AGREEMENT CONCERNING GUARANTY
The parties to this Agreement Concerning Guaranty (this "Agreement")
are:
(a) Founders Food & Xxxxxxx Ltd., a Minnesota corporation (the
"Borrower");
(b) Xxxxxx Xxxxxxxxx, a resident of the State of Minnesota
("Xxxxxxxxx");
(c) Xxxxxx X. Xxx III, a resident of the State of Minnesota
("Pew"); and
(d) Xxxxxxx Xxxxxxx, a resident of the State of Minnesota
("Xxxxxxx").
RECITALS
WHEREAS, Borrower intends to enter into a certain loan agreement with
First National Bank, a national banking association (the "Bank"), under which
the Bank will provide the Borrower with financing in the principal amount of
$1,500,000 (the "Loan"); and
WHEREAS, the Bank has required, as a condition to making the proposed
loan, that Messrs. Pew, Burdick, and Xxxxxxxxx guaranty all or a portion of the
obligations of the Borrower to the Bank; and
WHEREAS, the obligations of Messrs. Pew, Burdick, and Xxxxxxxxx the
Bank will be evidenced by certain separate guaranty agreements dated as of July
19, 2001 (hereafter the "Pew Guaranty," the "Xxxxxxx Guaranty" and the
"Xxxxxxxxx Guaranty"); and
WHEREAS, the parties have entered into this Agreement to memorialize
the relationship between the parties with respect to the proposed loan and
guaranty obligations and to induce Messrs. Pew, Xxxxxxxxx and Xxxxxxx to
guaranty all or a portion of the loan to be made by the Bank.
NOW, THEREFORE, in consideration of the premises the parties hereby
agree as follows:
1. RECITALS
The foregoing recitals are incorporated herein and shall form a part
hereof for all purposes.
2. DEFINITIONS
(a) As used herein:
(i) The term "Debt" means
(aa) indebtedness for borrowed money or for the
deferred purchase price of property or services,
(bb) obligations as lessee under leases,
(cc) obligations under direct or indirect guaranties
in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire or otherwise insure a creditor
against lost in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (aa) and (bb)
above, except endorsements for collection, deposit or
negotiation of instruments in the ordinary course of business;
and
(dd) liabilities in respect of unfunded vested
benefits under plans covered by Title V of the Employment
Income Retirement Security Act.
(ii) The term "Liens" means any mortgage, deed of trust,
pledge, security agreement, assignment, deposit arrangement,
encumbrance, lien (statutory or otherwise), or preference, priority or
other security agreement or preferential arrangement, charge or
encumbrance of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement,
any financing lease having substantially the same economic effect as
any of the foregoing, or the filing of any financing statement under
the uniform commercial code or comparable law of any jurisdiction to
evidence any of the foregoing.
(b) Terms not otherwise defined in this Agreement shall be defined in
accordance with the Loan Agreement executed between the Borrower and the Bank as
of July 19, 2001 (the "Loan Agreement").
3. INDEMNITY OBLIGATIONS
(a) Borrower, Xx. Xxxxxxxxx and Xx. Xxxxxxx, jointly and severally,
hereby agree to indemnify and hold Xx. Xxx harmless from any and all costs,
expenses, claims, damages and liabilities which may be claimed against or
incurred by Xx. Xxx by reason of any demand made by Xx. Xxx under the Pew
Guaranty, including, without limitation, all amounts paid to the Bank by Xx. Xxx
under the Pew Guaranty, together with interest on such amount from the date paid
by Xx. Xxx at an annual rate equal to eight and 75/100ths percent (8.75%), all
attorney's fees and other costs of litigation incurred by Xx. Xxx in connection
with any demand made for payment under the Pew Guaranty or in connection with
the enforcement of any right or remedy of Xx. Xxx under this Agreement.
(b) Borrower (but not Messrs. Pew or Xxxxxxx) hereby agrees to
indemnify and hold Xx. Xxxxxxxxx harmless from any and all costs, expenses,
claims, damages and liabilities which may be claimed against or incurred by Xx.
Xxxxxxxxx by reason of any demand made by Xx. Xxxxxxxxx under the Xxxxxxxxx
Guaranty, including, without limitation, all amounts paid to the Bank by Xx.
