4
Exhibit 10.12
CORPORATE GUARANTY
This GUARANTY is made and entered as of February 12, 1997 (the
"Effective Date") from XXXXXX INDUSTRIES, INC., a Florida corporation (the
"Guarantor") to X.X. XXXX, XX ("Hill").
WITNESSETH:
In consideration of any loan or other financial accommodation
heretofore or hereafter at any time made or granted to First Choice Auto
Finance, Inc. ("FCAF"), the Guarantor agrees as follows:
1. DEFINITION
For purposes of this Agreement, "Indebtedness" shall mean any
obligation or indebtedness of FCAF pursuant to that certain $1,500,000 Note
of FCAF to Hill of even date herewith.
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 reasonable expenses, including without
limitation, attorneys' fees and court costs, paid or incurred by Hill in
endeavoring to collect the Indebtedness, or any part thereof, and in
enforcing the Guaranty, plus interest on such amounts at the maximum rate
permitted by law. Interest on such amounts paid or incurred by Hill shall
be computed from the date of payment made by Hill 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 Dealer of any
agreement, covenant, term or condition to be performed or observed by
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 Hill 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 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 FCAF or
any assets of FCAF; or
(vii) the release or discharge of FCAF 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 Hill 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, 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. 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 Hill.
f. Enforcement. In no event shall Hill have any obligation to
proceed against FCAF, any other entity or any security pledged in
connection with the Indebtedness before seeking satisfaction from the
Guarantor. Hill 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 FCAF, 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 Hill to any of the
Indebtedness is or must be rescinded or returned by Hill for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of 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 Hill, and this Guaranty shall continue to be effective or
reinstated, as applicable, as to such Indebtedness, all as though such
application by Hill had not been made.
3. TERMINATION
This Guaranty shall be terminated upon: (i) the payment by FCAF or
the Guarantor, either jointly or severally, of the aggregate amount of
Indebtedness outstanding, and (ii) the payment and performance of all
obligations by the Guarantor which may be due to Hill under this Guaranty
or otherwise.
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 Hill;
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 Hill;
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 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
If an Event of Default under this Guaranty shall have occurred, in
addition to pursuing any remedies which may be available to Hill with
respect to the Indebtedness, Hill, at its option, may take whatever action
at law or in equity Hill may deem necessary regardless of whether Hill
shall have exercised any of its rights or remedies with respect to any of
the Indebtedness, and Hill 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.
5. GENERAL
a. Entire Agreement. This Guaranty contains the entire and only
agreement between the Guarantor and Hill 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 Hill. 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
Hill 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 Hill 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 Hill 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 Hill. All notices to Hill shall be forwarded
by express mail for overnight delivery (except for the notice given
pursuant to Section 3(b) to the following address: at 0000 Xxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000, or such other address as Hill may specify to the
Guarantor in writing.
d. Governing Law; Severability. This Guaranty shall be governed by
the laws of the State of Florida. 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, and agents of
the Guarantor and their respective successors and assigns.
g. Rights and Remedies of Hill. No delays on the part of the Hill
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 to exercise same in any instance preclude other or
further exercise of any other power or right, nor shall Hill 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 Hill may or will otherwise have.
h. 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 Hill.
i. Time of the Essence. Time shall be of the essence for all
performances hereunder.
j. Costs of Enforcement. In the event that any party is required to
bring an action to enforce its rights hereunder, the substantially
prevailing party shall recover from the substantially non-prevailing party
all of the substantially prevailing party's attorneys' fees and costs (the
"Expenses") incurred in such action. For purposes herein, the Expenses
shall include investigatory, trial, appeal, bankruptcy, mediation and
arbitration expenses, and all costs of collection and shall cover fees and
costs for the lawyers, experts, paralegals and clerks, and all other
persons reasonably necessary as part of the enforcement process. All such
Expenses shall bear interest from the date incurred until the date paid at
the highest rate of interest permitted in Florida. The parties request
that a court award the actual Expenses incurred by the substantially
prevailing party, recognizing that it is the parties' intention that the
substantially prevailing party should be made completely whole. Costs
incurred in enforcing this Section shall be included in Expenses.
GUARANTOR:
XXXXXX INDUSTRIES, INC.,
a Florida corporation
By:/S/J. Xxxx Xxxxxxxxxx, Xx.
Name:
Title:Asst. X. X.
XXXX:
/S/ X.X. Xxxx, XX
X. X. XXXX, XX
