EXHIBIT 10.2
AMENDED, RESTATED, AND CONSOLIDATED
GENERAL CONTINUING GUARANTY
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THIS AMENDED, RESTATED, AND CONSOLIDATED GENERAL CONTINUING GUARANTY
("Guaranty"), dated as of July 19, 2000, is executed and delivered by PRANDIUM,
INC., a Delaware corporation formerly known as Family Restaurants, Inc.
("Prandium"), FRI-MRD CORPORATION, a Delaware corporation ("FRI-MRD"), FRI-ADMIN
CORPORATION, a Delaware corporation ("FRI-Admin"), ▇▇▇ ▇▇▇ ROO, INC., a Delaware
corporation ("KKR"), THE HAMLET GROUP, INC., a California corporation ("HGI"),
and each of the Subsidiaries of Debtor (as hereinafter defined) identified on
the signature pages hereto (individually and collectively, the "Subsidiary
Guarantors"; together with Prandium, FRI-MRD, FRI-Admin, KKR, and HGI, each, a
"Guarantor," and collectively, the "Guarantors"), in favor of FOOTHILL CAPITAL
CORPORATION, a California corporation ("Guarantied Party"), in light of the
following:
WHEREAS, Debtor, Guarantors, and Guarantied Party are parties to that
certain Loan and Security Agreement, dated as of January 10, 1997 (as amended,
modified, and otherwise supplemented through the date hereof, the "Existing Loan
Agreement");
WHEREAS, pursuant to the terms and conditions of the Existing Loan
Agreement, (a) Prandium entered into that certain General Continuing Guaranty,
dated as of January 10, 1997 (the "Prandium Guaranty") in favor of Guarantied
Party; (b) FRI-MRD entered into that certain General Continuing Guaranty, dated
as of January 10, 1997 (the "FRI-MRD Guaranty") in favor of Guarantied Party;
(c) FRI-Admin entered into that certain General Continuing Guaranty, dated as of
January 10, 1997 (the "FRI-Admin Guaranty") in favor of Guarantied Party; (d)
the Subsidiary Guarantors entered into that certain Combined General Continuing
Guaranty, dated as of January 10, 1997 (the "Subsidiary Guaranty") in favor of
Guarantied Party;(e) KKR entered into that certain General Continuing Guaranty,
dated as of October 30, 1998 (the "KKR Guaranty") in favor of Guarantied Party;
and (f) HGI entered into that certain General Continuing Guaranty, dated as of
October 30, 1998 (the "HGI Guaranty"; together with the Prandium Guaranty, the
FRI-MRD Guaranty, the FRI-Admin Guaranty, the Subsidiary Guaranty, and the KKR
Guaranty, collectively, the "Existing Guaranties") in favor of Guarantied Party;
and
WHEREAS, Borrower, Guarantors, and Guarantied Party desire to amend
and restate the Existing Loan Agreement in its entirety as provided in that
certain Amended and Restated Loan and Security Agreement, dated as of the date
hereof (the "Loan Agreement"), it being understood that no repayment of the
obligations under the Existing Loan Agreement is being effected thereby, but
merely an amendment and restatement in accordance with the terms thereof; and
WHEREAS, pursuant to the Loan Agreement and as one of the conditions
thereof, Guarantors and Guarantied Party have agreed to amend, restate, and
consolidate the Existing Guaranties in their entirety as provided in this
Guaranty, it being understood that no
satisfaction of the obligations under the Existing Guaranties is being effected
hereby, but merely an amendment, restatement, and consolidation in accordance
with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing, Guarantors hereby
agree, in favor of Guarantied Party, as follows:
1. Definitions and Construction.
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(a) Definitions. Capitalized terms used herein and not otherwise
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defined herein shall have the meanings ascribed to them in the Loan Agreement.
The following terms, as used in this Guaranty, shall have the following
meanings:
"Debtor" shall mean Chi-Chi's, Inc., a Delaware corporation.
