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EXHIBIT 10.17
GUARANTY BY CORPORATION
_________________________, ______________
(City) (State)
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and to induce THE FIRST NATIONAL BANK OF OLATHE
(herein, with its participants, successors and assigns, called 'Lender'), at its
option, at any time to make a loan to MIDWEST-DOUGHNUTS, L.L.C. (herein called
'Borrower"), the Undersigned hereby absolutely and unconditionally guarantees to
the Lender the full and prompt payment when due, whether at maturity or earlier
by reason of acceleration or otherwise, of the debts, liabilities and
obligations described as follows:
A. If this ___ is checked, the Undersigned guarantees to Lender the
payment and performance of the debt, liability or obligation of Borrower to
Lender evidenced by or arising out of the following: that certain note from
Borrower to Lender in the original principal amount of $____________, a copy of
which is attached hereto and incorporated herein by reference, and any
extensions, renewals or replacements thereof (hereinafter referred to as the
"Indebtedness'). The term, "Indebtedness" as used in this guaranty shall not
include any obligations entered into between Borrower and Lender after the date
hereof (including any extensions, renewals, or replacements of such
obligations). The Undersigned further acknowledges and agrees with Lender that:
1. No act or thing need occur to establish the liability of the
Undersigned hereunder, and no act or thing, except full payment and discharge of
all Indebtedness, shall in any way exonerate the Undersigned or modify, reduce,
limit or release the liability of the Undersigned hereunder.
2. This is an absolute, unconditional and continuing guaranty of
payment of the Indebtedness and shall continue to be in force and be binding
upon the Undersigned, whether or not all Indebtedness is paid in full, until
this guaranty is revoked by written notice actually received by the Lender, and
such revocation shall not be effective as to Indebtedness existing or
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committed for at the time of actual receipt of such notice by the Lender, or as
to any renewals, extensions and refinancings thereof.
The Undersigned represents and warrants to the Lender that the
Undersigned has a direct and substantial economic interest in Borrower and
expects to derive substantial benefits therefrom and from any loans and
financial accommodations resulting in the creation of Indebtedness guaranteed
hereby, and that this guaranty is given for a corporate purpose. The Undersigned
agrees to rely exclusively on the right to revoke this guaranty prospectively as
to future transactions, by written notice actually received by Lender if at any
time, in the opinion of the directors or officers of the Undersigned, the
corporate benefits then being received by the Undersigned in connection with
this guaranty are not sufficient to warrant the continuance of this guaranty as
to future Indebtedness. Accordingly, so long as this guaranty is not revoked
prospectively in accordance with this guaranty, the Lender may rely conclusively
on a continuing warranty, hereby made, that the Undersigned continues to be
benefited by this guaranty and the Lender shall have no duty to inquire into or
confirm the receipt of any such benefits, and this guaranty shall be effective
and enforceable by the Lender without regard to the receipt, nature or value of
any such benefits.
3. If the Undersigned shall be dissolved or shall be or become
insolvent (however defined) or revoke this guaranty, then the Lender shall have
the right to declare immediately due and payable, and the Undersigned will
forthwith pay to the Lender, the full amount of all Indebtedness, whether due
and payable or unmatured. If the Undersigned voluntarily commences or there is
commenced involuntarily against the Undersigned a case under the United States
Bankruptcy Code, the full amount of all Indebtedness, whether due and payable or
unmatured, shall be immediately due and payable without demand or notice
thereof.
4. The liability of the Undersigned hereunder shall be limited to a
principal amount of the Indebtedness (if unlimited or if no amount is stated,
the Undersigned shall be liable for all Indebtedness, without any limitation as
to amount), plus accrued interest thereon and all attorneys' fees, collection
costs and enforcement expenses actually incurred and referable thereto.
5. The Undersigned will pay or reimburse the Lender for all costs and
expenses (including reasonable attorneys' fees and legal expenses actually
incurred by the Lender in
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connection with the protection, defense or enforcement of this guaranty in any
litigation or bankruptcy or insolvency proceedings.
