GUARANTY
DATED as of May 1, 1994
among
Xxxxxxx Family Restaurants, L.P.,
Xxxxxxx Restaurants Operating Company, L.P.
and
BancBoston Leasing Inc.
TABLE OF CONTENTS
1. Definitions. ......................................................1
2. Guaranty of Payment and Performance. ..............................1
3. Guarantor's Agreement to Pay Enforcement Costs, etc. ..............2
5. Waivers by Guarantors; BBL's Freedom to Act. ......................3
6. Unenforceability of Obligations Against Approved Franchisee. ......4
7. Subrogation; Subordination. .......................................5
7.1 Waiver of Rights Against Approved Franchisee. ..............5
7.2 Subordination. .............................................5
7.4 Provisions Supplemental. ...................................6
8. Security; Setoff. .................................................6
9. Further Assurances; Provision of Collateral. ......................6
10. Termination; Reinstatement. .......................................7
11. Successors and Assigns. ...........................................7
12. Amendments and Waivers. ...........................................8
13. Notices. ..........................................................8
14. Governing Law; Consent to Jurisdiction. ...........................8
15. Waiver of Jury Trial. .............................................8
16. Miscellaneous. ....................................................9
GUARANTY
GUARANTY, dated as of May 1, 1994 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 BBL to arrange and provide lease
financing for equipment for certain franchisees of the Guarantors (the
"Franchisees"); and
WHEREAS, BBL has agreed to consider providing such financing to
Franchisees jointly approved by BBL and the Guarantors ("Approved
Franchisees") which approval has been certified as provided in EXHIBIT A
hereto, on terms substantially as provided in the form of Master Lease
Finance Agreement and related agreements, schedules and certificates attached
as EXHIBIT B hereto (collectively, the "Agreements" and individually, an
"Agreement") such Agreements to be entered into during the period from the
date hereof through April 30, 1995 and in an aggregate amount not to exceed
$7,500,000 for all Approved Franchises; and
WHEREAS, it is a condition precedent to BBL's providing any such
financing to Approved Franchisees, that the Guarantors jointly and severally
guaranty payment by each of the Approved Franchisees of their obligations
under the Agreements to which it is a party, on the terms and conditions
provided herein; and
WHEREAS, the Guarantors wish to guaranty the Approved Franchisees'
obligations to BBL as provided herein;
NOW, THEREFORE, the Guarantors hereby agrees with BBL as follows:
1. 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.
2. 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
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pursuant to Section 362(a) of the Federal Bankruptcy Code and the operation
of Sections 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 applicable Approved Franchisee or
any other guarantor of such Approved Franchisee's 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
Approved 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 an Approved 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 C hereto.
3. 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.
4. LIMITATION ON LIABILITY. The Guarantors' joint and several obligations
under Section 2 of this Guaranty shall be limited, as of the time of any
demand hereunder, to the lesser of (i) an amount equal to ten
-3-
percent (10%) of the then outstanding aggregate Obligations under all
Agreements but not less than $250,000, and (ii) $750,000 (the "Guarantors'
Liability"). 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
applicable Approved 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 C, the amount recovered (but not more than the amount
paid under this Guaranty in respect of such Approved 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.
5. WAIVERS BY GUARANTORS; BBL'S FREEDOM TO ACT. Except as expressly
provided in Section 2, the 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 any of the Approved Franchisees 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 (i) the
failure of BBL to assert any claim or demand or to enforce any right or
remedy against any Approved Franchisee or any other entity or other person
primarily or secondarily liable with respect to any of the Obligations; (ii)
(except to the extent provided below) any extensions, compromise,
refinancing, consolidation or renewals of any Obligation; (iii) (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
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any of the Obligations; (iv) the addition (but not release) of any entity or
other person primarily or secondarily liable for any Obligation, (v) the
adequacy of any rights which BBL may have against any collateral security or
other means of obtaining repayment of any of the Obligations; (vi) 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 (vii) 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 any Approved 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 any Approved 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 power of sale or otherwise, or (B) any other law
which in any other way would otherwise require any election of remedies by
BBL.