Xxxxxxxxx under the Xxxxxxxxx Guaranty, together with interest on such amount
from the date paid by Xx. Xxxxxxxxx at an annual rate equal to eight and
75/100ths percent (8.75%), all attorney's fees and other costs of litigation
incurred by Xx. Xxxxxxxxx in connection with any demand made for payment under
the Xxxxxxxxx Guaranty or in connection with the enforcement of any right or
remedy of Xx. Xxxxxxxxx under this Agreement.
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(c) Borrower (but not Messrs. Pew or Xxxxxxxxx) hereby agrees to
indemnify and hold Xx. Xxxxxxx harmless from any and all costs, expenses,
claims, damages and liabilities which may be claimed against or incurred by Xx.
Xxxxxxx by reason of any demand made by Xx. Xxxxxxx under the Xxxxxxx Guaranty,
including, without limitation, all amounts paid to the Bank by Xx. Xxxxxxx under
the Xxxxxxx Guaranty, together with interest on such amount from the date paid
by Xx. Xxxxxxx at an annual rate equal to eight and 75/100ths percent (8.75%),
all attorney's fees and other costs of litigation incurred by Xx. Xxxxxxx in
connection with any demand made for payment under the Xxxxxxx Guaranty or in
connection with the enforcement of any right or remedy of Xx. Xxxxxxx under this
Agreement.
(d) Xxxxxxx and Xxxxxxxxx hereby agree that if either of them shall be
obligated to discharge any debt pursuant to their respective guaranties, it is
their intent that they pay or discharge obligations under the Loan in equal
shares and will reimburse, or contribute to, each other for any amounts paid in
excess of fifty percent (50%) thereof actually paid by either of them in order
that their obligations under the Loan be discharged in equal shares.
4. INDEMNIFICATION PROCEDURE
(a) In case any claim or proceeding shall be instituted affecting any
indemnified person in respect of which indemnity may be sought pursuant to
Section 3 above, such indemnified person shall promptly (considering the
circumstances) notify the indemnifying person or persons in writing.
(b) The parties to this agreement agree that Messrs. Pew, Wagenheim, or
Xxxxxxx, may compromise and pay any demand made by the Bank under the Pew,
Xxxxxxxxx or Xxxxxxx Guaranty, as appropriate, without the consent of any other
party to this Agreement and without affecting any indemnify obligation created
under this Agreement.
5. COVENANTS OF BORROWER
(a) So long as the Pew Guaranty shall remain outstanding, Borrower
shall not, without the written consent of Xx. Xxx:
(i) Modify the terms and conditions of the Loan Agreement, the
Note or any of the documents delivered thereunder, including, without
limitation, the Leasehold Mortgage (all of which documents are herein
referred to as the "Loan Documents") to increase the amount or interest
rate of Debt, reduce or extend the maturity date of the Note, or
increase in any way the obligations of Pew under the Pew Guaranty;
(ii) Default in the payment of any amount payable by the
Borrower under the Loan Agreement, Note, or the other Loan Documents;
(iii) Create or suffer to exist any Debt except (aa) Debt
under the Loan Agreement and (bb) ordinary trade debt that is not in
default or that is unsecured,
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or (cc) debt incurred in the ordinary course of Borrower's operations
as would be incurred or suffered by a company operating in the
restaurant industry, but not exceeding $100,000 at any time.
(iv) Create or suffer to exist any Lien except liens permitted
under the Leasehold Mortgage.
(b) In addition to the foregoing, Borrower agrees to provide Messrs.
Pew, Xxxxxxxxx and Xxxxxxx with copies of all notices delivered or required to
be delivered by Borrower to the Bank under the Loan Agreement and with all
demands and notices received by Borrower from the Bank with respect to the
transactions referred to in the Loan Agreement.
6. REFINANCING EFFORTS
Borrower agrees to use its best efforts to replace or refinance the
loan evidenced by the Loan Agreement and Note and to obtain a release of the Pew
Guaranty by no later than January 1, 2006. In the event that Borrower has not
obtained a release of the Pew Guaranty by no later than January 1, 2006, then,
in such event, Borrower shall pay to Xx. Xxx a monthly guaranty fee in the
amount $1,000, beginning on the first day of February, 2006 and continuing on
the first day of each month thereafter for so long as the Pew Guaranty remains
outstanding.
