GUARANTY AGREEMENT
Exhibit 10.3
EXECUTION VERSION
THIS GUARANTY AGREEMENT (this “Guaranty”) is made and entered into as of this 20th day of
April 2010, by MIMI’S CAFÉ, LLC (the “Guarantor”), a Delaware limited liability company, with an
address at 0000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, in consideration of the extension of credit
by PNC BANK, NATIONAL ASSOCIATION (the “Bank”), with an address at 000 X. Xxxxx Xx., Xxxxxxxx, XX
00000, to XXX XXXXX FARMS, INC. (the “Borrower”), an Ohio corporation, with an address at 0000 X.
Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
1. Guaranty of Obligations. The Guarantor hereby unconditionally guarantees, as a
primary obligor, the prompt payment and performance of all loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrower to the Bank of any kind or nature, present
or future (including any interest accruing thereon after maturity, or after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding
relating to the Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), whether direct or indirect (including those acquired by assignment or
participation), absolute or contingent, joint or several, due or to become due, now existing or
hereafter arising, whether or not (i) evidenced by any note, guaranty or other instrument, (ii)
arising under any agreement, instrument or document, (iii) for the payment of money, (iv) arising
by reason of an extension of credit, opening of a letter of credit, loan, equipment lease or
guarantee, (v) under any interest or currency swap, future, option or other interest rate
protection or similar agreement, (vi) under or by reason of any foreign currency transaction,
forward, option or other similar transaction providing for the purchase of one currency in exchange
for the sale of another currency, or in any other manner, or (vii) arising out of overdrafts on
deposit or other accounts or out of electronic funds transfers (whether by wire transfer or through
automated clearing houses or otherwise) or out of the return unpaid of, or other failure of the
Bank to receive final payment for, any check, item, instrument, payment order or other deposit or
credit to a deposit or other account, or out of the Bank’s non-receipt of or inability to collect
funds or otherwise not being made whole in connection with depository or other similar
arrangements; and any amendments, extensions, renewals and increases of or to any of the foregoing,
and all costs and expenses of the Bank incurred in the documentation, negotiation, modification,
enforcement, collection and otherwise in connection with any of the foregoing, including reasonable
attorneys’ fees and expenses (hereinafter referred to collectively as the “Obligations”). The
“Obligations” include, but are not limited to, the indebtedness of the Borrower to the Bank
evidenced by a certain Line of Credit Promissory Note of the Borrower in favor of the Bank dated as
of April 20, 2010, in the principal amount of $75,000,000 and any modifications, amendments,
replacements, renewals or refinancings of the indebtedness evidenced thereby (collectively, the
“Line of Credit Note”). If the Borrower defaults under any such Obligations, the Guarantor will
pay the amount due to the Bank.
2. Nature of Guaranty; Waivers. This is a guaranty of payment and not of collection
and the Bank shall not be required or obligated, as a condition of the Guarantor’s liability, to
make any demand upon or to pursue any of its rights against the Borrower, or to
pursue any rights which may be available to it with respect to any other person who may be
liable for the payment of the Obligations.
This is an absolute, unconditional, irrevocable and continuing guaranty and will remain in
full force and effect until all of the Obligations have been indefeasibly paid in full, and the
Bank has terminated this Guaranty. This Guaranty will remain in full force and effect even if there
is no principal balance outstanding under the Obligations at a particular time or from time to
time. This Guaranty will not be affected by any surrender, exchange, acceptance, compromise or
release by the Bank of any other party, or any other guaranty or any security held by it for any of
the Obligations, by any failure of the Bank to take any steps to perfect or maintain its lien or
security interest in or to preserve its rights to any security or other collateral for any of the
Obligations or any guaranty, or by any irregularity, unenforceability or invalidity of any of the
Obligations or any part thereof or any security or other guaranty thereof. The Guarantor’s
obligations hereunder shall not be affected, modified or impaired by any counterclaim, set-off
recoupment, deduction or defense based upon any claim the Guarantor may have (directly or
indirectly) against the Borrower or the Bank, except payment or performance of the Obligations.