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"Guarantied Obligations" shall mean the due and punctual
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payment of the principal of, and interest (including, any and all interest
which, but for the application of the provisions of the Bankruptcy Code, would
have accrued on such amounts) on, and premium, if any, on the Indebtedness owed
by Debtor to Guarantied Party pursuant to the terms of the Loan Documents.
"Guarantied Party" shall have the meaning set forth in the
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preamble to this Guaranty.
"Guarantor" and "Guarantors" shall have the meaning set
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forth in the preamble to this Guaranty.
"Guarantor Security Agreement" means that certain Amended,
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Restated, and Consolidated Guarantor Security Agreement among Guarantors and
Guarantied Party, dated as of the date hereof.
"Guaranty" shall have the meaning set forth in the preamble
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to this Guaranty.
"Indebtedness" shall mean any and all Obligations, whether
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recovery is or hereafter becomes barred by any statute of limitations or
otherwise becomes unenforceable for any reason whatsoever, including any act or
failure to act by Guarantied Party.
"Loan Agreement" shall mean that certain Amended and
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Restated Loan and Security Agreement, dated as of the date hereof, entered into
among Debtor, Gurantors, and Guarantied Party.
"Permitted Liens" shall have the meaning set forth in the
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Guarantor Security Agreement.
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"Restricted Subsidiary" means any Subsidiary of Prandium
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(other than FRI-MRD and its Subsidiaries) that has not been designated by
Prandium as an Unrestricted Subsidiary.
"Unrestricted Subsidiary" means any Subsidiary of Prandium
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(other than FRI-MRD and its Subsidiaries) that is (a) now existing or hereafter
created or acquired, and (b) designated in writing by Prandium to Guarantied
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Party as an Unrestricted Subsidiary.
(b) Construction. Unless the context of this Guaranty clearly
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requires otherwise, references to the plural include the singular, references to
the singular include the plural, the part includes the whole, the terms
"include" and "including" are not limiting, and the term "or" has the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and other similar terms refer to this Guaranty as a whole
and not to any particular provision of this Guaranty. Any reference in this
Guaranty to any of the following documents includes any and all alterations,
amendments, restatements, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable: the Loan Agreement; this Guaranty; and the
other Loan Documents. This Guaranty has been reviewed by Guarantor, Guarantied
Party, and their respective counsel, and shall be construed and interpreted
according to the ordinary meaning of the words used so as to fairly accomplish
the purposes and intentions of Guarantied Party and Guarantor.
2. Guarantied Obligations. Each Guarantor, jointly and severally,
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hereby irrevocably and unconditionally guaranties to Guarantied Party, as and
for its own debt, until final and indefeasible payment thereof has been made,
(a) the payment of the Guarantied Obligations, in each case when and as the same
shall become due and payable, whether at maturity, pursuant to a mandatory
prepayment requirement, by acceleration, or otherwise; it being the intent of
each Guarantor that the guaranty set forth herein shall be a guaranty of payment
and not a guaranty of collection; and (b) the punctual and faithful performance,
keeping, observance, and fulfillment by Debtor of all of the agreements,
conditions, covenants, and Obligations of Debtor contained in the Loan
Agreement, and under each of the other Loan Documents.
3. Continuing Guaranty. This Guaranty includes Guarantied
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Obligations arising under successive transactions continuing, compromising,
extending, increasing, modifying, releasing, or renewing the Guarantied
Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guarantied Obligations after
prior Guarantied Obligations have been satisfied in whole or in part. To the
maximum extent permitted by law, each Guarantor hereby waives any right to
revoke this Guaranty as to future Indebtedness. If such a revocation is
effective notwithstanding the foregoing waiver, each Guarantor acknowledges and
agrees that (a) no such revocation shall be effective until written notice
thereof has been received by Guarantied Party, (b) no such revocation shall
apply to any Guarantied Obligations in existence on such date (including any
subsequent continuation, extension, or renewal thereof,
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or change in the interest rate, payment terms, or other terms and conditions
thereof), (c) no such revocation shall apply to any Guarantied Obligations made
or created after such date to the extent made or created pursuant to a legally
binding commitment of Guarantied Party in existence on the date of such
revocation, and (d) any payment by Debtor or from any source other than the
revoking Guarantor subsequent to the date of such revocation shall first be
applied to that portion of the Guarantied Obligations as to which the revocation
is effective and which are not, therefore, guarantied hereunder, and to the
extent so applied shall not reduce the maximum obligation of such Guarantor
hereunder.
