EXHIBIT 2.3
UNCONDITIONAL GUARANTY
OF PAYMENT AND PERFORMANCE
1. FOR VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, the undersigned ("Guarantor"), unconditionally, absolutely and
irrevocably guarantees and promises to pay to XXXX PROPERTY LLC, a Delaware
limited liability company (together with its successors and assigns under the
Lease (as defined below), "Lessor"), or order, any and all amounts,
including, without limitation, Base Annual Rental, Base Monthly Rental,
taxes, insurance premiums, impounds, reimbursements, late charges, default
interest, damages, indemnity obligations and all other amounts, costs, fees,
expenses and charges of any kind or type whatsoever, which may or at any time
be due to Lessor pursuant to the following agreements (collectively, the
"Documents"):
A. Sale-Leaseback Agreement, dated as of the date hereof,
between Lessor and Saxet Corporation, a Delaware corporation, Xxxxxxxx
Xxxxx Pizzeria, Inc., a Pennsylvania corporation, and Uno Restaurants,
Inc., a Massachusetts corporation ("Sellers"), with respect to the sale
and purchase of certain parcels of real property and the improvements
located thereon (the "Properties");
B. Master Lease (the "Lease"), dated as of the date hereof,
between Lessor and SL Properties, Inc., a Massachusetts corporation
("Lessee") by which Lessor leases the Properties to Lessee;
C. Acknowledgement of Master Lease Assignment and
Subordination, Nondisturbance and Attornment Agreement dated as of the
date hereof among Lessee, Lessor, PiOne Remainder LLC, a Delaware
limited liability company, and FFCA Funding Corporation, a Delaware
corporation ("Lender");
D. Any other document, agreement, instrument or certificate
contemplated by the Lease, or any other documents, agreements,
instruments or certificates now or hereafter entered into between
Lessor and Lessee with respect to the Lease; and
E. Any amendment of the foregoing documents, agreements,
instruments or certificates now or hereafter entered into between
Lessor and Lessee.
Initially capitalized terms not otherwise defined in this Guaranty shall have
the meanings set forth in the Lease.
2. Guarantor also unconditionally guarantees the truthfulness and
accuracy of all representations, warranties and certifications of Lessee, the
satisfaction of all conditions by Xxxxxx and the full and timely performance
of all obligations to be performed by Lessee, under or pursuant to the
Documents (the matters which are guaranteed pursuant to Sections 1 and 2 are
hereinafter collectively referred to as the "Obligations").
3. The obligations of Guarantor under this Guaranty are primary,
joint and several and independent of the obligations of Xxxxxx and any and
every other guarantor of the Obligations, and a separate action or actions
may be brought and executed against Guarantor or
any other such guarantor, whether or not such action is brought against
Xxxxxx, Sellers or any other such guarantor and whether or not Lessee,
Sellers or any other such guarantor be joined in such action or actions.
4. This is an absolute and unconditional guaranty of payment and
performance and not of collection and Guarantor unconditionally (a) waives
any requirement that Lessor first make demand upon, or seek to enforce or
exhaust remedies against, Lessee, Sellers or any other person or entity
(including any other guarantor) or any of the collateral or property of
Lessee, Sellers or such other person or entity before demanding payment from,
or seeking to enforce this Guaranty against, Guarantor; (b) waives and agrees
not to assert any and all rights, benefits and defenses which might otherwise
be available under the provisions of Ariz. Rev. Stat. Sections 12-1641, 12
-1642 ET SEQ., 44-141, 44-142 or 47-3605, Arizona Rules of Civil Procedure
Rule 17(f), or any other Arizona statutes or rules (including any statutes or
rules amending, supplementing or supplanting same) which might operate,
contrary to Guarantor's agreements in this Guaranty, to limit Guarantor's
liability under, or the enforcement of, this Guaranty; (c) covenants that
this Guaranty will not be discharged until all of the Obligations are fully
satisfied; and (d) agrees that this Guaranty shall remain in full effect
without regard to, and shall not be affected or impaired by, any invalidity,
irregularity or unenforceability in whole or in part of any of the Documents,
or any limitation of the liability of Lessee or Guarantor thereunder, or any
limitation on the method or terms of payment thereunder which may now or
hereafter be caused or imposed in any manner whatsoever.
