Exhibit 10.3
GUARANTY
This GUARANTY is made as of the 25th
day of September 2006 by Bertucci’s Corporation, a Delaware
corporation (the “ Guarantor ”), in favor and
for the benefit of BUCA, Inc., a Minnesota corporation (the “
Creditor ”).
WHEREAS, the Creditor, BUCA
Restaurants 3, Inc. (the “ Company ”), Vinny
T’s Acquisition Corporation (the “ Debtor
”) and the Guarantor entered into that certain Stock Purchase
Agreement dated as of September 25, 2006 (the “ Stock
Purchase Agreement ”) whereby the Debtor will acquire all
of the issued and outstanding capital stock of the Company from the
Creditor (the “ Transaction ”);
WHEREAS, pursuant to the terms of
the Stock Purchase Agreement on the Closing Date (as defined in the
Stock Purchase Agreement), the Debtor will issue to the Creditor a
Promissory Note in the original principal amount of $3,800,000.00
(the “ Promissory Note ”);
WHEREAS, as a condition to the
consummation of the Transaction, the Creditor has required that the
Guarantor execute and deliver this Guaranty to the Creditor;
and
WHEREAS, the Guarantor desires to
see the Transaction consummated and is willing to execute and
deliver this Guaranty to the Creditor.
NOW THEREFORE, in consideration of
the consummation of the Transaction and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Guarantor unconditionally guarantees full and
prompt payment and due performance of all Obligations (as hereafter
defined) of the Debtor to the Creditor, its successors and assigns,
as herein provided.
Section 1. Obligations
Guaranteed.
This Guaranty is a guaranty of the
prompt payment and performance of all indebtedness, liabilities and
obligations of the Debtor to the Creditor, whether absolute or
contingent, due or to become due, now existing or hereafter
arising, under the Promissory Note, the Stock Purchase Agreement
and any other document, instrument or agreement now or hereafter
entered into supplementary thereto (the “ Obligations
”).
Section 2. Nature of
Liability.
The liability of the Guarantor
hereunder is direct, unconditional and continuing until terminated
in accordance with Section 10 hereof. It is a guaranty of
payment and performance and not of collection only, and may be
enforced without requiring the Creditor to resort to any other
person or entity (including, without limitation, the Debtor),
right, remedy or collateral. If for any reason any Obligation shall
not be paid or discharged promptly when due, the Guarantor will
forthwith pay or discharge such Obligation without regard to any
counterclaim, set-off,
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Bertucci’s Corporation
Guaranty
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Page 1
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Execution Copy
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deduction or defense of any kind which the
Debtor or the Guarantor may have or assert, and without abatement,
suspension, deferment or reduction on account of any occurrence
whatsoever, provided however , that, notwithstanding any
other provision of this Guaranty, this third sentence of
Section 2 shall not apply if the Debtor or the Guarantor has a
counterclaim, set-off, deduction or defense in connection with any
breach of a representation, warranty, covenant or agreement of the
Creditor under the Stock Purchase Agreement or any Ancillary
Agreement (as defined in the Stock Purchase Agreement).
Section 3.
Expenses.
If the Creditor incurs any costs,
expenses and/or attorneys’ fees to collect under or enforce
this Guaranty and the Creditor is successful in collecting under or
enforcing this Guaranty, the Guarantor hereby agrees to pay to
Creditor, in addition to the Obligations, all reasonable costs,
expenses and attorneys’ fees at any time paid or incurred by
the Creditor in endeavoring to collect under or enforce this
Guaranty, the Obligations or the underlying documents evidencing
the Obligations.
Section 4. Limitation of
Liability.
Notwithstanding anything in this
Guaranty, the Stock Purchase Agreement or the Promissory Note to
the contrary, the maximum liability of the Guarantor hereunder
shall be the Purchase Price (as defined in the Stock Purchase
Agreement), plus any reasonable costs, expenses and/or
attorneys’ fees owed under Section 3 of this
Guaranty.
Section 5. Event of
Default.
If there shall occur an Event of
Default (as defined in the Promissory Note), then all payment
Obligations under the Promissory Note shall, at the option of the
Creditor, immediately become due and payable as though such
Obligations had matured by their terms.
Section 6.
Consent.
The Guarantor agrees to the
provisions of any instrument or other writing evidencing or
securing the Obligations. The Guarantor hereby expressly consents
to the making, from time to time, and without any notice to the
Guarantor, of such extensions, renewals, modifications,
indulgences, postponements, settlements and compromises as the
Creditor and the Debtor may deem proper with respect to any of the
Obligations covered by this Guaranty, including the substitution,
exchange, taking or releasing of any or all security or collateral
and surrendering of documents and releasing of any party liable
directly, indirectly or as guarantor, all without regard to the
consideration therefor, and all without notice to the Guarantor.
The enforcement of this Guaranty shall not be affected by the
neglect or failure of the Creditor to take any action with respect
to any security, right, obligation, endorsement or guaranty which
it may at any time hold.
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Bertucci’s Corporation
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Section 7. Waiver of
Defenses.
(a) The Guarantor waives the
following: notice of incurring of indebtedness and obligations by
the Debtor; acceptance of this Guaranty by the Creditor;
presentment and demand for payment; protest, notice of protest and
not