Continuing Guaranty
Exhibit 10.3
Dated as of September 30, 2008
Guaranty. To induce JPMorgan Chase Bank, N.A., whose address is 000 X. Xxxxx Xx., Xxxxxxxx, XX
00000 (together with its successors and assigns, the “Bank”), at its option, to make financial
accommodations, make or acquire loans, extend or continue credit or some other benefit, including
letters of credit and foreign exchange contracts, present or future, direct or indirect, and
whether several, joint or joint and several, to BEF Holding Co., Inc. (whether one or more, the
“Borrower”, individually and collectively, if more than one), and because the undersigned (the
“Guarantor”) has determined that executing this Guaranty is in its interest and to its financial
benefit, the Guarantor absolutely and unconditionally guarantees to the Bank, as primary obligor
and not merely as surety, the performance of and full and prompt payment of the Liabilities when
due, whether at stated maturity, by acceleration or otherwise. The Guarantor will not only pay the
Liabilities, but will also reimburse the Bank for any fees, charges, costs and expenses, including
reasonable attorneys’ fees (including fees and expenses of counsel for the Bank that are employees
of the Bank or its affiliates) and court costs, that the Bank may pay in collecting from the
Borrower or the Guarantor, and for liquidating any Collateral (collectively, “Collection Amounts”).
The Guarantor’s obligations under this Guaranty shall be payable in lawful money of the United
States of America.
Liabilities. The term “Liabilities” in this Guaranty means all debts, obligations, indebtedness and
liabilities of every kind and character of the Borrower, whether individual, joint and several,
contingent or otherwise, now or hereafter existing in favor of the Bank, including, without
limitation, all liabilities, interest, costs and fees, arising under or from any note, open
account, overdraft, credit card, lease, Rate Management Transaction, letter of credit application,
endorsement, surety agreement, guaranty, acceptance, foreign exchange contract or depository
service contract, whether payable to the Bank or to a third party and subsequently acquired by the
Bank, any monetary obligations (including interest) incurred or accrued during the pendency of any
bankruptcy, insolvency, receivership or other similar proceedings, regardless of whether allowed or
allowable in such proceedings, and all renewals, extensions, modifications, consolidations,
rearrangements, restatements, replacements or substitutions of any of the foregoing. The Guarantor
and the Bank specifically contemplate that Liabilities include indebtedness hereafter incurred by
the Borrower to the Bank. The term “Rate Management Transaction” in this Guaranty means any
transaction (including an agreement with respect thereto) that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option, derivative transaction or any other similar
transaction (including any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity
prices or other financial measures.
Limitation. The Guarantor’s obligation under this Guaranty is UNLIMITED.
Continued Reliance. This Guaranty shall remain in effect until payment in full of the Remaining
Liabilities, as defined below, following termination of this Guaranty by the Guarantor in
accordance with this paragraph. This Guaranty will continue to be in effect until final payment and
performance in full of all Liabilities and the termination of any commitment of the Bank to make
loans or other financial accommodations to the Borrower. The Guarantor may terminate the
Guarantor’s liability for Liabilities not in existence or for which the Bank has no commitment to
advance or acquire by delivering written notice to the Bank as set forth in the paragraph below
captioned “Notice.” After the Guarantor’s termination of this Guaranty, the Guarantor will continue
to be liable for the following amounts (the “Remaining Liabilities”): (i) all Liabilities existing
on the effective date of termination, (ii) all Liabilities to which the Bank has committed to
advance or acquire prior to the effective termination date (whether or not the Bank is
contractually obligated to advance or acquire the loans or extensions of credit), (iii) all
subsequent renewals, extensions, modifications, consolidations, rearrangements, restatements,
replacements and amendments (but not increases) of those Liabilities, (iv) all interest accruing on
those Liabilities after the effective termination date and (v) all Collection Amounts incurred with
respect to those Liabilities, on or after the effective termination date. The Bank may continue to
permit the Borrower to incur Liabilities and to issue commitments to the Borrower to advance or
acquire Liabilities in reliance on this Guaranty until the effective date of termination,
regardless of whether at any time or from time to time there are no existing Liabilities nor
commitment by the Bank to advance or acquire Liabilities.
Security. The term “Collateral” in this Guaranty means all real or personal property described in
all security agreements, pledge agreements, mortgages, deeds of trust, assignments, or other
instruments now or hereafter executed in connection with any of the Liabilities. If applicable, the
Collateral secures the payment of the Liabilities.