4. Performance Under this Guaranty. In the event that Debtor fails
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to make any payment of any Guarantied Obligations, on or before the due date
thereof, or if Debtor shall fail to perform, keep, observe, or fulfill any other
obligation referred to in clause (b) of Section 2 hereof in the manner provided
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in the Loan Agreement or the other Loan Documents, as applicable, Guarantors,
jointly and severally, immediately shall cause such payment to be made or each
of such obligations to be performed, kept, observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original
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obligation of each Guarantor, is not merely the creation of a surety
relationship, and is an absolute, unconditional, and continuing guaranty of
payment and performance which shall remain in full force and effect without
respect to future changes in conditions until full and final payment in cash (or
other consideration acceptable to Guarantied Party in its sole discretion and
agreed to by Guarantied Party) of the Guarantied Obligations and the termination
of all commitments of Guarantied Party to extend Credit to Debtor or any
Guarantor. Each Guarantor agrees that it is directly, jointly and severally
with any other guarantor of the Guarantied Obligations, liable to Guarantied
Party, that the obligations of such Guarantor hereunder are independent of the
obligations of Debtor or any other guarantor, and that a separate action may be
brought against such Guarantor, whether such action is brought against Debtor or
any other guarantor or whether Debtor or any other guarantor is joined in such
action. Each Guarantor agrees that its liability hereunder shall be immediate
and shall not be contingent upon the exercise or enforcement by Guarantied Party
of whatever remedies it may have against Debtor or any other guarantor, or the
enforcement of any lien or realization upon any security Guarantied Party may at
any time possess. Each Guarantor agrees that any release which may be given by
Guarantied Party to Debtor or any other guarantor shall not release such
Guarantor. Each Guarantor consents and agrees that Guarantied Party shall be
under no obligation to marshal any property or assets of Debtor or any other
guarantor in favor of such Guarantor, or against or in payment of any or all of
the Guarantied Obligations.
6. Waivers.
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(a) To the fullest extent permitted by applicable law, each
Guarantor hereby waives: (i) notice of acceptance hereof; (ii) notice of any
loans or other financial accommodations made or extended under the Loan
Agreement, or the creation or existence of any Guarantied Obligations; (iii)
notice of the amount of the Guarantied Obligations, subject, however, to
Guarantor's right to make inquiry of Guarantied Party to
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ascertain the amount of the Guarantied Obligations at any reasonable time; (iv)
notice of any adverse change in the financial condition of Debtor or of any
other fact that might increase such Guarantor's risk hereunder; (v) notice of
presentment for payment, demand, protest, and notice thereof as to any
instrument among the Loan Documents; (vi) notice of any unmatured Event of
Default or Event of Default under the Loan Agreement; and (vii) all other
notices (except if such notice is specifically required to be given to such
Guarantor under this Guaranty or any other Loan Documents to which such
Guarantor is a party) and demands to which such Guarantor might otherwise be
entitled.
(b) To the fullest extent permitted by applicable law, each
Guarantor hereby waives the right by statute or otherwise to require Guarantied
Party to institute suit against Debtor or to exhaust any rights and remedies
which Guarantied Party has or may have against Debtor. In this regard, each
Guarantor agrees that it is bound to the payment of each and all Guarantied
Obligations, whether now existing or hereafter arising, as fully as if such
Guarantied Obligations were directly owing to Guarantied Party by such
Guarantor. Each Guarantor further waives any defense arising by reason of any
disability or other defense (other than the defense that the Guarantied
Obligations shall have been fully and finally performed and indefeasibly paid)
of Debtor or by reason of the cessation from any cause whatsoever of the
liability of Debtor in respect thereof.