5. This Guaranty is a continuing guaranty, and the obligations,
undertakings and conditions to be performed or observed by Guarantor under
this Guaranty shall not be affected or impaired by reason of the happening
from time to time of the following with respect to the Documents, all without
notice to, or the further consent of, Guarantor:
(a) the waiver by Lessor of the observance or performance by
Xxxxxx, Sellers or Guarantor of any of the obligations, undertakings,
conditions or other provisions contained in any of the Documents,
except to the extent of such waiver;
(b) the extension, in whole or in part, of the time for
payment of any amount owing or payable under the Documents;
(c) the modification or amendment (whether material or
otherwise) of any of the obligations of Lessee or Sellers under, or any
other provisions of, any of the Documents, except to the extent of such
modification or amendment;
(d) the taking or the omission of any of the actions referred
to in any of the Documents (including, without limitation, the giving
of any consent referred to therein);
(e) any failure, omission, delay or lack on the part of Lessor
to enforce, assert or exercise any provision of the Documents,
including any right, power or remedy conferred on Lessor in any of the
Documents or any action on the part of Lessor granting indulgence or
extension in any form;
(f) the assignment to or assumption by any third party of any
or all of the rights or obligations of Lessee or Sellers under all or
any of the Documents;
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(g) the release or discharge of Lessee or any of the Sellers
from the performance or observance of any obligation, undertaking or
condition to be performed by Lessee or any of the Sellers under any of
the Documents by operation of law, including any rejection or
disaffirmance of any of the Documents in any bankruptcy or similar
proceedings;
(h) the receipt and acceptance by Lessor or any other person
or entity of notes, checks or other instruments for the payment of
money and extensions and renewals thereof;
(i) any action, inaction or election of remedies by Xxxxxx
which results in any impairment or destruction of any subrogation
rights of Guarantor, or any rights of Guarantor to proceed against any
other person or entity for reimbursement;
(j) any setoff, defense, counterclaim, abatement, recoupment,
reduction, change in law or any other event or circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor, indemnitor or surety under the laws of the State of Arizona,
the state in which the Properties are located or any other
jurisdiction;
(k) any substitution of a Substitute Property for a Property
pursuant to the terms and conditions of the Lease; and
(l) the termination or renewal of any of the Obligations or
any other provision thereof.
6. Guarantor represents and warrants to Lessor that:
(a) Neither the execution nor delivery of this Guaranty nor
fulfillment of nor compliance with the terms and provisions hereof will
conflict with, or result in a breach of the terms or conditions of, or
constitute a default under, any agreement or instrument to which
Guarantor is now a party or by which Guarantor may be bound, or result
in the creation of any lien, charge or encumbrance upon any property or
assets of Guarantor, which conflict, breach, default, lien, charge or
encumbrance could result in a material adverse change in the financial
condition of Guarantor;
(b) No further consents, approvals or authorizations are
required for the execution and delivery of this Guaranty by Guarantor
or for Guarantor's compliance with the terms and provisions of this
Guaranty;
(c) This Guaranty is the legal, valid and binding agreement of
Guarantor and is enforceable against Guarantor in accordance with its
terms;
(d) Guarantor has the full power, authority, capacity and
legal right to execute and deliver this Guaranty, and, to the extent
Guarantor is a corporation, partnership, limited liability company or
other form of entity, the parties executing this Guaranty on behalf of
Guarantor are fully authorized and directed to execute the same to bind
Guarantor;
(e) Guarantor is not a "foreign individual," "foreign
corporation," "foreign partnership," "foreign limited liability
company," "foreign trust," or "foreign estate," as those terms are
defined in the U.S. Internal Revenue Code and the regulations
promulgated
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thereunder. Guarantor's Federal Tax Identification Number is
accurately set forth herein next to the signature of Guarantor;
(f) Guarantor has delivered to Lessor either audited financial
statements or, if Guarantor does not have audited financial statements,
certified financial statements. Such financial statements and other
information relating to Guarantor heretofore delivered to Lessor are
true, correct and complete in all material respects as of the date of
this Guaranty. Guarantor understands that Lessor is relying upon such
information, and Guarantor represents that such reliance is reasonable.
The financial statements of Guarantor delivered by Lessee to Lessor
pursuant to the Lease have been prepared in accordance with generally
accepted accounting principles consistently applied and accurately
reflect, as of the date of this Guaranty, the financial condition of
Guarantor; and
(g) The Documents are conclusively presumed to have been
signed in reliance on this Guaranty, and the assumption by Guarantor of
its obligations under this Guaranty results in direct financial benefit
to Guarantor.
7. (a) Guarantor covenants to Lessor that, during the term of this
Guaranty, Guarantor will not transfer or dispose of any material part of its
assets except in the ordinary course of business for full and fair
consideration and reasonably equivalent value; provided, however, that at any
time and from time to time during the term of this Guaranty, the Guarantor,
except as prohibited by the Master Lease, may (i) pledge and grant security
interests in any or all of its assets to secure indebtedness of Guarantor
and/or any of its subsidiaries or other affiliates (including, without
limitation, indebtedness with respect to letters of credit, interest rate
protection agreements, ACH exposure and any other extension of credit) to
banks, insurance companies and other institutional lenders (collectively the
"Lenders") and the Lenders may exercise all of their rights and remedies
under all such pledges and security interests and (ii) transfer any or all of
its assets in full or partial payment of any indebtedness of Guarantor and/or
any of its subsidiaries or other affiliates (including, without limitation,
indebtedness with respect to letters of credit, interest rate protection
agreements, ACH exposure and any other extension of credit) to the Lenders
provided such transfer is for full and fair consideration and reasonable
equivalent value.
