Exhibit 16(d)(3)
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is made by XXXXX X. XXXXXXX, of Newton,
Massachusetts (the "GUARANTOR"), in favor of UNO RESTAURANT CORPORATION, a
Delaware corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, the Company, UNO RESTAURANT HOLDINGS CORPORATION, a Delaware
corporation ("PARENT"), and UNO ACQUISITION CORP., a Delaware corporation and a
wholly owned subsidiary of Parent ("ACQUISITION SUB"), propose to enter into an
Agreement and Plan of Merger (the "MERGER AGREEMENT") providing for the merger
of Acquisition Sub with and into the Company;
WHEREAS, the Company is concurrently herewith entering into an
Engagement Letter and Term Sheet dated April 9, 2001 (together, the "ENGAGEMENT
LETTER") with Fleet National Bank ("FLEET"), Fleet Securities, Inc. ("FSI"),
SunTrust Bank ("SUNTRUST") and SunTrust Equitable Securities Corporation ("STES"
and collectively with Fleet, FSI and SunTrust, the "BANKS") providing for, among
other things, the financing necessary to pay the Merger Consideration (as
defined in the Merger Agreement) pursuant to the terms and conditions of the
Merger Agreement;
WHEREAS, pursuant to the Engagement Letter, the Company, Parent and
Acquisition Sub are agreeing, jointly and severally, to pay certain expenses of
the Banks and indemnify the Banks against certain liabilities associated with
the financing contemplated thereby;
WHEREAS, Parent and Acquisition Sub have agreed with the Company that
Parent and Acquisition Sub shall pay one-third and the Company shall pay
two-thirds of any amounts due to the Banks pursuant to their expense
reimbursement and indemnification obligations to the Banks under the Engagement
Letter;
WHEREAS, the Company, Parent and Acquisition Sub are concurrently
herewith executing with the Banks a letter agreement providing for the payment
by Parent and Acquisition Sub of one-third and the payment by the Company of
two-thirds of certain fees associated with the financing contemplated by the
Engagement Letter (the "FEE AGREEMENT");
WHEREAS, as of the date hereof, the Guarantor is the sole stockholder
of Parent, which is the sole stockholder of Acquisition Sub; and
WHEREAS, the Company has made it a condition precedent to the Company's
executing the Engagement Letter that the Guarantor guarantee Parent's and
Acquisition Sub's obligations pursuant to the Fee Agreement, the Engagement
Letter and the Merger Agreement;
NOW, THEREFORE, in order to induce the Company to enter into the Merger
Agreement, the Engagement Letter and the Fee Agreement, at the special
insistence and request
of the Special Committee of the Board of Directors of the Company, and for the
consideration recited above and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby
agrees as follows:
1. GUARANTY. (a) The Guarantor hereby irrevocably guarantees to the
Company, subject to the limitations contained in subparagraph (b) of this
Section 1, the full and prompt payment of (i) all amounts payable by Parent and
Acquisition Sub pursuant to the Fee Agreement, (ii) Parent and Acquisition Sub's
one-third share the aggregate expense reimbursement and indemnification
obligations of Parent, Acquisition Sub and the Company under the Engagement
Letter and (iii) all obligations of Parent and Acquisition Sub pursuant to the
Merger Agreement (the "PARENT OBLIGATIONS").
(b) Notwithstanding the foregoing or any other provision to the
contrary contained herein, the Guarantor's maximum aggregate liability
hereunder, and recourse against the Guarantor under this Guaranty, shall be
limited to $4,875,000. The Guarantor shall satisfy his obligations pursuant to
this Guaranty Agreement either in cash or in shares of common stock, $0.01 par
value per share, of the Company, with the value of such shares being deemed to
be $9.75 per share, or any combination of the foregoing, as the Guarantor shall
determine in his sole and absolute discretion.
2. NATURE OF GUARANTY. This is an irrevocable, absolute, completed and
continuing guaranty of payment and performance. The Guarantor's obligations
hereunder shall not be affected by the release or discharge of Parent from, or
impairment or modification of, the Parent Obligations in any bankruptcy,
receivership, or other insolvency proceeding. It is the intention of the Company
and the Guarantor that the Guarantor's obligations hereunder shall not be
discharged at any time prior to the payment in full of the Parent Obligations.
3. WAIVER OF RIGHTS. The Guarantor waives any right to require the
Company to (and it shall not be necessary for the Company, in order to enforce
such payment by the Guarantor to first) (a) proceed against Parent or
Acquisition Sub, (b) have Parent or Acquisition Sub joined with the Guarantor in
any suit arising out of this Guaranty Agreement or the Fee Agreement or (c)
pursue or exhaust any other remedy in the Company's power whatsoever. The
Guarantor further hereby expressly waives notice of the acceptance of this
Guaranty, and diligence, presentment and demand for payment of any of the Parent
Obligations. No delay on the part of the Company in exercising any rights
hereunder or failure to exercise the same shall operate as a waiver of such
rights; no notice to or demand on the Guarantor shall be deemed to be a waiver
of the obligation of the Guarantor or of the right of the Company to take other
or further action without notice or demand as provided herein. In any event, no
modification or waiver of the provisions hereof shall be effective unless in
writing; provided, however, that no modification or waiver by the Company shall
be effective unless first approved in writing by the Special Committee (as
defined in the Merger Agreement).
4. EXPENSES. Subject to the limitations on liability set forth in
Section 1(b), the Guarantor agrees that the Guarantor will pay or reimburse the
Company for all expenses, including reasonable fees and expenses of its legal
counsel, incurred by the Company in connection with the enforcement of any
provisions of this Guaranty.
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5. SUCCESSORS AND ASSIGNS. This Guaranty Agreement is for and shall
inure to the benefit of the successors and assigns of the Company. This Guaranty
shall be binding upon the Guarantor and his heirs, executors, administrators,
successors and assigns until payment in full to the Company of all Parent
Obligations.
6. CONSTRUCTION. This Guaranty Agreement is a contract made under and
shall be construed in accordance with and governed by the laws of the
Commonwealth of Massachusetts.
7. PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
expressed or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
WITNESS THE EXECUTION HEREOF, effective as of April , 2001.
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Xxxxx X. Xxxxxxx
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IN WITNESS WHEREOF, the Company, Parent and Acquisition Sub have caused
this Guaranty Agreement to be duly executed on the date hereof solely for the
purpose of evidencing the agreement of Parent, Acquisition Sub and the Company,
that Parent and Acquisition Sub shall pay one-third and the Company shall pay
two-thirds of any amounts due to the Banks pursuant to their expense
reimbursement and indemnification obligations to the Banks under the Engagement
Letter.
UNO RESTAURANT CORPORATION
By: _____________________________
Name:
Title:
UNO RESTAURANT HOLDINGS
CORPORATION
By: _____________________________
Name:
Title:
UNO ACQUISITION CORP.
By: _____________________________
Name:
Title:
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