(c) To the fullest extent permitted by applicable law, each
Guarantor hereby waives: (i) any rights to assert against Guarantied Party any
defense (legal or equitable), set-off, counterclaim, or claim which such
Guarantor may now or at any time hereafter have against Debtor or any other
party liable to Guarantied Party on account of or with respect to the Guarantied
Obligations; (ii) any defense, set-off, counterclaim, or claim, of any kind or
nature, arising directly or indirectly from the present or future lack of
perfection, sufficiency, validity, or enforceability of the Guarantied
Obligations or any security therefor; (iii) any defense arising by reason of any
claim or defense based upon an election of remedies by Guarantied Party
including any defense based upon an election of remedies by Guarantied Party
under the provisions of (S)(S) 580d and 726 of the California Code of Civil
Procedure, or any similar law of California or any other jurisdiction; (iv) the
benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement thereof, and any act which shall defer or delay the
operation of any statute of limitations applicable to the Guarantied Obligations
shall similarly operate to defer or delay the operation of such statute of
limitations applicable to such Guarantor's liability hereunder.
(d) Until such time as all of the Guarantied Obligations have
been fully, finally, and indefeasibly paid in full in cash (or other
consideration acceptable to Guarantied Party in its sole discretion and agreed
to by Guarantied Party) each Guarantor hereby waives and postpones: (i) any
right of subrogation such Guarantor has or may have as against Debtor with
respect to the Guarantied Obligations; (ii) any right to proceed against Debtor
or any other Guarantor with respect to any portion of the Obligations, now or
hereafter, for contribution, indemnity, reimbursement, or any other suretyship
rights and claims (irrespective of whether direct or indirect, liquidated or
contingent), with respect to
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the Guarantied Obligations; and (iii) any right to proceed or to seek recourse
against or with respect to any property or asset of Debtor.
(e) If any of the Guarantied Obligations at any time are secured
by a mortgage or deed of trust upon real property, Guarantied Party may elect,
in its sole discretion, upon a default with respect to the Guarantied
Obligations, to foreclose such mortgage or deed of trust judicially or
nonjudicially in any manner permitted by law, before or after enforcing this
Guaranty, without diminishing or affecting the liability of Guarantors
hereunder. Each Guarantor understands that (a) by virtue of the operation of
California's antideficiency law applicable to nonjudicial foreclosures, an
election by Guarantied Party nonjudicially to foreclose such a mortgage or deed
of trust probably would have the effect of impairing or destroying rights of
subrogation, reimbursement, contribution, or indemnity of such Guarantor against
Debtor or other guarantors or sureties, and (b) absent the waiver given by such
Guarantor herein, such an election would estop Guarantied Party from enforcing
this Guaranty against such Guarantor. Understanding the foregoing, and
understanding that such Guarantor is hereby relinquishing a defense to the
enforceability of this Guaranty, each Guarantor hereby waives any right to
assert against Guarantied Party any defense to the enforcement of this Guaranty,
whether denominated "estoppel" or otherwise, based on or arising from an
election by Guarantied Party nonjudicially to foreclose any such mortgage or
deed of trust securing the Guarantied Obligations. Each Guarantor understands
that the effect of the foregoing waiver may be that such Guarantor may have
liability hereunder for amounts with respect to which such Guarantor may be left
without rights of subrogation, reimbursement, contribution, or indemnity against
Debtor or other guarantors or sureties. Each Guarantor also agrees that the
"fair market value" provisions of Section 580a of the California Code of Civil
Procedure shall have no applicability with respect to the determination of such
Guarantor's liability under this Guaranty.
(f) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR HEREBY WAIVES, TO THE
MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY LAW, ANY AND ALL BENEFITS OR DEFENSES
ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE
(S)(S) 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845,
2847, 2848, 2849, AND 2850, CALIFORNIA CODE OF CIVIL PROCEDURE (S)(S) 580a,
580b, 580c, 580d, AND 726, AND CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA CIVIL
CODE.