(b) During the term of this Guaranty, without the prior written
consent of Lessor, Guarantor shall not permit any interest in Guarantor or
Parent (as hereinafter defined) to be assigned, transferred, conveyed,
pledged or mortgaged, whether by operation of law or otherwise, including,
without limitation, a dissolution of Guarantor, provided, however, the
foregoing shall not apply to (i) any transfer of stock traded publicly during
such period of time that Guarantor or Parent is a publicly traded company,
(ii) any other transfer of stock that does not result in a change of voting
control in Guarantor or Parent or (iii) transfers of capital stock of
Guarantor and Parent in connection with a going private transaction so long
as immediately following the transaction, Xxxxx Xxxxxxx directly or
indirectly continues to own at least 51% of the outstanding voting capital
stock of Parent and Parent continues to own at least 51% of the outstanding
voting capital stock of Guarantor.
(c) Notwithstanding the foregoing, if the capital stock of Guarantor
is no longer publicly traded, Guarantor may permit: (i) Uno Restaurant
Holdings Corporation, a Delaware corporation, or such other Person that
acquires all the capital stock of Guarantor in a transaction
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making Guarantor a privately held company ("Parent") to transfer its capital
stock in Guarantor so long as Parent continues to own 51% or more of the
outstanding voting capital stock of Guarantor and (ii) Xxxxx Xxxxxxx to
transfer so much of his capital stock in Parent so long as he continues to
own 51% or more of the outstanding voting capital stock of Parent (such 51%
ownership interest, in each case the "Threshold Amount"). Neither Parent nor
Xxxxx Xxxxxxx shall transfer any voting capital stock in Guarantor or Parent,
respectively, resulting in Parent or Xxxxx Xxxxxxx owning voting capital
stock in Guarantor or Parent, respectively, in an amount less than the
Threshold Amount (each, an "Excess Threshold Transfer") without Lessor's and
Xxxxxx's prior written consent, which consent shall not be unreasonably
withheld if: (i) no Event of Default under the Lease then exists and is
continuing; and (ii) if an Excess Threshold Transfer occurs prior to the
third anniversary of the Effective Date, Guarantor provides Lessor with
written reasonable evidence that following the Excess Threshold Transfer the
following individuals will maintain their respective positions as officers of
Guarantor for a period of not less than one year after the date of the Excess
Threshold Transfer: (a) Xxxxx X. Xxxxxx as President and CEO, (b) Xxxxxx X.
Xxxxxxx, Executive Vice President and Chief Financial Officer, and (c) Xxxx
X. XxxXxxxx, Executive Vice President and Chief Operating Officer. Regardless
of when an Excess Threshold Transfer occurs, from and after the occurrence of
an Excess Threshold Transfer, Guarantor and Parent shall maintain a
"Corporate Fixed Charge Coverage Ratio" (as defined below) of not less than
1.20 to 1. The term "Corporate Fixed Charge Coverage Ratio" shall mean with
respect to the twelve month period of time immediately preceding the end of
each fiscal quarter of Guarantor and Parent (each, a "12 Month Period"), the
ratio calculated for such period of time, each as determined in accordance
with GAAP, of (a) the sum of Net Income, Depreciation and Amortization,
Interest Expense and Operating Lease Expense, to (b) the sum of Operating
Lease Expense, scheduled principal payments of long term Debt, scheduled
maturities of all Capital Leases and Interest Expense. Notwithstanding the
foregoing to the contrary, a transfer of capital stock by: (i) Xxxxx Xxxxxxx
to a family trust or other estate planning entity controlled by Xxxxx Xxxxxxx
and in which Xxxxx Xxxxxxx family members are beneficiaries, (ii) the estate
of Xxxxx Xxxxxxx to family members, a family trust or other family-owned
estate planning entity, or (iii) transfers by family members, a family trust
or other family-owned estate planning entity among themselves, shall not be
deemed an Excess Threshold Transfer and such capital stock held by a family
member, in a family trust or another family-owned estate planning entity
controlled by Xxxxx Xxxxxxx and in which Xxxxx Xxxxxxx'x family members are
beneficiaries shall be deemed to be owned by Xxxxx Xxxxxxx for purposes of
this Section 7(c).
