EXHIBIT 10.2
GUARANTY
This Guaranty ("Guaranty") is entered into as of September
27, 1996 by CKE RESTAURANTS, INC., a Delaware corporation
("Guarantor"), with its principal office at 1200 North Harbor
Boulevard, Anaheim, California 92801, in favor of GIANT GROUP,
LTD., a Delaware corporation (the "Company"), with its principal
office at 150 El Camino Drive, Suite 303, Beverly Hills,
California 90212.
R E C I T A L S :
A. The Company proposes to make a loan (the "Loan") to CBI
Restaurants, Inc., a Delaware corporation in formation of which
the Guarantor will be a principal stockholder (the "Debtor"), in
the principal amount of Five Million Dollars ($5,000,000), which
shall be evidenced by a promissory note of the Debtor, dated as
of even date herewith, payable to the Company (the "Note").
B. As an inducement for the Company to make the Loan to
the Debtor, Guarantor has agreed to enter into this Guaranty in
order to guaranty the Loan.
ACCORDINGLY, in consideration of the mutual covenants
contained herein, the parties agree as follows:
1. GUARANTY. Guarantor unconditionally guarantees any and
all indebtedness and obligations (hereinafter collectively, the
"Guaranteed Obligations") of Debtor to the Company under the
Note. Guarantor agrees that this Guaranty constitutes a guaranty
of payment when due and not of collection. This Guaranty shall
terminate on the date on which the Guaranteed Obligations are
satisfied in full. Upon satisfaction of the Guaranteed Obliga-
tions, the Company shall give Guarantor written notice of such
fact. Guarantor's obligations hereunder are independent of the
Guaranteed Obligations and a separate action or actions may be
brought and prosecuted against Guarantor, whether an action is
brought against Debtor or whether Debtor is joined in any such
action or actions.
2. CONSENTS BY GUARANTOR. Guarantor hereby authorizes the
Company, without notice or demand and without affecting
Guarantor's liability hereunder, from time to time to: (a) renew,
compromise, extend, refinance, accelerate or restructure the
Guaranteed Obligations or otherwise change the time for payment
or the terms of any of the Guaranteed Obligations or otherwise
change the time for payment or the terms of any of the Guaranteed
Obligations, or any part thereof, including, without limitation,
increasing or decreasing the rate of interest thereof; (b) waive,
amend, rescind or modify any of the terms or provisions of the
Note or any agreement or document executed in connection there-
with; (c) settle, release, compromise, collect or otherwise
liquidate the Guaranteed Obligations, or any part thereof, and
any security of collateral therefor in any manner as the Company
may determine in its sole discretion; (d) take and hold colla-
teral to secure the payment of the Guaranteed Obligations and
exchange, enforce, waive and release any such collateral, and
apply such collateral and direct the order or manner of sale
thereof as the Company in its sole discretion may determine; and
(e) release or substitute any one or more endorser(s) or other
guarantor(s). Guarantor agrees that the Company may do any or
all of the foregoing in such manner, upon such terms, and at such
times as the Company, in its sole discretion, deems advisable,
without, in any way or respect, impairing, affecting, reducing or
releasing Guarantor from its obligations hereunder. Guarantor
hereby consents to each and all of the foregoing acts, events and
occurrences.
3. WAIVERS.
3.1 DEFENSES. Guarantor hereby waives any right to
assert against the Company as a defense, counterclaim, setoff or
crossclaim, any defense (legal or equitable), counterclaim,
setoff or crossclaim which Guarantor may now or at any time
hereafter have under applicable law, rule, arrangement or
relationship against Debtor, the Company or any other party,
including, without limitation, (i) all rights and defenses set
forth in Section 431.70 of the California Code of Civil
Procedure, (ii) the benefit of any statute of limitations
affecting the liability of Guarantor hereunder or the enforcement
hereof, (iii) any defense based upon any legal disability or
other defense of Debtor, any other guarantor or other person, or
by reason of the cessation or limitation of the liability of
Debtor from any cause other than full payment of all sums payable
under the Note, (iv) any defense based upon the application by
Debtor of the proceeds of the Loan, (v) any defense based upon
Debtor's failure to disclose to Guarantor any information
concerning Debtor's financial condition or any other circum-
stances bearing on Debtor's ability to pay all sums payable under
the Note, (vi) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in any other respects more burdensome than
that of a principal, (vii) any defense based upon Debtor's
election, in any proceeding instituted under the Federal Bank-
ruptcy Code, of the application of Section 1111(b)(2) of such
Code or any successor statute, (viii) any defense based upon any
borrowing or any grant of a security interest under Section 364
of the Federal Bankruptcy Code, and (ix) all defenses, counter-
claims and setoffs of any kind or nature arising, directly or
indirectly, from the present or future lack of perfection,
sufficiency, validity or enforceability or any security interest.
3.2 ELECTION OF REMEDIES. Guarantor hereby waives all
rights and defenses arising by reason of any claim or defense
based upon an election of remedies by the Company, even though
such election of remedies, including but not limited to, a non-
judicial foreclosure, in any manner impairs, affects, reduces,
releases, destroys or extinguishes Guarantor's subrogation
rights, rights to proceed against Debtor for reimbursement, or
any other rights of Guarantor to proceed against any other person
or security, including, but not limited to, any defense based
upon an election of remedies by the Company under the provisions
of Section 580d of the California Code of Civil Procedure, or any
similar law of California or of any other state, or of the United
States.