6. UNENFORCEABILITY OF OBLIGATIONS AGAINST APPROVED FRANCHISEE. If for
any reason any Approved 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 any Approved Franchisee by reason
of any Approved 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
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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 any Approved 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 C.
7. SUBROGATION; SUBORDINATION.
7.1 WAIVER OF RIGHTS AGAINST APPROVED FRANCHISEE. Subject to the
exceptions contained in Subsection 7.3, until the final payment in full
of all Obligations against any Approved Franchisee, the Guarantors shall
not exercise any rights against such Approved Franchisee 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 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 any Approved Franchisee in respect of
any liability of the Guarantors to such Approved Franchisee; and the
Guarantors waive any benefit of and any right to participate in any
collateral security which may be held by BBL.
7.2 SUBORDINATION. Subject to the exceptions contained in
Subsection 7.3, the payment of any amounts due with respect to any
indebtedness of any Approved Franchisee now or hereafter owed to the
Guarantor is hereby subordinated to the prior payment in full of all of
the Obligations of such Approved 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 any Approved Franchisee to
either Guarantor until all of the Obligations of such Approved
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
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the liability of the Guarantors under the other provisions of this
Guaranty.
7.3 EXCEPTION. The provisions of Subsections 7.1 and 7.2 shall not
apply to any royalty, marketing fund or other advertising payments made
under any franchise or license agreement between any Approved 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 Guarantors by an Approved Franchisee in the
ordinary course of business.
7.4 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.
8. 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 a Guarantor (any such notice
being expressly waived by the Guarantors) and to the fullest extent permitted
by 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.
9. 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
the 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 provide BBL promptly after the execution and delivery of
this Guaranty, with a list of Franchisees who the Guarantors believe qualify
as Approved Franchisees in accordance with the criteria set forth on the
attached EXHIBIT D and to update such list from time to time to keep BBL
informed of any additions
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and deletions of Franchisees who meet such requirements. The Guarantors also
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 Approved
Franchisees on a continuing basis all information desired by the Guarantors
concerning the financial condition of the Approved Franchisees and that the
Guarantors will look to the Approved Franchisees and not to BBL in order for
the Guarantors to keep adequately informed of changes in the Approved
Franchisees' financial condition.
(b) In the event that an Event of Default caused by non compliance with
any covenant contained in Section 9 under the Revolving Credit Agreement,
dated as of February 18, 1992 among the Guarantors, The First National Bank
of Boston, The Bank of Tokyo, Ltd. and The First National Bank of Boston, as
agent, 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.
10. TERMINATION: REINSTATEMENT. 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 any Approved Franchisee, or otherwise, all as though
such payment had not been made or value received.
11. 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
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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.
12. 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.
13. 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 the 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.
14. 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. 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
Guarantors by mail at the address specified by reference in Section 13. 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.
15. WAIVER OF JURY TRIAL. EACH OF THE GUARANTORS HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT
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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 (i) 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 (ii) 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.
16. 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: /s/ [ILLEGIBLE]
-----------------------------
Its: VP
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XXXXXXX RESTAURANTS
OPERATING COMPANY, L.P.
By: Perkins Management
Company, Inc., its
general partner
By: /s/ [ILLEGIBLE]
-----------------------------
Its: VP
EXHIBIT A
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
May___, 1994 among the Guarantors and BancBoston Leasing Inc. ("BBL"), as
follows:
1. BBL has informed the Guarantors that ___________ (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 ___ months, covering equipment listed on
SCHEDULE 1 attached hereto (the "Equipment"), to be used at _______,
and that BBL is willing to enter into such Lease of the Equipment
with _____, subject to Guarantors' inclusion of such Lease to the
Franchisee in the pool of lease obligations guaranteed under the
Guaranty.
