EXHIBIT 10.6
GUARANTY
THIS GUARANTY, dated as of March 12, 2002, is made and given by
_____________________, a ___________ corporation ("Guarantor"), in favor of XXXX
FINANCE CO, LLC ("Lender").
RECITALS
WHEREAS, Holiday RV Superstores, Inc. ("Borrower") owns all of the
outstanding capital stock of Guarantor;
WHEREAS, Borrower has requested Lender to enter into a Loan and Security
Agreement between Borrower and Lender of even date herewith (the "Loan
Agreement") pursuant to which Lender would lend Borrower $1,600,000 in
accordance with the terms of the Loan Agreement and that certain promissory note
from Borrower to Lender in the original principal amount of $1,600,000 (the
"Note");
WHEREAS, as a condition of Lender's willingness to enter into the Loan
Agreement and make the loans to be evidenced by the Note, Lender has required
that this Guaranty be executed and delivered by Guarantor; and
WHEREAS, Guarantor expects to derive benefits from the Note, and finds
it advantageous, desirable and in Guarantor's best interests to execute and
deliver this Guaranty to Lender,
NOW, THEREFORE, in consideration of the loans to be made to Borrower, as
aforesaid, and for other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, Guarantor hereby covenants and
agrees with Lender as follows:
Section 1. The Guaranty. Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to Lender, its successors and assigns, the payment
when due (whether at a stated maturity or earlier by reason of acceleration or
otherwise) and performance of all of the indebtedness, liabilities and
obligations of Borrower to Lender, its successors and assigns, due or to become
due, direct or indirect, absolute or contingent, joint or several, now existing
or hereafter at any time created, arising from or incurred under or in
connection with the Loan Agreement and the Note, including but not limited to
principal, interest, fees and expenses payable thereunder, and any reissuance,
renewal or extension thereof, and any other sums now or hereafter owing by
Borrower to Lender, its successors and assigns, and all other liabilities and
obligations of Borrower to Lender, its successors and assigns, thereunder, all
of the foregoing hereinafter referred to as the "Obligations."
Section 2. Continuing Guaranty. This Guaranty is an absolute,
unconditional, complete and continuing guaranty of payment and performance of
the Obligations, and the obligations of the Guarantor hereunder shall not be
released, in whole or in part, by any action or thing which might, but for this
provision of this Guaranty, be deemed a legal or equitable discharge of a surety
or guarantor, other than irrevocable payment and
performance in full of the Obligations. No notice of the obligations to which
this Guaranty may apply, or of any renewal or extension thereof need be given to
Guarantor and none of the foregoing acts shall release Guarantor from liability
hereunder. Guarantor hereby expressly waives (a) demand of payment, presentment,
protest, notice of dishonor, nonpayment or nonperformance on any and all forms
of the Obligations; (b) notice of acceptance of this Guaranty and notice of any
liability to which it may apply; (c) all other notices and demands of any kind
and description relating to the Obligations now or hereafter provided for by any
agreement, statute, law, rule or regulation; and (d) any and all defenses of
Borrower pertaining to the Obligations except for the defense of discharge by
payment. Guarantor shall not be exonerated with respect to its liabilities under
this Guaranty by any act or thing except irrevocable payment and performance of
the Obligations, it being the purpose and intent of this Guaranty that the
obligations constitute the direct and primary obligations of Guarantor and that
the covenants, agreements and all obligations of Guarantor hereunder be
absolute, unconditional and irrevocable. If any payment received by Lender, its
successors or assigns, and applied to the Obligations is subsequently set aside,
recovered, rescinded or required to be returned for any reason (including,
without limitation, the bankruptcy or insolvency of Guarantor), the Obligations
to which such payment was applied shall be deemed to have continued in
existence, notwithstanding such application, and the provisions of this Guaranty
shall be enforceable as to such Obligations as fully as if such application had
never been made. References to amounts "irrevocably paid" and "irrevocable
payment" refer to payments that cannot be set aside, recovered, rescinded or
required to be returned for any reason.
