Exhibit 10.46
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty") is made as of the 12th day of June, 2003 by
Guarantor (as hereinafter defined) for the benefit of Lender (as hereinafter
defined).
1.
DEFINITIONS.
AS USED IN THIS GUARANTY,
THE FOLLOWING TERMS SHALL HAVE THE MEANINGS INDICATED BELOW:
(A)
THE TERM "LENDER" SHALL MEAN COMMERCE
NATIONAL BANK, A BRANCH OF LUBBOCK NATIONAL BANK, A NATIONAL BANKING
ASSOCIATION, WHOSE ADDRESS FOR NOTICE PURPOSES IS THE FOLLOWING:
5300 Bee Cave Road
Austin, TX
78746
Attn:
Mr. Brannin Prideaux
(B)
THE TERM "BORROWER" SHALL MEAN THE
FOLLOWING:
SCHLOTZSKY'S NAMF FUNDING, LLC, a Delaware limited liability company
(C)
THE TERM "GUARANTOR" SHALL MEAN
SCHLOTZSKY'S, INC., A TEXAS CORPORATION, WHOSE ADDRESS FOR NOTICE PURPOSES IS
THE FOLLOWING:
203 Colorado Street
Austin, Texas 78701
Attn:
Legal Department
(D)
THE TERM "GUARANTEED INDEBTEDNESS" SHALL
MEAN (I) ALL INDEBTEDNESS, OBLIGATIONS AND LIABILITIES OF BORROWER TO LENDER OF
ANY KIND OR CHARACTER, NOW EXISTING OR HEREAFTER ARISING, WHETHER DIRECT,
INDIRECT, RELATED, UNRELATED, FIXED, CONTINGENT, LIQUIDATED, UNLIQUIDATED,
JOINT, SEVERAL OR JOINT AND SEVERAL, AND REGARDLESS OF WHETHER SUCH
INDEBTEDNESS, OBLIGATIONS AND LIABILITIES MAY, PRIOR TO THEIR ACQUISITIONS BY
LENDER, BE OR HAVE BEEN PAYABLE TO OR IN FAVOR OF A THIRD PARTY AND SUBSEQUENTLY
ACQUIRED BY LENDER (IT BEING CONTEMPLATED THAT LENDER MAY MAKE SUCH ACQUISITIONS
FROM THIRD PARTIES), INCLUDING WITHOUT LIMITATION ALL PRINCIPAL INDEBTEDNESS
OWING BY BORROWER TO LENDER NOW EXISTING OR HEREAFTER ARISING UNDER OR EVIDENCED
BY THAT ONE CERTAIN PROMISSORY NOTE (THE "NOTE") DATED JUNE 12, 2003 IN THE
ORIGINAL PRINCIPAL AMOUNT OF $4,300,000.00, EXECUTED BY BORROWER AND PAYABLE TO
THE ORDER OF LENDER, ALL INDEBTEDNESS, OBLIGATIONS AND LIABILITIES OF BORROWER
TO LENDER NOW EXISTING OR HEREAFTER ARISING BY NOTE, DRAFT, ACCEPTANCE,
GUARANTY, ENDORSEMENT, LETTER OF CREDIT, ASSIGNMENT, PURCHASE, OVERDRAFT,
DISCOUNT, INDEMNITY AGREEMENT OR OTHERWISE, (II) ALL ACCRUED BUT UNPAID INTEREST
OF ANY OF THE INDEBTEDNESS DESCRIBED IN (I) ABOVE, (III) ALL OBLIGATIONS OF
BORROWER TO LENDER UNDER ANY DOCUMENTS EVIDENCING, SECURING, GOVERNING AND/OR
PERTAINING TO ALL OR ANY PART OF THE INDEBTEDNESS AND OBLIGATIONS DESCRIBED IN
(I), (II) AND (III) ABOVE OR THE PROTECTION OR PRESERVATION OF, OR REALIZATION
UPON, THE COLLATERAL SECURING ALL OR ANY PART OF SUCH INDEBTEDNESS AND
OBLIGATIONS, INCLUDING WITHOUT LIMITATION ALL REASONABLE ATTORNEYS' FEES, AND
(V) ALL RENEWALS, EXTENSIONS, MODIFICATIONS AND REARRANGEMENTS OF THE
INDEBTEDNESS AND OBLIGATIONS DESCRIBED IN (I), (II), AND (III) AND (IV) ABOVE.
1
2.
OBLIGATIONS.
AS AN INDUCEMENT TO
LENDER TO EXTEND OR CONTINUE TO EXTEND CREDIT AND OTHER FINANCIAL ACCOMMODATIONS
TO BORROWER, GUARANTOR, FOR VALUE RECEIVED, DOES HEREBY UNCONDITIONALLY AND
ABSOLUTELY GUARANTEE THE PROMPT AND FULL PAYMENT AND PERFORMANCE OF THE
GUARANTEED INDEBTEDNESS WHEN DUE OR DECLARED TO BE DUE AND AT ALL TIMES
THEREAFTER.
3.
CHARACTER OF OBLIGATION.
(a)
This is an absolute, continuing and
unconditional guaranty of payment and not of collection and if at any time or
from time to time there is no outstanding Guaranteed Indebtedness, the
obligations of Guarantor with respect to any and all Guaranteed Indebtedness
incurred thereafter shall not