UNCONDITIONAL GUARANTY
OF PAYMENT AND PERFORMANCE
1. FOR VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, the undersigned ("Guarantor"), unconditionally, absolutely and
irrevocably guarantees and promises to pay to XXXXXXX FAMILY, LLC, a
Massachusetts limited liability company (together with its successors and
assigns under the Lease (as defined below), "Lessor"), or order, any and all
amounts, including, without limitation, Base Annual Rental, Base Monthly Rental,
taxes, insurance premiums, impounds, reimbursements, late charges, default
interest, damages, indemnity obligations and all other amounts, costs, fees,
expenses and charges of any kind or type whatsoever, which may or at any time be
due to Lessor pursuant to the following agreements (collectively, the
"Documents"):
A. Sale-Leaseback Agreement, dated as of the date hereof, between
Lessor and Saxet Corporation, a Delaware corporation, and Uno Foods, Inc.,
a Massachusetts corporation ("Sellers"), with respect to the sale and
purchase of certain parcels of real property and the improvements located
thereon (the "Properties");
B. Master Lease (the "Lease"), dated as of the date hereof, between
Lessor and SLA Mail, Inc., a Massachusetts corporation ("Lessee") by which
Lessor leases the Properties to Lessee;
C. Acknowledgement of Master Lease Assignment and Subordination,
Nondisturbance and Attornment Agreement dated as of the date hereof among
Lessee, Lessor, and General Electric Capital Business Asset Funding
Corporation ("Lender");
D. Any other document, agreement, instrument or certificate
contemplated by the Lease, or any other documents, agreements, instruments
or certificates now or hereafter entered into between Lessor and Lessee
with respect to the Lease; and
E. Any amendment of the foregoing documents, agreements, instruments
or certificates now or hereafter entered into between Lessor and Lessee.
Initially capitalized terms not otherwise defined in this Guaranty shall have
the meanings set forth in the Lease.
2. Guarantor also unconditionally guarantees the truthfulness and accuracy
of all representations, warranties and certifications of Lessee, the
satisfaction of all conditions by Xxxxxx and the full and timely performance of
all obligations to be performed by Lessee, under or pursuant to the Documents
(the matters which are guaranteed pursuant to Sections 1 and 2 are hereinafter
collectively referred to as the "Obligations").
3. The obligations of Guarantor under this Guaranty are primary, joint and
several and independent of the obligations of Lessee and any and every other
guarantor of the Obligations, and a separate action or actions may be brought
and executed against Guarantor or any other such guarantor, whether or not such
action is brought against Lessee, Sellers or any other such guarantor and
whether or not Lessee, Sellers or any other such guarantor be joined in
such action or actions. Lender shall not be required to exhaust any security or
to proceed against Lessor or Lessee before proceeding against Guarantor with
respect to the Obligations. Guarantor waives the benefit of any statute or rule
inconsistent with the terms hereof.
4. This is an absolute and unconditional guaranty of payment and
performance and not of collection and Guarantor unconditionally (a) waives any
requirement that Lessor first make demand upon, or seek to enforce or exhaust
remedies against, Lessee, Sellers or any other person or entity (including any
other guarantor) or any of the collateral or property of Lessee, Sellers or such
other person or entity before demanding payment from, or seeking to enforce this
Guaranty against, Guarantor; (b) waives and agrees not to assert any and all
rights, benefits and defenses which might operate, contrary to Guarantor's
agreements in this Guaranty, to limit Guarantor's liability under, or the
enforcement of, this Guaranty; (c) covenants that this Guaranty will not be
discharged until all of the Obligations are fully satisfied; and (d) agrees that
this Guaranty shall remain in full effect without regard to, and shall not be
affected or impaired by, any invalidity, irregularity or unenforceability in
whole or in part of any of the Documents, or any limitation of the liability of
Lessee or Guarantor thereunder, or any limitation on the method or terms of
payment thereunder which may now or hereafter be caused or imposed in any manner
whatsoever.
