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EXHIBIT 4.16
GUARANTY
THIS GUARANTY ("Guaranty") is made as of this 25th day of November,
1996, by REPUBLIC INDUSTRIES, INC., a Delaware corporation ("Guarantor"), in
favor of CREDIT SUISSE as credit enhancer under the Letter of Credit
Reimbursement Agreement referred to below, and all participants under such
Letter of Credit Reimbursement Agreement (collectively, the "Lenders").
R E C I T A L S:
A. Lender and ALAMO RENT-A-CAR, INC., a Florida corporation
("Borrower"), have entered into a Letter of Credit Reimbursement Agreement dated
as of June 20, 1994, among the Borrower, Alamo Funding, L.P., AFL Fleet Funding,
Inc. and Credit Suisse, as credit enhancer, as amended and modified from time to
time (the "Credit Agreement"), pursuant to which Lender has agreed to issue
letters of credit for the benefit of Borrower in the aggregate amount of
$133,000,000.
B. The Credit Agreement, the Loan Agreement dated as of June 20, 1994,
between the Borrower and Alamo Funding, L.P., as amended or modified from time
to time (the "Loan Agreement"), and each of the other documents executed by
Borrower in connection with Credit Agreement and the Loan Agreement, as the same
may be hereafter amended, are sometimes collectively referred to herein as the
"Loan Documents".
C. Guarantor has a financial and ownership interest in Borrower and
will benefit from the transactions under the Loan Documents.
D. Lenders will require, as security for Borrower's obligations under
the Credit Agreement, an unconditional and irrevocable guaranty of payment and
performance from Guarantor respecting any obligations of Borrower under the
Credit Agreement.
NOW THEREFORE, in consideration of the premises, the sum of $10.00 and
other good and valuable consideration, the receipt of which is hereby
acknowledged, and in order to be of material benefit and assistance to Borrower
and in order to induce Lenders to extend credit to Borrower, Guarantor
guarantees and agrees as follows:
1. Recitations. Each and all of the foregoing recitals are true and
correct and are incorporated herein by reference.
2. Guaranteed Obligations. Guarantor hereby absolutely, irrevocably and
unconditionally guarantees (as primary obligor and not merely as surety) to
Lenders, their successors and assigns, the full and prompt payment (whether at
stated maturity, by acceleration, or otherwise) and performance of the
"Guaranteed Obligations" (as hereinafter defined). "Guaranteed Obligations shall
mean:
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(a) Any and all indebtedness of Borrower to Lenders, whether
now existing or hereafter incurred, including, but not limited to all principal,
interest, fees, attorneys' fees, liabilities for costs and expenses and other
indebtedness, obligations and liabilities of Borrower to Lender at any time
created or arising solely in connection with the Credit Agreement or any
amendment, extension, renewal, or modification thereto or substitution therefor;
(b) All agreements, covenants, indemnities, terms,
conditions, and other obligations to be performed by, or on behalf of Borrower
under the Credit Agreement; and
(c) All costs, expenses and fees, including but not limited
to court costs and reasonable attorneys' fees and paralegal fees, arising in
connection with, or as a consequence of the non-payment, non-performance or
non-observance of all amounts, indebtedness, obligations and liabilities of
Borrower to Lenders described in this Section 2.
3. Guaranty of Payment; Right to Proceed Directly Against Guarantor.
This is an irrevocable, absolute, continuing guaranty of payment (inter alia)
and not a guaranty of collection; and the Guarantor waives any right to require
that any action be brought against Borrower, any other guarantor of the Credit
Agreement obligations, or any other person or to require that resort be had to
any security. Lenders may, at their option, proceed against the Guarantor
individually, in the first instance to collect any monies the payment of which
is guaranteed hereby, without first proceeding against Borrower or any other
person or guarantor of the Credit Agreement obligations, and without first
resorting to any security held by its as collateral or to any other remedies, at
the same or different times, as it may deem advisable; and the liability of the
Guarantor hereunder shall be in no way affected or impaired by an acceptance by
Lenders of any security for, or other guarantors upon, any indebtedness,
liability or obligation of Borrower to the Lenders, or by any failure, delay,
neglect or omission by Lenders to realize upon or protect any such indebtedness,
liability or obligation or any notes or other instruments evidencing same or any
collateral or security therefor.