For purposes of this Section 7, the following terms shall be defined
as set forth below:
"CAPITAL LEASE" shall mean all leases of any property, whether
real, personal or mixed, by Guarantor and Parent, which leases would,
in conformity with GAAP, be required to be accounted for as a capital
lease on the balance sheet of Guarantor. The term "Capital Lease" shall
not include any operating lease.
"DEBT" shall mean with respect to Guarantor and Parent and for
the applicable 12 Month Period (i) indebtedness for borrowed money,
(ii) obligations evidenced by bonds, indentures, notes or similar
instruments, (iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations under leases which should be, in
accordance with GAAP, recorded as Capital Leases, and (v) obligations
under direct or indirect guarantees in respect of, and obligations
(contingent or otherwise) to purchase or
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otherwise acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of the kinds referred
to in clauses (i) through (iv) above.
"DEPRECIATION AND AMORTIZATION" shall mean the depreciation
and amortization accruing during the applicable 12 Month Period with
respect to Guarantor and Parent, as determined in accordance with GAAP.
"INTEREST EXPENSE" shall mean for the applicable 12 Month
Period, the sum of all interest accrued or which should be accrued in
respect of all Debt of Guarantor and Parent, as determined in
accordance with GAAP.
"NET INCOME" shall mean with respect to the applicable 12
Month Period, the net income or net loss of Guarantor and Parent. In
determining the amount of Net Income, (i) adjustments shall be made for
nonrecurring gains and losses or non-cash items allocable to the
applicable 12 Month Period, and (ii) deductions shall be made for,
among other things, Depreciation and Amortization, Interest Expense,
Operating Lease Expense and actual corporate overhead expense allocable
to the applicable 12 Month Period.
"OPERATING LEASE EXPENSE" shall mean the sum of all payments
and expenses incurred by Guarantor and Parent under any operating
leases during the applicable 12 Month Period, as determined in
accordance with GAAP.
(d) Notwithstanding the prohibition on pledging set forth in
subsection (b), above, the holders of capital stock in Guarantor and Parent
may pledge or otherwise encumber their capital stock to secure obligations of
Lessee, Guarantor, Parent and their Affiliates to institutional lenders for
indebtedness and other obligations or refinancings thereof (an "Institutional
Loan"). Notwithstanding the prohibition on transfer set forth in subsection
(b), above, and without limiting any transfer permitted by the preceding
subsection (c), the interests in Guarantor and/or Parent may be assigned,
transferred or conveyed: (i) in connection with a foreclosure or other sale
of the interests in Guarantor and/or Parent as a result of a default or
breach of the Institutional Loan or (ii) in connection with any subsequent
transfer made by the Institutional Loan lender which acquired the interests
by foreclosure or transfer-in-lieu thereof (each, the "Foreclosure
Transfer"), and Lessor shall in each instance be deemed to have consented to
such Foreclosure Transfer, provided that:
(i) no Event of Default shall have occurred and be continuing
at the time of the Foreclosure Transfer;
(ii) after giving effect to such Foreclosure Transfer, whether
as a single transaction or as a series of transactions, either (x)
Guarantor, including any surviving entity as a result of such
Foreclosure Transfer and/or successor of Guarantor, shall have a net
worth determined in accordance with GAAP at least equal to
$40,000,000.00 (the "Net Worth Condition") or (y) if Guarantor does not
meet the Net Worth Condition concurrently with the completion of such
Foreclosure Transfer, Guarantor shall cause Lessee to (1) pay to Lessor
the Foreclosure Transfer Rent Prepayment Amount (as hereinafter
defined) to the extent necessary to cause the Aggregate Fixed Charge
Coverage Ratio for all of the Properties, taken as a whole, to be at
least equal to 3.0:1 for the twelve-month period of time immediately
preceding the end of the fiscal quarter of Lessee closed prior to the
date on
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which Lessee gives the Foreclosure Transfer Notice (as
hereinafter defined), and (2) pay to Lessor the Prepayment Charges
payable by Lessor to Lender as a result of the prepayment of such Base
Monthly Rental. Upon Lessee's payment of the Foreclosure Transfer Rent
Prepayment Amount and Prepayment Charges as contemplated by the
preceding sentence, Lessor agrees that the Base Monthly Rental
beginning with the calendar month immediately following the month in
which such payment is made (or, if such payment is made on the first
day of a calendar month, beginning with the calendar month in which
such payment is made) shall be equal to the Base Monthly Rental then in
effect reduced by the Foreclosure Transfer Rent Reduction Amount (as
hereinafter defined);
(iii) after giving effect to such Foreclosure Transfer,
