of, or any damage to, or any destruction of, any
such property, or any part thereof or interest therein;
(z) any lack of notice to, or knowledge by, any Guarantor
of any of the matters referred to above; and/or
(aa) to the fullest extent permitted under applicable law
now or hereafter in effect, any other circumstance or occurrence, whether
similar or dissimilar to any of the foregoing, that could or might constitute a
defense available to, or a discharge of the obligations of, a guarantor or other
surety.
Section 3. Waivers. Each Guarantor unconditionally waives, to the
maximum extent permitted under any applicable law now or hereafter in effect,
insofar as its obligations under this Guaranty are concerned, (a) notice of any
of the matters referred to in Section 2, (b) all notices required by statute,
rule of law or otherwise to preserve any rights against such Guarantor
hereunder, including, without limitation, any demand, presentment, proof or
notice of dishonor or non-payment of any Obligation, notice of acceptance of
this Guaranty, notice of the incurrence of any Obligation, notice of any failure
on the part of the Borrower, any of its Subsidiaries or Affiliates, or any other
Person, to perform or comply with any term or provision of the Loan Agreement,
any other Loan Document or any other agreement or instrument to which the
Borrower or any other Person is a party, or notice of the commencement of any
proceeding against any other Person or any of its property or assets, (c) any
right to the enforcement, assertion or exercise against the Borrower or against
any other Person or any collateral of any right, power or remedy under or in
respect of the Loan Agreement, the other Loan Documents or any other agreement
or instrument, and (d) any requirement that such Guarantor be joined as a party
to any proceedings against the Borrower or any other Person for the enforcement
of any term or provision of the Loan Agreement, the other Loan Documents, this
Guaranty or any other agreement or instrument.
Section 4. Subrogation Rights. Until such time as the Obligations have
been paid in full in cash and otherwise fully performed, each Guarantor hereby
irrevocably waives all rights of subrogation that it may at any time otherwise
have as a result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code, or otherwise) to the claims of the Lender against the Borrower,
any other Guarantor or any other guarantor of or surety for the Obligations and
all contractual, statutory or common law rights of reimbursement, contribution
or indemnity from the Borrower or any other Guarantor that it may at any time
otherwise have as a result of this Guaranty.
Section 5. Separate Actions. A separate action or actions may be
brought and prosecuted against any Guarantor, whether or not action is brought
against any other Guarantor, any other guarantor
5
or the Borrower, and whether or not any other Guarantor, any other guarantor of
the Borrower or the Borrower be joined in any such action or actions.
Section 6. Guarantors Familiar with Borrower's Affairs, etc. Each
Guarantor confirms that an executed (or conformed) copy of each of the Loan
Documents has been made available to its principal executive officers, that such
officers are familiar with the contents thereof and of this Guaranty, and that
it has executed and delivered this Guaranty after reviewing the terms and
conditions of the Loan Agreement, the other Loan Documents and this Guaranty and
such other information as it has deemed appropriate in order to make its own
credit analysis and decision to execute and deliver this Guaranty. Each
Guarantor confirms that it has made its own independent investigation with
respect to the creditworthiness of the Borrower and its other Subsidiaries and
Affiliates and is not executing and delivering this Guaranty in reliance on any
representation or warranty by the Lender or any other Person acting on behalf of
the Lender as to such creditworthiness. Each Guarantor expressly assumes all
responsibilities to remain informed of the financial condition of the Borrower
and its other Subsidiaries and Affiliates and any circumstances affecting (a)
the Borrower's or any other Subsidiary's or Affiliate's ability to perform its
obligations under the Loan Agreement and the other Loan Documents to which it is
a party, or (b) any collateral securing, or any other guaranty for, all or any
part of the Borrower's or such other Subsidiary's or Affiliate's payment and
performance obligations thereunder; and each Guarantor further agrees that the
Lender shall have no duty to advise any Guarantor of information known to them
regarding such circumstances or the risks such Guarantor undertakes in this
Guaranty.
Section 7. Covenant Under Loan Agreement, etc. Each Guarantor covenants
and agrees that on and after the date hereof and until this Guaranty is
terminated in accordance with its terms, such Guarantor shall take, or will
refrain from taking, as the case may be, all actions that are necessary to be
taken or not taken so that no Default or Event of Default is caused by the
actions or inactions of such Guarantor or any of its Subsidiaries.
