GUARANTY
THIS
GUARANTY
(this
“Guaranty”)
is
made effective as of September 28, 2006, by Manchester Inc., a Nevada
corporation (“Manchester”),
Nice
Cars Acceptance AcquisitionCo, Inc., a Delaware corporation (“NCAC”)
and
Nice Cars Operations AcquisitionCo, Inc., a Delaware corporation (“NCOC”
and,
together with Manchester and NCAC, “Guarantors”
and
each, a “Guarantor”),
to
and for the benefit of Palm Beach Multi-Strategy Fund, L.P., a Delaware limited
partnership (“Lender”).
WHEREAS,
Nice
Cars Funding LLC, a Delaware limited liability company (“Borrower”),
and
Lender have entered into that certain Loan and Security Agreement of even date
herewith (as amended, supplemented or modified from time to time, the
“Loan
Agreement”),
pursuant to which Borrower has agreed to borrow from Lender, and Lender has
agreed to lend to Borrower, certain amounts, all in accordance with and subject
to the terms and conditions set forth in the Loan Agreement;
WHEREAS,
Borrower, NCAC, Manchester, NCOC and Borrower have entered into that certain
Sale and Servicing Agreement of even date herewith (as amended, supplemented
or
modified from time to time, the “Sale
and Servicing Agreement”),
pursuant to which Borrower has agreed to purchase certain receivables
(“Receivables”)
from
NCAC and Manchester has agreed to service such Receivables for the benefit
of
Borrower.
WHEREAS,
as
security for its obligations under the Loan Agreement, the Borrower has pledged
to Lender, among other things, all of its right, title and interest in and
to
the Receivables and the Sale and Servicing Agreement.
WHEREAS,
it is a
condition precedent to Lender’s obligation to make the Loan and advances
pursuant to the Loan Agreement, that Guarantor, among other things, shall
execute and deliver this Guaranty;
WHEREAS,
Manchester and NCAC own, directly or indirectly, 100% of the equity of Borrower
and Manchester owns 100% of the equity of NCAC and NCOC, and therefore each
Guarantor will benefit from the Loan to Borrower from Lender and each Guarantor
further acknowledges and agrees that (a) the Loan constitutes valuable
consideration to such Guarantor, (b) this Guaranty is intended to be an
inducement to Lender to execute, deliver and perform the Loan Agreement and
the
other Loan Documents and to extend credit and the Loan to Borrower, and (c)
Lender is relying upon this Guaranty in making and advancing the Loan to
Borrower;
NOW,
THEREFORE,
in
consideration of the foregoing and of the covenants and agreements hereinafter
set forth, the receipt and sufficiency of which are hereby acknowledged, and
as
an inducement for Lender to enter into the Loan Agreement and the other Loan
Documents, Guarantors, intending to be legally bound hereby, agrees as
follows:
1. DEFINED
TERMS.
(a) All
capitalized terms used in this Guaranty and not defined herein shall have the
meanings given to such terms in the Loan Agreement. Whenever the context so
requires, each reference to gender includes the masculine and feminine, the
singular number includes the plural and vice versa. References to section,
article, annex, schedule, exhibit and like references are references to this
Guaranty unless otherwise specified. A Default or Event of Default shall
“continue” or be “continuing” until such Default or Event of Default has been
cured or waived by Lender in accordance with the Loan Agreement. References
in
this Guaranty to any Person shall include such Person and its successors and
permitted assigns.
(b) For
purposes herein, the following terms shall have the following
meanings:
“Guaranteed
Obligations”
means,
subject to Section 2(f) below, collectively all of the indebtedness,
obligations, and undertakings that are guaranteed by the Guarantors and
described in subsections (a) and (b) of Section 2 of this Guaranty.
“Loan
Obligor”
means
any of Borrower, the Guarantors and any other endorsers, guarantors or obligors,
primary or secondary, of any or all of the Indebtedness.