whether as a single transaction or as a series of transactions, if
Guarantor has a long term debt rating, such rating is no worse than the
lesser of Guarantor's long term debt rating as of the Effective Date of
the Lease and Guarantor's long term debt rating immediately prior to
the consummation of such Foreclosure Transfer;
(iv) Guarantor, including any surviving entity of such
Foreclosure Transfer and/or successor of Guarantor, shall not be
released from any of its obligations under this Guaranty, and such
surviving entity or successor entity, as applicable, has assumed in
writing or by operation of law (provided Lessor has received a
satisfactory opinion of counsel to Guarantor confirming that such
assumption will occur by operation of law) all of Guarantor's
obligations under this Guaranty and Guarantor shall not be released
from its obligations under this Guaranty;
(v) Guarantor, after giving effect to such Foreclosure
Transfer, shall have a Corporate Fixed Charge Coverage Ratio determined
as of the end of Guarantor's most recently closed fiscal quarter on a
proforma basis after giving effect to the proposed Foreclosure Transfer
of at least 1.20;
(vi) the Properties will be operated as a nationally or
regionally recognized casual dining concept;
(vii) Guarantor or the operator of the Properties will have at
least 5 years' experience operating a multi-unit casual dining
restaurant concept with the same or greater number of units as are then
operated by Guarantor and its Affiliates; and
(viii) if and to the extent that the Loans have been subject
to a Securitization, Lender shall have received a notice or
confirmation of the rating agencies which have issued ratings in
connection with such Securitization that such Foreclosure Transfer will
not cause any of such rating agencies to downgrade, modify, withdraw or
qualify any of such ratings.
For purposes of this Section 7(d), the following terms shall be defined
as set forth below:
"FORECLOSURE TRANSFER RENT PREPAYMENT AMOUNT" means the
present value, discounted on a monthly basis at [___%], of the Subject
Transfer Rent Reduction Amount for each month beginning with the
calendar month immediately following the month in which the Foreclosure
Transfer Rent Prepayment Amount is paid (or, if the Foreclosure
Transfer Rent Prepayment Amount is paid on the first day of a calendar
month, beginning
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with the calendar month in which the Foreclosure Transfer Rent
Prepayment Amount is paid) and ending with the calendar month of
May, 2021, inclusive.
"FORECLOSURE TRANSFER RENT REDUCTION AMOUNT" the product of
(x) the Base Monthly Rental for the last month of the fiscal quarter of
Lessee which ended prior to the date on which Lessee gives Lessor the
Foreclosure Transfer Notice and (y) the Foreclosure Transfer FCCR
Shortfall Percentage. For purposes of illustration and not limitation,
if (i) Lessee's Aggregate Fixed Charge Coverage Ratio for the Fiscal
Year ending May 27, 2010 was 2.0 (which results in a Foreclosure
Transfer FCCR Shortfall Percentage of 33%), (ii) Lessee paid the
Foreclosure Transfer Rent Prepayment Amount on August 15, 2010, and
(iii) the Base Monthly Rental for August, 2010 was $100, then the Base
Monthly Rental payment beginning on September 1, 2010 shall be equal to
the Base Monthly Rental for August, 2010 reduced by the sum of $33.33.
"FORECLOSURE TRANSFER FCCR SHORTFALL PERCENTAGE" means the
percentage represented by (x) 1 minus (y) a fraction, the numerator of
which shall be the Aggregate Fixed Charge Coverage Ratio for the twelve
month period of time immediately preceding the end of the fiscal
quarter of Lessee which closed prior to the date on which Lessee gives
the Foreclosure Transfer Notice, and the denominator of which shall be
3.
Guarantor shall notify Lessor and Lender at least 30 days but not
more than 90 days prior to the completion of any Foreclosure Transfer,
whether or not the consent of Lessor to such Foreclosure Transfer is deemed
given under the terms of this Section 7(d) (each, a "Foreclosure Transfer
Notice"). Guarantor shall provide Lessor and Lender with information
reasonably sufficient to enable Lessor and Lender to determine that Guarantor
has satisfied the conditions to any Foreclosure Transfer, including, without
limitation, such financial information as Lessor and Lender may reasonably
require to enable them to determine that the Net Worth Condition and/or
Aggregate Fixed Charge Coverage Ratio requirements set forth in this Section
7(d) have been satisfied, or will be satisfied simultaneously with the
completion of the Foreclosure Transfer. In addition, to the extent that the
loans contemplated by the Loan Documents have been subject to a
Securitization, Guarantor agrees to cooperate in good faith in connection
with providing such information as the rating agencies may reasonably require
to evaluate any such proposed Foreclosure Transfer. If the foregoing
conditions are not satisfied, then the interests in Guarantor or Parent shall
not be transferred pursuant to a Foreclosure Transfer.