Notice of acceptance of this Guaranty, notice of extensions of credit to the Borrower from
time to time, notice of default, diligence, presentment, notice of dishonor, protest, demand for
payment, and any defense based upon the Bank’s failure to comply with the notice requirements under
Sections 9-611 and 9-612 of the Uniform Commercial Code as in effect from time to time are hereby
waived. The Guarantor waives all defenses based on suretyship or impairment of collateral.
The Bank at any time and from time to time, without notice to or the consent of the Guarantor,
and without impairing or releasing, discharging or modifying the Guarantor’s liabilities hereunder,
may (a) change the manner, place, time or terms of payment or performance of or interest rates on,
or other terms relating to, any of the Obligations; (b) renew, substitute, modify, amend or alter,
or grant consents or waivers relating to any of the Obligations, any other guaranties, or any
security for any Obligations or guaranties; (c) apply any and all payments by whomever paid or
however realized including any proceeds of any collateral, to any Obligations of the Borrower in
such order, manner and amount as the Bank may determine in its sole discretion; (d) settle,
compromise or deal with any other person, including the Borrower or the Guarantor, with respect to
any Obligations in such manner as the Bank deems appropriate in its sole discretion; (e)
substitute, exchange or release any security or guaranty; or (f) take such actions and exercise
such remedies hereunder as provided herein.
3. Repayments or Recovery from the Bank. If any demand is made at any time upon the
Bank for the repayment or recovery of any amount received by it in payment or on account of any of
the Obligations and if the Bank repays all or any part of such amount by reason of any judgment,
decree or order of any court or administrative body or by reason of any settlement or compromise of
any such demand, the Guarantor will be and remain liable hereunder for the amount so repaid or
recovered to the same extent as if such amount had never been received originally by the Bank. The
provisions of this section will be and remain effective notwithstanding any contrary action which
may have been taken by the Guarantor in reliance upon such payment, and any such contrary action so
taken will be without prejudice to the
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Bank’s rights hereunder and will be deemed to have been conditioned upon such payment having
become final and irrevocable.
4. Financial Statements. Unless compliance is waived in writing by the Bank or until
all of the Obligations have been paid in full, the Guarantor will promptly submit to the Bank such
information relating to the Guarantor’s affairs (including but not limited to annual financial
statements) as the Bank may reasonably request.
5. Enforceability of Obligations. No modification, limitation or discharge of the
Obligations arising out of or by virtue of any bankruptcy, reorganization or similar proceeding for
relief of debtors under federal or state law will affect, modify, limit or discharge the
Guarantor’s liability in any manner whatsoever and this Guaranty will remain and continue in full
force and effect and will be enforceable against the Guarantor to the same extent and with the same
force and effect as if any such proceeding had not been instituted. The Guarantor waives all rights
and benefits which might accrue to it by reason of any such proceeding and will be liable to the
full extent hereunder, irrespective of any modification, limitation or discharge of the liability
of the Borrower that may result from any such proceeding.
6. Events of Default. The occurrence of any of the following shall be an “Event of
Default”: (i) any Event of Default (as defined in any of the Obligations); (ii) any default under
any of the Obligations that does not have a defined set of “Events of Default” and the lapse of any
notice or cure period provided in such Obligations with respect to such default; (iii) demand by
the Bank under any of the Obligations that have a demand feature; (iv) the Guarantor’s failure to
perform any of its obligations hereunder; (v) the falsity, inaccuracy or material breach by the
Guarantor of any written warranty, representation or statement made or furnished to the Bank by or
on behalf of the Guarantor; or (vi) the termination or attempted termination of this Guaranty. Upon
the occurrence of any Event of Default, (a) the Guarantor shall pay to the Bank the amount of the
Obligations; or (b) on demand of the Bank, the Guarantor shall immediately deposit with the Bank,
in U.S. dollars, all amounts due or to become due under the Obligations, and the Bank may at any
time use such funds to repay the Obligations; or (c) the Bank in its discretion may exercise with
respect to any collateral any one or more of the rights and remedies provided a secured party under
the applicable version of the Uniform Commercial Code; or (d) the Bank in its discretion may
exercise from time to time any other rights and remedies available to it at law, in equity or
otherwise.
