This Guaranty is incorporated and made a part of a Franchise Agreement between FRANCHISEE and Benihana National Corp., a Delaware corporation, whose principal office address is 21500 Biscayne Boulevard, Suite 900, Aventura, Florida 33180 (hereinafter referred to as "FRANCHISOR") on the date specified above, and it will be attached to the Franchise Agreement.

• 1. Acknowledgments. GUARANTOR acknowledges and agrees that FRANCHISOR has entered into the Franchise Agreement with FRANCHISEE solely on the condition that each owner of FRANCHISEE be personally obligated and jointly and severally liable with FRANCHISEE (and with each other owner of FRANCHISEE) for the performance of each and every obligation of FRANCHISEE (and its owners) under the Franchise Agreement, any amendments or modifications to the Franchise Agreement, any extensions or renewals of the Franchise Agreement, and under each and every agreement ancillary to the Franchise Agreement, including any lease, that has been or hereafter may be entered by FRANCHISEE with FRANCHISOR (all of the aforementioned agreements are collectively referred to as the "BENIHANA Agreements").
• 1. GUARANTOR's Covenants, Representations and Guaranty. In consideration of and as an inducement to the execution of the Franchise Agreement by FRANCHISOR, Guarantor hereby personally, irrevocably and unconditionally:
  • (a) represents and warrants to FRANCHISOR that the exhibits/attachments to the Franchise Agreement are accurate and complete;
  • (b) agrees to guarantee the prompt payment and performance of all of FRANCHISEE's Obligations (as hereinafter defined) to FRANCHISOR and FRANCHISOR's successors and assigns; and
  • (c) agrees to be personally bound by, and personally liable for the breach of each and every provision in the Franchise Agreement and each and every provision in any of the BENIHANA Agreements, as if GUARANTOR were the FRANCHISEE.

The term "Obligations" means the payment of all of FRANCHISEE's debts, liabilities, and obligations to FRANCHISOR arising under the BENIHANA Agreements, whether direct, indirect, absolute, contingent, matured or unmatured, extended or renewed, wherever and however incurred, together with all costs of collection, compromise and enforcement, including reasonable attorney's fees, and the prompt performance of each and every covenant, agreement, and condition set forth in any of the BENIHANA Agreements.

3. Waivers by GUARANTOR. GUARANTOR hereby waives:

• (a) acceptance and notice of acceptance by FRANCHISOR of the foregoing Guaranty;
• (b) notice of demand for payment of FRANCHISEE's indebtedness or nonperformance of any of the Obligations;
• (c) presentment or protest of any instrument and notice thereof or any notice of default or intent to accelerate with respect to the indebtedness or nonperformance of any of the Obligations;
• (d) any right GUARANTOR may have to require that an action be brought against FRANCHISEE or any other person as a condition of GUARANTOR's liability;
• (e) the defense of the statute of limitations in any action for the enforcement, performance, or collection of any Obligation;
• (f) any and all rights to payments, indemnities, and claims for reimbursement or subrogation that GUARANTOR may have against FRANCHISEE arising from GUARANTOR'S execution of and performance under this Guaranty;
• (g) any defense based on any irregularity or defect in the creation of any of the Obligations or modification of the terms and conditions of performance thereof;
• (h) any defense based on the failure of FRANCHISOR or any other party to take, protect, perfect, or preserve any right against and/or security granted by the FRANCHISEE or any other party;
• (i) any and all other notices and legal or equitable defenses to which GUARANTOR may be entitled.

4. Further Agreements and Understandings. GUARANTOR hereby consents and agrees that:

• (a) GUARANTOR's direct and immediate liability under this Guaranty will be joint and several with FRANCHISEE and any other GUARANTOR;
• (b) The death or incapacity of any GUARANTOR will not modify, amend, or terminate this Guaranty;
• (c) If GUARANTOR should die, become incapacitated, become insolvent or make a general assignment for the benefit of creditors, or if a proceeding under the United States Bankruptcy Code or any similar law affecting the rights of creditors generally shall be

• filed or commenced by, against, or in respect of any GUARANTOR, all obligations of the GUARANTOR shall, at FRANCHISOR's option, immediately become due and payable without notice;
• (d) If any payment or transfer to FRANCHISOR which has been credited against any Obligation is voided or rescinded or required to be returned by FRANCHISOR, whether or not in connection with any event or proceeding described in Section 4(c), this Guaranty will continue in effect or be reinstated as though such payment transfer or recovery had not been made;
• (e) GUARANTOR will render any payment or performance required under the Franchise Agreement and/or any of the BENIHANA Agreements upon demand if FRANCHISEE fails or refuses punctually to do so;
• (f) GUARANTOR'S liability under this Guaranty is and will be construed as absolute, unconditional, continuing and unlimited without regard to the regularity, validity, or enforceability of any Obligations, and without regard to whether any Obligation is limited, modified, voided, released, or discharged in any proceeding under the United States Bankruptcy Code or any similar law affecting the rights of creditors generally;
• (g) GUARANTOR'S liability under this Guaranty is not be contingent or conditioned upon FRANCHISOR's pursuit or enforcement of any remedies against FRANCHISEE or any other person;
• (h) This Guaranty will continue in full force and effect for and as to any extension of or modification or amendment to the Franchise Agreement or any other of the BENIHANA Agreements, and GUARANTOR waives notice of any and all such extensions, modifications, or amendments;

Source: Item 15 — OBLIGATION TO PARTICIPATE IN THE ACTUAL OPERATION OF THE FRANCHISE BUSINESS (FDD pages 57–58)