(e) Within 45 days after the end of each fiscal quarter and within
120 days after the end of each fiscal year of Guarantor, Guarantor shall
deliver to Lessor complete financial statements of Guarantor, including a
balance sheet, profit and loss statement, statement of changes in cash flows
and all other related schedules for the fiscal period then ended. All such
financial statements shall be prepared in accordance with generally accepted
accounting principles, consistently applied from period to period, and shall
be certified to be accurate and complete by Guarantor (or the Treasurer or
other appropriate officer of Guarantor). Guarantor understands that Lessor is
relying upon such financial statements and Guarantor represents that such
reliance is reasonable. The financial statements delivered to Lessor need not
be audited, but Guarantor shall deliver to Lessor copies of any audited
financial statements of Guarantor which may be prepared, as soon as they are
available.
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8. This Guaranty shall commence upon execution and delivery of any
of the Documents and shall continue in full force and effect until all of the
Obligations are duly, finally and permanently paid, performed and discharged
and are not subject to any right of reborrowing or extension by Xxxxxx, and
Lessor gives Guarantor written notice of the full and final satisfaction of
the Obligations. The Obligations shall not be considered fully paid,
performed and discharged unless and until all payments by Lessee to Lessor
are no longer subject to any right on the part of any person whomsoever,
including but not limited to Lessee, Lessee as a debtor-in-possession and/or
any trustee in bankruptcy, to disgorge such payments or seek to recoup the
amount of such payments or any part thereof. The foregoing shall include, by
way of example and not by way of limitation, all rights to recover
preferences voidable under Title 11 of the United States Bankruptcy Code, 11
U.S.C. Sec. 101 ET SEQ., as amended (the "Code"). In the event that any such
payments by Lessee to Lessor are disgorged after the making thereof, in whole
or in part, or settled without litigation, to the extent of such disgorgement
or settlement, Guarantor shall be liable for the full amount Lessor is
required to repay plus interest, late charges, attorney's fees and any and
all expenses paid or incurred by Lessor in connection therewith.
9. Guarantor shall neither have any right of subrogation, indemnity
or reimbursement nor hold any other claim against Xxxxxx or Sellers, and
Guarantor does hereby release Lessee and Sellers from any and all claims by
Guarantor now or hereafter arising against Lessee or Sellers. Furthermore,
Guarantor hereby unconditionally and irrevocably waives (a) any right to
participate in any security now or hereafter held by Lessor or in any claim
or remedy of Lessor or any other person against Lessee and Sellers with
respect to the Obligations, (b) any statute of limitations affecting
Guarantor's liability hereunder, (c) all principles and provisions of law
which conflict with the terms of this Guaranty, and (d) diligence,
presentment, protest, demand for performance, notice of nonperformance,
notice of intent to accelerate, notice of acceleration, notice of protest,
notice of dishonor, notice of execution of any Documents, notice of
extension, renewal, alteration or amendment, notice of acceptance of this
Guaranty, notice of defaults under any of the Documents and all other notices
whatsoever.
10. Notwithstanding the preceding Section 9, in the event that
Guarantor shall have any claims against Lessee or Sellers, any indebtedness
of Lessee or Sellers now or hereafter held by Guarantor is hereby
subordinated to the indebtedness of Lessee or Sellers to Lessor. Any such
indebtedness of Lessee or Sellers to Guarantor, if Lessor so requests, shall
be collected, enforced and received by Guarantor as trustee for Lessor and be
paid over to Lessor on account of the Obligations, but without reducing or
affecting in any manner the liability of Guarantor under the other provisions
of this Guaranty.
11. It is not necessary for Lessor to inquire into the powers of
Lessee, Sellers or their officers, directors, partners or agents acting or
purporting to act on its behalf, and Guarantor shall be liable for the
Obligations in accordance with their terms notwithstanding any lack of
authorization or defect in execution or delivery by Lessee or Sellers.
12. In addition to the amounts guaranteed under this Guaranty,
Xxxxxxxxx agrees to pay (i) all of Lessor's attorneys' fees and other costs
and expenses which may be incurred by Lessor in the enforcement of this
Guaranty and (ii) interest (including postpetition interest to the extent a
petition is filed by or against Lessee under the Code) at the Default Rate on
any Obligations not paid when due.
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13. This Guaranty shall apply to the parties hereto and their
successors and assigns according to the context hereof and without regard to
the number or gender of words or expressions used herein.
14. Guarantor hereby agrees to indemnify and hold harmless Lessor
for, from and against any loss, cause of action, claim, cost, expense or fee,
including but not limited to attorney's fees and court costs, suffered or
occasioned by the failure of Lessee or Sellers to satisfy their obligations
under the Documents. The agreement to indemnify Lessor contained in this
paragraph shall be enforceable notwithstanding the invalidity or
unenforceability of the Documents or any of them or the invalidity or
unenforceability of any other paragraph contained in this Guaranty.