Liens. The Guarantor shall not create or permit to exist any Lien on any of its property, real or
personal, except: (1) existing Liens ; (2) Liens to the Bank; (3) Liens incurred in the ordinary
course of business securing current non-delinquent liabilities for taxes, worker’s
compensation, unemployment insurance, social security and pension liabilities; (4) reservations,
exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases
and other similar title exceptions or encumbrances affecting real property; (5) Liens
in favor of
banks and other institutional investors on a pro rata basis; (6) purchase money security interests;
(7) Liens in respect to judgments not constituting an event of default under the Note; and (8)
notice filings by any creditor in respect of any operating leases. For purposes of this paragraph,
“Liens” shall have the meaning set forth in that certain $30,000,000.00 Line of Credit Note from
Borrower to Bank of even date herewith (the “Note”).
Bank’s Right of Setoff. The Bank retains all rights of setoff that the Bank may have by law, in
equity or otherwise.
Remedies/Acceleration. If the Guarantor fails to pay any amount owing under this Guaranty, the Bank
shall have all of the rights and remedies provided by law or under any other agreement. The Bank is
authorized to cause all or any part of the Collateral to be transferred to or registered in its
name or in the name of any other person or business entity with or without designation of the
capacity of that nominee. The Guarantor is liable for any deficiency in payment of any Liabilities
whether of principal, interest, fees, costs or expenses remaining after the disposition of any
Collateral. The Guarantor is liable to the Bank for all reasonable costs and expenses of any kind
incurred in the making and collection of this Guaranty, including without limitation reasonable
attorneys’ fees and court costs. These costs and expenses include without limitation any costs or
expenses incurred by the Bank in any bankruptcy, reorganization, insolvency or other similar
proceeding. All obligations of the Guarantor to the Bank under this Guaranty, whether or not then
due or absolute or contingent, shall, at the option of the Bank, without notice or demand, become
due and payable immediately upon the occurrence of any default or event of default under the terms
of any of the Liabilities or otherwise with respect to any agreement related to the Liabilities (or
any other event that results in acceleration of the maturity of any Liabilities, including without
limitation, demand for payment of any Liabilities constituting demand obligations or automatic
acceleration in a legal proceeding) or the occurrence of any default under this Guaranty.
Permissible Actions. If any monies become available from any source other than the Guarantor that
the Bank can apply to the Liabilities, the Bank may apply them in any manner it chooses, including
but not limited to applying them against obligations, indebtedness or liabilities which are not
covered by this Guaranty. The Bank may take any action against the Borrower, the Collateral, or any
other person liable for any of the Liabilities. The Bank may release the Borrower or anyone else
from the Liabilities, either in whole or in part, or release the Collateral, and need not perfect a
security interest in the Collateral. The Bank does not have to exercise any rights that it has
against the Borrower or anyone else, or make any effort to realize on the Collateral or any other
collateral for the Liabilities, or exercise any right of set-off. The Guarantor authorizes the
Bank, without notice or demand and without affecting the Guarantor’s obligations hereunder, from
time to time, to: (a) renew, modify, compromise, rearrange, restate, consolidate, extend,
accelerate, postpone, grant any indulgence or otherwise change the time for payment of, or
otherwise change the terms of the Liabilities or any part thereof, including increasing or
decreasing the rate of interest thereon; (b) release, substitute or add any one or more endorsers,
sureties, Guarantor or other guarantors; (c) take and hold Collateral for the payment of this
Guaranty or the Liabilities, and enforce, exchange, impair, substitute, subordinate, waive or
release any Liabilities or any Collateral for the Liabilities; (d) proceed against such Collateral
and direct the order or manner of sale of such Collateral as the Bank in its discretion may
determine; (e) apply any and all payments from the Borrower, the Guarantor or any other obligor on
the Liabilities, or recoveries from such Collateral, in such order or manner as the Bank in its
discretion may determine; and (f) to accept any partial payment of Liabilities or collateral for
the Liabilities. The Guarantor’s obligations under this Guaranty shall not be released, diminished
or affected by (i) any act or omission of the Bank, (ii) the voluntary or involuntary liquidation,
sale or other disposition of all or substantially all of the assets of the Borrower, or any
receivership, insolvency, bankruptcy, reorganization, or other similar proceedings affecting the
Borrower, any other obligor or any of their respective assets, (iii) any change in the composition
or structure of the Borrower, the Guarantor or any other obligor on the Liabilities, including a
merger or consolidation with any other person or entity, or (iv) any payments made upon the
Liabilities. The Guarantor hereby expressly consents to any impairment of Collateral, including,
but not limited to, failure to perfect a security interest and release Collateral and any such
impairment or release shall not affect the Guarantor’s obligations hereunder.