Section 8. Representations and Warranties. Each Guarantor represents
and warrants to the Lender that:
(a) it is a duly organized or formed and validly existing
corporation, partnership or limited liability company, as the case may be, in
good standing or full force and effect, as applicable, under the laws of the
jurisdiction of its formation and has the corporate, partnership or limited
liability company power and authority, as applicable, to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage;
(b) it has the corporate or other organizational power
and authority to execute, deliver and carry out the terms and provisions of the
Loan Documents to which it is a party and has taken all necessary corporate or
other organizational action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party;
(c) it has duly executed and delivered each Loan Document
to which it is a party and each Loan Document to which it is a party constitutes
the legal, valid and binding agreement or obligation of such Guarantor
enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law);
(d) neither the execution, delivery and performance by
such Guarantor of the Loan Documents to which it is party nor compliance with
the terms and provisions thereof (i) will contravene any material provision of
any law, statute, rule, regulation, order, writ, injunction or decree of any
6
governmental authority applicable to such Guarantor or its material properties
and assets, (ii) will conflict with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (other than any Lien created pursuant to the Loan Documents) upon any of
the property or assets of such Guarantor pursuant to the terms of any promissory
note, bond, debenture, indenture, mortgage, deed of trust, credit or loan
agreement, or any other material agreement or other instrument, to which such
Guarantor is a party or by which it or any of its property or assets are bound
or to which it may be subject, or (iii) will violate any provision of its
Organizational Documents;
(e) no order, consent, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by,
any governmental authority, is required to authorize or is required as a
condition to (i) the execution, delivery and performance by such Guarantor of
any Loan Document to which it is a party, or (ii) the legality, validity,
binding effect or enforceability of any Loan Document to which such Guarantor is
a party;
(f) there are no actions, suits or proceedings pending
or, to the knowledge of such Guarantor, threatened with respect to such
Guarantor that question the validity or enforceability of any of the Loan
Documents to which such Guarantor is a party, or of any action to be taken by
such Guarantor pursuant to any of the Loan Documents to which it is a party; and
(g) as of the date such Guarantor has become a party to
this Guaranty, (i) such Guarantor has received consideration that is the
reasonable equivalent value of the obligations and liabilities that such
Guarantor has incurred to the Lender under this Guaranty and the other Loan
Documents to which such Guarantor is a party; (ii) such Guarantor has capital
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage and is solvent and able to pay its
debts as they mature; (iii) such Guarantor owns property having a value, both at
fair valuation and at present fair salable value, greater than the amount
required to pay its debts; and (iv) such Guarantor is not entering into the Loan
Documents to which it is a party with the intent to hinder, delay or defraud its
creditors.
Section 9. Continuing Guaranty; Remedies Cumulative, etc. This Guaranty
is a continuing guaranty, all liabilities to which it applies or may apply under
the terms hereof shall be conclusively presumed to have been created in reliance
hereon, and this Guaranty shall remain in full force and effect until terminated
in accordance with its terms. No failure or delay on the part of the Lender in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
that the Lender would otherwise have. No notice to or demand on any Guarantor in
any case shall entitle such Guarantor to any other further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Lender to any other or further action in any circumstances without notice or
demand. It is not necessary for the Lender to, and the Lender does not undertake
any obligation or duty to, inquire into the capacity or powers of the Borrower
or any of its Subsidiaries or the officers, directors, partners or agents acting
or purporting to act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
Section 10. Enforcement Expenses. The Guarantors hereby jointly and
severally agree to pay, to the extent not paid pursuant to Section 8.04 of the
Loan Agreement, all reasonable out-of-pocket costs and expenses of the Lender in
connection with the enforcement of this Guaranty and any amendment, waiver or
consent relating hereto (including, without limitation, the reasonable fees and
disbursements of counsel employed by the Lender).
7
Section 11. Successors and Assigns. This Guaranty shall be binding upon
each Guarantor and its successors and assigns, and shall inure to the benefit of
the Lender and its successors and assigns.
