GUARANTY
This GUARANTY is made and entered as of October __, 1996 (the "Effective
Date") from United Auto Group, Inc., a New York corporation, (the "Guarantor")
to BMW FINANCIAL SERVICES NA, INC. (together with such party's successors and
assigns, referred to as "Secured Party").
WITNESSETH:
In consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to any Dealer (as defined below), the
Guarantor agrees as follows:
1. DEFINITIONS
a. "DEALER" shall mean any one of the following entities listed below,
including any subsidiaries or affiliates of such entities, whether now in
existence or hereinafter established or acquired:
United Auto Group Atlanta IV Motors, Inc., a Georgia corporation
b. "INDEBTEDNESS" shall mean any obligation or indebtedness of any kind of
any Dealer to Secured Party, howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, renewed or extended, or now or
hereafter existing or due to become due.
2. GUARANTY
a. GUARANTY OBLIGATIONS. The Guarantor hereby unconditionally and
absolutely guarantees (i) the full and prompt payment when due, whether by
acceleration or otherwise, and at all times hereafter, of all Indebtedness and
(ii) the full and prompt performance of all the terms, covenants, conditions and
agreements related to the Indebtedness. The Guarantor further agrees to pay all
expenses, including without limitation, attorneys' fees and court costs, paid or
incurred by Secured Party in endeavoring to collect the Indebtedness, or any
part thereof, and in enforcing the Guaranty, plus interest on such amounts at
the lesser of 12% per annum or the maximum rate permitted by law. Interest on
such amounts paid or incurred by Secured Party shall be computed from the date
of payment made by Secured Party and shall be payable on demand.
b. ABSOLUTE AND UNCONDITIONAL NATURE OF THE GUARANTY. The Guarantor
acknowledges that this Guaranty is a guaranty of payment and not of collection,
and that its obligations hereunder shall be absolute, unconditional and
unaffected by:
(i) the waiver of the performance or observance by any Dealer of any
agreement, covenant, term or condition to be performed or observed by such
Dealer;
(ii) the extension of time for the payment of any sums owing or
payable with respect to the Indebtedness or the time for performance of any
other obligation arising out of the Indebtedness;
(iii) the modification, alteration or amendment of any obligation
arising out of the Indebtedness;
(iv) the failure, delay or omission by Secured Party to enforce,
assert or exercise any right, power or remedy in connection with the
Indebtedness;
(v) the genuineness, validity, or enforceability of the Indebtedness
or any document related thereto;
(vi) the existence, value or condition of, or failure of Secured Party
to perfect its lien against, any security pledged in connection with the
Indebtedness;
(vii) the release of any security pledged in connection with the
Indebtedness or the release, modification, waiver or failure to enforce any
other guaranty, pledge or security agreement;
(viii) the voluntary or involuntary liquidation, dissolution, sale of
all or substantially all of the property, marshaling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment or other similar
application or proceeding affecting any Dealer or any assets of any Dealer; or
(ix) the release or discharge of any Dealer from the performance or
observance of any agreements, covenants, terms or conditions in connection with
the Indebtedness by operation of law or otherwise.
c. CONTINUING AND UNLIMITED NATURE OF THE GUARANTY. The obligations of
the Guarantor under this Guaranty shall be continuing and shall cover all
Indebtedness existing as of the Effective Date of this Guaranty and Indebtedness
existing at the time of termination of this Guaranty. This Guaranty shall be
unlimited in amount and shall continue in effect until the Guaranty is
terminated pursuant to SECTION 3 hereof.
d. WAIVERS BY GUARANTOR. The Guarantor hereby expressly waives: (i)
notice of the acceptance by Secured Party of this Guaranty; (ii) notice of the
existence or creation or non-payment of all or any of the Indebtedness; (iii)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever,
-2-
and (iv) diligence in collection or protection of or realization upon the
Indebtedness, or any part thereof, any obligation under this Guaranty or any
security for or guaranty of any of the foregoing.
e. AUTHORIZATION. If the Guarantor is a corporation, this Guaranty has
been expressly authorized by Guarantor's Board of Directors pursuant to a Board
of Director's resolution in form and substance satisfactory to Secured Party.
f. ENFORCEMENT. In no event shall Secured Party have any obligation to
proceed against any Dealer, any other entity or any security pledged in
connection with the Indebtedness before seeking satisfaction from the Guarantor.
Secured Party may, at its option, proceed, prior or subsequent to, or
simultaneously with, the enforcement of its rights hereunder, to exercise any
right or remedy it may have against any Dealer, any other entity or any security
pledged in connection with the Indebtedness.
g. REINSTATEMENT. The Guarantor agrees that if at any time all or any
part of any payment theretofore applied by Secured Party to any of the
Indebtedness is or must be rescinded or returned by Secured Party for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of any Dealer), such Indebtedness shall, for purposes of this
Guaranty, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application by
Secured Party, and this Guaranty shall continue to be effective or reinstated,
as applicable, as to such Indebtedness, all as though such application by
Secured Party had not been made.
3. TERMINATION
a. PAYMENT OF INDEBTEDNESS. This Guaranty shall be terminated upon: (i)
the payment by Dealer or the Guarantor, either jointly or severally, of the
aggregate amount of Indebtedness outstanding, and (ii) the payment of all
obligations by the Guarantor which may be due to Secured Party under this
Guaranty.
b. REVOCATION. This Guaranty may be revoked by the Guarantor upon ninety
(90) days' written notice to Secured Party, by certified mail, to the address
set forth below in SECTION 5(c), or at such other address as Secured Party may
from time to time specify. Such revocation shall in no way terminate or
otherwise affect: (i) any obligations of the Guarantor existing on or prior to
the effective date of such revocation or (ii) any obligations of the Guarantor
arising after the effective date of such revocation with respect to any
Indebtedness incurred by any Dealer to Secured Party on or before the effective
date of such revocation.
