GUARANTY
Dated as of July 5, 1995
among
Xxxxxxx Family Restaurants, L.P.,
Xxxxxxx Restaurants Operating Company, L.P.
and
BancBoston Leasing Inc.
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TABLE OF CONTENTS
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GUARANTY
GUARANTY, dated as of July 5, 1995 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 that BBL arrange and provide lease
financing for equipment to be installed in the Xxxxxxx Family Restaurants
listed on Exhibit A attached hereto by Park Development Corporation, a
franchisee of the Guarantors (the "Franchisee"); and
WHEREAS, BBL has agreed to consider providing such financing to the
Franchisee pursuant to agreements, substantially in the form of the Master
Lease Finance Agreement and the related agreements, schedules and
certificates attached hereto as Exhibit B, which have been jointly approved
by the Guarantors and which approval has been certified as provided in
Exhibit C attached hereto, (collectively, the "Agreements" and individually,
an "Agreement"), such Agreements to be entered into during the period from
the date hereof through September 30, 1996 and in an aggregate amount not to
exceed $1,350,000; AND
WHEREAS, IT IS A CONDITION PRECEDENT TO BBL'S PROVIDING ANY SUCH FINANCING TO
THE FRANCHISEE, THAT THE GUARANTORS JOINTLY AND SEVERALLY GUARANTY PAYMENT BY
THE FRANCHISEE OF ITS OBLIGATIONS UNDER THE AGREEMENTS, ON THE TERMS AND
CONDITIONS PROVIDED HEREIN; AND
WHEREAS, THE GUARANTORS WISH TO GUARANTY THE FRANCHISEE'S OBLIGATIONS TO BBL
AS PROVIDED HEREIN;
NOW, THEREFORE, EACH OF THE GUARANTORS HEREBY AGREES WITH BBL AS FOLLOWS:
SECTION 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.
SECTION 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
PURSUANT TO SECTION 362(a) OF THE FEDERAL BANKRUPTCY CODE AND THE OPERATION
OF SECTION SECTION 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 FRANCHISEE OR
ANY OTHER GUARANTOR OF THE 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 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 THE 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 D ATTACHED HERETO.
SECTION GAURANTOR'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.
SECTION LIMITATION OF LIABILITY.
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THE GUARANTORS' JOINT AND SEVERAL OBLIGATIONS UNDER SECTION 2 OF THIS
GUARANTY SHALL BE LIMITED, AS OF THE TIME OF ANY DEMAND HEREUNDER, TO AN
AMOUNT EQUAL TO THE APPLICABLE PERCENTAGE (AS DEFINED BELOW) OF THE THEN
OUTSTANDING AGGREGATE OBLIGATIONS UNDER ALL AGREEMENTS (THE "GUARANTORS'
LIABILITY"). THE
"APPLICABLE PERCENTAGE" ON ANY DATE OF DETERMINATION SHALL BE THE APPLICABLE
PERCENTAGE SET FORTH ON EXHIBIT E ATTACHED HERETO ON SUCH DATE. 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 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 D ATTACHED HERETO, THE AMOUNT
RECOVERED (BUT NOT MORE THAN THE AMOUNT PAID UNDER THIS GUARANTY IN RESPECT
OF THE 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.
SECTION WAIVERS BY GUARANTORS; BBL'S FREEDOM TO ACT.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2 HEREOF, 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 THE FRANCHISEE 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 (a) THE
FAILURE OF BBL TO ASSERT ANY CLAIM OR DEMAND OR TO ENFORCE ANY RIGHT OR
REMEDY AGAINST THE FRANCHISEE OR ANY OTHER ENTITY OR OTHER PERSON PRIMARILY
OR SECONDARILY LIABLE WITH RESPECT TO ANY OF THE OBLIGATIONS; (b) (EXCEPT TO
THE EXTENT PROVIDED BELOW) ANY EXTENSIONS, COMPROMISE, REFINANCING,
CONSOLIDATION OR RENEWALS OF ANY OBLIGATION; (c) (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 ANY OF THE OBLIGATIONS; (d) THE ADDITION (BUT NOT RELEASE) OF ANY ENTITY
OR OTHER PERSON PRIMARILY OR SECONDARILY LIABLE FOR ANY OBLIGATION; (e)
EXCEPT TO THE EXTENT PROVIDED BELOW, THE ADEQUACY OF ANY RIGHTS WHICH BBL MAY
HAVE AGAINST ANY COLLATERAL SECURITY OR OTHER MEANS OF OBTAINING REPAYMENT OF
ANY OF THE OBLIGATIONS; (f) EXCEPT TO THE EXTENT PROVIDED BELOW, 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 (g) 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 THE 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 THE 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
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POWER OF SALE OR OTHERWISE, OR (B) ANY OTHER LAW WHICH IN ANY OTHER WAY WOULD
OTHERWISE REQUIRE ANY ELECTION OF REMEDIES BY BBL.
