Exhibit 10.4
GUARANTY
(All Debt)
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This Guaranty is executed and delivered at Columbus, Ohio, as
of December 19, 2007. |
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| 1. |
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To induce NATIONAL CITY BANK, a national banking
association (“ Bank ”), having a
banking office at 155 East Broad Street, Columbus, Ohio 43251,
to extend or continue to extend credit to BEF REIT, INC.,
an Ohio corporation (“ Borrower ”),
the undersigned, BOB EVANS FARMS, INC., a Delaware
corporation (“ Guarantor ”),
intending to be legally bound, hereby unconditionally guarantees to
Bank the prompt payment of each and every obligation of Borrower to
Bank when due, whether direct, indirect or contingent, now existing
or hereafter created, arising or acquired, and howsoever evidenced
or secured, including but not limited to, payment of all principal,
interest and other sums due, whether by acceleration or otherwise,
together with all late charges, disbursements, expenses, and
deficiencies (collectively the “ Guaranteed
Debt ”) together with the performance of
Borrower’s obligations under any documents or instruments
executed in connection with or given to secure the Guaranteed Debt.
Guarantor also agrees to pay all expenses, legal and otherwise
(including court costs and reasonable attorney’s fees), paid
or incurred by Bank in endeavoring to collect such Guaranteed Debt,
or any part thereof, and in enforcing this Guaranty. Anything
herein to the contrary notwithstanding, the total liability of
Guarantor to Bank under this Guaranty shall not exceed the
principal sum of Fifty Million and 00/100 Dollars ($50,000,000.00),
plus all interest thereon and late charges applicable thereto
plus all expenses, legal and otherwise (including court
costs and reasonable attorney’s fees), paid or incurred by
Bank in endeavoring to collect such Guaranteed Debt, or any part
thereof, and in enforcing this Guaranty. |
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| 2. |
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This is a continuing Guaranty and shall remain in full force
and effect until revoked by Guarantor in writing and a signed copy
thereof is duly served upon Bank; provided, however, that any such
revocation shall not affect any outstanding obligation or liability
hereunder created or incurred prior to Bank’s receipt of such
notice of revocation or which is subsequently created or incurred
pursuant to a binding commitment to lend in effect prior to
Bank’s receipt of such notice of revocation, or any unpaid
portion thereof which may be renewed or extended. This Guaranty
shall be construed as an absolute and unconditional guaranty of
payment and not a guaranty of collection and Guarantor’s
liability shall be direct, immediate and not conditional or
contingent upon the pursuit by Bank of any remedies it may have or
the requirement to resort first to the Borrower, any other
guarantor of the Guaranteed Debt, any collateral or security or any
other remedy whatsoever. Guarantor shall have no right of
contribution, subrogation, reimbursement or indemnity whatsoever
against or from the Borrower or any other guarantor of the
Guaranteed Debt, nor any right to recourse to security for the
Guaranteed Debt from the Borrower or any other entity or person who
has granted security for the Guaranteed Debt unless and until all
of the Guaranteed Debt has been paid in full. The obligations of
Guarantor hereunder shall not be released, discharged or in any way
affected nor shall Guarantor have any rights against Bank by reason
of: (a) the fact that any collateral or security, securing the
Guaranteed Debt or the obligations of Guarantor hereunder, may be
subject to equitable claims or defenses in favor of others or may
be invalid or defective in any way; (b) the failure to convey,
perfect or create a valid lien in any such collateral or security;
(c) the invalidity or unenforceability for any reason of any
part of the Guaranteed Debt; (d) the change, loss, or
deterioration in value of any collateral or of the financial
condition of the Borrower, whether due to incorrect estimates of
such value or financial condition, failure to protect or insure, or
because of any other reason; (e) the exchange, sale, release
or surrender of any such collateral or security; (f) any
defense based upon suretyship or impairment of collateral; or
(g) any other defense in law or equity to which Guarantor or
Borrower may be entitled. Bank may pursue all or any of its
remedies at one or at different times. Bank’s books and
records showing the account between Bank and the Borrower shall be
admissible in any action or proceeding, shall be binding upon
Guarantor for the purpose of establishing the items therein set
forth, and shall constitute prima facie proof thereof. |
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| 3. |
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Guarantor hereby waives any notice of acceptance of this
Guaranty, or any notice of the incu |
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