-3-
4. EVENTS OF DEFAULT
Any one or more of the following events shall constitute an Event of
Default hereunder:
a. If Guarantor fails to make any payment hereunder and such failure
shall continue for five (5) days after written notice from Secured Party;
b. If Guarantor fails to perform or observe any agreement, covenant, term
or condition contained in this Guaranty (other than the monetary obligations
described in SECTION 4(a) above) and such failure shall continue for thirty (30)
days after written notice from Secured Party;
c. If Guarantor makes an assignment for the benefit of creditors or fails
to pay its debts as the same become due and payable;
d. If Guarantor petitions or applies to any tribunal for the appointment
of a trustee or receiver of the business, estate or assets or of any substantial
portion of the business, estate or assets of Guarantor, or commences any
proceedings relating to Guarantor under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction, whether now or hereafter in effect;
e. If any such petition or application is filed or any such proceedings
are commenced against Guarantor and Guarantor by any act indicates its approval
thereof, consent thereto or acquiescence therein, or any order is entered
appointing any such trustee or receiver, or declaring Guarantor bankrupt or
insolvent, or approving the petition in any such proceedings; or
f. Any suit or proceeding shall be filed against any Dealer or Guarantor,
which, if adversely determined could, substantially impair the ability of the
Guarantor or such Dealer to perform any of their obligations with respect to
this Guaranty or the Indebtedness, as determined by Secured Party in its sole
and absolute discretion.
If an Event of Default under this Guaranty shall have occurred, in addition
to pursuing any remedies which may be available to Secured Party with respect to
the Indebtedness, Secured Party, at its option, may take whatever action at law
or in equity Secured Party may deem necessary, regardless of whether Secured
Party shall have exercised any of its rights or remedies with respect to any of
the Indebtedness, and Secured Party may demand, at its option, that the
Guarantor pay forthwith the full amount which would be due and payable hereunder
as if all Indebtedness were then due and payable.
-4-
5. GENERAL
a. ENTIRE AGREEMENT. This Guaranty contains the entire and only
agreement between the Guarantor and Secured Party with respect to the guaranty
of Indebtedness and any representation, promise, condition or understanding in
connection therewith which is not expressed in this Guaranty shall not be
binding upon the Guarantor or Secured Party. All prior understandings and
agreements related to the guaranty of the Indebtedness shall be superseded by
this Guaranty as of the Effective Date.
b. APPLICATION OF PAYMENTS; SUBROGATION. Any amounts received by Secured
Party from any source on account of the Indebtedness may be applied by it toward
the payment of such of the Indebtedness, and in such order of application, as
Secured Party may from time to time elect. Notwithstanding any payments made by
or for the account of the Guarantor, the Guarantor shall not be subrogated to
any rights of Secured Party until such time as this Guaranty has been terminated
in accordance with SECTION 3(a) above.
c. NOTICES. All notices to the Guarantor shall be forwarded by express
mail for overnight delivery to the address set forth below the Guarantor's
signature, or such other address as the Guarantor may from time to time specify
in writing to Secured Party. All notices to Secured Party shall be forwarded by
express mail for overnight delivery (except for the notice given pursuant to
SECTION 3(b))to the following address: BMW Financial Services NA, Inc., 000
Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X.
Xxxxxx, or such other address as Secured Party may specify to the Guarantor in
writing.
d. GOVERNING LAW; SEVERABILITY. This Guaranty shall be governed by the
laws of the State of Georgia. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, the remaining provisions of this Guaranty shall remain
in full force and effect.
e. SUCCESSORS AND ASSIGNS. All guaranties and agreements contained in
this Guaranty shall bind the legal representatives, heirs, successors and
assigns of the Guarantor.
f. REFERENCES TO GUARANTOR. Each reference to Guarantor herein shall be
deemed to include the legal representatives, heirs, officers, employees and
agents of the Guarantor and their respective successors and assigns.
g. RIGHTS AND REMEDIES OF SECURED PARTY. No delays on the part of
Secured Party in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any power or right
hereunder or the failure
-5-
to exercise same in any instance preclude other or further exercise of any other
power or right, nor shall Secured Party be liable for exercising or failing to
exercise any such power or right. The rights and remedies hereunder are
cumulative and not exclusive of any rights or remedies which Secured Party may
or will otherwise have.
h. FINANCIAL STATEMENTS. Upon Lender's request, Guarantor will provide
Lender with Guarantor's audited financial statements as certified by Guarantor's
independent certified public accountant or such other financial statements and
information as Lender may request from time to time.
i. AMENDMENTS. This Guaranty may not be modified or amended except by a
writing duly executed by the Guarantor. Any such modification or amendment must
be expressly consented to in writing by Secured Party.
WHEREAS, this Guaranty has been executed and delivered by the Guarantor to
Secured Party as of the Effective Date.
GUARANTOR:
-------------------------
a corporation
---------------------
By:
--------------------------------
Address:
---------------------------
---------------------------
ATTEST:
--------------------
Secretary
State of Georgia )
) SS.
County of )
On the __ day of October, in the year 1996, before me personally came
_______ personally known to me to be the President and ____________ personally
known to me to be the Secretary of United Auto Group, Inc., a Georgia
corporation; that such persons are the same persons described in and who
executed the above Guaranty; that such persons acknowledged that as such
__________President and _______________Secretary, they signed, sealed and
delivered the above Guaranty pursuant to authority given by the Board of
Directors of said Corporation and as their free and voluntary act and as the
free and voluntary act of said Corporation, for the uses and purposes therein
set forth.
------------------------------
Notary Public
-6-