“Security”
means
any rights, properties, or interests of the Secured Parties under the Loan
Documents, the Security Agreement or otherwise, which provide recourse or other
benefits to Lender in connection with the Guaranteed Obligations or the non
payment or non performance thereof, including collateral (whether real or
personal, tangible or intangible) in which the Secured Parties have rights
under
or pursuant to any Loan Documents, guaranties of the payment or performance
of
any Guaranteed Obligation, bonds, surety agreements, keep well agreements,
letters of credit, rights of subrogation, rights of offset, and rights pursuant
to which other claims are subordinated to the Guaranteed
Obligations.
2. THE
GUARANTEED DEBT.
(a) Subject
to Section 2(f) below, the Guarantors hereby jointly and severally, irrevocably,
absolutely, and unconditionally guarantee to Lender the prompt, complete, and
full payment when due, and no matter how the same shall become due, of: (i)
the
Loan, including the Note and any other note that may be issued from time to
time
to evidence the Loan and all principal thereof, all interest thereon and all
other sums payable thereunder; (ii) all obligations or liabilities of any Loan
Obligor; (iii) all other sums payable under the Loan Documents, whether for
principal, interest, fees or otherwise; and (iv) any and all other indebtedness,
obligations or liabilities which may at any time be owed to Lender, whether
incurred heretofore or hereafter or concurrently herewith, under or pursuant
to
any of the Loan Documents. Without limiting the generality of the foregoing,
the
Guarantors’ liability hereunder shall extend to and include all post-petition
interest, expenses, and other duties and liabilities of Borrower described
above
in this subsection (a), or below in the following subsection (b), which would
be
owed by Borrower but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization, or similar proceeding
involving Borrower.
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(b) (i)
Subject
to Section 2(f) below, the Guarantors hereby jointly and severally irrevocably,
absolutely, and unconditionally guarantee to Lender the prompt, complete and
full performance, when due, and no matter how the same shall become due, of
all
obligations and undertakings of Borrower to Lender under, by reason of, or
pursuant to any of the Loan Documents.
(ii) Manchester
and NCOC hereby irrevocably, absolutely and unconditionally guarantee to Lender
the prompt, complete and full performance, when due, and no matter how the
same
shall become due, of all obligations and undertakings of NCAC to Borrower and
Lender in its capacity as Seller under the Sale and Servicing
Agreement.
(iii) NCAC
and
NCOC hereby irrevocably, absolutely, and unconditionally guarantee to Lender
the
prompt, complete and full performance, when due, and no matter how the same
shall become due, of all obligations and undertakings of Manchester to Borrower
and Lender in its capacity as Servicer under the Sale and Servicing
Agreement.
(c) If
the
party liable therefor shall for any reason fail to pay any Guaranteed
Obligation, as and when such Guaranteed Obligation shall become due and payable,
whether at its stated maturity, as a result of the exercise of any power to
accelerate, or otherwise, the Guarantors will forthwith, upon demand by Lender,
pay such Guaranteed Obligation in full to Lender. If the party responsible
therefor shall for any reason fail to perform promptly any Guaranteed
Obligation, the Guarantors will forthwith, upon demand by Lender, cause such
Guaranteed Obligation to be performed or, if specified by Lender, provide
sufficient funds, in such amount and manner as Lender shall in good faith
determine, for the prompt, full and faithful performance of such Guaranteed
Obligation by Lender or such other Person as Lender shall
designate.
(d) If
either
the party responsible therefor or the Guarantors fail to pay or perform any
Guaranteed Obligation as described in the immediately preceding subsections
(a),
(b), or (c), the Guarantors will incur the additional obligation to pay to
Lender, and the Guarantors will forthwith upon demand by Lender pay to Lender,
the amount of any and all expenses, including reasonable fees and disbursements
of Lender’s counsel and of any experts or agents retained by Lender, which
Lender may incur as a result of such failure.
(e) As
between each Guarantor and Lender, this Guaranty shall be considered a primary
and liquidated liability of such Guarantor.
(f) Notwithstanding
any other provision of this Guaranty, the aggregate liability of the Guarantors
to Lender hereunder with respect to any Guaranteed Obligations of the Borrower
to Lender under the Loan Documents shall not exceed ten percent (10%) of the
amount of the Indebtedness from time to time. For the avoidance of doubt, the
limitation in the previous sentence shall not limit the liability of the
Guarantors hereunder with respect to the Guaranteed Obligations of NCAC as
Seller to Borrower or Lender under the Sale and Servicing Agreement or the
Guaranteed Obligations of Manchester as Servicer to Borrower or Lender under
the
Sale and Servicing Agreement, as provided in Section 2(b)(ii) and (iii),
above.