5. This Guaranty is a continuing guaranty, and the obligations,
undertakings and conditions to be performed or observed by Guarantor under this
Guaranty shall not be affected or impaired by reason of the happening from time
to time of the following with respect to the Documents, all without notice to,
or the further consent of, Guarantor:
(a) the waiver by Lessor of the observance or performance by Xxxxxx,
Sellers or Guarantor of any of the obligations, undertakings, conditions
or other provisions contained in any of the Documents, except to the
extent of such waiver;
(b) the extension, in whole or in part, of the time for payment of
any amount owing or payable under the Documents;
(c) the modification or amendment (whether material or otherwise) of
any of the obligations of Lessee or Sellers under, or any other provisions
of, any of the Documents, except to the extent of such modification or
amendment;
(d) the taking or the omission of any of the actions referred to in
any of the Documents (including, without limitation, the giving of any
consent referred to therein);
(e) any failure, omission, delay or lack on the part of Lessor to
enforce, assert or exercise any provision of the Documents, including any
right, power or remedy conferred on Lessor in any of the Documents or any
action on the part of Lessor granting indulgence or extension in any form;
(f) the assignment to or assumption by any third party of any or all
of the rights or obligations of Lessee or Sellers under all or any of the
Documents;
(g) the release or discharge of Lessee or any of the Sellers from
the performance or observance of any obligation, undertaking or condition
to be performed by Lessee or any of the Sellers under any of the Documents
by operation of law,
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including any rejection or disaffirmance of any of the Documents in any
bankruptcy or similar proceedings;
(h) the receipt and acceptance by Lessor or any other person or
entity of notes, checks or other instruments for the payment of money and
extensions and renewals thereof;
(i) any action, inaction or election of remedies by Xxxxxx which
results in any impairment or destruction of any subrogation rights of
Guarantor, or any rights of Guarantor to proceed against any other person
or entity for reimbursement;
(j) any setoff, defense, counterclaim, abatement, recoupment,
reduction, change in law or any other event or circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor, indemnitor or surety under the laws of the States of
Massachusetts or Illinois, the states in which the Properties are located,
or any other jurisdiction;
(k) any substitution of a Substitute Property for a Property
pursuant to the terms and conditions of the Lease; and
(l) the termination or renewal of any of the Obligations or any
other provision thereof.
6. Guarantor represents and warrants to Lessor that:
(a) Neither the execution nor delivery of this Guaranty nor
fulfillment of nor compliance with the terms and provisions hereof will
conflict with, or result in a breach of the terms or conditions of, or
constitute a default under, any agreement or instrument to which Guarantor
is now a party or by which Guarantor may be bound, or result in the
creation of any lien, charge or encumbrance upon any property or assets of
Guarantor, which conflict, breach, default, lien, charge or encumbrance
could result in a material adverse change in the financial condition of
Guarantor;
(b) No further consents, approvals or authorizations are required
for the execution and delivery of this Guaranty by Guarantor or for
Guarantor's compliance with the terms and provisions of this Guaranty;
(c) This Guaranty is the legal, valid and binding agreement of
Guarantor and is enforceable against Guarantor in accordance with its
terms;
(d) Guarantor has the full power, authority, capacity and legal
right to execute and deliver this Guaranty, and, to the extent Guarantor
is a corporation, partnership, limited liability company or other form of
entity, the parties executing this Guaranty on behalf of Guarantor are
fully authorized and directed to execute the same to bind Guarantor;
(e) Guarantor is not a "foreign individual," "foreign corporation,"
"foreign partnership," "foreign limited liability company," "foreign
trust," or "foreign estate," as those terms are defined in the U.S.
Internal Revenue Code and the regulations
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promulgated thereunder. Guarantor's Federal Tax Identification Number is
accurately set forth herein next to the signature of Guarantor;
(f) The Documents are conclusively presumed to have been signed in
reliance on this Guaranty, and the assumption by Guarantor of its
obligations under this Guaranty results in direct financial benefit to
Guarantor.
