Exhibit 10.9
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SECOND AMENDED AND RESTATED GUARANTY
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SECOND AMENDED AND RESTATED GUARANTY, dated as of June 29, 2001, by
AMERIKING, INC., a Delaware corporation (the "Guarantor") in favor of (a) FLEET
NATIONAL BANK (f/k/a BankBoston, N.A.), a national banking association, as agent
(hereinafter, in such capacity, the "Agent") for itself and other lending
institutions (hereinafter, collectively, the "Banks") which are or may become
parties to the Credit Agreement (as hereinafter defined) and (b) each of the
Banks.
WHEREAS, the Borrower, the Guarantor, the Agent and the Banks entered into
a Fourth Amended and Restated Revolving Credit Agreement dated as of December
24, 1998 (as amended and in effect from time to time, the "Revolver Credit
Agreement") and to provide certain additional financing in connection with the
acquisition of Burger King Restaurants pursuant to an Acquisition Revolving
Credit Agreement dated as of December 24, 1998 (as amended and in effect from
time to time, the "Acquisition Credit Agreement" and collectively with the
Revolver Credit Agreement, the "Existing Credit Agreements").
WHEREAS, the parties to the Existing Credit Agreements and National
Restaurant Enterprises Holdings, Inc. ("Holdings") agreed to consolidate, amend
and restate the Existing Credit Agreements in their entirety by entering into a
Consolidated, Amended and Restated Revolving Credit Agreement dated as of the
date hereof by and among the Borrower, the Guarantor, Holdings, the Banks and
the Agent (as amended and in effect from time to time, the "Credit Agreement");
and
WHEREAS, the Borrower and the Guarantor are members of a group of related
corporations, the success of any one of which is dependent in part on the
success of the other members of such group; and
WHEREAS, in connection with the Existing Credit Agreements, the Guarantor
executed and delivered to the Agent an Amended and Restated Guaranty dated as of
December 24, 1998 (as amended, the "Amended and Restated Guaranty") in favor of
the Agent and the Banks; and
WHEREAS, Guarantor is expected to receive substantial direct and indirect
benefits from the making of loans and other extensions of credit to the Borrower
by the Banks pursuant to the Credit Agreement (which benefits are hereby
acknowledged); and
WHEREAS, it is a condition precedent to the Agent and Banks entering into
the Credit Agreement and making loans or otherwise extending credit to the
Borrower under the Credit Agreement, that the Guarantor execute and deliver to
the Agent, for the benefit of the Banks and the Agent, a guaranty in
substantially the form hereof; and
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WHEREAS, each of the Guarantor and the Borrower wishes to amend and restate
in its entirety the Amended and Restated Guaranty for the benefit of the Agent
and the Banks as herein provided in order to guaranty the Borrower's Obligations
to the Banks and Agent under or in respect of the Credit Agreement as herein
provided;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein without definition shall
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have the respective meanings provided therefor in the Credit Agreement.
2. Guaranty of Payment and Performance. The Guarantor hereby guarantees to
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the Banks and the Agent the full and punctual payment when due (whether at
stated maturity, by required prepayment, by acceleration or otherwise), as well
as the performance, of all of the Obligations including all such which would
become due but for the operation of the automatic stay pursuant to (S)362(a) of
the Federal Bankruptcy Code and the operation of (S)(S)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 and performance of all of
the Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that the Agent or any Bank first attempt to
collect any of the Obligations from the Borrower or resort to any collateral
security or other means of obtaining payment. Should the Borrower default in the
payment or performance of any of the Obligations, the obligations of the
Guarantor hereunder with respect to such Obligations in default shall, upon
demand by the Agent, become immediately due and payable to the Agent, for the
benefit of the Banks and the Agent, without demand or notice of any nature, all
of which are expressly waived by the Guarantor. Payments by the Guarantor
hereunder may be required by the Agent on any number of occasions. All payments
by the Guarantor hereunder shall be made to the Agent, in the manner and at the
place of payment specified therefor in the Credit Agreement, for the account of
the Banks and the Agent and shall be made without setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Guarantor is compelled by law to make such deduction or withholding.
3. Guarantor's Agreement to Pay Enforcement Costs, etc. The Guarantor
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further agrees, as the principal obligor and not as a guarantor only, to pay to
the Agent, on demand, all costs and expenses (including court costs and legal
expenses) incurred or expended by the Agent or any Bank in connection with the
Obligations, this Guaranty and the enforcement thereof, together with interest
on amounts recoverable under this (S)3 from the time when such amounts become
due until payment, whether before or after judgment, at the rate of interest for
overdue principal set forth in the Credit Agreement, provided that if such
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interest exceeds
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the maximum amount permitted to be paid under applicable law, then such interest
shall be reduced to such maximum permitted amount.