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(g) The
liability of the Guarantors hereunder shall be limited to the maximum amount
of
liability that can be incurred without rendering this Guaranty, as it relates
to
the Guarantors, voidable under applicable law relating to fraudulent conveyance
or fraudulent transfer, and not for any greater amount.
3. DURATION.
This
Guaranty shall be irrevocable until all of the Guaranteed Obligations have
been
completely and finally paid and performed and Lender has no obligation to make
any loans or other advances to Borrower, and all obligations and undertakings
of
Borrower and NCAC under, by reason of, or pursuant to the Loan Documents have
been completely performed, and this Guaranty is thereafter subject to
reinstatement as provided in Section 4(d). All extensions of credit and
financial accommodations heretofore or hereafter made by Lender to Borrower
pursuant to the Loan Agreement shall be conclusively presumed to have been
made
in acceptance hereof and in reliance hereon. This Guaranty shall be binding
upon
the undersigned Guarantors and their respective successors and assigns, jointly
and severally, and shall inure to the benefit of Lender and its successors
and
assigns.
4. UNCONDITIONAL
GUARANTY.
(a) This
is
an unconditional Guaranty; it is unlimited as to time, until termination. Each
Guarantor warrants that there are no conditions, oral or otherwise, on the
effectiveness of this Guaranty. This is a continuing guaranty and shall apply
to
and cover all Guaranteed Obligations and renewals and extensions thereof and
substitutions therefor from time to time. No action which Lender may take or
omit to take in connection with any of the Loan Documents, any of the Guaranteed
Obligations (or any other indebtedness owing by Borrower to Lender), or any
Security, and no course of dealing of any Secured Party with any Loan Obligor
or
any other Person, shall release or diminish the Guarantors’ obligations,
liabilities, agreements or duties hereunder, affect this Guaranty in any way,
or
afford the Guarantors any recourse against any Secured Party, regardless of
whether any such action or inaction may increase any risks to or liabilities
of
any Secured Party or any Loan Obligor or increase any risk to or diminish any
safeguard of any Security. Without limiting the foregoing, the Guarantors hereby
expressly agree that Lender, directly or through the Collateral Agent, may,
from
time to time, without notice to or the consent of the Guarantors, do any or
all
of the following: (i) amend, change or modify, in whole or in part, any one
or
more of the other Loan Documents and give or refuse to give any waivers or
other
indulgences with respect thereto; (ii) neglect, delay, fail, or refuse to take
or prosecute any action for the collection or enforcement of any of the
Guaranteed Obligations, to foreclose or take or prosecute any action in
connection with any Security or Loan Document, to bring suit against any Loan
Obligor or any other Person, or to take any other action concerning the
Guaranteed Obligations or the Loan Documents; (iii) accelerate, change,
rearrange, extend, or renew the time, rate, terms, or manner for payment or
performance of any one or more of the Guaranteed Obligations (whether for
principal, interest, fees, expenses, indemnifications, affirmative or negative
covenants, or otherwise); (iv) compromise or settle any unpaid or unperformed
Guaranteed Obligation or any other obligation or amount due or owing, or claimed
to be due or owing, under any one or more of the Loan Documents; (v) take,
exchange, amend, eliminate, surrender, release, or subordinate any or all
Security for any or all of the Guaranteed Obligations, accept additional or
substituted Security therefor, and perfect or fail to perfect Lender’s rights in
any or all Security; (vi) discharge, release, substitute or add Loan Obligors;
(vii) apply all monies received from Loan Obligors or others, or from any
Security for any of the Guaranteed Obligations, as Lender may determine to
be in
its best interest, without in any way being required to xxxxxxxx Security or
assets or to apply all or any part of such monies upon any particular Guaranteed
Obligations;
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(b) No
action
or inaction of any Loan Obligor or any other Person, and no change of law or