7. (a) Guarantor covenants to Lessor that, during the term of this
Guaranty, Guarantor will not transfer or dispose of any material part of its
assets except in the ordinary course of business for full and fair consideration
and reasonably equivalent value; provided, however, that at any time and from
time to time during the term of this Guaranty, the Guarantor, except as
prohibited by the Master Lease, may (i) pledge and grant security interests in
any or all of its assets to secure indebtedness of Guarantor and/or any of its
subsidiaries or other affiliates (including, without limitation, indebtedness
with respect to letters of credit, interest rate protection agreements, ACH
exposure and any other extension of credit) to banks, insurance companies and
other institutional lenders (collectively the "Lenders") and the Lenders may
exercise all of their rights and remedies under all such pledges and security
interests and (ii) transfer any or all of its assets in full or partial payment
of any indebtedness of Guarantor and/or any of its subsidiaries or other
affiliates (including, without limitation, indebtedness with respect to letters
of credit, interest rate protection agreements, ACH exposure and any other
extension of credit) to the Lenders provided such transfer is for full and fair
consideration and reasonable equivalent value.
For purposes of this Section 7, the following terms shall be defined as
set forth below:
"CAPITAL LEASE" shall mean all leases of any property, whether real,
personal or mixed, by Guarantor and Uno Restaurant Holdings Corporation,
which leases would, in conformity with GAAP, be required to be accounted
for as a capital lease on the balance sheet of Guarantor. The term
"Capital Lease" shall not include any operating lease.
"DEBT" shall mean with respect to Guarantor and Parent and for the
applicable 12 Month Period (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, indentures, notes or similar instruments,
(iii) obligations to pay the deferred purchase price of property or
services, (iv) obligations under leases which should be, in accordance
with GAAP, recorded as Capital Leases, and (v) obligations under direct or
indirect guarantees in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others
of the kinds referred to in clauses (i) through (iv) above.
"DEPRECIATION AND AMORTIZATION" shall mean the depreciation and
amortization accruing during the applicable 12 Month Period with respect
to Guarantor and Parent, as determined in accordance with GAAP.
"INTEREST EXPENSE" shall mean for the applicable 12 Month Period,
the sum of all interest accrued or which should be accrued in respect of
all Debt of Guarantor and Parent, as determined in accordance with GAAP.
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"NET INCOME" shall mean with respect to the applicable 12 Month
Period, the net income or net loss of Guarantor and Parent. In determining
the amount of Net Income, (i) adjustments shall be made for nonrecurring
gains and losses or non-cash items allocable to the applicable 12 Month
Period, and (ii) deductions shall be made for, among other things,
Depreciation and Amortization, Interest Expense, Operating Lease Expense
and actual corporate overhead expense allocable to the applicable 12 Month
Period.
"OPERATING LEASE EXPENSE" shall mean the sum of all payments and
expenses incurred by Guarantor and Parent under any operating leases
during the applicable 12 Month Period, as determined in accordance with
GAAP.
(d) INTENTIONALLY DELETED.
(e) Within 45 days after the end of each fiscal quarter and within 120
days after the end of each fiscal year of Guarantor, Guarantor shall deliver to
Lessor and Lender complete financial statements of Guarantor, including a
balance sheet, profit and loss statement, statement of changes in cash flows and
all other related schedules for the fiscal period then ended. All such financial
statements shall be prepared in accordance with generally accepted accounting
principles, consistently applied from period to period, and shall be certified
to be accurate and complete by Guarantor (or the Treasurer or other appropriate
officer of Guarantor). Guarantor understands that Lessor and Lender are relying
upon such financial statements and Guarantor represents that such reliance is
reasonable. The financial statements delivered to Lessor and Lender need not be
audited, but Guarantor shall deliver to Lessor and Lender copies of any audited
financial statements of Guarantor which may be prepared, as soon as they are
available.
8. This Guaranty shall commence upon execution and delivery of any of the
Documents and shall continue in full force and effect until all of the
Obligations are duly, finally and permanently paid, performed and discharged and
are not subject to any right of reborrowing or extension by Xxxxxx, and Lessor
and Lender give Guarantor written notice of the full and final satisfaction of
the Obligations. The Obligations shall not be considered fully paid, performed
and discharged unless and until all payments by Lessee to Lessor are no longer
subject to any right on the part of any person whomsoever, including but not
limited to Lessee, Lessee as a debtor-in-possession and/or any trustee in
bankruptcy, to disgorge such payments or seek to recoup the amount of such
payments or any part thereof. The foregoing shall include, by way of example and
not by way of limitation, all rights to recover preferences voidable under Title
11 of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended
(the "Code"). In the event that any such payments by Lessee to Lessor are
disgorged after the making thereof, in whole or in part, or settled without
litigation, to the extent of such disgorgement or settlement, Guarantor shall be
liable for the full amount Lessor is required to repay plus interest, late
charges, attorney's fees and any and all expenses paid or incurred by Lessor in
connection therewith.