7. Right of Setoff. In addition to all rights of setoff against the Guarantor’s money,
securities or other property given to the Bank by law, the Bank shall have, with respect to the
Guarantor’s obligations to the Bank under this Guaranty and to the extent permitted by law, a
contractual right of setoff against all of the Guarantor’s deposits, moneys, securities and other
property now or hereafter in the possession of or on deposit with, or in transit to, the Bank or
any other direct or indirect subsidiary of The PNC Financial Services Group, Inc., whether held in
a general or special account or deposit, whether held jointly with someone else, or whether held
for safekeeping or otherwise, excluding, however, all XXX, Xxxxx, and trust accounts. Every such
right of setoff may be exercised without demand upon or notice to the Guarantor. Every such right
of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of
Default hereunder without any action of the Bank, although the Bank may enter such
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setoff on its books and records at a later time.
8. [Intentionally omitted].
9. Costs. To the extent that the Bank incurs any costs or expenses in protecting or
enforcing its rights under the Obligations or this Guaranty, including reasonable attorneys’ fees
and the costs and expenses of litigation, such costs and expenses will be due on demand, will be
included in the Obligations and will bear interest from the incurring or payment thereof at the
Default Rate (as defined in the Line of Credit Note) or, if higher, at the highest rate of interest
payable under any of the Obligations).
10. Postponement of Subrogation. Until the Obligations are indefeasibly paid in full,
expire, are terminated and are not subject to any right of revocation or rescission, the Guarantor
postpones and subordinates in favor of the Bank or its designee (and any assignee or potential
assignee) any and all rights which the Guarantor may have to (a) assert any claim whatsoever
against the Borrower based on subrogation, exoneration, reimbursement, or indemnity or any right of
recourse to security for the Obligations with respect to payments made hereunder, and (b) any
realization on any property of the Borrower, including participation in any marshalling of the
Borrower’s assets.
11. Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder (“Notices”) must be in writing and will be effective
upon receipt. Notices may be given in any manner to which the Bank and the Guarantor may separately
agree, including electronic mail. Without limiting the foregoing, first-class mail, facsimile
transmission and commercial courier service are hereby agreed to as acceptable methods for giving
Notices. Regardless of the manner in which provided, Notices may be sent to addresses for the Bank
and the Guarantor as set forth above or to such other address as either may give to the other for
such purpose in accordance with this section.
12. Preservation of Rights. No delay or omission on the Bank’s part to exercise any
right or power arising hereunder will impair any such right or power or be considered a waiver of
any such right or power, nor will the Bank’s action or inaction impair any such right or power. The
Bank’s rights and remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Bank may have under other agreements, at law or in equity. The Bank may proceed
in any order against the Borrower, the Guarantor or any obligor of, or collateral securing, the
Obligations.
13. Illegality. If any provision contained in this Guaranty should be invalid, illegal
or unenforceable in any respect, it shall not affect or impair the validity, legality and
enforceability of the remaining provisions of this Guaranty.
14. Changes in Writing. No modification, amendment or waiver of, or consent to any
departure by the Guarantor from, any provision of this Guaranty will be effective unless made in a
writing signed by the Bank, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on the Guarantor will entitle
the Guarantor to any other or further notice or demand in the same, similar or other
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circumstance.
15. Entire Agreement. This Guaranty (including the documents and instruments referred
to herein) constitutes the entire agreement and supersedes all other prior agreements and
understandings, both written and oral, between the Guarantor and the Bank with respect to the
subject matter hereof; provided, however, that this Guaranty is in addition to, and not in
substitution for, any other guarantees from the Guarantor to the Bank.
16. Successors and Assigns. This Guaranty will be binding upon and inure to the
benefit of the Guarantor and the Bank and their respective heirs, executors, administrators,
successors and assigns; provided, however, that the Guarantor may not assign this Guaranty in whole
or in part without the Bank’s prior written consent and the Bank at any time may assign this
Guaranty in whole or in part.