SECTION UNENFORCEABILITY OF OBLIGATIONS AGAINST FRANCHISEE.
IF FOR ANY REASON THE 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 THE FRANCHISEE BY REASON OF THE 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
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 THE 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 D ATTACHED HERETO.
SECTION SUBROGATION; SUBORDINATION.
SECTION WAIVER OF RIGHTS AGAINST FRANCHISEE.
SUBJECT TO THE EXCEPTIONS
CONTAINED IN SUBSECTION 7.3 HEREOF, UNTIL THE FINAL PAYMENT IN FULL OF ALL
OBLIGATIONS OF THE FRANCHISEE, THE GUARANTORS SHALL NOT EXERCISE ANY RIGHTS
AGAINST THE FRANCHISEE ARISING AS A RESULT OF PAYMENT BY A 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 THE FRANCHISEE IN RESPECT OF ANY LIABILITY
OF THE GUARANTORS TO THE FRANCHISEE; AND THE GUARANTORS WAIVE ANY BENEFIT OF
AND ANY RIGHT TO PARTICIPATE IN ANY COLLATERAL SECURITY WHICH MAY BE HELD BY
BBL.
SECTION SUBORDINATION.
SUBJECT TO THE EXCEPTIONS CONTAINED IN SUBSECTION 7.3 HEREOF,
THE PAYMENT OF ANY AMOUNTS DUE WITH RESPECT TO ANY INDEBTEDNESS OF THE
FRANCHISEE NOW OR HEREAFTER OWED TO THE GUARANTORS IS HEREBY SUBORDINATED TO
THE PRIOR PAYMENT IN FULL OF ALL OF THE OBLIGATIONS OF THE 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 THE FRANCHISEE TO
EITHER GUARANTOR UNTIL ALL OF THE OBLIGATIONS OF THE 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 THE LIABILITY OF THE GUARANTORS
UNDER THE OTHER PROVISIONS OF THIS GUARANTY.
SECTION EXCEPTION.
THE PROVISIONS OF SUBSECTIONS 7.1 AND 7.2 HEREOF SHALL NOT APPLY TO ANY
ROYALTY, MARKETING FUND OR OTHER ADVERTISING PAYMENTS MADE UNDER ANY
FRANCHISE OR LICENSE AGREEMENT BETWEEN THE 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 THE
GUARANTORS BY THE FRANCHISEE IN THE ORDINARY COURSE OF BUSINESS. SECTION
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.
SECTION 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
EITHER GUARANTOR (ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY THE GUARANTORS)
AND TO THE FULLEST EXTENT PERMITTED BY
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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.
SECTION 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
EACH 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 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 FRANCHISEE ON A
CONTINUING BASIS ALL INFORMATION DESIRED BY THE GUARANTORS CONCERNING THE
FINANCIAL CONDITION OF THE FRANCHISEE AND THAT THE GUARANTORS WILL LOOK TO
THE FRANCHISEE AND NOT TO BBL IN ORDER FOR THE GUARANTORS TO KEEP ADEQUATELY
INFORMED OF CHANGES IN THE FRANCHISEE'S FINANCIAL CONDITION.
(b) IN THE EVENT THAT AN EVENT OF DEFAULT CAUSED BY NONCOMPLIANCE WITH ANY
COVENANT CONTAINED IN 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, 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.
SECTION TERMINATION; REINSTATEMENT. SUBJECT TO SECTION 4 HEREOF, 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 THE FRANCHISEE, OR
OTHERWISE, ALL AS THOUGH SUCH PAYMENT HAD NOT BEEN MADE OR VALUE RECEIVED.
SECTION 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 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.
SECTION 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.
SECTION 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 A 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.
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SECTION 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.
EACH 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
HEREOF. 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.
SECTION WAIVER OF JURY TRIAL.
EACH OF THE GUARANTORS HEREBY WAIVES ITS RIGHT TO A JURY 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, 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
(a) 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 (b) 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. SECTION 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:
TITLE:
XXXXXXX RESTAURANTS OPERATING
COMPANY, L.P.