15. All moneys available to Lessor for application in payment or
reduction of the liabilities of Lessee or Sellers under the Documents may be
applied by Lessor to the payment or reduction of such liabilities of Lessee,
in such manner, in such amounts and at such time or times as Lessor may elect.
16. All notices, demands, requests, consents, approvals or other
instruments required or permitted to be given pursuant to this Guaranty shall
be in writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return
receipt requested, and shall be deemed to have been delivered upon (a)
receipt, if hand delivered, (b) transmission, if delivered by facsimile, (c)
the next Business Day, if delivered by express overnight delivery service or
(d) the third Business Day following the day of deposit of such notice with
the United States Postal Service, if sent by certified or registered mail,
return receipt requested. Notices shall be provided to the addresses (or
facsimile numbers, as applicable) specified below:
If to Guarantor: Uno Restaurant Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Lessor: Xxxx Property LLC
c/o U.S. Realty Advisors, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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With a copy to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or such other person as either Guarantor or Lessor
may from time to time hereafter specify to the other party in a notice
delivered in the manner provided above. No such notices, demands, requests,
consents, approvals or other communications shall be valid unless Lender is
provided a duplicate original thereof at the following address:
Xxxxxx X. Xxxxx, Esq.
Executive Vice President, General Counsel
and Secretary
FFCA Funding Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or such other person as Lender may from time to time
specify to Lessor and Guarantor in a notice delivered in the manner provided
above.
17. This Guaranty is delivered in the State of Arizona, and it is
the intent of Guarantor and Lessor that this Guaranty shall be deemed to be a
contract made under and governed by the internal laws of the State of
Arizona, without regard to its principles of conflicts of law. For purposes
of any action or proceeding involving this Guaranty, Guarantor submits to the
jurisdiction of all federal and state courts located in the State of Arizona
and consents that it may be served with any process or paper by registered
mail or by personal service within or without the State of Arizona in
accordance with applicable law. Furthermore, Guarantor waives and agrees not
to assert in any such action, suit or proceeding that it is not personally
subject to the jurisdiction of such courts, that the action, suit or
proceeding is brought in an inconvenient forum or that venue of the action,
suit or proceeding is improper. Nothing contained in this section shall limit
or restrict the right of Lessor to commence any proceeding in the federal or
state courts located in the state in which the Properties are located and/or
where Guarantor maintains its chief executive office to the extent Lessor
deems such proceeding necessary or advisable to exercise remedies available
under the Documents.
18. Guarantor and Lessor, by its execution of the Lease and its
acceptance of this Guaranty, intend that:
(i) the Lease constitutes a single master lease of all, but
not less than all, of the Properties and that Lessor and Lessee have
executed and delivered the Lease with the understanding that the Lease
constitutes a unitary, unseverable instrument pertaining to all, but
not less than all, of the Properties, and that neither the Lease nor
the duties, obligations or rights of Lessee may be allocated or
otherwise divided among the Properties by Xxxxxx;
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(ii) the Lease is a "true lease" and not a financing lease,
capital lease, mortgage, equitable mortgage, deed of trust, trust
agreement, security agreement or other financing or trust arrangement,
and the economic realities of the Lease are those of a true lease; and
(iii) the business relationship created by the Lease and any
related documents is solely that of a long-term commercial lease
between landlord and tenant and has been entered into by both parties
in reliance upon the economic and legal bargains contained herein.
The expressions of intent set forth in this Section are a material
inducement to Lessor entering into the Lease.
19. Guarantor acknowledges that Xxxxxx did not prepare or assist in
the preparation of any of the projected financial figures used by Xxxxxx in
analyzing the economic viability and feasibility of the transactions
contemplated by the Lease.
20. All of Xxxxxx's rights and remedies under the Documents and this
Guaranty are intended to be distinct, separate and cumulative and no such
right and remedy is intended to be in exclusion of or a waiver of any of the
others.
21. Except as otherwise contemplated by Section 27 of this Guaranty,
this Guaranty is solely for the benefit of Lessor, its successors and assigns
and is not intended to nor shall it be deemed to be for the benefit of any
third party, including, without limitation, Lessee.
22. If any provision of this Guaranty is unenforceable, the
enforceability of the other provisions shall not be affected and they shall
remain in full force and effect.
23. Guarantor agrees to take such action and to sign such other
documents as may be appropriate to carry out the intent of this Guaranty.
24. This Guaranty may be executed in one or more counterparts, each
of which shall be deemed an original.