circumstances, shall release or diminish the Guarantors’ obligations,
liabilities, agreements, or duties hereunder, affect this Guaranty in any way,
or afford any Guarantor any recourse against Lender. Without limiting the
foregoing, the obligations, liabilities, agreements, and duties of the
Guarantors under this Guaranty shall not be released, diminished, impaired,
reduced, or affected by the occurrence of any or all of the following from
time
to time, even if occurring without notice to or without the consent of the
Guarantors: (i) any voluntary or involuntary liquidation, dissolution, sale
of
all or substantially all assets, marshalling of assets or liabilities,
receivership, conservatorship, assignment for the benefit of creditors,
insolvency, bankruptcy, reorganization, arrangement, or composition of any
other
Loan Obligor or any other proceedings involving any other Loan Obligor or any
of
the assets of any other Loan Obligor under laws for the protection of debtors,
or any discharge, impairment, modification, release, or limitation of the
liability of, or stay of actions or lien enforcement proceedings against, any
other Loan Obligor, any properties of any other Loan Obligor, or the estate
in
bankruptcy of any other Loan Obligor in the course of or resulting from any
such
proceedings; (ii) the failure by Lender to file or enforce a claim in any
proceeding described in the immediately preceding subsection (i) or to take
any
other action in any proceeding to which any other Loan Obligor is a party;
(iii)
the release by operation of law of any other Loan Obligor from any of the
Guaranteed Obligations or any other obligations to Lender; (iv) the invalidity,
deficiency, illegality, or unenforceability of any of the Guaranteed Obligations
of any other Loan Obligor or any other Loan Document, in whole or in part,
any
bar by any statute of limitations or other law of recovery on any of the
Guaranteed Obligations of any other Loan Obligor, or any defense or excuse
of
any other Loan Obligor for failure to perform on account of force majeure,
act
of God, casualty, impossibility, impracticability, or other defense or excuse
whatsoever; (v) the failure of any other Loan Obligor or any other Person to
sign any guaranty or other instrument or agreement within the contemplation
of
any other Loan Obligor or Lender; (vi) the fact that the Guarantors may have
incurred directly part of the Guaranteed Obligations or is otherwise primarily
liable therefor; (vii) without limiting any of the foregoing, any fact or event
(whether or not similar to any of the foregoing) which in the absence of this
provision would or might constitute or afford a legal or equitable discharge
or
release of or defense to a guarantor or surety other than the actual payment
and
performance by the Guarantors under this Guaranty.
(c) Lender
may invoke the benefits of this Guaranty before pursuing any remedies against
any Loan Obligor or any other Person and before proceeding against any Security
now or hereafter existing for the payment or performance of any of the
Guaranteed Obligations. Lender may maintain an action against the Guarantors
on
this Guaranty without joining any other Loan Obligor therein and without
bringing a separate action against any other Loan Obligor.
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(d) If
any
payment to Lender by any Loan Obligor is held to constitute a preference or
a
voidable transfer under applicable state or federal laws, or if for any other
reason Lender is required to refund such payment to the payor thereof or to
pay
the amount thereof to any other Person, such payment to Lender shall not
constitute a release of any Guarantor from any liability hereunder, and the
Guarantors agree to pay such amount to Lender on demand and agree and
acknowledge that this Guaranty shall continue to be effective or shall be
reinstated, as the case may be, to the extent of any such payment or payments.
Any transfer by subrogation which is made as contemplated in Section 8 prior
to
any such payment or payments shall (regardless of the terms of such transfer)
be
automatically voided upon the making of any such payment or payments, and all
rights so transferred shall thereupon revert to and be vested in
Lender.
5. DISCLOSURE
OF CONDITION OF LOAN OBLIGORS.