Nature of Guaranty. This Guaranty is an absolute guaranty of payment and performance and not of
collection. Therefore, the Bank may insist that the Guarantor pay immediately, and the Bank is not
required to attempt to collect first from the Borrower, the Collateral, or any other person liable
for the Liabilities. The obligation of the Guarantor shall be unconditional and absolute even if
all or any part of any agreement between the Bank and the Borrower is unenforceable, void, voidable
or illegal or uncollectible due to incapacity, lack of power or authority, discharge or for any
reason whatsoever, and regardless of the existence of any defense, setoff, discharge or
counterclaim (in any case, whether based on contract, tort or any other theory) which the Borrower
may assert. If the Borrower is a corporation, limited liability company, partnership or trust, it
is not necessary for the Bank to inquire into the powers of the Borrower or the officers,
directors, members, managers, partners, trustees or agents acting or purporting to act on its
behalf, and any of the Liabilities made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder. Without limiting the foregoing, the Guarantor’s liability is
absolute and unconditional irrespective of and shall not be released, diminished or affected by:
(a) any present or future law, regulation or order of any jurisdiction (whether of right or in
fact) or of any agency thereof purporting to reduce, amend, restructure, render unenforceable or
otherwise affect any term of any Liabilities; or (b) any war, riot or revolution impacting
multinational companies or any act of expropriation, nationalization or currency inconvertibility
or
nontransferability arising from governmental, legislative or executive measures affecting any
obligor or the property of any obligor on the Liabilities.
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Other Guarantors. If there is more than one Guarantor, the obligations under this Guaranty are
joint and several. In addition, each Guarantor under this Guaranty shall be jointly and severally
liable with any other guarantor of the Liabilities. If the Bank elects to enforce its rights
against fewer than all guarantors of the Liabilities, that election does not release the Guarantor
from its obligations under this Guaranty. The compromise or release of any of the obligations of
any of the other guarantors or the Borrower shall not serve to impair, waive, alter or release the
Guarantor’s obligations.
Rights of Subrogation. The Guarantor waives and agrees not to enforce any rights of subrogation,
contribution or indemnification that it may have against the Borrower, any person liable on the
Liabilities, or the Collateral, until the Borrower and the Guarantor have fully performed all their
obligations to the Bank, even if those obligations are not covered by this Guaranty.
Waivers. The Guarantor waives (a) to the extent not prohibited by applicable law, all rights and
benefits under any laws or statutes regarding sureties, as may be amended, and (b) any right the
Guarantor may have to receive notice of the following matters before the Bank enforces any of its
rights: (i) the Bank’s acceptance of this Guaranty, (ii) incurrence or acquisition of any
Liabilities, any credit that the Bank extends to the Borrower, Collateral received or delivered,
default by any party to any agreement related to the Liabilities or other action taken in reliance
on this Guaranty, and all notices and other demands of any description, (iii) diligence and
promptness in preserving liability against any obligor on the Liabilities, and in collecting or
bringing suit to collect the Liabilities from any obligor on the Liabilities or to pursue any
remedy in the Bank’s power to pursue; (iv) notice of extensions, renewals, modifications,
rearrangements, restatements and substitutions of the Liabilities or any Collateral for the
Liabilities; (v) notice of failure to pay any of the Liabilities as they mature, any other default,
adverse change in the financial condition of any obligor on the Liabilities, release or
substitution of any Collateral, subordination of the Bank’s rights in any Collateral, and every
other notice of every kind that may lawfully be waived; (vi) the Borrower’s default, (vii) any
demand, diligence, presentment, dishonor and protest, or (viii) any action that the Bank takes
regarding the Borrower, anyone else, the Collateral, or any of the Liabilities, which it might be
entitled to by law or under any other agreement, (c) any right it may have to require the Bank to
proceed against the Borrower, any other obligor or guarantor of the Liabilities, or the Collateral
for the Liabilities or the Guarantor’s obligations under this Guaranty, or pursue any remedy in the
Bank’s power to pursue, (d) any defense based on any claim that the Guarantor’s obligations exceed
or are more burdensome than those of the Borrower, (e) the benefit of any statute of limitations
affecting the Guarantor’s obligations hereunder or the enforcement hereof, (f) any defense arising
by reason of any disability or other defense of the Borrower or by reason of the cessation from any
cause whatsoever (other than payment in full) of the obligation of the Borrower for the
Liabilities, and (g) any defense based on or arising out of any defense that the Borrower may have
to the payment or performance of the Liabilities or any portion thereof. The Bank may waive or
delay enforcing any of its rights without losing them. Any waiver affects only the specific terms
and time period stated in the waiver. No modification or waiver of this Guaranty is effective
unless it is in writing and signed by the party against whom it is being enforced.