Section 3. Other Transactions. Lender is expressly authorized (a) to
exchange, surrender or release with or without consideration any or all
collateral and security which may at any time be placed with it by Borrower, or
to forward or deliver any or all such collateral and security directly to
Borrower for collection and remittance or for credit, or to collect the same in
any other manner without notice to Guarantor; and (b) to amend, modify, extend
or supplement any or all of the Note, the Loan Agreement or other agreement with
respect to the Obligations, waive compliance by Borrower with the respective
terms thereof and settle or compromise any of the Obligations without notice to
Guarantor and without in any manner affecting the absolute liabilities of
Guarantor hereunder. The liabilities of Guarantor hereunder shall not be
affected or impaired by any failure, delay, neglect or omission on the part of
Lender to realize upon any of the obligations of Borrower to Lender, or upon any
collateral or security for any or all of the Obligations, nor by the taking by
Lender of (or the failure to take or the failure to perfect its security
interest in) collateral or security of any kind. No act or omission of Lender,
whether or not such action or failure to act varies or increases the risk of, or
affects the rights or remedies of Guarantor, shall affect or impair the
obligations of Guarantor hereunder.
Section 4. Borrower's Financial Condition. Guarantor acknowledges its
familiarity with the financial condition of Borrower and that Guarantor has
executed and delivered this Guaranty based on its own judgment and not in
reliance upon any statement or representation of Lender. Lender shall have no
obligation to provide Guarantor with any advice whatsoever or to inform
Guarantor at any time of Lender's actions, evaluations or conclusions on the
financial condition or any other matter concerning Borrower.
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Section 5. Remedies. 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 or not exercised by Lender, 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
hereunder and with respect to the Obligations. Mere delay or failure to act
shall not preclude the exercise of enforcement of any rights and remedies
available to Lender.
Section 6. Costs and Expenses. Guarantor will pay or reimburse Lender on
demand for all out-of-pocket expenses (including in each case reasonable fees
and expenses of counsel) incurred by Lender arising out of or in connection with
the enforcement of this Guaranty against the Guarantor or arising out of or in
connection with any failure of Guarantor to fully and timely perform the
obligations of Guarantor hereunder.
Section 7. Waivers and Amendments. This Guaranty can be waived,
modified, amended, terminated or discharged only explicitly in a writing signed
by Lender. A waiver so signed shall be effective only in the specific instance
and for the specific purpose given.
Section 8. Notices. Any notice of other communication to any party in
connection with this Guaranty shall be in writing and shall be sent by manual
delivery, telegram, telex, facsimile transmission, overnight courier or United
States mail (postage prepaid) addressed to such party at the address specified
on the signature page hereof, or at such other address as such party shall have
specified to the other party hereto in writing. All periods of notice shall be
measured from the date of delivery thereof if manually delivered, from the date
of sending thereof if sent by telegram, telex or facsimile transmission, from
the first business day after the date of sending if sent by overnight courier,
or from four days after the date of mailing if mailed.
Section 9. Guarantor Acknowledgments. Guarantor hereby acknowledges that
(a) it has been advised by counsel in the negotiation, execution and delivery of
this Guaranty, (b) Lender has no fiduciary relationship to Guarantor, the
relationship being solely that of debtor and creditor, and (c) no joint venture
exists between Guarantor and Lender.
Section 10. Governing Law and Construction. THE VALIDITY, CONSTRUCTION
AND ENFORCEABILITY OF THIS GUARANTY SHALL BE GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES
THEREOF. Wherever possible, each provision of this Guaranty and any other
statement, instrument or transaction contemplated hereby or relating hereto
shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision of this Guaranty or any other statement,
instrument or transaction contemplated hereby or relating hereto shall be held
to be prohibited or invalid under such applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the
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remainder of such provision or the remaining provisions of this Guaranty or any
other statement, instrument or transaction contemplated hereby or relating
hereto.
Section 11. Consent to Jurisdiction. AT THE OPTION OF LENDER, THIS
GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING
IN MINNEAPOLIS, MINNESOTA; AND GUARANTOR CONSENTS TO THE JURISDICTION AND VENUE
OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT
CONVENIENT. IN THE EVENT GUARANTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION
OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM
THE RELATIONSHIP CREATED BY THIS GUARANTY, LENDER AT ITS OPTION SHALL BE
ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES
ABOVE-DESCRIBED IF SUCH TRANSFER CAN BE ACCOMPLISHED UNDER APPLICABLE LAW. IF
SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, LENDER AT ITS OPTION
SHALL BE ENTITLED TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
Section 12. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day
and year first above written.
GUARANTOR:
By /s/ Xxxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: 000 Xxxx Xxxxxxx Xxxx., Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Address for Lender:
XXXX Finance Co, LLC
0000 Xxxxx Xxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Vice President
Facsimile: (000) 000-0000
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