Exhibit 99(b)(12)
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 ▇▇▇▇▇▇▇ 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 (the "Sale-Leaseback Agreement"),
dated as of the date hereof, between Lessor and Saxet Corporation, a
Delaware corporation ("Seller"), 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 II, Inc., a Massachusetts corporation
("Lessee") by which Lessor leases the Leased Properties (as defined in
the Sale-Leaseback Agreement) to Lessee;
C. 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;
D. Lease Agreement by and between Saxet Corporation and
▇▇▇▇▇▇'▇ Seafood House-Illinois, Inc. ("▇▇▇▇▇▇'▇") dated January 9,
1997, pursuant to which, by ▇▇▇▇▇▇'s purchase of the property located
at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Schaumburg Property")
under the Sale-Leaseback, Lessor has assumed all the rights and
obligations of Saxet Corporation under such 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 ▇▇▇▇▇▇ and the full and timely performance of
all obligations to be performed by Lessee or ▇▇▇▇▇▇'▇, 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
or ▇▇▇▇▇▇'▇, Seller or any other such guarantor and whether or not Lessee,
▇▇▇▇▇▇'▇, Seller or any other such guarantor be joined in such action or
actions.
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, ▇▇▇▇▇▇'▇, Seller or any other person or entity
(including any other guarantor) or any of the collateral or property of Lessee,
▇▇▇▇▇▇'▇, Seller 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, ▇▇▇▇▇▇'▇, Seller 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
▇▇▇▇▇▇, ▇▇▇▇▇▇'▇, Seller 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 Seller
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 ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ or Seller
under all or any of the Documents;
(g) the release or discharge of Lessee, ▇▇▇▇▇▇'▇ or Seller
from the performance or observance of any obligation, undertaking or
condition to be performed by ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ or Seller under any of
the Documents by operation of law, including any rejection or
disaffirmance of any of the Documents in any bankruptcy or similar
proceedings;
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(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 ▇▇▇▇▇▇
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, Florida, Virginia or Illinois, the states in which the
Properties are located, or any other jurisdiction;
(k) any substitution of a Substitute Property for a Leased
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
promulgated thereunder. Guarantor's Federal Tax Identification Number
is accurately set forth herein next to the signature of Guarantor;
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(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 ("Parent"), 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 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 is relying upon such
financial statements and Guarantor represents that such reliance is reasonable.
The financial statements delivered to Lessor need not be audited, but Guarantor
shall deliver to Lessor 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 Lessee or ▇▇▇▇▇▇'▇,
and Lessor gives 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 or ▇▇▇▇▇▇'▇ to Lessor are
no longer subject to any right on the part of any person whomsoever, including
but not limited to Lessee or ▇▇▇▇▇▇'▇, Lessee or ▇▇▇▇▇▇'▇ 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 or ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ or Seller, and
Guarantor does hereby release Lessee, ▇▇▇▇▇▇'▇ and Seller from any and all
claims by Guarantor now or hereafter arising against ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ or Seller.
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 ▇▇▇▇▇▇,
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▇▇▇▇▇▇'▇ and Seller with respect to the Obligations, (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 Seller, any
indebtedness of Lessee, ▇▇▇▇▇▇'▇ or Seller now or hereafter held by Guarantor is
hereby subordinated to the indebtedness of Lessee, ▇▇▇▇▇▇'▇ or Seller to Lessor.
Any such indebtedness of Lessee, ▇▇▇▇▇▇'▇ or Seller 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, ▇▇▇▇▇▇'▇, Seller 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ or Seller.
12. In addition to the amounts guaranteed under this Guaranty,
▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ or Seller 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 Seller under the Documents
may be applied by Lessor to the payment or reduction of such liabilities of
Lessee or ▇▇▇▇▇▇'▇, 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
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delivered, (b) transmission, if delivered by facsimile, (c) the next Business
Day, if delivered by 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
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lessor: ▇▇▇▇▇▇▇ Family, LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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.
17. This Guaranty is delivered in the States of Massachusetts, Florida,
Virginia 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, Florida, Virginia or Illinois,
depending on the situs of the property, without regard to its principles of
conflicts of law. For purposes of any action or proceeding involving this
Guaranty, Guarantor submits to the jurisdiction of all federal and state courts
located in the States of Massachusetts, Florida, Virginia 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, Florida,
Virginia 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.
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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 Leased Properties and that Lessor and ▇▇▇▇▇▇
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 Leased Properties, and that neither the
Lease nor the duties, obligations or rights of Lessee may be allocated
or otherwise divided among the Leased Properties by Lessee;
(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 ▇▇▇▇▇▇ did not prepare or assist in the
preparation of any of the projected financial figures used by ▇▇▇▇▇▇ in
analyzing the economic viability and feasibility of the transactions
contemplated by the Lease.
20. All of ▇▇▇▇▇▇'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 or ▇▇▇▇▇▇'▇.
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.
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. ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ OR GUARANTOR AGAINST THE OTHER OR THEIR
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
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GUARANTY, THE RELATIONSHIP OF LESSOR, LESSEE, ▇▇▇▇▇▇'▇ AND/OR GUARANTOR,
▇▇▇▇▇▇'S USE OR OCCUPANCY OF THE PROPERTIES, ▇▇▇▇▇▇'▇ USE OR OCCUPANCY OF THE
SCHAUMBURG PROPERTY AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR
STATUTORY REMEDY. THIS WAIVER BY ▇▇▇▇▇▇ 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.
▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ to enter
into the Lease and is solely for the benefit of Lessor and its successors and
assigns, and is not intended to nor shall it be deemed to be for the benefit of
any other third party, including, without limitation, Lessee or ▇▇▇▇▇▇'▇. 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
▇▇▇▇▇▇, Guarantor shall not assign this Guaranty or any of the rights or
obligations of Guarantor hereunder.
Guarantor hereby consents to, and no further consent by Guarantor shall
be required for, any assignment of rights of Lessor hereunder.
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IN WITNESS WHEREOF, the undersigned ▇▇▇▇▇▇▇▇▇ has executed this
Guaranty effective as of the 31st day of July 2001.
GUARANTOR:
Federal Tax I.D. Number: UNO RESTAURANT CORPORATION,
a Delaware corporation
▇▇-▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Its: President and Chief Executive Officer
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COMMONWEALTH OF MASSACHUSETTS ]
] SS.
COUNTY OF SUFFOLK ]
The foregoing instrument was acknowledged before me on July 31, 2001 by
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and Chief Executive Officer of Uno Restaurant
Corporation, a Delaware corporation, on behalf of the corporation.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Notary Public
My Commission Expires:
01/24/03
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