Cooperation. The Guarantor agrees to fully cooperate with the Bank and not to delay, impede or
otherwise interfere with the efforts of the Bank to secure payment from the assets which secure the
Liabilities including actions, proceedings, motions, orders, agreements or other matters relating
to relief from automatic stay, abandonment of property, use of cash collateral and sale of the
Bank’s collateral free and clear of all liens.
Reinstatement. The Guarantor agrees that to the extent any payment or transfer is received by the
Bank in connection with the Liabilities, and all or any part of the payment or transfer is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be
transferred or repaid by the Bank or transferred or paid over to a trustee, receiver or any other
entity, whether under any bankruptcy act or otherwise (any of those payments or transfers is
hereinafter referred to as a “Preferential Payment”), then this Guaranty shall continue to be
effective or shall be reinstated, as the case may be, and whether or not the Bank is in possession
of this Guaranty, or whether the Guaranty has been marked paid, released or canceled, or returned
to the Guarantor and, to the extent of the payment, repayment or other transfer by the Bank, the
Liabilities or part intended to be satisfied by the Preferential Payment shall be revived and
continued in full force and effect as if the Preferential Payment had not been made.
Information. The Guarantor assumes all responsibility for being and keeping itself informed of the
Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Liabilities and the nature, scope and extent of the risks that the Guarantor
assumes and incurs under this Guaranty, and agrees that the Bank does not have any duty to advise
the Guarantor of information known to it regarding those circumstances or risks.
Financial Information. The Guarantor further agrees that the Guarantor shall provide to the Bank
the financial statements and other information relating to the financial condition, properties and
affairs of the Guarantor as the Bank requests from time to time.
Severability. The provisions of this Guaranty are severable, and in any action or proceeding
involving any state corporate law, or any state, federal or foreign bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the obligations of the
Guarantor under this Guaranty would otherwise be held or determined to be avoidable, invalid or
unenforceable on
account of the amount of the Guarantor’s liability under this Guaranty, then, notwithstanding any
other provision of this Guaranty to the contrary, the amount of such liability shall, without any
further action by the Guarantor or the Bank, be automatically limited and reduced to the highest
amount that is valid and enforceable as determined in such action or proceeding.
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Representations and Warranties by Guarantor. The Guarantor represents and warrants that the
following statements are true and will remain true until termination of this Guaranty and payment
in full of all Liabilities: (a) the execution and delivery of this Guaranty and the performance of
the obligations it imposes do not violate any law, do not conflict with any agreement by which it
is bound, or require the consent or approval of any governmental authority or any third party, (b)
this Guaranty is a valid and binding agreement, enforceable according to its terms, and (c) all
balance sheets, profit and loss statements, and other financial statements furnished to the Bank in
connection with the Liabilities are accurate and fairly reflect the financial condition of the
organizations and persons to which they apply on their effective dates, including contingent
liabilities of every type, which financial condition has not changed materially and adversely since
those dates. (a) The Guarantor has filed all federal and state tax returns that are required to be
filed, has paid all due and payable taxes and assessments against the property and income of the
Guarantor and all payroll, excise and other taxes required to be collected and held in trust by the
Guarantor for any governmental authority; (b) the Guarantor has determined that this Guaranty will
benefit the Guarantor directly or indirectly; (c) the Guarantor has (i) without reliance on the
Bank or any information received from the Bank and based upon the records and information the
Guarantor deems appropriate, made an independent investigation of the Borrower, the Borrower
business, assets, operations, prospects and condition, financial or otherwise, and any
circumstances that may bear upon those transactions, the Borrower or the obligations, liabilities
and risks undertaken in this Guaranty with respect to the Liabilities; (ii) adequate means to
obtain from the Borrower on a continuing basis information concerning the Borrower and the Bank has
no duty to provide any information concerning the Borrower or any other obligor to the Guarantor;
(iii) full and complete access to the Borrower and any and all records relating to any Liabilities
now and in the future owing by the Borrower; (iv) not relied and will not rely upon any
representations or warranties of the Bank not embodied in this Guaranty or any acts taken by the
Bank prior to and after execution or other authentication and delivery of this Guaranty (including
but not limited to any review by the Bank of the business, assets, operations, prospects and
condition, financial or otherwise, of the Borrower); and (v) determined that the Guarantor will
receive benefit, directly or indirectly, and has or will receive fair and reasonably equivalent
value for, the execution and delivery of this Guaranty; (d) by entering into this Guaranty, the
Guarantor does not intend to incur or believe that the Guarantor will incur debts that would be
beyond the Guarantor’s ability to pay as those debts mature; (e) the execution and delivery of this
Guaranty are not intended to hinder, delay or defraud any creditor of the Guarantor; and (f) the
Guarantor is neither engaged in nor about to engage in any business or transaction for which the
remaining assets of the Guarantor are unreasonably small in relation to the business or
transaction, and any property remaining with the Guarantor after the execution or other
authentication of this Guaranty is not unreasonably small capital. Each Guarantor, other than a
natural person, further represents that: (a) it is duly organized, validly existing and in good
standing under the laws of the state where it is organized and in good standing in each state where
it is doing business; and (b) the execution and delivery of this Guaranty and the performance of
the obligations it imposes (i) are within its powers and have been duly authorized by all necessary
action of its governing body, and (ii) do not contravene the terms of its articles of incorporation
or organization, its by-laws, or any agreement or document governing its affairs.