4. Waivers by Guarantor. Guarantor hereby waives: (a) notice of
acceptance of this Guaranty by Lenders, or of the creation, renewal or accrual
of any liability of Borrower, present or future, or of the reliance of Lenders
upon this Guaranty (it being understood that every indebtedness, liability and
obligation of Borrower to Lenders forming a part of the Guaranteed Obligations
shall conclusively be presumed to have been created, contracted or incurred in
reliance upon this Guaranty); (b) demand of payment from any person indebted in
any manner or for any of the liabilities or obligations hereby guaranteed; (c)
presentation for payment of any instrument of Borrower or any other person,
protest thereof and notice of its dishonor to any party thereto and to
Guarantor; (d) any duty on the part of Lenders to disclose to Guarantor any
facts which Lenders may now or hereafter know about 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 have a reasonable opportunity to
communicate such facts to Guarantor, it being understood and agreed that
Guarantor is fully responsible for being and keeping informed of the financial
condition of Borrower and of all circumstances bearing on the risk of
non-payment of all obligations hereby guaranteed.
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5. Effect of Bankruptcy. In the event that, pursuant to any insolvency,
bankruptcy, reorganization, receivership or other debtor relief law, or any
judgment, order or decision thereunder, Lenders must rescind or restore any
payment, or any part thereof, received by Lenders in satisfaction of the
Guaranteed Obligations, as set forth therein, any prior release or discharge
from the terms of this Guaranty given to Guarantor by Lenders shall be without
effect, and this Guaranty shall remain in full force and effect. It is the
intention of Lenders that the Guaranteed Obligations hereunder shall not be
discharged except by Guarantor's performance of all such obligations and then
only to the extent of such performance.
6. Notification of Default. The Guarantor shall immediately notify the
Lenders of any event of default, whether or not declared, under the Guarantor's
revolving Credit Facilities and Reimbursement Agreement, dated as of December
15, 1995, among the Guarantor, as borrower, NationsBank National Association
(South), successor by merger to NationsBank of Florida National Association, as
agent for the lenders named therein, and the lenders named therein, as such
revolving credit facility may be amended or modified from time to time.
7. Remedies. In the event that Guarantor shall fail to perform promptly
as herein provided, Lenders shall have the right (from time to time, without
first requiring performance on the part of the Borrower) to require performance
by the Guarantor of any Guaranteed Obligations, by action at law or in equity or
both, and further to collect in any such action reasonable compensation for all
loss, costs, damage, injury and expense sustained or incurred by Lenders as a
consequence of such breach.
8. Interest and Expenses of Enforcement. Any sum required to be paid by
Guarantor to Lenders pursuant to the terms hereof shall bear interest at the
maximum rate permitted by applicable law, until paid. Guarantor agrees to pay
any and all costs and expenses incurred by Lenders in enforcing any rights or
remedies under this Guaranty, including, without limitation, all reasonable fees
and expenses of the Lenders' attorneys, including reasonable fees and expenses
of any appeals and in any bankruptcy proceedings, regardless of whether any
specific legal proceedings should be commenced or initiated.
9. No Waiver. No failure on the part of Lenders to pursue any remedy
hereunder or under any of the Loan Documents, shall constitute a waiver on its
part of the right to pursue said remedy on the basis of the same or a subsequent
breach, nor shall failure give rise to an estoppel against Lenders, nor excuse
the Guarantor from its obligations hereunder. No extension, substitution,
modification, amendment or renewal of any of the Loan Documents or the
provisions hereof shall operate to discharge the Guarantor from any obligation
herein contained in whole or in part, except to the extent expressly provided by
Lenders in writing.
10. Guaranty Independent. Guarantor agrees that the obligations
hereunder are independent of and in addition to the undertakings of the Borrower
pursuant to the Loan Documents and any other obligations of Guarantor to
Lenders. A separate action may be brought to enforce the
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provisions hereof against Guarantor, whether or not Borrower, or any other
guarantor, is a party in any such action. Borrower and/or Guarantor and/or any
other guarantor may be sued together, or any of them may be sued separately
without first or contemporaneously suing the other.
