Exhibit 10.7.10
UAG GUARANTY OF ESTATE LEASE
THIS GUARANTY OF LEASE ("Guaranty"), made as of the 12th day of July, 1996,
by UNITED AUTO GROUP, INC. ("Guarantor") to and for the benefit of XXXXX XXXX
XXXXXXX, as Executrix under the Will of Xxxxx Xxxxxxxx Xxxxxxx, Xx., Deceased,
her successors, successors-in-title and assigns ("Estate").
W I T N E S S E T H:
WHEREAS, Estate, as "Landlord," and Xxxxxxx Nissan, Inc., a Georgia
corporation and second-tier subsidiary of Guarantor (hereinafter referred to as
the "Corporation,") as Tenant, have entered into a Lease Agreement of even date
herewith (the "Lease"), demising the Premises commonly known as 5211 and 0000
Xxxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000; and
WHEREAS, Estate has required, as a condition precedent to the effectiveness
of the Lease, that Guarantor execute and deliver this Guaranty; and
WHEREAS, the Guarantor, as the corporate parent of the Corporation, and,
having a financial interest in the Corporation, has agreed to execute and
deliver this Guaranty.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Guarantor agrees as follows:
1. GUARANTY. Guarantor absolutely, unconditionally and irrevocably
guarantees to Estate:
(a) the full and prompt payment of any amounts required to be paid by
Corporation, or for which the Corporation shall be liable, under
the Lease, including without limitation Rent, Base Rent,
additional rent, real estate taxes, assessments, maintenance and
repair, governmental charges, interest, attorneys' fees and
premiums for insurance policies payable by the Corporation under
the Lease, including all interest and other charges with respect
thereto;
(b) the payment of all Enforcement Costs (as hereinafter defined);
(c) the full, complete and punctual observance, performance and
satisfaction of the obligations, duties and agreements of the
Corporation under the Lease.
All amounts due, debts, liabilities and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations." The Obligations of
the Guarantor hereunder are primary and unconditional and shall be
enforceable before, concurrently or after any claim or demand made or suit
filed against the Corporation.
2. DEFAULT. All sums guaranteed hereby shall be deemed to become
immediately due and payable to Estate if:
(a) there is an Event of Default (as defined in the Lease) by
Corporation under the Lease; or
(b) the Guarantor becomes insolvent or unable to pay debts as they
mature or admits in writing to such effect, makes a conveyance
fraudulent as to creditors under any state or federal law, makes
an assignment for the benefit of creditors, or any proceeding is
instituted by or against the Guarantor alleging that the
Guarantor is insolvent or unable to pay debts as they mature, or
a petition under any provision of Title 11 of the United States
Code, as amended, is brought by or against the Guarantor, or a
receiver is appointed for any part of the property or assets of
the Corporation or the Guarantor.
3. REMEDIES REGARDING INDEBTEDNESS. If there is an Event of Default by
Corporation under the Lease, the Guarantor's liability and obligation for
payment of the outstanding balance of the Indebtedness hereunder shall not be
limited in any respect. Guarantor agrees to pay the amount of such
Indebtedness, regardless of any defense, right of set-off or claims which the
Corporation or the Guarantor may have against Estate. Estate shall have the
option of joining the Guarantor as a party to any such enforcement proceeding.
This is an absolute, irrevocable, present and continuing guaranty of payment and
not of collection.
4. REMEDIES REGARDING OBLIGATIONS. If there is an Event of Default by
the Corporation under the Lease, then, in any such event, Guarantor agrees to
immediately (i) perform the Obligations; (ii) pay any and all costs and expenses
necessary for said timely performance; and (iii) indemnify and hold Estate
harmless from and against any and all loss, damage, cost, expense, injury, or
liability Estate may suffer or incur in connection with the exercise of its
rights under this Guaranty.
5. RETURN OF PAYMENTS. Guarantor agrees that, if at any time all or any
part of any payment theretofore applied by Estate to any Indebtedness is
rescinded or returned by Estate for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy, liquidation or reorganization of any
party), such Indebtedness shall, for the purposes of this Guaranty, be deemed to
have continued in existence to the extent of such payment, notwithstanding such
application by Estate, and this Guaranty shall continue to be effective or be
reinstated, as the case may be, as to such Indebtedness, all as though such
application by Estate had not been made.