9. Guarantor shall neither have any right of subrogation, indemnity or
reimbursement nor hold any other claim against Xxxxxx or Sellers, and Guarantor
does hereby release Lessee and Sellers from any and all claims by Guarantor now
or hereafter arising against Lessee or Sellers. Furthermore, Guarantor hereby
unconditionally and irrevocably waives (a) any right to participate in any
security now or hereafter held by Lessor or in any claim or remedy of Lessor or
any other person against Xxxxxx and Sellers with respect to the Obligations,
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(b) any statute of limitations affecting Guarantor's liability hereunder, (c)
all principles and provisions of law which conflict with the terms of this
Guaranty, and (d) diligence, presentment, protest, demand for performance,
notice of nonperformance, notice of intent to accelerate, notice of
acceleration, notice of protest, notice of dishonor, notice of execution of any
Documents, notice of extension, renewal, alteration or amendment, notice of
acceptance of this Guaranty, notice of defaults under any of the Documents and
all other notices whatsoever.
10. Notwithstanding the preceding Section 9, in the event that Guarantor
shall have any claims against Lessee or Sellers, any indebtedness of Lessee or
Sellers now or hereafter held by Guarantor is hereby subordinated to the
indebtedness of Lessee or Sellers to Lessor. Any such indebtedness of Lessee or
Sellers to Guarantor, if Lessor so requests, shall be collected, enforced and
received by Guarantor as trustee for Lessor and be paid over to Lessor on
account of the Obligations, but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this Guaranty.
11. It is not necessary for Lessor to inquire into the powers of Lessee,
Sellers or their officers, directors, partners or agents acting or purporting to
act on its behalf, and Guarantor shall be liable for the Obligations in
accordance with their terms notwithstanding any lack of authorization or defect
in execution or delivery by Lessee or Sellers.
12. In addition to the amounts guaranteed under this Guaranty, Xxxxxxxxx
agrees to pay (i) all of Lessor's attorneys' fees and other costs and expenses
which may be incurred by Lessor in the enforcement of this Guaranty and (ii)
interest (including postpetition interest to the extent a petition is filed by
or against Lessee under the Code) at the Default Rate on any Obligations not
paid when due.
13. This Guaranty shall apply to the parties hereto and their successors
and assigns according to the context hereof and without regard to the number or
gender of words or expressions used herein.
14. Guarantor hereby agrees to indemnify and hold harmless Lessor for,
from and against any loss, cause of action, claim, cost, expense or fee,
including but not limited to attorney's fees and court costs, suffered or
occasioned by the failure of Lessee or Sellers to satisfy their obligations
under the Documents. The agreement to indemnify Lessor contained in this
paragraph shall be enforceable notwithstanding the invalidity or
unenforceability of the Documents or any of them or the invalidity or
unenforceability of any other paragraph contained in this Guaranty.
15. All moneys available to Lessor for application in payment or reduction
of the liabilities of Lessee or Sellers under the Documents may be applied by
Lessor to the payment or reduction of such liabilities of Lessee, in such
manner, in such amounts and at such time or times as Lessor may elect.