25. LESSOR, BY ACCEPTING THIS GUARANTY, AND GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY XXXXXX OR GUARANTOR AGAINST THE
OTHER OR THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS GUARANTY, THE RELATIONSHIP OF XXXXXX, XXXXXX AND/OR
GUARANTOR, XXXXXX'S USE OR OCCUPANCY OF THE PROPERTIES, AND/OR ANY CLAIM FOR
INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY XXXXXX
AND GUARANTOR OF ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY HAS BEEN
NEGOTIATED AND IS A MATERIAL INDUCEMENT FOR LESSOR ACCEPTING THIS GUARANTY.
FURTHERMORE, GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT
DAMAGES FROM LESSOR OR ANY OF LESSOR'S AFFILIATES, OFFICERS, DIRECTORS,
MEMBERS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO
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ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM
BROUGHT BY GUARANTOR AGAINST LESSOR OR ANY OF LESSOR'S AFFILIATES, OFFICERS,
DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO
ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY
DOCUMENTS CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY GUARANTOR OF
ANY RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT
DAMAGES HAS BEEN NEGOTIATED AND IS A MATERIAL INDUCEMENT FOR LESSOR ACCEPTING
THIS GUARANTY.
26. Guarantor shall be liable under this Guaranty for the maximum
amount of such liability that can be incurred hereby without rendering this
Guaranty, as it relates to Guarantor, voidable under applicable laws relating
to fraudulent conveyance or fraudulent transfer, and not for any greater
amount. Xxxxxxxxx agrees that the Obligations may at any time and from time
to time exceed the amount of the liability of Guarantor hereunder without
impairing this Guaranty or affecting the rights and remedies of Lessor
hereunder.
27. This Guaranty is executed and delivered to induce Lessor to
enter into the Lease and is solely for the benefit of Xxxxxx and its
successors and assigns, including, without limitation, Lender and its
successors and assigns under the Loan Documents, and is not intended to nor
shall it be deemed to be for the benefit of any other third party, including,
without limitation, Lessee. This Guaranty is a continuing Guaranty and shall
be binding upon Guarantor and its successors and assigns; provided, however,
without the prior written consent of Xxxxxx, Guarantor shall not assign this
Guaranty or any of the rights or obligations of Guarantor hereunder.
28. Guarantor acknowledges and agrees that (i) Lessor intends to
collaterally assign all of its right, title and interest under the Lease and
this Guaranty to Lender pursuant to the Loan Documents and (ii) upon the
exercise of Xxxxxx's remedies set forth in such Loan Documents, all of the
rights, powers and privileges of Lessor shall be deemed the rights, powers
and privileges of Xxxxxx and Lender shall be entitled to exercise all of the
rights and remedies of "Lessor" under this Guaranty, the Lease and the Loan
Documents. Guarantor hereby consents to, and no further consent by Guarantor
shall be required for, any further assignment of rights of Lessor hereunder
or in connection with any transfer by Xxxxxx. All notices, certificates,
reports or other information required to be delivered to Lessor under this
Guaranty shall be delivered simultaneously to Lender. Notwithstanding any
provision herein to the contrary, this Guaranty shall not be deemed to create
any obligation of or liability for Lender. Guarantor intends that Lender
shall be an intended third party beneficiary of this Guaranty but without any
corresponding responsibility, liability or obligation to Guarantor.
29. Xxxxxxxxx agrees that:
(a) the Guaranty shall not be changed, amended, altered,
modified, or terminated without the prior written consent of Lender;
(b) any consent, approval, agreement or waiver provided by
Lessor pursuant to this Guaranty shall not be valid unless consented to
in writing by Xxxxxx; and
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(c) Lessor shall in no event be deemed to have unreasonably
withheld any approval under this Guaranty if Lender shall not have
given its approval.
30. If a tender offer for or other acquisition of any of the
outstanding common shares of Guarantor for the purposes of taking the
Guarantor private occurs prior to the third anniversary of the Effective
Date, then Guarantor, prior to the third anniversary of the Effective Date,
shall not incur total funded indebtedness of more than $75,000,000, excluding
the then remaining balance of Guarantor's current existing indebtedness to
Metropolitan Life Insurance Company, which as of December 31, 2000, was
$4,320,039.
IN WITNESS WHEREOF, the undersigned Xxxxxxxxx has executed this
Guaranty effective as of the 11th day of May, 2001.
GUARANTOR:
Federal Tax I.D. Number: UNO RESTAURANT CORPORATION,
a Delaware corporation
00-0000000
By :/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Chief Financial Officer, Executive
Vice President, Treasurer and
Assistant Secretary
The undersigned are executing this Agreement solely for the purposes
of accepting the terms of Sections 7(c) and 7(d).
/s/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
UNO RESTAURANT HOLDINGS
CORPORATION, a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President, Treasurer
and Assistant Secretary
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