EXHIBIT 10.11
GUARANTY
This Guaranty, dated June 23, 2000, is from SONIC AUTOMOTIVE, INC., a
Delaware corporation ("Guarantor"), whose address is 0000 Xxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Guarantor's Address"), to FORD MOTOR
CREDIT COMPANY, a Delaware corporation ("Lender").
WHEREAS, each of the entities listed on Schedule 0 xxxxxxxx xxxxxx
(xxxxxxxxxxxx, "Xxxxxxxx") have requested construction financing from Lender in
the aggregate principal amount not to exceed $50,000,000.00 (the "Construction
Loan"), to be evidenced by the Promissory Note, dated as of even date herewith
(the "Construction Note"), from Borrower to the order of Lender in the principal
amount of $50,000,000.00; and
WHEREAS, Lender proposes to make the Construction Loan to Borrower in
accordance with the terms and conditions of the Master Construction Loan
Agreement dated as of even date herewith (the "Construction Loan Agreement");
and
WHEREAS, Borrower has also requested permanent financing from Lender in
the aggregated principal amount not to exceed $100,000,000.00 (the "Permanent
Loan" and together with the Construction Loan, the "Loans"), to be evidenced by
the Promissory Note, dated as of even date herewith (the "Permanent Note" and
together with the Construction Note, the "Note"), from Borrower to the order of
Lender in the principal amount of $100,000,000.00; and
WHEREAS, the Loans will be secured by the Deeds of Trust and Assignment
of Leases and Rents and Security Agreement (and Financing Statement and Fixture
Filing) dated as of even date herewith and hereafter, from Borrower, as grantor,
to the trustee specified therein, for the benefit of Lender, as beneficiary, and
the Mortgages and Assignments of Leases and Rents and Security Agreement (and
Financing Statement and Fixture Filing) dated as of even date herewith and
hereafter, from Borrower, as mortgagor, to Lender, as mortgagee (collectively,
the "Deed of Trust"); and
WHEREAS, Lender will not make the Loans unless Guarantor guarantees
payment and performance of the terms thereof, and Borrower has requested
Guarantor to execute this Guaranty; and
WHEREAS, the proceeds of the Loans will be used to finance the cost of
acquisition of various parcels of real estate and the costs of construction of
dealership facilities and related improvements thereon, and Guarantor
acknowledges that it will be benefited directly and indirectly from the Loans;
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, receipt of which is hereby acknowledged, and to induce Lender to
make the Loans, Guarantor hereby covenants and agrees with Lender as follows:
1. The parties hereby incorporate the foregoing recitals in this
Guaranty as though fully set forth herein, agreeing that such recitals are
material, true and correct. Unless
previously defined above, the terms "Event of Default", "Indebtedness",
"Obligations", "Security Documents", and "Property" shall have the meanings set
forth in the Loan Agreement, the Note and the Deeds of Trust.
2. Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to Lender (i) the due and punctual payment of the Indebtedness as and
when it shall become due and payable whether by lapse of time, by acceleration
of maturity or otherwise, and (ii) the performance of the Obligations,
irrespective of the validity, regularity or enforceability of the Note or the
Security Documents.
3. This is a guaranty of payment, and not of collection, and a guaranty
of performance.
(a) Guarantor agrees that immediately upon the occurrence of
an Event of Default and written demand by Lender, Guarantor shall pay to Lender
the full amount of the Indebtedness and shall do and perform each of the
Obligations, as if the Indebtedness and the Obligations constituted the direct
and primary obligations of Guarantor. Lender shall be entitled to proceed
directly against Guarantor for payment of the Indebtedness or performance of the
Obligations, without first pursuing or exhausting any remedy which Lender then
may have against Borrower. To that end and without limiting the foregoing,
Guarantor hereby expressly waives any rights it otherwise might have had under
the provisions of N.C.G.S. Sections 26-7, et. seq., and all similar laws.
(b) Guarantor agrees that any failure of Lender to exercise
its right to proceed directly against Guarantor, or any delay in the exercise
thereof, shall not be construed as a waiver by Lender with respect thereto, and
that Lender may proceed directly against Guarantor at any time after the
occurrence of an Event of Default. Guarantor hereby waives (i) notice of
acceptance, presentment for payment, demand for payment, protest or notice of
protest and dishonor, notice of demand and all other notices and demands of any
kind and description now or hereafter provided by any law or statute, and (ii)
all other rights and defenses (including suretyship defenses generally), the
assertion or exercise of which would in any way diminish the liability of
Guarantor hereunder.