4. Waivers by Guarantor; Agent's and Banks' Freedom to Act. The Guarantor
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agrees that the Obligations will be paid and performed 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 the Agent or any Bank with respect thereto. The Guarantor waives
promptness, diligences, presentment, demand, protest, notice of acceptance,
notice of any Obligations incurred and 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
marshalling of assets of the Borrower 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 Guarantor agrees to the provisions of any instrument evidencing, securing or
otherwise executed in connection with any Obligation and agrees that the
obligations of the Guarantor hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by (a) the failure of the Agent or any
Bank to assert any claim or demand or to enforce any right or remedy against the
Borrower or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations; (b) any extensions, compromise,
refinancing, consolidation or renewals of any Obligation; (c) any change in the
time, place or manner of payment of any of the Obligations or any rescissions,
waivers, compromise, refinancing, consolidation or other amendments or
modifications of any of the terms or provisions of the Credit Agreement, the
Revolving Credit Notes, the other Revolver Loan Documents, or any other
agreement evidencing, securing or otherwise executed in connection with any of
the Obligations, (d) the addition, substitution or release of any entity or
other person primarily or secondarily liable for any Obligation; (e) the
adequacy of any rights which the Agent or any Bank may have against any
collateral security or other means of obtaining repayment of any of the
Obligations; (f) the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve any
rights which the Agent or any Bank might have in such collateral security or the
substitution, exchange, surrender, release, 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 Guarantor or otherwise operate as a
release or discharge of the Guarantor, all of which may be done without notice
to the Guarantor. To the fullest extent permitted by law, the Guarantor hereby
expressly waives any and all rights or defenses arising by reason of (i) any
"one action" or "anti-deficiency" law which would otherwise prevent the Agent or
any Bank 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 Guarantor before or after the Agent's or such Bank's commencement or
completion of any foreclosure action, whether judicially, by exercise of power
of sale or otherwise, or (ii) any other law which in any other way would
otherwise require any election of remedies by the Agent or any Bank.
5. Unenforceability of Obligations Against Borrower. If for any reason the
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Borrower has no legal existence or is under no legal obligation to discharge any
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of the Obligations, or if any of the Obligations have become irrecoverable from
the Borrower by reason of the Borrower's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on the Guarantor to the same extent as if
the Guarantor at all times had been the principal obligor 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 Borrower, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, the Revolving Credit
Notes, the other Revolver Loan Documents, or any other agreement evidencing,
securing or otherwise executed in connection with any Obligation shall be
immediately due and payable by the Guarantor.
6. Subrogation; Subordination.
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6.1. Waiver of Rights Against Borrower. Until the final payment and
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performance in full of all of the Obligations, the Guarantor shall not
exercise and hereby waives any rights against the Borrower arising as a
result of payment by the Guarantor hereunder, by way of subrogation,
reimbursement, restitution, contribution or otherwise, and will not prove
any claim in competition with the Agent or any Bank in respect of any
payment hereunder in any bankruptcy, insolvency or reorganization case or
proceedings of any nature; the Guarantor will not claim any setoff,
recoupment or counterclaim against the Borrower in respect of any liability
of the Guarantor to the Borrower; and the Guarantor waives any benefit of
and any right to participate in any collateral security which may be held
by the Agent or any Bank.
6.2. Subordination. The payment of any amounts due with respect to
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any indebtedness of the Borrower for money borrowed or credit received now
or hereafter owed to the Guarantor is hereby subordinated to the prior
payment in full of all of the Obligations. The Guarantor agrees that, after
the occurrence of any default in the payment or performance of any of the
Obligations, the Guarantor will not demand, xxx for or otherwise attempt to
collect any such indebtedness of the Borrower to the Guarantor until all of
the Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, the Guarantor shall collect, enforce or receive any
amounts in respect of such indebtedness while any Obligations are still
outstanding, such amounts shall be collected, enforced and received by the
Guarantor as trustee for the Banks and the Agent and be paid over to the
Agent, for the benefit of the Banks and the Agent, on account of the
Obligations without affecting in any manner the liability of the Guarantor
under the other provisions of this Guaranty.
