EXHIBIT 10.8
[U.S. BANK LOGO] GUARANTY
Guarantor BUFFETS, INC. Bank U.S. BANK NATIONAL ASSOCIATION
Address 1460 BUFFET WAY Address 601 SECOND AVENUE SOUTH
EAGAN, MN 55121
Guarantor MINNEAPOLIS, MN 55402
Address Borrower RICHARD M. ANDREWS, JR.
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of:
[ ] Financial accommodations of any kind, with or without security, given or
to be given or continued at any time and from time to time by the Bank or for
the account of the Borrower.
[X] (Other) PROMISSORY NOTE DATED SEPTEMBER 28, 2000 EXECUTED AND DELIVERED BY
BORROWER TO BANK IN THE ORIGINAL SUM OF $353,081.00.
The undersigned absolutely and unconditionally guarantees to the Bank:
[ ] The payment and performance of each and every debt, liability and
obligation of every type and description which the Borrower may now or at
any time owe to the Bank, including interest thereon, whether now existing
or hereafter arising, direct or indirect, due or to become due, absolute or
contingent, primary or secondary, liquidated or unliquidated, independent,
joint, several or joint and several (including without limitation,
obligations arising after filing of a bankruptcy petition, and obligations
of the Borrower arising from the creation of banker's acceptances by the
Bank, the issuance of letters of credit by the Bank for the account of the
Borrower, and the use by the Borrower of cash management services provided
by the Bank); or
[X] The payment of a promissory note dated SEPTEMBER 28, 2000, executed and
delivered by the Borrower to the Bank in the original principal sum of
$353,081.00 with interest and other charges as therein provided, and all
extensions, renewals and replacements thereof.
[ ] The payment of a ______________________ dated ____________________,
executed and delivered by the Borrower to the Bank in the original
principal sum of $____________________ with interest and other charges as
therein provided, and all extensions, renewals and replacements thereof.
All of the above-described guaranteed obligations are hereinafter
collectively referred to as the "Indebtedness." The undersigned agrees to pay on
demand all costs, expenses and attorneys' fees paid or incurred by the Bank in
connection with the Indebtedness, any security therefor and this guaranty, plus
interest on such amounts at the highest rate then applicable to any of the
Indebtedness, not to exceed the highest rate permitted by law.
The undersigned agrees that, in the event of the death, incompetence,
dissolution or insolvency of the Borrower or the undersigned, or the inability
of the Borrower or the undersigned to pay debts as they mature, or an assignment
by the Borrower or the undersigned for the benefit of creditors, or the
institution of any proceeding by or against the Borrower or the undersigned
alleging that the Borrower or the undersigned is insolvent or unable to pay
debts as they mature, and if such event shall occur at a time when any of the
Indebtedness may not then be due and payable the undersigned will pay to the
Bank forthwith the full amount which would be payable hereunder by such
undersigned if all of the Indebtedness were then due and payable.
Notwithstanding the aggregate amount of Indebtedness which may be payable
at any time or from time to time, the liability of the undersigned hereunder
shall not exceed the principal sum of $ 353,081.00 (if no amount stated, the
undersigned shall be liable for all Indebtedness, without any limitation as to
amount) plus accrued interest thereon and the costs, expenses and attorneys'
fees described herein. Such liability shall not be released, impaired or
affected if at any time the Indebtedness exceeds that amount, and the Bank may
apply first in payment of such excess all sums received from the Borrower, from
security for the Indebtedness, or from any other source without releasing,
impairing or affecting such liability. If the liability of the undersigned is
limited hereunder, any payment made by the undersigned under this guaranty shall
be effective to reduce or discharge such liability only if accompanied by a
written statement, received by the Bank, advising the Bank that such payment is
made under this guaranty for such purpose.
The Bank may at any time and from time to time, without the consent of or
notice to the undersigned, without incurring responsibility to the undersigned,
and without releasing, impairing or affecting the liability of the undersigned
hereunder, upon or without any terms or conditions, and in whole or in part: (1)
sell, pledge, surrender, compromise, settle, release, renew, subordinate,
extend, substitute, exchange, change, or otherwise dispose or deal with in any
manner and in any order any Indebtedness, any evidence thereof, or any security
therefor; (2) accept any security for or other guarantors of any Indebtedness;
(3) fail, neglect or omit to obtain, realize upon or protect any Indebtedness or
any security therefor, to exercise any lien upon or right to any money, credit
or property, or to exercise any other right against the Borrower, the
undersigned or any other person; and (4) apply any payments and credits to the
Indebtedness in any manner and in any order. No act or thing, except full
payment of the Indebtedness, which but for this provision could act as a release
or impairment of the liability of the undersigned hereunder, shall in any way
release, impair or affect the liability of the undersigned hereunder. The
undersigned waives any and all defenses of the Borrower pertaining to the
Indebtedness, any evidence thereof, and any security therefor, except the
defense of discharge by payment. The failure of any person or persons to sign
this or any other guaranty shall not release, impair or affect the liability of
the undersigned hereunder. This guaranty is a primary obligation of the
undersigned and the Bank shall not be required to first resort for payment of
the Indebtedness to the Borrower or any other person or their properties, or any
security or other rights or remedies whatsoever. The undersigned shall be and
remain liable for any deficiency remaining after foreclosure of any mortgage or
security interest securing the Indebtedness, whether or not the liability of the
Borrower or any other person for such deficiency is discharged pursuant to
statute, judicial decision or otherwise.