4. Guarantor represents and warrants to Lender that:
(a) Guarantor has received copies of the Security Documents
and is familiar with and fully understands all of their terms and conditions;
(b) Lender has not made any representations or warranties to
Guarantor regarding the creditworthiness of Borrower or the prospects of
repayment from sources other than Borrower;
(c) this Guaranty is executed at the request of Borrower;
(d) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis financial and other information pertaining to the
business of Borrower; and
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(e) Guarantor assumes full responsibility for keeping fully
informed with respect to the business, operation, condition and assets of
Borrower. Guarantor hereby waives any duty on the part of Lender to disclose or
report to Guarantor any information now or hereafter known to Lender relating to
the business, operation, condition or assets of Borrower; regardless of whether
Lender has reason to believe that any such facts materially increase the risk
beyond that which Guarantor intends to assume or has reason to believe that such
facts are unknown to Guarantor or has a reasonable opportunity to communicate
such facts to Guarantor, since Guarantor acknowledges hereby that it is fully
responsible for being informed and keeping itself informed of the financial
condition of Borrower and of all circumstances bearing on the risk of
non-payment of any indebtedness hereby guaranteed.
Lender shall have no duty to inquire into the authority or powers of
Borrower or any officer, employee or agent of Borrower with regard to any
Indebtedness, and all Indebtedness made or created in good faith reliance upon
the professed exercise of any such authority or powers shall be guaranteed
hereunder.
5. Nothing in this Guaranty is intended or shall be construed to
prevent Lender, upon the occurrence of an Event of Default, in the exercise of
its sole discretion, from foreclosing the liens of the Security Documents and
enforcing the provisions thereof.
6. Guarantor hereby consents that the covenants and provisions
contained in the Note and the Security Documents may be altered, extended,
changed, modified, released or canceled by Borrower with the approval of Lender
all without the consent of Guarantor, and Guarantor agrees that this Guaranty
and the liability of Guarantor hereunder shall in no way be affected, diminished
or released thereby. A release of any other guaranty of the Loan shall not
diminish or release the obligations of Guarantor hereunder. Without limiting the
generality of the foregoing, Guarantor specifically agrees that it shall not be
released by any action taken by Lender which would afford Borrower a defense
based on any anti-deficiency statutes of the state in which the Property is
located as they may now or hereafter provide, including without limitation,
exercise by Lender of its right to conduct a sale of any or all of the Property
securing the Loan as provided in the Security Documents.
7. All remedies afforded to Lender by reason of this Guaranty are
separate and cumulative remedies and it is agreed that no one of such remedies,
whether exercised by Lender or not, shall be deemed to be in exclusion of any of
the other remedies available to Lender, and shall in no way limit or prejudice
any other legal or equitable remedy which Lender may have in the collateral
covered by the Security Documents.
8. Guarantor hereby agrees that until all of the terms, covenants and
conditions of this Guaranty are fully performed, Guarantor's obligations
hereunder shall not be released, in whole or in part, by any act or thing which
might, but for this provision, be deemed a legal or equitable discharge of a
surety or guarantor or by reason of any waiver, extension, modification,
forbearance or delay or other act or omission of Lender, or its failure to
proceed promptly or otherwise or by reason of any action taken or omitted, or
circumstances which may or might vary the risk of, or affect the rights or
remedies of, Guarantor or by reason of any further dealings between Borrower and
Lender relating to the Security Documents or otherwise, and Guarantor hereby
expressly waives and surrenders any defense to Guarantor's liability hereunder
based upon any of the foregoing acts, omissions, things, agreements or waivers
of any of them; it being the purpose and intent of the parties hereto that the
obligations of
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Guarantor hereunder are absolute and unconditional under any and all
circumstances. Guarantor hereby waives any defenses based upon any election of
remedies by Lender, including, without limitation, an election to proceed by
non-judicial rather than judicial foreclosure.
9. In the event that for any reason whatsoever Borrower is now or
hereafter becomes indebted to Guarantor, Guarantor agrees that the amount of
such indebtedness and all interest thereon shall at all times be subordinate as
to lien, time of payment and in all other respects to the Note and the Security
Documents, and that Guarantor shall not be entitled to enforce or receive
payment thereof until all sums then due and owing to Lender shall have been paid
in full. Nothing herein contained is intended or shall be construed to give to
Guarantor any right of subrogation in or under the Note or the Security
Documents, or any right to participate in any way therein, or in the right,
title and interest of Lender in and to the collateral covered by the Security
Documents, notwithstanding any payments made by Guarantor under this Guaranty,
all rights of subrogation, reimbursement, contribution and participation being
hereby expressly waived and released.
10. Any notice, demand or request by Lender to Guarantor shall be in
writing, and shall be deemed to have been duly given or made if either delivered
personally to Guarantor or mailed by certified mail or registered mail addressed
to the Guarantor's Address.
11. Guarantor agrees that Lender may assign this Guaranty and all of
its rights, interests and remedies hereunder, to any other person, firm, bank or
corporation whatsoever, without notice to or consent by Guarantor.