BY: PERKINS MANAGEMENT
COMPANY, INC., ITS
GENERAL PARTNER
BY:
TITLE:
25
BANCBOSTON LEASING INC.
BY:
TITLE:
THE FIRST NATIONAL BANK OF
BOSTON
BY:
TITLE:
MASTER LEASE AND RELATED AGREEMENTS.
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EXHIBIT C
FORM OF
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 , 1995
AMONG THE GUARANTORS AND BANCBOSTON LEASING INC. ("BBL"), AS FOLLOWS:
1. BBL HAS INFORMED THE GUARANTORS THAT PERK DEVELOPMENT CORPORATION (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 FORTY EIGHT (48) MONTHS, COVERING EQUIPMENT LISTED ON
SCHEDULE 1 ATTACHED HERETO (THE "EQUIPMENT"), TO BE USED AT THE ADDRESS(S)
SET FORTH ON SCHEDULE 1, AND THAT BBL IS WILLING TO ENTER INTO SUCH LEASE OF
THE EQUIPMENT WITH PERK DEVELOPMENT CORPORATION, SUBJECT TO GUARANTORS'
ACCEPTANCE OF THE LEASE AS AN "AGREEMENT" UNDER THE GUARANTY.
2. THE GUARANTORS HEREBY CERTIFY TO AND AGREE WITH BBL THAT THE LEASE WILL
CONSTITUTE AN "AGREEMENT" AS DEFINED IN AND COVERED BY THE GUARANTY.
3. AFTER GIVING EFFECT TO THE OBLIGATIONS UNDER THE ABOVE LEASE, THE MAXIMUM
AGGREGATE OBLIGATIONS PRESENTLY COVERED BY THE GUARANTY DO NOT 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 , 1995.
XXXXXXX FAMILY RESTAURANTS, L.P.
BY:
TITLE:
XXXXXXX RESTAURANTS
OPERATING COMPANY, L.P.
BY:
TITLE:
27
EXHIBIT E
EXCEPT AS PROVIDED BELOW, THE APPLICABLE PERCENTAGE ON ANY DATE OF
DETERMINATION SHALL BE 100%.
THE APPLICABLE PERCENTAGE SHALL REDUCE TO 70% OR, IF THE APPLICABLE
PERCENTAGE HAS ALREADY BEEN REDUCED TO 70% IN ACCORDANCE WITH THE TERMS
HEREOF, 40% OR, IF THE APPLICABLE PERCENTAGE HAS ALREADY BEEN REDUCED TO 40%
IN ACCORDANCE WITH THE TERMS HEREOF 10% IF, AND ONLY IF:
(i) THE FRANCHISEE CERTIFIES IN WRITING TO BBL (a) THAT A GUARANTY REDUCTION
EVENT (AS DEFINED BELOW) HAS OCCURRED, (b) THE AMOUNT OF THE NET PROCEEDS
RECEIVED BY THE FRANCHISEE IN CASH IN CONNECTION WITH THE OCCURRENCE OF SUCH
GUARANTY REDUCTION EVENT (THE "ACTUAL NET PROCEEDS"), (c) IF THE AMOUNT OF
THE ACTUAL NET PROCEEDS IS NOT EQUAL TO OR GREATER THAN 90% OF THE TARGET NET
PROCEEDS (AS DEFINED BELOW) FOR SUCH GUARANTY REDUCTION EVENT, THAT A MAKE
WHOLE EVENT (AS DEFINED BELOW) HAS ALSO OCCURRED, AND (d) THAT THE FRANCHISEE
HAS NOT DEFAULTED IN THE PAYMENT OR PERFORMANCE OF ANY OF ITS OBLIGATIONS; AND
(ii) THE FRANCHISEE DELIVERS TO BBL AND THE GUARANTORS COPIES OF ALL SUCH
DOCUMENTS AND INSTRUMENTS AS BBL AND THE GUARANTORS MAY REASONABLY REQUEST IN
ORDER TO CONFIRM THE OCCURRENCE OF THE GUARANTY REDUCTION EVENT AND, IF
APPLICABLE, THE MAKE WHOLE EVENT AND THE AMOUNT OF THE ACTUAL NET PROCEEDS;
PROVIDED, THAT A GUARANTY REDUCTION EVENT OR A MAKE WHOLE EVENT WHICH IS THE
SUBJECT OF THE CERTIFICATE DELIVERED PURSUANT TO THE FOREGOING CLAUSE (i) MAY
ONLY BE CERTIFIED BY THE FRANCHISEE TO BBL AND THE GUARANTORS ON ONE OCCASION.