7. GUARANTY
By signing below Messrs. Xxxxxxxxx and Xxxxxxx unconditionally and
jointly and severally guaranty payment and performance of the Borrower's
obligations under Section 6 above.
8. MISCELLANEOUS
(a) No amendment or waiver of the provisions of this Agreement shall be
effective unless such amendment or waiver is in writing and is signed by all
parties to this Agreement.
(b) All notices and other communications provided for hereunder shall
be in writing and shall be effective when mailed to the address set forth in the
signature page to this Agreement or to such other addresses the parties hereto
may specify in writing.
(c) This Agreement shall be governed by the internal laws of the State
of Minnesota.
(d) If any term of this Agreement shall be held to be illegal or
unenforceable the remaining parts of this Agreement shall not be affected and
this Agreement shall be construed and enforced as if this Agreement did not
contain the term held to be illegal or unenforceable.
(e) This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
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9. ACKNOWLEDGMENT OF REPRESENTATION
THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT HAS BEEN PREPARED BY
COUNSEL FOR XX. XXX. BORROWER AND MESSRS. XXXXXXXXX AND XXXXXXX ACKNOWLEDGE AND
AGREE THAT XXXXXX AND XXXXXX HAS ACTED AS COUNSEL FOR THE BORROWER WITH RESPECT
TO THE NEGOTIATION AND PREPARATION OF THE LOAN AGREEMENT AND OTHER LOAN
DOCUMENTS AND THAT XXXXXX AND XXXXXX REGULARLY SERVES AS COUNSEL FOR THE
BORROWER, AND HAS RENDERED LEGAL ADVICE TO XX. XXXXXXXXX IN OTHER MATTERS.
XXXXXX AND XXXXXX HAS SERVED AS COUNSEL FOR BORROWER AND HAS RENDERED LEGAL
ADVICE TO PEW BASED UPON THEIR ASSURANCES THAT THEY HAVE A COMMON GOAL OF
FINANCING BORROWER'S TRANSACTION WITH THE BANK AND THAT THIS AGREEMENT
FACILITATES THAT GOAL. XXXXXX AND XXXXXX IS NOT SERVING AS COUNSEL FOR XXXXXXXXX
AND XXXXXXX IN CONNECTION WITH THIS AGREEMENT AND XXXXXXXXX AND XXXXXXX
ACKNOWLEDGE THAT THEY HAVE BEEN ADVISED TO OBTAIN ADVICE OF THEIR OWN LEGAL
COUNSEL WITH RESPECT TO THE MATTERS CONTAINED HEREIN. BORROWER AND MESSRS.
XXXXXXXXX AND XXXXXXX HEREBY WAIVE ANY CLAIM OF CONFLICT OF INTEREST ARISING
FROM XXXXXX AND XXXXXX'X NEGOTIATION AND PREPARATION OF THIS AGREEMENT ON BEHALF
OF XX. XXX AND SUCH PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT THEY HAVE
OBTAINED SUCH INDEPENDENT ADVICE AND COUNSEL AS MAY BE NECESSARY OR APPROPRIATE
UNDER THE CIRCUMSTANCES.
BORROWER HEREBY AGREE TO REIMBURSE MESSRS. PEW, XXXXXXXXX AND XXXXXXX
FOR ANY COSTS AND EXPENSES, INCLUDING ATTORNEY'S FEES, INCURRED BY SUCH PARTIES
IN CONNECTION WITH THE NEGOTIATION AND PREPARATION OF THIS AGREEMENT.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
shown below.
Dated: July 17, 2001
FOUNDERS FOOD & XXXXXXX LTD, a
Minnesota corporation
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Its PRESIDENT
ADDRESS: 0000 Xxxxx Xxxx Xxxx
Xx. Xxxxx Xxxx, XX 00000
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Signature page to Agreement
Concerning Guaranty dated
July 17, 2001.
/s/ Xxxxxx X. Xxx III
---------------------
Xxxxxx X. Xxx, III
ADDRESS: 0000 Xxxxxxx Xxxxxx
Xxxxx Xxxx Xxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxx Xxxxxxxxx
ADDRESS: 0000 Xxxxx Xxxx Xxxx
Xx. Xxxxx Xxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx Xxxxxxx
ADDRESS:
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