12. In the event that more than one person or entity guarantees the
Loan, the covenants and agreements of Guarantor contained herein shall be the
joint and several covenants and agreements of each such person and/or entity
including each Guarantor hereunder.
13. This instrument shall inure to the benefit of Lender and Lender's
successors and assigns, and shall bind Guarantor, and Guarantor's heirs,
executors, administrators, legal representatives, successors and assigns.
14. Guarantor agrees to pay reasonable attorneys' fees and expenses
incurred by Lender in enforcement of the Security Documents, including this
Guaranty.
15. This Guaranty shall continue to be effective, or be reinstated, as
the case may be, if at any time any whole or partial payment of the Indebtedness
or performance of Obligations is or is sought to be rescinded or must otherwise
be restored or returned by the Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Borrower, or upon or as a result
of the appointment of a receiver, intervenor or conservator or trustee or
similar office for, Borrower or any substantial part of its property, or
otherwise, all as though such payments and performance had not been made.
16. This Guaranty shall be governed by, and construed and enforced in
accordance with, the laws of the State of North Carolina.
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17. This Guaranty is secured by that certain Security Agreement of even
date herewith executed by Guarantor, as debtor, in favor of Lender, as secured
party.
18. The parties intend this writing to be a final expression of this
agreement of guaranty and a complete and exclusive statement of the terms of
this agreement of guaranty. No course of prior dealings between the parties, no
usage of the trade, and no parol or extrinsic evidence of any nature, shall be
used or be relevant to supplement or explain or modify any term used in this
agreement of guaranty.
19. Should Guarantor fail to pay Guarantor's debts generally as they
become due, or voluntarily seek, consent to, or acquiesce in the benefit (or
benefits) of the Federal Bankruptcy Code, together with all amendments and
revisions thereto (the "Bankruptcy Code"), or any other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, suspension of payments, or similar debtor relief law
from time to time in effect affecting the rights to creditors generally
(collectively, "Debtor Relief Laws"), or become a party to or be made the
subject of any proceeding provided for by any Debtor Relief Law (other than as a
creditor or claimant) that it should consent thereto or shall fail to cause to
be discharged within 90 days, then, in any such event, the Indebtedness and the
Obligations shall be, as between Guarantor and Lender, fully matured, due,
payable, and/or refundable obligations of Guarantor to Lender (without regard to
whether Borrower is then in default under the Security Documents or whether the
Indebtedness or the Obligations of any part thereof, are then due, owing or
performable by Borrower), payable and/or performable in full by Guarantor to
Lender upon demand, which, for purposes of Section 502(c) of the Bankruptcy
Code, shall be the estimate amount owing in respect of the contingent claim
created under this Guaranty.
Guarantor has executed this Guaranty under seal as of the date first
above written.
SONIC AUTOMOTIVE, INC.,
a Delaware corporation
By /s/ B. Xxxxx Xxxxx (SEAL)
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B. Xxxxx Xxxxx, President
Attest: /s/ Xxxxxxx X. Xxxx
--------------------------
Xxxxxxx X. Xxxx, Secretary
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SCHEDULE 1
1. SRE Alabama - 1, LLC, an Alabama limited liability company
2. SRE Alabama - 2, LLC, an Alabama limited liability company
3. SRE Alabama - 3, LLC, an Alabama limited liability company
4. SRealEstate Arizona - 1, LLC, an Arizona limited liability company
5. SRealEstate Arizona - 2, LLC, an Arizona limited liability company
6. SRealEstate Arizona - 3, LLC, an Arizona limited liability company
7. SRealEstate Arizona - 4, LLC, an Arizona limited liability company
8. SRE Florida - 1, LLC, a Florida limited liability company
9. SRE Florida - 2, LLC, a Florida limited liability company
10. SRE Florida - 3, LLC, a Florida limited liability company
11. SRE Georgia - 1, L.P., a Georgia limited partnership
12. SRE Georgia - 2, L.P., a Georgia limited partnership
13. SRE Georgia - 3, L.P., a Georgia limited partnership
14. SRE Holding, LLC, a North Carolina limited liability company
15. SRE Nevada - 1, LLC, a Nevada limited liability company
16. SRE Nevada - 2, LLC, a Nevada limited liability company
17. SRE Nevada - 3, LLC, a Nevada limited liability company
18. SRE South Carolina - 1, LLC, a South Carolina limited liability company
19. SRE South Carolina - 2, LLC, a South Carolina limited liability company
20. SRE Tennessee - 1, LLC, a Tennessee limited liability company
21. SRE Tennessee - 2, LLC, a Tennessee limited liability company
22. SRE Tennessee - 3, LLC, a Tennessee limited liability company
23. SRE Texas - 1, L.P., a Texas limited partnership
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24. SRE Texas - 2, L.P., a Texas limited partnership
25. SRE Texas - 3, L.P., a Texas limited partnership
26. SRE Virginia - 1, LLC, a Virginia limited liability company
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