Each
Guarantor warrants and represents to Lender that: (a) this Guaranty is executed
at the Borrower’s request; (b) such Guarantor has established adequate means of
obtaining from the Loan Obligors on a continuing basis financial and other
information pertaining to the Loan Obligors’ affairs or business; and (c) such
Guarantor is now and will be familiar with the affairs, business, operation
and
condition of the Loan Obligors and their assets. Each Guarantor hereby waives
any duty on the part of Lender to disclose to the Guarantors any matter relating
to the affairs, business, operation or condition of any Loan Obligor and its
assets now known or hereafter known to Lender. With respect to any debt of
a
Loan Obligor to Lender, Lender need not inquire into the powers of the Borrower
or the officers, directors or agents acting or purporting to act on its behalf,
and any debt created in reliance upon the professed exercise of such powers
shall be guaranteed hereunder.
6. WAIVERS
REGARDING THE GUARANTEED DEBT.
Each
Guarantor hereby waives, with respect to the Guaranteed Obligations, this
Guaranty, and the other Loan Documents:
(a) notice
of
the incurrence of any Guaranteed Obligation by any Loan Obligor, and notice
of
any kind concerning the assets, liabilities, financial condition,
creditworthiness, businesses, prospects, or other affairs of any Loan Obligor
(it being understood and agreed that: (i) each Guarantor shall take full
responsibility for informing itself of such matters, (ii) Lender shall have
no
responsibility of any kind to inform the Guarantors of such matters, and (iii)
Lender is hereby authorized to assume that each Guarantor, by virtue of its
relationships with the Loan Obligors which are independent of this Guaranty,
has
full and complete knowledge of such matters whenever Lender extends credit
to
Borrower or takes any other action which may change or increase such Guarantor’s
liabilities or losses hereunder);
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(b) notice
that Lender, any Loan Obligor, or any other Person has taken or omitted to
take
any action under any Loan Document or any other agreement or instrument relating
thereto or relating to any Guaranteed Obligation;
(c) notice
of
acceptance of this Guaranty and all rights of any Guarantor under any statute
or
law discharging such Guarantor from liability hereunder for failure to xxx
on
this Guaranty;
(d) default,
demand, presentment for payment, and notice of default, demand, dishonor,
nonpayment, or nonperformance;
(e) notice
of
intention to accelerate, notice of acceleration, protest, notice of protest,
notice of any exercise of remedies (as described in this Guaranty or otherwise),
and all other notices of any kind whatsoever;
The
Guarantors hereby consent and agree that renewals and extensions of time of
payment (including interest rate adjustments), surrender, release, exchange,
substitution, dealing with or taking of additional collateral, modifying any
obligations of, taking or releasing any other Loan Obligors, abstaining from
taking advantage of or realizing upon any Security and any and all other
forbearances or indulgences granted by Lender to the Borrower or any other
Loan
Obligor or other Person may be made, granted or effected by Lender without
notice to the Guarantors and without affecting in any manner Guarantors’
liability hereunder. Each Guarantor hereby expressly consents to any impairment
of Security including, but not limited to, failure to perfect a security
interest and release of Security.
Any
adjustment or compromise may be made by Lender with the Borrower or any other
party to the Indebtedness, and a lesser sum than the face amount thereof may
be
accepted in full payment and discharge. Any of the Security granted by the
Borrower or any other Loan Obligor or other Person which Lender may hold or
which may come to it or its possession may be released or otherwise dealt with
by Lender in all respects as if this Guaranty were not in existence and the
obligation of the Guarantors shall in no way be affected thereby. Each Guarantor
hereby waives and foregoes any right in respect of any such action by
Lender.
7. EXERCISE
OF REMEDIES.
Lender
shall have the right to enforce, from time to time, in any order and at Lender’s
sole discretion, any rights, powers and remedies which Lender may have under
the
Loan Documents or otherwise, including judicial foreclosure, the exercise of
rights of power of sale, the taking of a deed or assignment in lieu of
foreclosure, the appointment of a receiver to collect rents, issues and profits,
the exercise of remedies against personal property, or the enforcement of any
assignment of leases, rentals, or other properties or rights, whether real
or
personal, tangible or intangible; and each Guarantor shall be liable to Lender
hereunder for any deficiency resulting from the exercise by Lender of any such
right or remedy even though any rights that such Guarantor may have against
Borrower or others may be destroyed or diminished by exercise of any such right
or remedy. No failure on the part of Lender to exercise, and no delay in
exercising, any right hereunder or under any other Loan Document shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
preclude any other or further exercise thereof or the exercise of any other
right. The rights, powers and remedies of Lender provided herein and in the
other Loan Documents are cumulative and are in addition to, and not exclusive
of, any other rights, powers or remedies provided by law or in equity. The
rights of Lender hereunder are not conditional or contingent on any attempt
by
Lender to exercise any of its rights under any other Loan Document against
any
Loan Obligor or any other Person.
