1
Exhibit 10
Loan No. 05942
GUARANTY
--------
Xxxxxx'x Foods, Inc., an Ohio corporation ("Guarantor"), as a material
inducement to and in consideration of CAPTEC FINANCIAL GROUP, INC., a Michigan
corporation, whose address is 24 Xxxxx Xxxxx Xxxxxx Drive, Lobby L, Xxx Xxxxx,
Xxxxxxxx 00000 ("Lender"), making a loan in the original principal amount of
Eight Hundred Forty-Four Thousand Two Hundred and 00/100 Dollars ($844,200.00)
to be evidenced by a Promissory Note substantially in the form of Exhibit A
attached hereto ("Note"), which Note is to be secured by a Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing substantially in
the form of Exhibit B attached hereto ("Mortgage") to Xxxxxx'x Restaurants of
Pennsylvania, Inc., a Pennsylvania corporation ("Borrower"), hereby jointly and
severally, unconditionally and irrevocably, personally guarantees to and for
the benefit of Lender, and Lender's successors and assigns, the full and timely
payment and performance of all of the Borrower's duties, obligations and
covenants under the Note and the Mortgage.
This Guaranty shall not be affected by Lender's failure or delay to
enforce any of its rights.
Guarantor's obligations are independent of Borrower's obligations.
If Borrower defaults under the Note or the Mortgage, Lender can proceed
immediately against Guarantor or Borrower, or both, or Lender can enforce
against Guarantor or Borrower, or both, any rights that it has under the Note,
the Mortgage or pursuant to applicable laws. If the lien of the Mortgage
terminates and Lender has any rights it can enforce against Borrower after
termination, Lender can enforce those rights against Guarantor without giving
previous notice to Borrower or Guarantor or without making any demand on either
of them.
To the extent permitted by law, Guarantor waives the benefit of any
statute of limitations affecting Guarantor's liability under this Guaranty.
Guarantor waives the right to require Lender to first or concurrently: (1)
proceed against Borrower; (2) proceed against or exhaust any security that
Lender holds from Borrower; or (3) pursue any other remedy in Lender's power.
The liability of Guarantor shall not be affected or exonerated by any
indulgence, compromise, settlement or variation of terms which may be extended
by Lender to Borrower, or agreed upon by Lender or Borrower, and, unless agreed
to in writing by Lender, shall not be affected or exonerated by any assignment
or sublease by Borrower of its interest in the Note or the Mortgage, nor shall
the liability of the Guarantor be affected or exonerated by the insolvency,
bankruptcy (voluntary or involuntary), or reorganization of Borrower, nor by
the voluntary or involuntary liquidation, sale or other disposition of all or
substantially all of the assets of Borrower, or by the release of any other
Guarantor. Lender and Borrower, without notice to or consent by Guarantor, may
at any time or times enter into such modifications, extensions, amendments or
other covenants respecting the Note and the Mortgage as they may deem
appropriate, and Guarantor shall not be released or its liability exonerated
thereby but shall continue to be fully liable for the payment and performance
of all obligations and duties of Borrower under the Note and the Mortgage as so
modified, extended or amended.
2
Guarantor further agrees to indemnify and hold harmless Lender from and
against any claims, damages, expenses or losses, including to the extent
permitted by law, all reasonable attorneys' fees incurred by counsel of
Lender's choice (whether or not litigation is commenced), resulting from or
arising out of any breach of any provision of the Note or the Mortgage by
Borrower or by reason of Borrower's failure to perform any of its obligations
thereunder. Should Guarantor or Lender institute any action or proceeding to
enforce any provisions hereof or for a declaration of such party's rights or
obligations hereunder, the prevailing party shall be entitled to receive from
the losing party such amounts the court would adjudged to be reasonable
attorneys' fees, expert witness fees, court costs, deposition costs, court
report fees and sheriff's fees for services rendered to and expenses incurred
by the party prevailing in any such action or proceeding, and such fees and
expenses shall be deemed to have accrued upon the commencement of such action
or proceeding and shall be enforceable whether or not such action or proceeding
is prosecuted to judgment.