This guaranty includes the additional provisions on page 2 hereof and
of the Addendum hereto, all of which are made a part hereof.
This guaranty is __ unsecured; __ secured by a mortgage or security
agreement dated ___________________; __ secured by_____________________________.
IN WITNESS WHEREOF, this guaranty has been duly executed by the
Undersigned the day and year first above written. THIS INSTRUMENT WILL BE
CONSTRUED UNDER THE LAWS OF THE STATE OF KANSAS.
KRISPY KREME DOUGHNUT CORPORATION
By: ________________________________
Title: _________________________
By: ________________________________
"Undersigned" shall refer to all entities who sign this guaranty, individually
and jointly.
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ADDITIONAL PROVISIONS
6. Whether or not any existing relationship between the Undersigned and
Borrower has been changed or ended and whether or not this guaranty has been
revoked, the Lender may, but shall not be obligated to, enter into transactions
resulting in the creation or continuance of Indebtedness, without any consent or
approval by the Undersigned and without any notice to the Undersigned. The
liability of the Undersigned shall not be affected or impaired by any of the
following acts or things (which the Lender is expressly authorized to do, omit
or suffer from time to time, both before and after revocation of this guaranty,
without notice to or approval by the Undersigned): (i) any acceptance of
collateral security, guarantors, accommodation parties or sureties for any or
all Indebtedness; (ii) any one or more extensions or renewals of Indebtedness
(whether or not for longer than the original period) or any modification of the
interest rates, maturities or other contractual terms applicable to any
Indebtedness; (iii) any waiver adjustment, forbearance, compromise or indulgence
other than a release of liability granted to Borrower, any delay or lack of
diligence in the enforcement of Indebtedness, or any failure to institute
proceedings, file a claim, give any required notices or otherwise protect any
Indebtedness; (iv) any full or partial release of, settlement with, or agreement
not to xxx, Borrower--or any other guarantor or other person liable in respect
of any Indebtedness; (v) any failure to obtain collateral security (including
rights of setoff) for Indebtedness, or to see to the proper or sufficient
creation and perfection thereof, or to establish the priority thereof, or to
protect, insure, or enforce any collateral security; or any release,
modification, substitution, discharge, impairment, deterioration, waste, or loss
of any collateral security; (vi) any foreclosure or enforcement of any,
collateral security; (vii) any transfer of any Indebtedness or any evidence
thereof; (viii) any order of application of any payments or credits upon
Indebtedness; (x) any election by the Lender under ss. 1111(b)(2) of the United
States Bankruptcy Code.
7. The Undersigned waives any and all defenses, claims and discharges
of Borrower, or any other obligor, pertaining to Indebtedness, except the
defense of discharge by payment in full. Without limiting the generality of the
foregoing, the Undersigned will not assert, plead or enforce against the Lender
any defense of waiver, release, estoppel, statute of limitations, res judicata,
statute of frauds, fraud, forgery, incapacity, minority, usury, illegality or
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unenforceability which may be available to Borrower or any other person liable
in respect of any Indebtedness, or any setoff available against the Lender to
Borrower or any such other person, whether or not on account of a related
transaction other than a release of liability of Borrower. The Undersigned
expressly agrees that the Undersigned shall be and remain liable, to the fullest
extent permitted by applicable law, for any deficiency remaining after
foreclosure of any mortgage or security interest securing Indebtedness, whether
or not the liability of Borrower or any other obligor for such deficiency is
discharged pursuant to statute or judicial decision. The undersigned shall
remain obligated, to the fullest extent permitted by law, to pay such amounts as
though Borrower's obligations had not been so discharged.
8. The Undersigned further agree(s) that the Undersigned shall be and
remain obligated to pay Indebtedness even though any other person obligated to
pay Indebtedness, including Borrower, has such obligation discharged in
bankruptcy or otherwise discharged by law. "Indebtedness' shall include
post-bankruptcy petition interest and attorneys' fees actually incurred and any
other amounts which Borrower is discharged from paying or which do not accrue to
Indebtedness due to Borrower's discharge, and Undersigned shall remain obligated
to pay such amounts as fully as if Borrower's obligations had not been
discharged.