6. NO DISCHARGE. Guarantor agrees that the obligations, covenants and
agreements of Guarantor under this Guaranty shall not be affected or impaired by
any act of Estate, or any event or condition except full performance (as called
for herein) of the Obligations and repayment of the Indebtedness and any other
sums due hereunder. Guarantor agrees that, without full performance (as called
for herein) of the Obligations and payment in full of the Indebtedness (as
called for herein), the liability of Guarantor hereunder shall not be discharged
by: (i) the renewal or extension of time for the payment of the Indebtedness or
performance
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of the Obligations under the Lease or any other agreement relating to the
Indebtedness or the Obligations, whether made with or without the knowledge or
consent of Guarantor; or (ii) any transfer, waiver, compromise, settlement,
modification, surrender, or release of the Lease; or (iii) the existence of any
defenses to enforcement of the Lease; (iv) any failure, omission, delay or
inadequacy, whether entire or partial, of Estate to exercise any right, power or
remedy regarding the Lease; (v) the existence of any set-off, claim, reduction,
or diminution of the Indebtedness, or any defense or any kind or nature, which
Guarantor may have against the Corporation or which any party has against
Estate; (vi) the addition of any and all other endorsers, guarantors, obligors,
and other persons liable for the payment of the Indebtedness and performance of
the Obligations; all whether or not Guarantor shall have had notice or knowledge
or any act or omission referred to in the foregoing clauses (i) through (vi) of
this Paragraph. Guarantor intends that Guarantor shall remain liable hereunder
as a principal until all Indebtedness shall have been paid in full and all
Obligations have been performed, notwithstanding any fact, act, event or
occurrence which might otherwise operate as a legal or equitable discharge of a
surety or guarantor.
7. APPLICATION OF AMOUNTS RECEIVED. Any amounts received by Estate from
whatsoever source on account of any Indebtedness may be applied by Estate to the
payment of such Indebtedness, and in such order or application, as Estate may
from time to time elect. Notwithstanding any payments made by or for the
account of Guarantor on account of the Indebtedness, such Guarantor shall not be
subrogated to any rights of Estate until such time as Estate shall have received
payment of the full amount of all Indebtedness and the Obligations shall have
been performed to Estate's satisfaction.
8. WAIVER. Guarantor expressly waives: (i) notice of the acceptance by
Estate of this Guaranty; (ii) notice of the existence, creation, payment or
nonpayment of the Indebtedness; (iii) presentment, demand, notice of dishonor,
protest, and all other notices whatsoever; (iv) any failure by Estate to inform
Guarantor of any facts Estate may now or hereafter know about the Corporation or
the Lease, it being understood and agreed that Estate has no duty to inform and
that Guarantor is fully responsible for being and remaining informed by the
Corporation of all circumstances bearing on the existence or creation, or the
risk of nonpayment of the Indebtedness; and (v) the provisions of O.C.G.A.
Section 10-7-24 (or any similar statute of any other jurisdiction) relating to
the Guarantor's right to discharge upon giving notice to Estate to proceed
against the Corporation for collection, and the failure or refusal by Estate to
commence an action or foreclose any collateral within a period of time or at any
time. Credit may be granted or continued from time to time by Estate to
Corporation without notice to or authorization from Guarantor, regardless of the
financial or other condition of the Corporation at the time of any such grant or
continuation. No modification or waiver of any of the provisions of this
Guaranty will be binding upon Estate except as expressly set forth in a writing
duly signed and delivered on behalf of Estate.
9. ENFORCEMENT COSTS. If: (i) this Guaranty or the Lease is placed in
the hands of an attorney for collection or enforcement through any legal
proceeding; (ii) an attorney is retained to represent Estate in any bankruptcy,
reorganization, receivership, or other proceedings affecting creditors' rights
and involving a claim under this Guaranty or the Lease; (iii) an attorney is
retained to protect or enforce the Lease; or (iv) an attorney is retained to
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represent Estate in any other proceedings whatsoever in connection with this
Guaranty or the Lease or any property subject thereto, then Guarantor shall pay
to Estate upon demand the costs of collection and the actual reasonable
attorneys' fees and expenses incurred by Estate, including without limitation
court costs, filing fees, recording costs, and all other costs and expenses
incurred in connection therewith (all of which are referred to herein as
"Enforcement Costs"), in addition to all other amounts due hereunder.