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8. LIMITED
SUBROGATION.
(a) Until
all
of the Guaranteed Obligations have been paid and performed in full, Guarantors
shall have no right to exercise any right of subrogation, reimbursement,
indemnity, exoneration, contribution or any other claim which they may now
or
hereafter have against or to any Loan Obligor or any Security in connection
with
this Guaranty (including any right of subrogation under any Law, as amended),
and each Guarantor hereby waives any rights to enforce any remedy which such
Guarantor may have against Borrower and any right to participate in any Security
until such time. If any amount shall be paid to any Guarantor on account of
any
such subrogation or other rights, any such other remedy, or any Security at
any
time when all of the Guaranteed Obligations and all other expenses guaranteed
pursuant hereto shall not have been paid in full, such amount shall be held
in
trust for the benefit of Lender, shall be segregated from the other funds of
the
Guarantors and shall forthwith be paid over to Lender to be held by Lender
as
collateral for, or then or at any time thereafter applied in whole or in part
by
Lender against, all or any portion of the Guaranteed Obligations, whether
matured or unmatured, in such order as Lender shall elect.
(b) If
any
Guarantor shall make payment to Lender of all or any portion of the Guaranteed
Obligations and if all of the Guaranteed Obligations shall be finally paid
in
full, Lender will, at such Guarantor’s request and expense, execute and deliver
to such Guarantor (without recourse, representation or warranty) appropriate
documents necessary to evidence the transfer by subrogation to such Guarantor
of
an interest in the Guaranteed Obligations resulting from such payment by such
Guarantor; provided that such transfer shall be subject to Section 4(d) above
and that without the consent of Lender (which Lender may withhold in its
discretion) such Guarantor shall have the right to be subrogated to any claim
or
right against any Loan Obligor if: (i) such Loan Obligor has become owned by
Lender, (ii) the ownership of such Loan Obligor has otherwise changed in the
course of enforcement of the Loan Documents, or (iii) Lender has otherwise
released or wishes to release such Loan Obligor from its Guaranteed
Obligations.
9. SUCCESSORS
AND ASSIGNS.
None of
the Guarantors’ rights or obligations hereunder may be assigned or delegated,
but this Guaranty and such obligations shall pass to and be fully binding upon
the successors of each Guarantor and its assigns, jointly and severally, as
well
as the Guarantors. This Guaranty shall apply to and inure to the benefit of
Lender and its successors or assigns. Without limiting the generality of the
immediately preceding sentence, Lender may, to the extent and in the manner
provided for in the Loan Agreement, assign, grant a participation in, or
otherwise transfer any Guaranteed Obligation held by it or any portion thereof,
and Lender may, to the extent and in the manner provided for in the Loan
Agreement, assign or otherwise transfer its rights or any portion thereof under
any Loan Document, to any other Person, and such other Person shall thereupon
become entitled to all of the benefits in respect thereof granted to Lender
hereunder unless otherwise expressly provided by Lender in connection with
such
assignment or transfer.
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10. SUBORDINATION
AND OFFSET.