(g) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND
DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY THE GUARANTIED PARTY, EVEN
THOUGH THAT ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT
TO SECURITY FOR A GUARANTEED OBLIGATION, HAS DESTROYED SUCH GUARANTOR'S RIGHTS
OF SUBROGATION AND
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REIMBURSEMENT AGAINST THE DEBTOR BY THE OPERATION OF SECTION 580d OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE OR OTHERWISE.
7. Releases. Each Guarantor consents and agrees that, without notice
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to or by any Guarantor and without affecting or impairing the obligations of
Guarantors hereunder, Guarantied Party may, by action or inaction, compromise or
settle, extend the period of duration or the time for the payment, or discharge
the performance of, or may refuse to, or otherwise not enforce, or may, by
action or inaction, release all or any one or more parties to, any one or more
of the terms and provisions of the Loan Agreement or any of the other Loan
Documents or may grant other indulgences to Debtor in respect thereof, or may
amend or modify at any time (or from time to time) any one or more of the Loan
Agreement or any of the other Loan Documents in any manner permitted thereunder,
or may, by action or inaction, release or substitute any other guarantor, if
any, of the Guarantied Obligations, or may enforce, exchange, release, or waive,
by action or inaction, any security for the Guarantied Obligations or any other
guaranty of the Guarantied Obligations, or any portion thereof.
8. No Election. Guarantied Party shall have the right to seek
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recourse against each Guarantor to the fullest extent provided for herein and no
election by Guarantied Party to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of Guarantied
Party's right to proceed in any other form of action or proceeding or against
other parties unless Guarantied Party has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no
action or proceeding by Guarantied Party under any document or instrument
evidencing the Guarantied Obligations shall serve to diminish the liability of
any Guarantor under this Guaranty except to the extent that Guarantied Party
finally and unconditionally shall have realized indefeasible payment by such
action or proceeding.
9. Indefeasible Payment. The Guarantied Obligations shall not be
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considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to Guarantied Party are no longer subject to any right on the part of
any person whomsoever, including Debtor, Debtor as a debtor in possession, or
any trustee (whether appointed under the Bankruptcy Code or otherwise) of
Debtor's assets to invalidate or set aside such payments or to seek to recoup
the amount of such payments or any portion thereof, or to declare same to be
fraudulent or preferential. In the event that, for any reason, all or any
portion of such payments to Guarantied Party is set aside or restored, whether
voluntarily or involuntarily, after the making thereof, the obligation or part
thereof intended to be satisfied thereby shall be revived and continued in full
force and effect as if said payment or payments had not been made and
Guarantors, jointly and severally, shall be liable for the full amount
Guarantied Party is required to repay plus any and all costs and expenses
(including attorneys fees) paid by Guarantied Party in connection therewith.
10. Financial Condition of Debtor. Each Guarantor represents and
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warrants to Guarantied Party that it is currently informed of the financial
condition of Debtor and of all other circumstances which a diligent inquiry
would reveal and which bear upon the
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risk of nonpayment of the Guarantied Obligations. Each Guarantor further
represents and warrants to Guarantied Party that it has read and understands the
terms and conditions of the Loan Agreement and the other Loan Documents. Each
Guarantor hereby covenants that it will continue to keep itself informed of
Debtor's financial condition, the financial condition of other guarantors, if
any, and of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Guarantied Obligations.
11. [Intentionally Omitted.]
12. Payments; Application. All payments to be made hereunder by any
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Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by any Guarantor hereunder shall be applied as follows: first, to all
reasonable out-of-pocket costs and expenses (including reasonable attorneys
fees) actually incurred by Guarantied Party in enforcing this Guaranty or in
collecting the Guarantied Obligations; second, to all accrued and unpaid
interest, premium, if any, and fees owing to Guarantied Party constituting
Guarantied Obligations; and third, to the balance of the Guarantied Obligations.