10. TRANSFER OF INDEBTEDNESS OR OBLIGATIONS. Notwithstanding any
assignment or transfer of the Indebtedness or any Obligations or any interest
therein, all portions of the Indebtedness or the Obligations or any interest
therein, including those assigned, and each and every immediate and successive
assignee or transferee of such Indebtedness or Obligations or interest shall, to
the extent of the Indebtedness or Obligations or interests assigned or
transferred, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were Estate; provided, however, that unless the
assignor or transferor shall otherwise consent in writing, the assignor or
transferor shall have an unimpaired right, prior and superior to that of such
assignee or transferee, to enforce this Guaranty for its benefit as to such
portions of the Indebtedness or interest therein not assigned or transferred.
11. GOVERNING LAW; INTERPRETATION. This Guaranty and the Lease Agreement
has been negotiated and delivered in Atlanta, Georgia, and shall be governed by
the laws of the State of Georgia without reference to the conflicts of law
principles of that State. The headings of sections and paragraphs in this
Guaranty are for convenience only and shall not be construed in any way to limit
or define the content, scope, or intent of the provisions hereof. As used in
this Guaranty, the singular shall be fully interchangeable, where the context so
requires. If any provision of this Guaranty, or any paragraph, sentence,
clause, phrase, or word, or the application thereof, in any circumstances, is
adjucated by a court of competent jurisdiction to be invalid, the validity of
the remainder of this Guaranty shall be construed as if such invalid part were
never included herein. Time is of the essence of the Guaranty. All payments to
be made hereunder shall be made in currency and coin of the United States of
America which is legal tender for public and private debts at the time of
payment.
12. ENTIRE AGREEMENT. This Guaranty and the Lease Agreement constitute
the entire agreements among the parties with respect to the subject matter
hereof and supersede all prior such agreements and understandings, both written
and oral. This Guaranty may not be modified or amended except by a written
instrument signed by Estate and Guarantor. If this Guaranty is executed in
several counterparts, each of those counterparts shall be deemed an original,
and all them together shall constitute one and the same instrument.
13. SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY. This Guaranty
shall bind Guarantor and the heirs, assigns, successors, executors and legal
and personal representatives of Guarantor. If this Guaranty is executed by
more than one person, it shall be the joint and several undertaking of each
of the undersigned. Irrespective of whether this Guaranty is executed by
more than one person, it is agreed that the undersigned's liability hereunder
is several and independent of any other guaranties or other obligations at
any time in effect with respect to the Indebtedness, the Obligation or any
part thereof and that Guarantor's liability
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hereunder may be enforced regardless of the existence, validity, enforcement
or non-enforcement of any such other guaranties or other obligations.
14. NOTICES. Any notice, demand or other communication which either party
may desire or may be required to give to the other shall be in writing, and
shall be deemed given if and when personally delivered, or on the second
business day after being deposited in United States registered or certified
mail, postage prepaid, addressed to the other party at its address set forth
below, or to such other address as either party may have designated to the other
party in writing:
If to Estate:
Xxxxx Xxxx Xxxxxxx, as Executrix under
the Will of Xxxxx Xxxxxxxx Xxxxxxx, Xx., Deceased,
her successors, successors-in-title and assigns
000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxx, Xxxxxxxx & Xxxxxxx, P.C.
14th Floor, Lenox Towers II
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
If to Guarantor:
United Auto Group, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
with a copy to:
Xxxxxx & Xxxxxx
0000 Xxxx Xxxxx, Xxxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxxx
Except as otherwise specifically required herein, notice of the exercise of
any right, option or power granted to Estate by this Guaranty is not required to
be given.
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IN WITNESS WHEREOF, the undersigned has executed, sealed and delivered this
instrument as of the day and year first above written.
GUARANTOR:
UNITED AUTO GROUP, INC.
By: /s/ Xxxxxx Xxxxxxxx
Its: Executive Vice President
[Corporate Seal]
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