Section 12. Entire Agreement. This Guaranty and the other Loan
Documents represent the final agreement among the parties with respect to the
subject matter hereof and thereof, supersede any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof and
thereof, and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements among the parties. There are no unwritten oral
agreements among the parties.
Section 13. Headings Descriptive. The headings of the several Sections
of this Guaranty are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Guaranty.
Section 14. Severability. 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 not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 15. Right of Setoff. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence and during the continuance of an Event of Default, the
Lender and each of its affiliates are hereby authorized at any time or from time
to time, without notice to any Guarantor or to any other Person, any such notice
being expressly waived, to the fullest extent permitted under applicable law now
or hereafter in effect, to set off and to appropriate and apply any and all
deposits (general or special) and any other indebtedness at any time held or
owing by the Lender or any of its affiliates to or for the credit or the account
of such Guarantor, against and on account of the obligations and liabilities of
such Guarantor to the Lender under this Guaranty, irrespective of whether or not
the Lender shall have made any demand hereunder and although said obligations,
liabilities, deposits or claims, or any of them, shall be contingent or
unmatured. The Lender agrees to promptly notify the relevant Guarantor after any
such setoff and application, provided, however, that the failure to give such
notice shall not affect the validity of such setoff and application.
Section 16. Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing and
mailed, sent by telecopier or delivered, (a) if to any Guarantor, at the address
specified for it on the signature pages to this Guaranty or (b) if to the
Lender, to it at its address specified in the Loan Agreement; or in any case at
such other address as any of the Persons listed above may hereafter notify the
others in writing. All such notices and communications shall be mailed, sent via
telecopier, sent by overnight courier or delivered, and shall be effective when
received.
Section 17. Reinstatement. If claim is ever made upon the Lender for
recission, repayment, recovery or restoration of any amount or amounts received
by the Lender in payment or on account of any of the Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property, or (b) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event (i) any such judgment, decree,
order, settlement or compromise shall be binding upon each Guarantor,
notwithstanding any revocation hereof or other instrument evidencing any
liability of the Borrower, (ii) each Guarantor shall be and remain liable to the
aforesaid payees hereunder for the amount so repaid or otherwise recovered or
restored to the same extent as if such amount had never originally been received
by any such payee, and (iii) this
8
Guaranty shall continue to be effective or be reinstated, as the case may be,
all as if such repayment or other recovery had not occurred.
Section 18. Governing Law; Venue; Waiver of Jury Trial.
(a) This Guaranty and the rights and obligations of the
Lender and each Guarantor shall be governed by and construed in accordance with
the laws of the State of Ohio, without regard to conflicts of law principles.
Any legal action or proceeding with respect to this Guaranty may be brought in
the Courts of the State of Ohio, or of the United States of America for the
Northern District of Ohio, Eastern Division, and, by execution and delivery of
this Guaranty, each Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Guarantor hereby irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered mail, return receipt requested,
to such Guarantor at its address provided herein, such service to become
effective 30 days after such mailing, or such earlier time as may be provided by
applicable law. Nothing herein shall affect the right of the Lender to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Guaranty or any other Loan Document or Loan Document brought in the courts
referred to in subpart (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that such action or proceeding
brought in any such court has been brought in an inconvenient forum.
(c) EACH GUARANTOR AND THE LENDER HEREBY IRREVOCABLY
WAIVE ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 19. Contribution Among Guarantors. Each Guarantor, in addition
to the subrogation rights it shall have against the Borrower under applicable
law as a result of any payment it makes hereunder, shall also have a right of
contribution against all other Guarantors in respect of any such payment pro
rata among the same based on their respective net fair value as enterprises,
provided any such right of contribution shall be subject and subordinate to the
prior payment in full of the Obligations (and such Guarantor's obligations in
respect thereof).
Section 20. Full Recourse Obligations; Effect of Fraudulent Transfer
Laws, etc. It is the desire and intent of each Guarantor and the Lender that
this Guaranty shall be enforced as a full recourse obligation of each Guarantor
to the fullest extent permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. If and to the extent that the
obligations of any Guarantor under this Guaranty would, in the absence of this
sentence, be adjudicated to be invalid or unenforceable because of any
applicable state or federal law relating to fraudulent conveyances or transfers,
then the amount of such Guarantor's liability hereunder in respect of the
Obligations shall be deemed to be reduced ab initio to that maximum amount that
would be permitted without causing such Guarantor's obligations hereunder to be
so invalidated.