3.3 PRESENTMENT, DEMAND AND NOTICE. Guarantor waives
all presentments, demands for performance, notices of nonperform-
ance, protests, notices of protests, notices of dishonor, notices
of default, notice of acceptance of this Guaranty, diligence, and
notices of the existence, creation of incurrence of the Guaran-
teed Obligations or of new or additional Guaranteed Obligations
incurred or created after the date of this Guaranty, and all
other notices or formalities to which Guarantor may be entitled
under applicable law.
3.4 REMEDIES AGAINST DEBTOR. As a condition to
payment or performance by Guarantor under this Guaranty, the
Company shall not be required to, and Guarantor hereby waives any
and all rights to require the Company to, prosecute or seek to
enforce any remedies against Debtor or any other party liable to
the Company on account of the Guaranteed Obligations.
3.5 ADDITIONAL WAIVERS. Without limiting the
generality of the foregoing waivers or any other provision
hereof, Guarantor expressly waives any and all benefits which
might otherwise be available to Guarantor under California Civil
Code Sections 2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and
3433.
4. SUBORDINATION. The Guarantor's obligations to the
Company under this Guaranty are, to the extent and in the manner
provided in Section 6 of that certain Stock Purchase and Loan
Agreement, dated as of September 27, 1996, by and among the
Debtor, the Guarantor and Fidelity National Financial, Inc. (the
"Agreement"), subordinate and junior upon the occurrence of an
event of default on the Senior Indebtedness (as such term is
defined in the Agreement). The terms and provisions of Section 6
of the Agreement, together with the definitions of the terms used
therein, are incorporated by reference herein. Other than the
subordination provisions of the Agreement (which would restrict
the Guarantor's ability to perform its obligations hereunder upon
the occurrence of an event of default on the Senior Indebted-
ness), there are no restrictions on the Guarantor's ability to
satisfy the Guaranteed Obligations in accordance with the terms
of this Guaranty. In addition to all other rights of holders of
Senior Indebtedness described in the Agreement, the Senior
Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of the subordination provisions of the
Agreement irrespective of any amendment, modification or waiver
of any terms of any instrument relating to the Senior Indebted-
ness or any extension or renewal of the Senior Indebtedness.
5. FINANCIAL CONDITION OF DEBTOR. Guarantor hereby waives
its right, if any, to require, and the Company is relieved of any
obligation or duty to disclose to Guarantor, any information
which the Company may now or hereafter acquire concerning the
Debtor's financial condition or the risk of nonpayment of the
Loan.
6. MISCELLANEOUS.
6.1 HEADINGS. The Section and other headings
contained in this Guaranty are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Guaranty.
6.2 GOVERNING LAW. The validity, construction and
performance of this Guaranty shall be governed by the laws,
without regard to the laws as to choice or conflict of laws, of
the State of California.
6.3 ENTIRE AGREEMENT. This Guaranty embodies the
entire agreement and understanding between the parties pertaining
to the subject matter of this Guaranty, and supersedes all prior
agreements, understandings, negotiations, representations and
discussions, whether verbal or written, of the parties, pertain-
ing to that subject matter.
6.4 BINDING EFFECT. The provisions of this Guaranty
shall bind and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
6.5 PARTIES IN INTEREST. Nothing in this Guaranty,
expressed or implied, is intended to confer on any person or
entity other than the parties any right or remedy under or by
reason of this Guaranty (other than the provisions of Section 4,
which shall inure to the benefit of the holders of Senior
Indebtedness).
6.6 NOTICES. Any notice or communication required or
permitted by this Guaranty shall be deemed sufficiently given it
in writing and, if delivered personally, when it is delivered or
if deposited with the U.S. Postal Service, postage prepaid, and
addressed to the party to receive it at the address set forth in
the first paragraph of this Guaranty, 48 hours after such deposit
as registered or certified mail.
6.7 AMENDMENT AND WAIVER. This Guaranty may be
amended, modified or supplemented only by a writing executed by
each of the parties. Any party may in writing waive any
provision of this Guaranty to the extent such provision is for
the benefit of the waiving party. No action taken pursuant to
this Guaranty, including any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by that party of
its or any other party's compliance with any representations or
warranties or with any provisions of this Guaranty. No waiver by
any party of a breach of any provision of this Guaranty shall be
construed as a waiver of any subsequent or different breach, and
no forbearance by a party to seek a remedy for noncompliance or
breach by another party shall be construed as a waiver of any
right or remedy with respect to such noncompliance or breach.
6.8 SEVERABILITY. The invalidity or unenforceability
of any particular provision of this Guaranty shall not affect the
other provisions, and this Guaranty shall be construed in all
respects as if any invalid or unenforceable provision were
omitted.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty
to be duly executed as of the date and year first above written.
CKE RESTAURANTS, INC.,
a Delaware corporation
By: /s/ Joseph N. Stein
--------------------------
Joseph N. Stein,
Senior Vice President and
Chief Financial Officer