17. Interpretation. In this Guaranty, unless the Bank and the Guarantor otherwise
agree in writing, the singular includes the plural and the plural the singular; references to
statutes are to be construed as including all statutory provisions consolidating, amending or
replacing the statute referred to; the word “or” shall be deemed to include “and/or”, the words
“including”, “includes” and “include” shall be deemed to be followed by the words “without
limitation”; and references to sections or exhibits are to those of this Guaranty. Section headings
in this Guaranty are included for convenience of reference only and shall not constitute a part of
this Guaranty for any other purpose. If this Guaranty is executed by more than one party as
Guarantor, the obligations of such persons or entities will be joint and several.
18. Indemnity. The Guarantor agrees to indemnify each of the Bank, each legal entity,
if any, who controls the Bank and each of their respective directors, officers and employees (the
“Indemnified Parties”), and to hold each Indemnified Party harmless from and against, any and all
claims, damages, losses, liabilities and expenses (including all reasonable fees and charges of
internal or external counsel with whom any Indemnified Party may consult and all expenses of
litigation and preparation therefor) which any Indemnified Party may incur or which may be asserted
against any Indemnified Party by any person, entity or governmental authority (including any person
or entity claiming derivatively on behalf of the Guarantor), in connection with or arising out of
or relating to the matters referred to in this Guaranty, whether (a) arising from or incurred in
connection with any breach of a representation, warranty or covenant by the Guarantor, or (b)
arising out of or resulting from any suit, action, claim, proceeding or governmental investigation,
pending or threatened, whether based on statute, regulation or order, or tort, or contract or
otherwise, before any court or governmental authority; provided, however, that the foregoing
indemnity agreement shall not apply to any claims, damages, losses, liabilities and expenses solely
attributable to an Indemnified Party’s gross negligence or willful misconduct. The indemnity
agreement contained in this Section shall survive the termination of this Guaranty and assignment
of any rights hereunder. The Guarantor may participate at its expense in the defense of any such
claim.
19. Governing Law and Jurisdiction. This Guaranty has been delivered to and accepted
by the Bank and will be deemed to be made in the State of Ohio. THIS GUARANTY WILL BE INTERPRETED
AND THE RIGHTS AND LIABILITIES OF THE BANK
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AND THE GUARANTOR DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO, EXCLUDING ITS
CONFLICT OF LAWS RULES. The Guarantor hereby irrevocably consents to the exclusive jurisdiction of
any state or federal court in the county or judicial district where the Bank’s office indicated
above is located; provided that nothing contained in this Guaranty will prevent the Bank from
bringing any action, enforcing any award or judgment or exercising any rights against the Guarantor
individually, against any security or against any property of the Guarantor within any other
county, state or other foreign or domestic jurisdiction. The Guarantor acknowledges and agrees that
the venue provided above is the most convenient forum for both the Bank and the Guarantor. The
Guarantor waives any objection to venue and any objection based on a more convenient forum in any
action instituted under this Guaranty.
20. Termination. This Guaranty will automatically terminate on the later to occur of:
(i) the full and indefeasible performance, payment and satisfaction of the obligations under the
Line of Credit Note and (ii) the termination of all commitments of the Bank to extend credit and
all other obligations of the Bank, including Letters of Credit, in connection with the loan
evidenced by the Line of Credit Note.
21. WAIVER OF JURY TRIAL. THE GUARANTOR IRREVOCABLY WAIVES ANY AND ALL RIGHT THE
GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO
THIS GUARANTY, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION
CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS
KNOWING AND VOLUNTARY.
The Guarantor acknowledges that it has read and understood all the provisions of this
Guaranty, including the waiver of jury trial, and has been advised by counsel as necessary or
appropriate.
[signature page follows]
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WITNESS the due execution hereof, as of the date first written above, with the intent to be legally
bound hereby.
| MIMI’S CAFÉ, LLC., a | ||||||||||
WITNESS/ATTEST:
|
Delaware limited liability company | |||||||||
/s/ Xxxxxx Xxxxxx
|
By: | /s/ Xxx X. Xxxxxxxxxx | ||||||||
Print Name: Xxxxxx Xxxxxx
|
Name: Xxx X. Xxxxxxxxxx | |||||||||
| Title: Assistant Treasurer and Assistant Secretary | ||||||||||
Signature page to Guaranty Agreement
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