FOR PURPOSES HEREOF, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
GUARANTY REDUCTION EVENT MEANS ANY ONE OF THE FOLLOWING EVENTS (WHICH BBL AND
THE GUARANTORS MAY AGREE TO AMEND FROM TIME TO TIME):
(a) THE FRANCHISEE HAS ENTERED INTO A SALE LEASEBACK TRANSACTION FOR THE TEN
XXXXXXX FAMILY RESTAURANTS PREVIOUSLY DISCLOSED TO BBL, ON TERMS AND
CONDITIONS SATISFACTORY TO BBL AND THE GUARANTORS IN ALL RESPECTS, AND THE
AMOUNT OF THE NET PROCEEDS RECEIVED BY THE FRANCHISEE IN CASH IN CONNECTION
WITH SUCH SALE LEASEBACK TRANSACTION IS EQUAL TO OR IN EXCESS OF $1,135,000;
OR
(b) THE FRANCHISEE SELLS ITS ELMRIDGE PROPERTY ON TERMS AND CONDITIONS WHICH
ARE SATISFACTORY TO BBL AND THE GUARANTORS IN ALL RESPECTS AND THE AMOUNT OF
THE NET PROCEEDS RECEIVED BY THE FRANCHISEE IN CASH IN CONNECTION WITH SUCH
SALE IS EQUAL TO OR IN EXCESS OF $1,484,714; OR
(c) THE FRANCHISEE SELLS ITS BAYTOWNE PROPERTY ON TERMS AND CONDITIONS WHICH
ARE SATISFACTORY TO BBL AND THE GUARANTORS IN ALL RESPECTS AND THE NET
PROCEEDS RECEIVED BY THE FRANCHISEE IN CASH IN CONNECTION WITH SUCH SALE IS
EQUAL TO OR IN EXCESS OF $731,000.
MAKE WHOLE EVENT MEANS ANY ONE OF THE FOLLOWING EVENTS:
(a) THE FRANCHISEE SHALL HAVE ENTERED INTO A FORBEARANCE ARRANGEMENT WITH
FLEET BANK, N.A. ("FLEET") WITH RESPECT TO THE PRINCIPAL AMOUNT OF $660,000
OWED TO FLEET PURSUANT TO THAT CERTAIN PLAZA LINE OF CREDIT AND THE
FRANCHISEE SHALL HAVE ENTERED INTO A FORBEARANCE ARRANGEMENT WITH THE CHASE
MANHATTAN BANK, N.A. ("CHASE") WITH RESPECT TO PRINCIPAL AND INTEREST IN AN
AGGREGATE EQUAL TO $175,000 OWED
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TO CHASE PURSUANT THAT CERTAIN PLAZA LINE OF CREDIT, AND IN EACH CASE THE
FORBEARANCE ARRANGEMENT SHALL BE SATISFACTORY TO BBL AND THE GUARANTORS IN
ALL RESPECTS; OR
(b) THE FRANCHISEE SELLS ITS GATEWAY PROPERTY ON TERMS AND CONDITIONS WHICH
ARE SATISFACTORY TO BBL AND THE GUARANTORS IN ALL RESPECTS AND THE AMOUNT OF
THE NET PROCEEDS RECEIVED BY THE FRANCHISEE IN CASH IN CONNECTION WITH SUCH
SALE IS EQUAL TO OR IN EXCESS OF ($10,000); OR
(c) THE FRANCHISEE SELLS ITS XXXXXX PROPERTY ON TERMS AND CONDITIONS WHICH
ARE SATISFACTORY TO BBL AND THE GUARANTORS IN ALL RESPECTS AND THE AMOUNT OF
THE NET PROCEEDS RECEIVED BY THE FRANCHISEE IN CASH IN CONNECTION WITH SUCH
SALE IS EQUAL TO OR IN EXCESS OF $296,450;
PROVIDED, THAT NO MAKE WHOLE EVENT SHALL BE DEEMED TO HAVE OCCURRED UNLESS
AND UNTIL THE MAKE WHOLE EVENT DESCRIBED IN CLAUSE (a) OF THIS DEFINITION HAS
OCCURRED.
TARGET NET PROCEEDS MEANS, WITH RESPECT TO ANY GUARANTY REDUCTION EVENT, THE
MINIMUM NET PROCEEDS REQUIRED TO BE RECEIVED BY THE FRANCHISEE IN CASH IN
CONNECTION WITH SUCH GUARANTY REDUCTION EVENT.
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