Until all of Borrower's obligations to Lender have been discharged in
full, Guarantor has no right of subrogation against Borrower. Guarantor
assumes the responsibility to remain informed of the financial condition of
Borrower and of all other circumstances bearing upon the risk of Borrower's
default, which reasonable inquiry would reveal, and agrees that Lender shall
have no duty to advise Guarantor of information known to it regarding such
condition or any such circumstances. Lender shall not be required to inquire
into the powers of Borrower or the officers, employees, partners or agents
acting or purporting to act on its behalf, and any indebtedness made or created
in reliance upon the professed exercise of such powers shall be guaranteed
under this Guaranty. Each Guarantor hereby represents and warrants to Lender
that such Guarantor has received a copy of the Note and the Mortgage, has read
or had the opportunity to read the Note and the Mortgage, and understands the
terms of the Note and the Mortgage. The provisions in the Note and the
Mortgage relating to the execution of additional documents, legal proceedings
by Lender against Borrower, severability of the provisions of the Note and the
Mortgage, interpretation of the Note and the Mortgage, notices, waivers
(including waiver of a jury trial), limitation on right of recovery against
Lender, disclaimer of individual liability, and the applicable laws which
govern the interpretation of the Note and the Mortgage are incorporated herein
in their entirety by this reference and made a part hereof as though set forth
in full herein; any reference in those provisions to "Borrower" shall mean each
Guarantor and any reference in those provisions to the "Note" or the "Mortgage"
shall mean this Guaranty.
To the extent permitted by law, Guarantor waives its right to enforce
any remedies that Borrower now has, or later may have, against Lender.
Guarantor waives any right to participate in any security now or later held by
Lender. Guarantor waives notice of acceptance of this Guaranty, and all other
notices in connection with this Guaranty or in connection with the liabilities,
obligations and duties guaranteed hereby, including notices to Guarantor of
default by the Borrower under the Note and the Mortgage. Guarantor hereby
waives diligence, presentment, demand for performance, notice of
nonperformance, protest, notice of protest, notice of dishonor, and notice of
acceptance of this Guaranty, and waives all notices of the existence, creation,
or incurring of new or additional obligations.
- 2 -
3
If there is more than one Guarantor, the liability of each Guarantor
shall be joint and several. Guarantor's obligations under this Guaranty shall
be binding on Guarantor's legal representatives, heirs, successors and
assigns.
If Borrower disposes of its interest in the property secured by the
Mortgage, "Borrower", as used in this Guaranty, shall mean Borrower's
successors or assigns. Assignment of the Note and the Mortgage by Lender (as
permitted by the Note or the Mortgage) shall not affect this Guaranty. In the
event of an assignment of the Note and the Mortgage by Lender, the term
"Lender" as used in this Guaranty shall mean Lender's successors or assigns.
Guarantor hereby covenants and agrees to deliver annual audited
financial statements to Lender within one hundred twenty (120) days after the
end of Guarantor's fiscal year. By execution of this Guaranty by Guarantor
and acceptance of this Guaranty by Lender, Guarantor and Lender covenant and
agree that the dealing between them shall be conducted in good faith and in
fair dealing, such that each party shall avoid: (a) affirmative misstatements
of material facts; (b) half-truths in connection with material facts; and
(c) pure omissions of facts material to the purpose of this Guaranty.
If any one or more of the provisions of this Guaranty shall be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Guaranty, and this Guaranty shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. This Guaranty shall
be construed according to the laws of the Commonwealth of Pennsylvania
("State"). By execution hereof, the undersigned specifically consents to this
choice of law designation and agrees that all actions or proceedings arising
directly, indirectly or otherwise in connection with, out of, related to, or
from this Guaranty or the Note shall be litigated only in the courts located
in the State or in Michigan, and the undersigned (i) consents and submits to
the IN PERSONAM jurisdiction of any state or federal court located within the
State or in Michigan, (ii) waives any right to transfer or change the venue of
litigation brought against the undersigned, and (iii) agrees to service of
process, to the extent permitted by law, by mail.
Dated this 20th day of September, 1995.
WITNESSES: XXXXXX'X FOODS, INC.
_____________________________ By _____________________________
_____________________________ Its Chairman of the Board
_______________________
- 3 -
4
STATE OF OHIO )
---------- ) ss.
COUNTY OF CUYAHOGA )
----------
The foregoing instrument was acknowledged before me this 19th day of
September, 1995, by Xxxxxxx Xxxxx-Xxxxx , as Chairman of the Board of
-------------------------- -----------------------
Xxxxxx'x Foods, Inc., an Ohio corporation on behalf of the corporation.
Xxxxxxxx X. Xxxxxxx
------------------------------------
Notary Public
Cuyahoga County, Ohio
---------- -------------------
My Commission Expires: 11-15-95
---------------
[Notary Public's Seal]
- 4 -
5
EXHIBIT A
TO
GUARANTY
--------
[NOTE]
6
EXHIBIT B
TO
GUARANTY
--------
[MORTGAGE]