13. Attorneys Fees and Costs. Guarantors, jointly and severally,
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agree to pay promptly all reasonable attorneys fees and all other reasonable
costs and expenses which may be incurred by Guarantied Party in the enforcement
of this Guaranty or in any way arising out of, or consequential to the
protection, assertion, or enforcement of the Guarantied Obligations (or any
security therefor), irrespective of whether suit is brought.
14. Notices. Unless otherwise specifically provided in this
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Guaranty, any notice or other communication relating to this Guaranty or any
other agreement entered into in connection therewith shall be in writing and
shall be personally delivered or sent by registered or certified mail, postage
prepaid, return receipt requested, or by prepaid telex, TWX, telefacsimile, or
telegram (with messenger delivery specified) to any Guarantor or to Guarantied
Party, as the case may be, at its addresses set forth below:
If to any Guarantor: c/o PRANDIUM, INC.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: SKADDEN, ARPS, SLATE,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Guarantied Party: FOOTHILL CAPITAL CORPORATION
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Business Finance Division Manager
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇, PHLEGER & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Hilson, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
The parties hereto may change the address at which they are to
receive notices hereunder, by notice in writing in the foregoing manner given to
the other. All notices or demands sent in accordance with this Section 14, other
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than notices by Guarantied Party in connection with Sections 9504 or 9505 of the
Code, shall be deemed received on the earlier of the date of actual receipt or
three (3) calendar days after the deposit thereof in the mail. Guarantor
acknowledges and agrees that notices sent by Guarantied Party in connection with
Sections 9504 or 9505 of the Code shall be deemed sent when deposited in the
mail or transmitted by telefacsimile or other similar method set forth above.
15. Cumulative Remedies. No remedy under this Guaranty, under the
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Loan Agreement, or any other Loan Document is intended to be exclusive of any
other remedy, but each and every remedy shall be cumulative and in addition to
any and every other remedy given under this Guaranty, under the Loan Agreement,
or any other Loan Document, and those provided by law. No delay or omission by
Guarantied Party to exercise any right under this Guaranty shall impair any such
right nor be construed to be a waiver thereof. No failure on the part of
Guarantied Party to exercise, and no delay in exercising, any right under this
Guaranty shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Guaranty preclude any other or further exercise
thereof or the exercise of any other right.
16. Severability of Provisions. Any provision of this Guaranty which
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is prohibited or unenforceable under applicable law shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
17. Entire Agreement; Amendments. This Guaranty constitutes the
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entire agreement among Guarantors and Guarantied Party pertaining to the subject
matter contained herein. This Guaranty may not be altered, amended, or modified,
nor may any provision hereof be waived or noncompliance therewith consented to,
except by means of a writing executed by all Guarantors and Guarantied Party.
Any such alteration, amendment, modification, waiver, or consent shall be
effective only to the extent specified therein and for the specific purpose for
which given. No course of dealing and no delay or waiver of any
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right or default under this Guaranty shall be deemed a waiver of any other,
similar or dissimilar, right or default or otherwise prejudice the rights and
remedies hereunder.
18. Successors and Assigns. This Guaranty shall be binding upon each
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Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of Guarantied Party permitted under the Loan Agreement
and the Other Loan Documents; provided, however, no Guarantor shall assign this
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Guaranty or delegate any of its duties hereunder without Guarantied Party's
prior written consent and any unconsented to assignment shall be absolutely
void. In the event of any assignment or other transfer of rights by Guarantied
Party in accordance with the Loan Agreement, the rights and benefits herein
conferred upon Guarantied Party shall automatically extend to and be vested in
such assignee or other transferee.
19. No Third Party Beneficiary. This Guaranty is solely for the
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benefit of Guarantied Party and its successors and permitted assigns and may not
be relied on by any other Person.
20. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
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THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION, INTERPRETATION,
AND ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL
MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND
FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
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OTHER PROPERTY MAY BE BROUGHT, AT GUARANTIED PARTY'S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE GUARANTIED PARTY ELECTS TO BRING SUCH ACTION OR WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GUARANTOR AND GUARANTIED
PARTY WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 20.