11. Amendments, Etc.. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by Guarantor therefrom shall in any event
be effective unless the same shall be in writing and signed by Credit Suisse,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which such waiver or consent has been given.
12. Subordination. Any unsecured indebtedness of the Borrower now or
hereafter directly held by Guarantor ("Subordinated Indebtedness") is hereby
subordinated to the indebtedness of Borrower to Lenders under the Loan
Documents, and such indebtedness of Borrower to Guarantor shall, after an Event
of Default, if Lenders so request, be received by Guarantor as trustee for
Lenders and be paid over to Lenders on account of the indebtedness of Borrower
to Lenders under the Loan Documents, but without reducing or limiting in any
manner the liability of Guarantor under the other provisions of this Guaranty.
Guarantor shall not collect and will take no action to collect any such
Subordinated Indebtedness from Borrower until such time as the Guaranteed
Obligations have been paid in full.
13. Notices, Demands and Other Instruments. All notices, offers,
acceptances, rejections, consents, requests and other communications hereunder
shall be in writing and shall be deemed to have been giving (i) when delivered
in person, or (ii) when sent by telecopier, telex or other telegraphic means
(with receipt confirmed), or (iii) on receipt after being sent by express mail
or delivery service guaranteeing overnight delivery, provided that in each of
(i), (ii) and (iii) a copy is mailed by first class registered or certified
mail, postage prepaid, return receipt requested, in each case addressed as
follows:
If to Guarantor: Republic Industries, Inc.
000 Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
If to Lender: Credit Suisse
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx ("Xxxxx") Xxxxxx
or to such other person or address as any such party shall furnish by notice to
the other parties in writing. Notices need not be given or made by an officer of
either party but shall be deemed sufficiently given if made by the counsel of
such party, and all of such notices shall be deemed in compliance hereof
provided only that they be given in the manner specified herein.
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14. Miscellaneous.
(a) This Guaranty shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to principles
of conflicts of law.
(b) The obligations and promises set forth herein shall be
joint and several undertakings of each party now or hereafter executing and/or
joining in this Guaranty, or any other guarantor of the Credit Agreement
obligations, and Lenders may proceed hereunder against any one or more of said
parties without waiving its right to proceed against any or all of the other
parties hereto.
(c) If any term, provision, covenant or condition hereof or
any application thereof should be held by a court of competent jurisdiction to
be invalid, void or unenforceable, all terms, provisions, covenants and
conditions hereof, and all applications thereof not held invalid, void or
unenforceable shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
(d) The use of the words "herein", "hereof", "hereunder" and
any other words of similar import refer to this Guaranty as a whole and not to
any particular paragraph, subparagraph or other subdivision of this Guaranty
unless specifically noted otherwise in this Guaranty.
(e) The title of this Guaranty and the headings of the
paragraphs of this Guaranty are for convenience of reference only, and are not
to be considered a part of the substance of this Guaranty, and shall not limit
or expand or otherwise affect any of the terms hereof.
(f) In this Guaranty, wherever the context so requires, the
neuter gender includes the masculine and/or feminine gender, the singular
numbers include the plural, and the plural numbers include the singular.
(g) This Guaranty creates a continuing obligation and the
obligation of Guarantor hereunder shall be binding upon Guarantor and its
successors, heirs, representatives and assigns, and shall inure to the benefit
of and be enforceable by Lenders and their successors and assigns.
(h) GUARANTOR AND LENDERS DO HEREBY KNOWINGLY VOLUNTARILY,
INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENTS EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON OR PARTY AND RELATED TO
THIS TRANSACTION; THIS IRREVOCABLE WAIVER OF THE RIGHT TO A JURY TRIAL BEING A
MATERIAL INDUCEMENT FOR LENDERS TO ISSUE THE LETTERS OF CREDIT AND TO ACCEPT
THIS GUARANTY.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the
day and year first above written.
REPUBLIC INDUSTRIES, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
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