2. The Guarantors hereby certify to and agree with BBL that a Lease
to the Franchisee on the terms described above will constitute an
"Agreement" as defined in and covered by the Guaranty and the
Franchisee will constitute an Approved Franchisee for all purposes
of the Guaranty.
3. After giving effect to the Obligations under the above Lease, the
aggregate Obligations presently covered by the Guaranty shall not to
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 ________, 1994.
XXXXXXX FAMILY RESTAURANTS, L.P.
By:
-----------------------------------------
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XXXXXXX RESTAURANTS OPERATING
COMPANY, L.P.
By:
-----------------------------------------
AMENDMENT NO. 1 TO GUARANTY
XXXXXXX FAMILY RESTAURANTS, X.X.
XXXXXXX RESTAURANTS OPERATING COMPANY, L.P.
This AMENDMENT (the "Amendment"), dated as of May 3, 1995, among Xxxxxxx
Family Restaurants, L.P., Xxxxxxx Restaurants Operating Company, L.P.
(collectively, the "Guarantors") and BancBoston Leasing Inc. ("BBL").
WHEREAS, the Guarantors have guaranteed to BBL the payment and
performance of the Obligations (as defined in the Guaranty referred to below)
of certain Approved Franchisees (as defined in the Guaranty referred to below)
to BBL pursuant to that certain Guaranty dated as of May 31, 1994 (as amended
and in effect from time to time, the "Guaranty"); and
WHEREAS, the Guarantors and BBL wish to amend a provision of the
Guaranty;
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereto hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms which are used herein
without definition and which are defined in the Guaranty shall have the same
meanings herein as in the Guaranty.
SECTION 2. AMENDMENT TO GUARANTY. (a) The Guaranty is hereby amended by
deleting the date "April 30, 1995" where it appears in the second whereas
clause of the preamble thereof, and substituting therefor the date "April 30,
1996".
(b) Section 9 of the Guaranty is hereby amended by deleting the
phrase "Section 9 of the Revolving Credit Agreement, dated as of February 18,
1992 among the Guarantors, The First National Bank of Boston, The Bank of
Tokyo, Ltd. and The First National Bank of Boston, as agent" and substituting
therefor "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".
SECTION 3. EFFECTIVE DATE. Upon execution and delivery by each of the
parties hereto, the provisions of this Amendment shall become effective as of
the date hereof.
SECTION 4. MISCELLANEOUS PROVISIONS. Each of the Guarantors hereby
reaffirms its absolute and unconditional guaranty of the payment and
performance by the Approved Franchisees of their obligations to BBL, as more
fully set forth in the Guaranty as amended hereby. Except as otherwise
expressly provided by this Amendment, all of the terms, conditions and
provisions of the Guaranty shall remain the same. It is declared and agreed
by each of the parties hereto
-2-
that the Guaranty, as amended hereby, shall continue in full force and
effect, and that this Amendment and such Guaranty shall be read and construed
as one instrument. The Guarantors hereby agree to pay to BBL, on demand by
BBL, all reasonable out-of-pocket costs and expenses incurred or sustained by
BBL in connection with the preparation of this Amendment (including
reasonable legal fees). This Amendment shall be construed according to and
governed by the laws of the Commonwealth of Massachusetts. This Amendment
may be executed in any number of counterparts, but all such counterparts
shall together constitute but one instrument. In making proof of this
Amendment it shall not be necessary to produce or account for more than one
counterpart signed by each party hereto by and against which enforcement hereof
is sought.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
an agreement under seal as of the date first written above.
XXXXXXX FAMILY RESTAURANTS, L.P.
By: Xxxxxxx Management Company, Inc., its
general partner
By: /s/ [Illegible]
----------------------------------------
Title: X.X.
XXXXXXX RESTAURANTS OPERATING
COMPANY, L.P.
By: Xxxxxxx Management Company, Inc., its
general partner
By: /s/ [Illegible]
----------------------------------------
Title: V.P.
BANCBOSTON LEASING INC.
By: /s/ Xxxxx X. [Illegible]
----------------------------------------
Title: Vice President