Section 21. Payments Free and Clear of Setoffs, Counterclaims and
Taxes, etc. All payments made by any Guarantor hereunder will be made without
setoff, counterclaim or other defense and, except as provided for in this
Section, all such payments will be made free and clear of, and without deduction
or withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of
9
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of the Lender pursuant
to the laws of the jurisdiction under which the Lender is organized or the
jurisdiction in which the principal office the Lender is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies imposts, duties,
fees, assessments or other charges (all such nonexcluded taxes levies, imposts,
duties, fees assessments or other charges being referred to collectively as
"Taxes"). If any Taxes are so levied or imposed, the applicable Guarantor agrees
to pay the full amount of such Taxes and such additional amounts as may be
necessary so that every payment by it of all amounts due hereunder, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, the applicable Guarantor agrees to reimburse
the Lender, upon the written request of the Lender for taxes imposed on or
measured by the net income or profits of the Lender pursuant to the laws of the
jurisdiction in which the Lender is organized or in which the principal office
of the Lender is located or under the laws of any political subdivision or
taxing authority of any such jurisdiction in which the principal office of the
Lender is located and for any withholding of income or similar taxes imposed by
the United States of America as the Lender shall determine are payable by, or
withheld from, the Lender in respect of such amounts so paid to or on behalf of
the Lender pursuant to the preceding sentence, which request shall be
accompanied by a statement from the Lender setting forth, in reasonable detail,
the computations used in determining such amounts. The applicable Guarantor will
furnish to the Lender within 45 days after the date the payment of any Taxes, or
any withholding or deduction on account thereof is due pursuant to applicable
law, certified copies of tax receipts, or other evidence satisfactory to the
Lender, evidencing such payment by the Lender. Each applicable Guarantor will
indemnify and hold harmless the Lender, and reimburse the Lender upon its
written request, for the amount of any Taxes so levied or imposed and paid or
withheld by the Lender.
Section 22. Termination. After the termination of the Loan Agreement
and repayment in full of all of the Obligations (other than unasserted indemnity
obligations), this Guaranty will terminate and the Lender, at the request and
expense of the Borrower and/or any of the Guarantors, will execute and deliver
to the Guarantors an instrument or instruments acknowledging the satisfaction
and termination of this Guaranty.
Section 23. General Limitation on Claims by Guarantors. No claim may be
made by any Guarantor against the Lender, or its affiliates, directors,
officers, employees, attorneys or agents, for any damages other than actual
compensatory damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
by this Guaranty or any of the other Loan Documents, or any act, omission or
event occurring in connection therewith; and each Guarantor hereby, to the
fullest extent permitted under applicable law, waives, releases and agrees not
to xxx or counterclaim upon any such claim for any special, consequential or
punitive damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
Section 24. No Fiduciary Obligations. The relationship between any
Guarantor and its Affiliates, on the one hand, and the Lender, on the other
hand, is solely that of debtor and creditor, and the Lender has no fiduciary or
other special relationship with any Guarantor or any of its Affiliates, and no
term or provision of any Loan Document, no course of dealing, no written or oral
communication, or other action, shall be construed so as to deem such
relationship to be other than that of debtor and creditor.
Section 25. Counterparts. This Guaranty may be executed in any number
of counterparts and by the different parties hereto on separate counterparts
including, by way of facsimile transmission or
10
other electronic transmission capable of authentication, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Borrower and the Lender.
Section 26. Additional Guarantors. Additional Guarantors may become a
party to this Guaranty by execution of a Guaranty Supplement in form and
substance acceptable to the Lender.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Address: Xxx Xxxxx Farms, Inc. XXX XXXXX FARMS, INC.
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000 By: /s/ Xxx Xxxxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxxxx
Title: Sr. VP of Finance & Controller
Address: Xxx Xxxxx Farms, Inc. MIMI'S CAFE, LLC
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
By: /s/ Xxx Xxxxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxxxx
Title: Manager, Asst. Secretary, Asst.
Treasurer
Accepted by the undersigned:
NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
11