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GUARANTORS AND GUARANTIED PARTY HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
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COMMON LAW OR STATUTORY CLAIMS. EACH GUARANTOR AND GUARANTIED PARTY REPRESENTS
THAT IT HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
21. Certain Covenants Applicable to Guarantors.
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(a) No Guarantor shall pay dividends or make distributions with
respect to its Stock, or repurchase or redeem shares of its Stock, except to the
extent permitted in the Loan Agreement.
(b) No Guarantor shall pay management or other fees to any
Affiliate of Apollo (other than customary director's fees paid to directors
generally).
(c) Except as otherwise provided below, (i) if, after the
Closing Date, any Guarantor acquires any real or personal property or assets,
such Guarantor shall grant to Guarantied Party first priority (except for
Permitted Liens) security interests in any or all of such real or personal
property or assets, and (ii) if, after the Closing Date, any Guarantor forms or
acquires any additional Subsidiary, such Guarantor shall (A) grant or cause to
be granted to Guarantied Party a first priority security interest in all Stock
of such Subsidiary (not including the Stock of HGI owned by FRI-MRD) owned by
such Guarantor or any Subsidiary of such Guarantor, (B) cause such Subsidiary,
if it is a Restricted Subsidiary, to guarantee payment and performance of the
Obligations pursuant to a written guaranty similar in form and substance to this
Guaranty (including similar representations, warranties, and covenants, except
for any provisions that are unique to any Guarantor and therefore inapplicable
to such Restricted Subsidiary), and (C) except for HGI, cause such Subsidiary,
if it is a Restricted Subsidiary, to grant to Guarantied Party first priority
(except for Permitted Liens) security interests in any or all of the real or
personal property or assets of such Subsidiary pursuant to a written security
agreement similar in form and substance to the Guarantor Security Agreement
(including similar representations, warranties, and covenants, except for any
provisions that are unique to any Guarantor and therefore inapplicable to such
Restricted Subsidiary).
(d) From and after the Closing Date, up to but not more than
$10,000,000 in the aggregate of assets of Prandium and the Restricted
Subsidiaries may be transferred to, contributed to, or invested in Unrestricted
Subsidiaries.
(e) No Guarantor shall transfer, sell, or otherwise dispose of
any real property or interest in real property that is subject to any mortgage
or deed of trust in favor of Guarantied Party without the prior written consent
of Guarantied Party to any such transfer, sale, or disposition.
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(f) No Guarantor shall cause, suffer, or permit any now existing
or hereafter created or acquired Unrestricted Subsidiary to own, operate or
manage any Chi-Chi's restaurant.
22. Effectiveness. This Guaranty shall be binding and deemed
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effective upon the later of (a) the execution of this Guaranty by Guarantors and
(b) the Closing Date.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date first written above.
PRANDIUM, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Executive V.P. and CFO
FRI-MRD CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
FRI-ADMIN CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
▇▇▇ ▇▇▇ ROO, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
THE HAMLET GROUP, INC.,
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
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Subsidiaries of Debtor CCMR OF TIMONIUM, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CCMR OF MARYLAND, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CHI-CHI'S OF KANSAS, INC.,
a Kansas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CHI-CHI'S OF GREENBELT, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CHI-CHI'S FRANCHISE OPERATIONS CORPORATION
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
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CCMR OF CANTONSVILLE, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CCMR OF GREENBELT, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CCMR OF ▇▇▇▇▇▇▇ HIGHWAY, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CHI-CHI'S MANAGEMENT CORPORATION,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CCMR OF CUMBERLAND, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
S-3
CCMR OF HARFORD COUNTY, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CHI-CHI'S OF SOUTH CAROLINA, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
MAINTENANCE SUPPORT GROUP, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CCMR OF ▇▇▇▇▇▇▇▇▇, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CCMR OF INNER HARBOR, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
S-4
CHI-CHI'S OF WEST VIRGINIA, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CCMR ADVERTISING AGENCY, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CCMR OF GOLDEN RING, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
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