Notice. Except as otherwise provided in this Guaranty, any notices and demands under or related to
this document shall be in writing and delivered to the intended party at its address stated herein,
and if to the Bank, at its main office if no other address of the Bank is specified herein, by one
of the following means: (a) by hand, (b) by a nationally recognized overnight courier service, or
(c) by certified mail, postage prepaid, with return receipt requested. Notice shall be deemed
given: (a) upon receipt if delivered by hand, (b) on the Delivery Day after the day of deposit with
a nationally recognized courier service, or (c) on the third Delivery Day after the notice is
deposited in the mail. “Delivery Day” means a day other than a Saturday, a Sunday, or any other day
on which national banking associations are authorized to be closed. Any party may change its
address for purposes of the receipt of notices and demands by giving notice of such change in the
manner provided in this provision. Notice of terminations, as provided above, will not be deemed
received until actually received by the Manager of Commercial Loan Documentation Division,
KY1-4340, X.X. Xxx 00000, Xxxxxxxxxx, XX 00000-0000, Attn: Manager of Commercial Loan Documentation
Division under written receipt and shall be effective at the opening of the Bank for business on
the third Delivery Day after receipt of the notice.
Governing Law and Venue. This agreement shall be governed by and construed in accordance with the
laws of the State of Ohio (without giving effect to its laws of conflicts). The Guarantor agrees
that any legal action or proceeding with respect to any of its obligations under this agreement may
be brought by the Bank in any state or federal court located in the State of Ohio, as the Bank in
its sole discretion may elect. By the execution and delivery of this agreement, the Guarantor
submits to and accepts, for itself and in respect of its property, generally and unconditionally,
the non-exclusive jurisdiction of those courts. The Guarantor waives any claim that the State of
Ohio is not a convenient forum or the proper venue for any such suit, action or proceeding.
Miscellaneous. The Guarantor’s liability under this Guaranty is independent of its liability under
any other guaranty previously or subsequently executed by the Guarantor or any one of them,
singularly or together with others, as to all or any part of the Liabilities, and may be enforced
for the full amount of this Guaranty regardless of the Guarantor’s liability under any other
guaranty. This Guaranty binds the Guarantor’s heirs, successors and assigns, and benefits the Bank
and its successors and assigns. The Bank may assign this Guaranty in whole or in part without
notice. The Guarantor agrees that the Bank may provide any information or knowledge the Bank may
have about the Guarantor or about any matter relating to this Guaranty to JPMorgan Chase & Co., or
any of
its subsidiaries or affiliates or their successors, or to one or more purchasers or potential
purchasers of this Guaranty or the Liabilities guaranteed hereby. The use of headings does not
limit the provisions of this Guaranty.
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WAIVER OF SPECIAL DAMAGES. THE GUARANTOR WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER FROM THE BANK IN ANY LEGAL ACTION OR PROCEEDING
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
JURY WAIVER. THE GUARANTOR AND THE BANK (BY ITS ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, KNOWINGLY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE
(WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) BETWEEN THE GUARANTOR AND THE BANK ARISING OUT OF
OR IN ANY WAY RELATED TO THIS DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO
PROVIDE THE FINANCING DESCRIBED HEREIN.
| Guarantor: | ||||||||||
| Address: | 0000 X. Xxxx Xxxxxx Xxxxxxxx, XX 00000 |
Mimi’s Cafe, LLC | ||||||||
| By: | /s/ Xxx Xxxxxxxxxx | |||||||||
| Printed Name | Xxx Xxxxxxxxxx | |||||||||
| Title | SR VP of Finance, Controller, Asst. Treasurer, Asst. Secretary | |||||||||
| Date Signed: 10-1-2008 | ||||||||||
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