16. All notices, demands, requests, consents, approvals or other
instruments required or permitted to be given pursuant to this Guaranty shall be
in writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return receipt
requested, and shall be deemed to have been delivered upon (a) receipt, if hand
delivered, (b) transmission, if delivered by facsimile, (c) the next Business
Day, if delivered by
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express overnight delivery service or (d) the third Business Day following the
day of deposit of such notice with the United States Postal Service, if sent by
certified or registered mail, return receipt requested. Notices shall be
provided to the addresses (or facsimile numbers, as applicable) specified below:
If to Guarantor: Uno Restaurant Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Lessor: Xxxxxxx Family, LLC
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, LLP
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or such other person as either Guarantor or Lessor may
from time to time hereafter specify to the other party in a notice delivered in
the manner provided above. No such notices, demands, requests, consents,
approvals or other communications shall be valid unless Lender is provided a
duplicate original thereof at the following address:
If to Lender:
General Electric Capital Business
Asset Funding Corporation
00000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Franchise Finance Department and
Middle Market Risk
Telephone: (000) 000-0000
or to such other address or such other person as Lender may from time to time
specify to Lessor and Guarantor in a notice delivered in the manner provided
above.
17. This Guaranty is delivered in the States of Massachusetts or Illinois,
and it is the intent of Guarantor and Lessor that this Guaranty shall be deemed
to be a contract made under and governed by the internal laws of the State of
Massachusetts or Illinois, depending on the situs of the property, without
regard to its principles of conflicts of law. For purposes of any
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action or proceeding involving this Guaranty, Guarantor submits to the
jurisdiction of all federal and state courts located in the States of
Massachusetts or Illinois and consents that it may be served with any process or
paper by registered mail or by personal service within or without the States of
Massachusetts or Illinois in accordance with applicable law. Furthermore,
Guarantor waives and agrees not to assert in any such action, suit or proceeding
that it is not personally subject to the jurisdiction of such courts, that the
action, suit or proceeding is brought in an inconvenient forum or that venue of
the action, suit or proceeding is improper. Nothing contained in this section
shall limit or restrict the right of Lessor to commence any proceeding in the
federal or state courts located in the state in which the Properties are located
and/or where Guarantor maintains its chief executive office to the extent Lessor
deems such proceeding necessary or advisable to exercise remedies available
under the Documents.
18. Guarantor and Lessor, by its execution of the Lease and its acceptance
of this Guaranty, intend that:
(i) the Lease constitutes a single master lease of all, but not less
than all, of the Properties and that Lessor and Lessee have executed and
delivered the Lease with the understanding that the Lease constitutes a
unitary, unseverable instrument pertaining to all, but not less than all,
of the Properties, and that neither the Lease nor the duties, obligations
or rights of Lessee may be allocated or otherwise divided among the
Properties by Xxxxxx;
(ii) the Lease is a "true lease" and not a financing lease, capital
lease, mortgage, equitable mortgage, deed of trust, trust agreement,
security agreement or other financing or trust arrangement, and the
economic realities of the Lease are those of a true lease; and
(iii) the business relationship created by the Lease and any related
documents is solely that of a long-term commercial lease between landlord
and tenant and has been entered into by both parties in reliance upon the
economic and legal bargains contained herein.
The expressions of intent set forth in this Section are a material
inducement to Lessor entering into the Lease.
19. Guarantor acknowledges that Xxxxxx did not prepare or assist in the
preparation of any of the projected financial figures used by Xxxxxx in
analyzing the economic viability and feasibility of the transactions
contemplated by the Lease.
20. All of Xxxxxx's rights and remedies under the Documents and this
Guaranty are intended to be distinct, separate and cumulative and no such right
and remedy is intended to be in exclusion of or a waiver of any of the others.
21. Except as otherwise contemplated by Section 27 of this Guaranty, this
Guaranty is solely for the benefit of Lessor, its successors and assigns and is
not intended to nor shall it be deemed to be for the benefit of any third party,
including, without limitation, Lessee.
22. If any provision of this Guaranty is unenforceable, the enforceability
of the other provisions shall not be affected and they shall remain in full
force and effect.
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23. Guarantor agrees to take such action and to sign such other documents
as may be appropriate to carry out the intent of this Guaranty.
24. This Guaranty may be executed in one or more counterparts, each of
which shall be deemed an original.