The liability of the undersigned under this guaranty is in addition to and shall
be cumulative with all other liabilities of the undersigned to the Bank, as
guarantor or otherwise, without any limitation as to amount, unless the writing
evidencing or creating such other liability specifically provides to the
contrary. If any payment applied by the Bank to the Indebtedness is thereafter
set aside, recovered, rescinded or required to be returned for any reason
(including without limitation the bankruptcy, insolvency or reorganization of
the Borrower or any other person), the indebtedness to which such payment was
applied shall for the purposes of this guaranty be deemed to have continued in
existence, notwithstanding such application, and this guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
The undersigned waives: (1) notice of acceptance of this guaranty and of the
creation and existence of the Indebtedness; (2) presentment, demand for payment,
notice of dishonor, notice of nonpayment, and protest of any instrument
evidencing the Indebtedness; and (3) all other demands and notices to the
undersigned or any other person and all other actions to establish the liability
of the undersigned hereunder.
As to the undersigned, this guaranty shall continue until written notice of
revocation signed by the undersigned shall be received by the Bank, and until
all Indebtedness then existing and all other costs, expenses and attorneys' fees
arising from such Indebtedness shall be fully paid and retired. No revocation or
termination hereof by the undersigned shall release, impair or affect in any
manner any liability hereunder with respect to (1) Indebtedness created,
contracted, assumed or incurred prior to receipt by the Bank from or on behalf
of such undersigned of written notice of revocation or the death of such
undersigned, or (2) Indebtedness created, contracted, assumed or incurred after
receipt of such notice pursuant to any contract entered into by the Bank prior
to receipt of such notice, or any renewals or extension thereof, theretofore or
thereafter made, or (3) all other costs, expenses and attorneys' fees arising
from such Indebtedness.
The undersigned agrees to furnish Bank, upon demand, so long as any part of
the Indebtedness may be outstanding, a financial statement setting forth in
reasonable detail, the assets, liabilities and net worth of the undersigned,
and, upon failure to furnish such a financial statement upon demand, the Bank
may, at its option, demand payment in full of all Indebtedness, whether or not
then due, and the undersigned shall immediately pay all such Indebtedness to the
Bank.
The undersigned agrees, if the Borrower is not an individual, that all
payments made by such undersigned hereunder shall be deemed to be equity
contributions by such undersigned to the Borrower. The undersigned waives all
rights of contribution, reimbursement, recourse and subrogation available to
such undersigned against any person liable for payment of the Indebtedness or as
to any collateral security therefore. No delay or failure by the Bank in
exercising any right or remedy, and no partial or single exercise thereof shall
constitute a waiver thereof or shall preclude other or further exercise of any
such or other right or remedy. No waiver of any rights hereunder, and no
modification or amendment of this guaranty shall be effective unless the same is
in writing duly executed by the Bank, and each such waiver, if any, shall apply
only with respect to the specific instance involved and shall not impair or
affect the rights of the Bank or the provisions of this guaranty in any other
respect at any other time.
The undersigned acknowledges that such undersigned has independently
evaluated the credit of the Borrower and that such undersigned is not in any way
relying on any representations made by the Bank as to the Borrower, the
Indebtedness or any collateral security therefor or other guarantors or
endorsers, co-signers or sureties thereof, or any related matters. The
undersigned acknowledges that this guaranty is given for adequate value and
consideration and that such undersigned has received a direct economic or other
benefit from the financial accommodations of the Bank to the Borrower giving
rise to the Indebtedness.
The undersigned's liability under this guaranty is not conditioned upon the
signing of this or any other guaranty by any other person. This guaranty takes
the place of any conversations or oral agreements.
If this guaranty is executed by more than one signer, all agreements herein
shall be joint and several in each and every particular, and shall be fully
binding upon and enforceable against either, any and all of such signers, and
neither the release of, nor the revocation or termination of this guaranty with
respect to one or more signers shall affect or release the liability of any
other signer hereunder as to Indebtedness then existing or thereafter created,
contracted, assumed or incurred and all other costs, expenses and attorneys'
fees arising from such Indebtedness. Any invalidity or unenforceability of any
provision or application of this guaranty shall not affect other lawful
provisions and applications hereof and to this end the provisions of this
guaranty are declared to be severable. This guaranty shall be binding upon the
undersigned and upon the heirs, representatives, successors and assigns of the
undersigned, and of each of them respectively, and shall inure to the benefit of
the Bank, its successors and assigns. This guaranty shall be governed by and
construed in accordance with the laws of the State in which the Bank is located,
giving effect to any federal laws applicable to the Bank. The undersigned
consents to the personal jurisdiction of the state and federal courts located in
the state in which the Bank is located in connection with any controversy
related to this guaranty or the Indebtedness, waives any argument that venue in
such forum is not convenient, and agrees that any litigation instigated by such
undersigned against the Bank in connection with this guaranty or the
Indebtedness shall be venued in either the state courts of general jurisdiction
or the federal district courts in the city, county or state where the Bank is
located.
The undersigned waives its, his or her right to a trial by jury in connection
with any action relating to this guaranty or the Indebtedness.
Dated this 28TH of SEPTEMBER, 2000.
GUARANTOR(S)
BUFFETS, INC.
T.I.N. or Soc. Sec. No. -- By: /s/ H. Thomas Mitchell It's: EVP
T.I.N. or Soc. Sec. No. -- By: /s/ Clark C. Grant It's: SVP
T.I.N. or Soc. Sec. No. By: It's:
T.I.N. or Soc. Sec. No. By: It's:
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