Each
Guarantor hereby subordinates and makes inferior to the Guaranteed Obligations
any and all indebtedness now or at any time hereafter owed by a Loan Obligor
to
such Guarantor. Each Guarantor agrees that upon the occurrence and during the
continuation of any Event of Default it will neither permit any Loan Obligor
to
repay such indebtedness or any part thereof nor accept payment from any Loan
Obligor of such indebtedness or any part thereof without the prior written
consent of Lender. If any Guarantor receives any such payment without the prior
written consent of Lender, the amount so paid shall be held in trust for the
benefit of Lender, shall be segregated from the other funds of such Guarantor,
and shall forthwith be paid over to Lender to be held by Lender as collateral
for, or then or at any time thereafter applied in whole or in part by Lender
against, all or any portions of the Guaranteed Obligations, whether matured
or
unmatured, in such order as Lender shall elect. Each Guarantor hereby grants
to
Lender a right of offset to secure the payment of the Guaranteed Obligations
and
such Guarantor’s obligations and liabilities hereunder, which right of offset
shall be upon any and all monies, securities and other property (and the
proceeds therefrom) of such Guarantor now or hereafter held or received by
or in
transit to Lender from or for the account of such Guarantor, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, and also
upon any and all deposits (general or special), credits and claims of such
Guarantor at any time existing against Lender. Upon the occurrence and during
the continuation of any Default or Event of Default, Lender is hereby authorized
at any time and from time to time, without notice to any Guarantor, to offset,
appropriate and apply any and all items hereinabove referred to against the
Guaranteed Obligations and the Guarantors’ obligations and liabilities hereunder
irrespective of whether or not Lender shall have made any demand under this
Guaranty and although such obligations and liabilities may be contingent or
unmatured, Lender agrees promptly to notify the Guarantors after any such offset
and application made by Lender, provided that the failure to give such notice
shall not affect the validity of such offset and application. The rights of
Lender under this section are in addition to, and shall not be limited by,
any
other rights and remedies (including other rights of offset) which Lender may
have.
11. REPRESENTATIONS
AND WARRANTIES.
The
Guarantors hereby jointly and severally represent and warrant to Lender as
follows:
(a) The
Recitals at the beginning of this Guaranty are true and correct in all
respects.
(b) The
execution, delivery and performance by each Guarantor of this Guaranty does
not
and will not contravene any law or governmental regulation or any contractual
restriction binding on or affecting each Guarantor or any of its properties,
and
does not and will not result in or require the creation of any Lien upon or
with
respect to any of its properties.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or other regulatory body or third party is required
for the due execution, delivery and performance by each Guarantor of this
Guaranty.
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(d) This
Guaranty is a legal, valid and binding obligation of each Guarantor, enforceable
against such Guarantor in accordance with its terms except as limited by
bankruptcy, insolvency or similar laws of general application relating to the
enforcement of creditors’ rights.
(e) There
is
no action, suit or proceeding pending or, to the knowledge of the Guarantors,
threatened against or otherwise affecting any Guarantor before any court,
arbitrator or governmental department, commission, board, bureau, agency or
instrumentality which may materially and adversely affect the Guarantor’s
financial condition or its ability to perform its obligations
hereunder.
12. COVENANTS.
Each
Guarantor hereby agrees to observe and comply with each of the covenants and
agreements made in the Loan Agreement, insofar as they refer to such Guarantor,
or the assets, obligations, conditions, agreements, business, or actions of
such
Guarantor, or to the Loan Documents to which the Guarantors are
party.
13. NO
ORAL CHANGE; AMENDMENTS.
No
amendment of any provision of this Guaranty shall be effective unless it is
in
writing and signed by each Guarantor and Lender, and no waiver of any provision
of this Guaranty, and no consent to any departure by any Guarantor therefrom,
shall be effective unless it is in writing and signed by Lender, and then such
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
14. INVALIDITY
OF PARTICULAR PROVISIONS.
If any
term or provision of this Guaranty shall be determined to be illegal or
unenforceable all other terms and provisions hereof shall nevertheless remain
effective and shall be enforced to the fullest extent permitted by applicable
law.
15. HEADINGS
AND REFERENCES.
The
headings used herein are for purposes of convenience only and shall not be
used
in construing the provisions hereof. The words “this Guaranty,” “this
instrument,” “herein,” “hereof,” “hereby” and words of similar import refer to
this Guaranty as a whole and not to any particular subdivision unless expressly
so limited. The phrases “this section” and “this subsection” and similar phrases
refer only to the subdivisions hereof in which such phrases occur. The word
“or”
is not exclusive, and the word “including” (in its various forms) means
“including without limitation.” Pronouns in masculine, feminine and neuter
genders shall be construed to include any other gender, and words in the
singular form shall be construed to include the plural and vice versa, unless
the context otherwise requires.
