GRANTOR, SHALL EXECUTE AND DELIVER TO SUCH GRANTOR ALL RELEASES OR OTHER
DOCUMENTS REASONABLY NECESSARY OR DESIRABLE FOR THE RELEASE OF THE LIENS CREATED
HEREBY ON SUCH COLLATERAL.
AT THE REQUEST AND SOLE EXPENSE OF THE BORROWER, A
SUBSIDIARY GUARANTOR SHALL BE RELEASED FROM ITS OBLIGATIONS HEREUNDER IN THE
EVENT THAT ALL THE CAPITAL STOCK OF SUCH SUBSIDIARY GUARANTOR SHALL BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN A TRANSACTION PERMITTED BY THE SECOND
LIEN CREDIT AGREEMENT; PROVIDED THAT THE BORROWER SHALL HAVE DELIVERED TO THE
ADMINISTRATIVE AGENT AND THE ADMINISTRATIVE AGENT, AT LEAST FIVE BUSINESS DAYS
PRIOR TO THE DATE OF THE PROPOSED RELEASE, A WRITTEN REQUEST FOR RELEASE
IDENTIFYING THE RELEVANT SUBSIDIARY GUARANTOR AND THE TERMS OF THE SALE OR OTHER
DISPOSITION IN REASONABLE DETAIL, INCLUDING THE PRICE THEREOF AND ANY EXPENSES
IN CONNECTION THEREWITH, TOGETHER WITH A CERTIFICATION BY THE BORROWER STATING
THAT SUCH TRANSACTION IS IN COMPLIANCE WITH THE SECOND LIEN CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
8.16.
WAIVER OF JURY TRIAL.
EACH GRANTOR AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, THE ADMINISTRATIVE AGENT AND EACH SECURED PARTY, HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
8.17.
Intercreditor Agreement.
Notwithstanding anything to the contrary
contained herein, the terms of this Agreement shall be subject to the terms of
the Intercreditor Agreement and in the event of any inconsistency between any
provision herein and therein, the terms of the Intercreditor Agreement shall
govern.
8.18.
Second Lien Qualified Counterparties.
By accepting the applicable
benefits of the Loan Documents, each Second Lien Qualified Counterparty shall be
deemed to have agreed to, and be bound by, all of the applicable provisions
thereof.
24
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
above written.
NEW WORLD RESTAURANT GROUP, INC.
By:
/s/ Paul J.B. Murphy, III
Paul J.B. Murphy, III
President and Chief Executive Officer
25
MANHATTAN BAGEL COMPANY, INC.
By:
/s/ Paul J.B. Murphy, III
Paul J.B. Murphy, III
President and Chief Executive Officer
CHESAPEAKE BAGEL FRANCHISE CORP.
By:
/s/ Paul J.B. Murphy, III
Paul J.B. Murphy, III
President and Chief Executive Officer
EINSTEIN AND NOAH CORP.
By:
/s/ Paul J.B. Murphy, III
Paul J.B. Murphy, III
President and Chief Executive Officer
EINSTEIN/NOAH BAGEL PARTNERS, INC.
By:
/s/ Paul J.B. Murphy, III
Paul J.B. Murphy, III
President and Chief Executive Officer
I. & J. BAGEL, INC.
By:
/s/ Paul J.B. Murphy, III
Paul J.B. Murphy, III
President and Chief Executive Officer
26
Annex I
to
Second Lien Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of
, 200
, made
by
, a
corporation (the "Additional Grantor"), in favor of
Bear Stearns Corporate Lending Inc., as administrative agent (in such capacity,
the "Administrative Agent") for the Secured Parties.
All capitalized terms not
defined herein shall have the meaning ascribed to