9. If any payment applied by the Lender to Indebtedness is thereafter
set aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
Borrower or any other obligor), the Indebtedness to which such payment was
applied shall for the purposes of this guaranty be deemed to have continued in
existence, notwithstanding such application, and this guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
10. The Undersigned waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
The Lender shall not be required first to resort for payment of the Indebtedness
to Borrower or other persons or their properties, or first to enforce, realize
upon or exhaust any collateral security for Indebtedness, before enforcing this
guaranty.
11. The liability of the Undersigned under this guaranty is in addition
to and shall be cumulative with all other liabilities of the Undersigned to the
Lender as guarantor or otherwise,
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without any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides to the
contrary.
12. The Undersigned represents and warrants to the Lender that (i) the
Undersigned is a corporation duly organized and existing in good standing and
has full power and authority to make and deliver this guaranty; (ii) the
execution, delivery and performance of this guaranty by the Undersigned have
been duly authorized by all necessary action of its directors and shareholders
and do not and will not violate the provisions of, or constitute a default
under, any presently applicable law or its articles of incorporation or by-laws
or any agreement presently binding on it; (iii) this guaranty has been duly
executed and delivered by the authorized officers of the Undersigned and
constitutes its lawful, binding and legally enforceable obligation (subject to
the United States Bankruptcy Code and other similar laws generally affecting the
enforcement of creditors' rights); and (iv) the authorization, execution,
delivery and performance of this guaranty do not require notification to,
registration with, or consent or approval by, any federal, North Carolina state
or North Carolina local regulatory body or administrative agency.
13. This guaranty shall be effective upon delivery to the Lender,
without further act, condition or acceptance by the Lender, shall be binding
upon the Undersigned and the successors and assigns of the Undersigned and shall
inure to the benefit of the Lender and its participants, successors and assigns.
Any invalidity or unenforceability of any provision or application of thus
guaranty shall not affect other lawful provisions and application hereof, and to
this end the provisions of this guaranty are declared to be severable. Except s
allowed by the terms herein, this guaranty may not be waived, modified, amended,
terminated, released or otherwise changed except by a writing signed by the
Undersigned and the Lender. This guaranty shall be governed by the laws of the
State in which it is executed. The Undersigned waives notice of the Lender's
acceptance hereof.
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ADDENDUM
TO
GUARANTY BY CORPORATION
FROM KRISPY KREME DOUGHNUT CORPORATION
TO THE FIRST NATIONAL BANK OF OLATHE as Lender
AND MID-WEST DOUGHNUTS, L.L.C. as Borrower
THIS ADDENDUM (this "Addendum") is made to the above-described
Guaranty. In the event of any conflict between this Addendum and the terms of
the Guaranty, the terms of this Addendum shall control.
The Guaranty is amended as follows:
1. This Guaranty shall extend only to the principal and
interest of the note constituting the Indebtedness and other items
described in this Guaranty only to the extent they relate to said note.
Lender agrees to provide the undersigned with a copy of any notice of
default or demand to Borrower related to Indebtedness at the same time
it provides the same to Borrower, and a copy of any amendments or
modifications or extensions to the note or other agreements entered
into with respect to the Indebtedness, at the following address:
Krispy Kreme Doughnut Corporation
X.X. Xxx 00
Xxxxxxx-Xxxxx, XX 00000-0000
ATTENTION: Xxxxxxx X. Xxxxxxx
2. No modification of the Indebtedness shall be made which
increases the principal or interest thereunder or extends the time for
payment thereof without the prior written consent of the undersigned.
3. The Maximum liability of the Undersigned Krispy Kreme
Doughnut Corporation under this Guaranty, including, but not limited
to, all principal, interest and all other costs, expenses and
obligations of any and every nature, shall not exceed $300,000.00.