16. NOTICES.
Any
notice or communication required or permitted hereunder shall be given in the
manner as provided in the Loan Agreement or in the case of any party to such
other address or to the attention of such other individual as hereafter shall
be
designated in writing by such party in sent in accordance herewith.
17. LIMITATION
ON INTEREST.
Lender
and the Guarantors intend to contract in strict compliance with applicable
usury
law from time to time in effect, and the provisions of the Loan Agreement
limiting the interest for which the Guarantors are obligated are expressly
incorporated herein by reference.
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18. LOAN
DOCUMENT.
This
Guaranty is a Loan Document, as defined in the Loan Agreement, and is subject
to
the provisions of the Loan Agreement governing Loan Documents.
19. COUNTERPARTS;
FAX.
This
Guaranty may be executed in any number of counterparts, each of which when
so
executed shall be deemed to constitute one and the same Guaranty. This Guaranty
may be validly executed and delivered by facsimile or other electronic
transmission.
20. GOVERNING
LAW; SUBMISSION TO PROCESS.
THIS
GUARANTY SHALL BE DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE LAWS OF THE UNITED STATES
OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH GUARANTOR
HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST SUCH GUARANTOR WITH
RESPECT TO THIS GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS
LENDER MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, EACH GUARANTOR ACCEPTS
AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
GUARANTOR AGREES THAT SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS
LAW
OF THE STATE OF NEW YORK SHALL APPLY TO THE LOAN DOCUMENTS AND WAIVES ANY RIGHT
TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT BEFORE SAID COURTS ON
THE
BASIS OF FORUM NON CONVENIENS. EACH GUARANTOR HEREBY WAIVES PERSONAL SERVICE
OF
ANY AND ALL PROCESS UPON IT, AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY
BE
MADE BY REGISTERED MAIL DIRECTED TO IT AT THE ADDRESS SET FORTH IN SECTION
9.1
OF SCHEDULE A TO THE LOAN AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO
BE
COMPLETED UPON ACTUAL RECEIPT THEREOF.
21. WAIVER
OF JURY TRIAL.
EACH
GUARANTOR HEREBY COVENANTS AND AGREES THAT IN ANY SUIT, ACTION OR PROCEEDING
IN
RESPECT OF ANY MATTER ARISING OUT OF THIS GUARANTY, THE DOCUMENTS EXECUTED
IN
CONNECTION HEREWITH, ANY WRITTEN AGREEMENT BETWEEN THE PARTIES HERETO, WHETHER
NOW EXISTING OR HEREAFTER ARISING OR IN ANY WAY RELATED TO, CONNECTED WITH
OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR TRANSACTIONS CONTEMPLATED
HEREBY OR BY THE LOAN AGREEMENT OR OTHER LOAN DOCUMENTS, WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE, TRIAL SHALL BE TO A COURT OF COMPETENT
JURISDICTION AND NOT TO A JURY; EACH GUARANTOR HEREBY EXPRESSLY WAIVES ANY
RIGHT
IT MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART
OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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22. ADVICE
OF COUNSEL.
Each
Guarantor acknowledges that it has been advised by counsel with respect to
this
Guaranty and the transactions governed hereby.
23. FINAL
AGREEMENT.
THIS
WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR
OR
CONTEMPORANEOUS ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES HERETO.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANK]
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IN
WITNESS WHEREOF, each Guarantor has executed and delivered this Guaranty as
of
the date first written above.
|
a
Nevada corporation
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| |
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| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: |
Xxxxxxx Xxxxxx |
|
| Title: |
Secretary |
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|
Nice
Cars Acceptance AcquisitionCo, Inc.,
a
Delaware corporation
|
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| |
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| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: |
Xxxxxxx Xxxxxx |
|
| Title: |
President |
|
|
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||
|
Nice
Cars Operations AcquisitionCo, Inc.,
a
Delaware corporation
|
||
| |
|
|
| By: | Xxxxxxx Xxxxxx | |
| Name: |
Xxxxxxx Xxxxxx |
|
| Title: |
President |
|
|
|
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