6.3. Provisions Supplemental. The provisions of this (S)6 shall be
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supplemental to and not in derogation of any rights and remedies of the
Banks and the Agent under any separate subordination agreement which the
Agent may at any time and from time to time enter into with the Guarantor
for the benefit of the Banks and the Agent.
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7. Security; Setoff. The Guarantor grants to each of the Agent and the
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Banks, as security for the full and punctual payment and performance of all of
the Guarantor's obligations hereunder, a continuing lien on and security
interest in all securities or other property belonging to the Guarantor now or
hereafter held by the Agent or such Bank and in all deposits (general or
special, time or demand, provisional or final) and other sums credited by or due
from the Agent or such Bank to the Guarantor or subject to withdrawal by the
Guarantor. Regardless of the adequacy of any collateral security or other means
of obtaining payment of any of the Obligations, each of the Agent and the Banks
is hereby authorized at any time and from time to time, without notice to the
Guarantor (any such notice being expressly waived by the Guarantor) and to the
fullest extent permitted by law, to set off and apply such deposits and other
sums against the obligations of the Guarantor under this Guaranty, whether or
not the Agent or such Bank shall have made any demand under this Guaranty and
although such obligations may be contingent or unmatured.
8. Further Assurances. The Guarantor agrees that it will from time to
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time, at the request of the Agent, do all such things and execute all such
documents as the Agent may consider necessary or desirable to give full effect
to this Guaranty and to perfect and preserve the rights and powers of the Banks
and the Agent hereunder. The Guarantor acknowledges and confirms that the
Guarantor itself has established its own adequate means of obtaining from the
Borrower on a continuing basis all information desired by the Guarantor
concerning the financial condition of the Borrower and that the Guarantor will
look to the Borrower and not to the Agent or any Bank in order for the Guarantor
to keep adequately informed of changes in the Borrower's financial condition.
9. Termination; Reinstatement. This Guaranty shall remain in full force
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and effect until the Agent is given written notice of the Guarantor's intention
to discontinue this Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the Obligations. No such
notice shall be effective unless received and acknowledged by an officer of the
Agent at the address of the Agent for notices set forth in (S)20 of the Credit
Agreement. No such notice shall affect any rights of the Agent or any Bank
hereunder, including without limitation the rights set forth in (S)(S)4 and 6,
with respect to any Obligations incurred or accrued prior to the receipt of such
notice or any Obligations incurred or accrued pursuant to any contract or
commitment in existence prior to such receipt. This Guaranty shall continue to
be effective or be reinstated, notwithstanding any such notice, if at any time
any payment made or value received with respect to any Obligation is rescinded
or must otherwise be returned by the Agent or any Bank upon the insolvency,
bankruptcy or reorganization of the Borrower, or otherwise, all as though such
payment had not been made or value received.
10. Successors and Assigns. This Guaranty shall be binding upon the
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Guarantor, its successors and assigns, and shall inure to the benefit of the
Agent and the Banks and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing sentence, each Bank may assign
or otherwise transfer the Credit Agreement, the Revolving Credit Notes, the
other Revolver Loan
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Documents, 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 such Bank herein, all in accordance with
(S)19 of the Credit Agreement. The Guarantor may not assign any of its
obligations hereunder.
11. Amendments and Waivers. No amendment or waiver of any provision of
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this Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Agent with the
consent of the Majority Banks. No failure on the part of the Agent or any Bank
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.
12. Notices. All notices, requests and other communications hereunder
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shall be made in the manner set forth in (S)20 of the Credit Agreement.
13. Governing Law; Consent to Jurisdiction. THIS GUARANTY IS INTENDED TO
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TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The 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 Guarantor by mail at the address
specified by reference in (S)12. The Guarantor hereby waives any objection that
it 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.
14. Waiver of Jury Trial. THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
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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,
the Guarantor 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 Guarantor (a) certifies that neither the Agent or any Bank
nor any representative, agent or attorney of the Agent or any Bank has
represented, expressly or otherwise, that the Agent or any Bank would not, in
the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents to which the Agent or any Bank is a party, the Agent and the Banks are
relying upon, among other things, the waivers and certifications contained in
this (S)14.
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15. Miscellaneous. This Guaranty constitutes the entire agreement of the
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Guarantor with respect to the matters set forth herein, and supersedes the
Amended and Restated Guaranty in its entirety. 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.
[THE REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
AMERIKING, INC.
By: /S/ A. Xxxxxxx Xxxxxx, Xx.
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Title: Vice President