25. LESSOR, BY ACCEPTING THIS GUARANTY, AND GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY XXXXXX OR GUARANTOR AGAINST THE OTHER OR THEIR
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
GUARANTY, THE RELATIONSHIP OF XXXXXX, XXXXXX AND/OR GUARANTOR, XXXXXX'S USE OR
OCCUPANCY OF THE PROPERTIES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY
EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY XXXXXX AND GUARANTOR OF ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS A MATERIAL
INDUCEMENT FOR LESSOR ACCEPTING THIS GUARANTY. FURTHERMORE, GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO SEEK
PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM LESSOR OR ANY OF
LESSOR'S AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF THEIR
SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY GUARANTOR AGAINST LESSOR OR ANY OF
LESSOR'S AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF THEIR
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
GUARANTY OR ANY DOCUMENTS CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY
GUARANTOR OF ANY RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES HAS BEEN NEGOTIATED AND IS A MATERIAL INDUCEMENT FOR LESSOR
ACCEPTING THIS GUARANTY.
26. Guarantor shall be liable under this Guaranty for the maximum amount
of such liability that can be incurred hereby without rendering this Guaranty,
as it relates to Guarantor, voidable under applicable laws relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount.
Xxxxxxxxx agrees that the Obligations may at any time and from time to time
exceed the amount of the liability of Guarantor hereunder without impairing this
Guaranty or affecting the rights and remedies of Lessor hereunder.
27. This Guaranty is executed and delivered to induce Lessor to enter into
the Lease and is solely for the benefit of Xxxxxx and its successors and
assigns, including, without limitation, Lender and its successors and assigns
under the Loan Documents, and is not intended to nor shall it be deemed to be
for the benefit of any other third party, including, without limitation, Lessee.
This Guaranty is a continuing Guaranty and shall be binding upon Guarantor and
its successors and assigns; provided, however, without the prior written consent
of Xxxxxx, Guarantor shall not assign this Guaranty or any of the rights or
obligations of Guarantor hereunder.
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28. Guarantor acknowledges and agrees that (i) Lessor intends to
collaterally assign all of its right, title and interest under the Lease and
this Guaranty to Lender pursuant to the Loan Documents and (ii) upon the
exercise of Xxxxxx's remedies set forth in such Loan Documents, all of the
rights, powers and privileges of Lessor shall be deemed the rights, powers and
privileges of Xxxxxx and Lender shall be entitled to exercise all of the rights
and remedies of "Lessor" under this Guaranty, the Lease and the Loan Documents.
Guarantor hereby consents to, and no further consent by Guarantor shall be
required for, any further assignment of rights of Lessor hereunder or in
connection with any transfer by Xxxxxx. All notices, certificates, reports or
other information required to be delivered to Lessor under this Guaranty shall
be delivered simultaneously to Lender. Notwithstanding any provision herein to
the contrary, this Guaranty shall not be deemed to create any obligation of or
liability for Lender. Guarantor intends that Lender shall be an intended third
party beneficiary of this Guaranty but without any corresponding responsibility,
liability or obligation to Guarantor.
29. Xxxxxxxxx agrees that:
(a) the Guaranty shall not be changed, amended, altered, modified,
or terminated without the prior written consent of Lender;
(b) any consent, approval, agreement or waiver provided by Lessor
pursuant to this Guaranty shall not be valid unless consented to in
writing by Xxxxxx; and
(c) Lessor shall in no event be deemed to have unreasonably withheld
any approval under this Guaranty if Lender shall not have given its
approval.
30. INTENTIONALLY DELETED.
IN WITNESS WHEREOF, the undersigned Xxxxxxxxx has executed this Guaranty
effective as of the 30th day of July, 2001.
GUARANTOR:
Federal Tax I.D. Number: UNO RESTAURANT CORPORATION,
a Delaware corporation
00-0000000
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Printed Name Xxxxxx X. Xxxxxxx
---------------------------------
Its Executive Vice President, Treasurer
------------------------------------------
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STATE OF MASSACHUSETTS ]
] SS.
COUNTY OF SUFFOLK ]
The foregoing instrument was acknowledged before me on July 27, 2001 by
Xxxxxx X. Xxxxxxx, Executive Vice President and Chief Financial Officer of Uno
Restaurant Corporation, a Delaware corporation, on behalf of the corporation.
/s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Notary Public Xxxxxxxxx X. Xxxxxxx
My Commission Expires: 9/2/2006
-----------------------------------------
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