Exhibit 10.4.18
CONTINUING GUARANTY
IN CONSIDERATION of and in order to induce Chrysler Credit Corporation
(hereinafter referred to as "Lender") to extend credit in any form whatsoever to
Landers Auto Sales, Inc., 1701 I-30, Frontage Rd., Benton, AR 72015 (hereinafter
referred to as "Debtor") including, but not limited to, (i) the financing of
inventory, fixtures and personal property, (ii) the loan of money in any form
whatsoever, (iii) the purchase, acceptance or discounting of notes, retail
installment contracts, chattel mortgages, security agreements, trust receipts,
leases, instruments or other evidences of indebtedness or contractual
obligations of or from Debtor or endorsed or guaranteed in any manner by Debtor,
(iv) and generally to engage in financial accomodations and do business with
Debtor, the undersigned (hereinafter singularly and collectively referred to as
"Guarantor") hereby covenants and agrees with Lender as follows:
1. Guarantor, as a primary obligor, jointly and severally, hereby
unconditionally guarantees to Lender the full and prompt payment when due of all
indebtedness (as hereafter defined) of Debtor due and to become due the Lender
and the full, prompt and faithful discharge of all present and future
obligations owed to or assigned to Lender. The Lender may have immediate
recourse against Guarantor for full and immediate payment of the Indebtedness at
any time after the Indebtedness, or any part thereof, has not been paid in full
at its maturity (whether at fixed maturity or maturity accelerated by reason of
a demand for payment from Debtor or a default under the terms of the instrument
governing such Indebtedness or any instrument securing the same). The Lender
may have immediate recourse against Guarantor for full and immediate performance
of any other obligation owed or assigned to Lender at any time that Debtor
fails, upon demand, to perform said obligation.
2. The term "Indebtedness" shall mean any and all indebtedness, liabilities
and obligations of every kind, nature and description, owed to Lender by Debtor,
whether direct or indirect, absolute or contingent, whether now due and owing,
or which may hereafter, from time to time, be or become due and owing, whether
heretofore or hereafter created or arising, including all indebtedness evidenced
by any promissory note(s) now or hereinafter executed and delivered by Debtor to
the Lender and any and all renewals, extensions, increases or modifications
thereof, and including, without limitation, reasonable attorney fees, costs and
expenses incurred by Lender in connection with the enforcement of this Guaranty
and any and all obligations of the Debtor.
3. This is a guarantee of payment, and not of collection, and Guarantor
therefore agrees that the Lender shall not be obligated prior to seeking
recourse against or receiving payment from Guarantor, to take any action
whatsoever against Debtor, or, without limiting the generality of the foregoing,
to do any of the following (although the Lender may do so, in whole or in part,
at its sole option), the performance of which are hereby unconditionally waived
by Guarantor:
(a) Take any steps whatsoever to make demand upon or to collect from Debtor or
to file any claim of any kind against Debtor; or
(b) Take any steps whatsoever to accept, perfect the Lender's interest in,
foreclose upon or realize on collateral security, if any, for the payment of the
Indebtedness, or any other guarantee of the Indebtedness; or
(c) In any other respect exercise any diligence whatever in collecting or
attempting to collect the Indebtedness by any means.
4. Guarantor's liability for payment of the Indebtedness shall be absolute
and unconditional, and nothing whatever except actual full payment to the
Lender of the Indebtedness shall operate to discharge Guarantor's liability
hereunder. Accordingly, Guarantor unconditionally and irrevocably waives each
and every defense which, under principles of guarantee or suretyship law,
would otherwise operate to impair or diminish the liability of Guarantor for
the Indebtedness. Without limiting the generality of the foregoing waiver,
Guarantor agrees that none of the following acts, omissions or occurrences
shall diminish or impair the liability of Guarantor in any respect (all of
which acts, omissions or occurrences may be done without notice to Guarantor
of any kind):
(a) Any extension, modification, indulgence, compromise, settlement or
variation of any of the terms of the Indebtedness;
(b) The discharge, disaffirmance or release of any obligations of the
Debtor or any other person now or hereafter liable on the Indebtedness, by
reason of bankruptcy or insolvency laws or otherwise;
(c) The acceptance or release by the Lender of any collateral security or
other Guaranty, or any settlement, compromise or extension with respect to
any collateral security or other Guaranty or other Guarantor hereunder;
(d) The application or allocation by the Lender of payments, collections or
credits on the Indebtedness or any other obligations of the Debtor to the
Lender;
(e) The creation of any new Indebtedness by Debtor,
(f) The making of a demand, or absence of demand, for payment of the
Indebtedness, or giving, or failing to give, any notice of dishonor or protest
or any other notice;
(g) The death of any Guarantor as to the obligations of such Guarantor's
estate under this Guaranty or of any other Guarantor hereunder;
(h) The validity, legality or enforceability of the Indebtedness or this
Guaranty;
(i) Any law, regulation or decree now or hereafter in effect that might in any
manner affect any of the terms or provisions of the Indebtedness or any of the
rights of Lender under
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the Indebtedness or this Guaranty as against the Debtor or as against any other
party to any part of the Indebtedness;
(j) The merger or consolidation of Debtor or Guarantor into or with any
corporation or any sale or transfer by the Debtor or Guarantor of all or any
part of its property;
(k) Any other circumstance whatsoever that might in any manner vary the
risk of Guarantor hereunder or otherwise constitute a legal or equitable
discharge of a surety or guarantor.
5. Guarantor unconditionally waives:
(a) Any subrogation to the rights of the Lender against the Debtor, until the
Indebtedness has been paid in full;
(b) Any claim, right or remedy which Guarantor may now have or hereafter
acquire against Debtor, until the Indebtedness have been paid in full;
(c) Any acceptance of this Guaranty;
(d) Any set-offs or counterclaims against the Lender which would otherwise
impair the Lender's rights against Guarantor; and
(e) Any notice of the disposition of any collateral security and any right to
object to the commercial reasonableness of the disposition of any such
collateral security.
6. Guarantor hereby authorizes the Lender to obtain credit reports and
conduct credit and asset investigations on Guarantor so long as any
Indebtedness exists.
7. This Guaranty shall inure to the benefit of the Lender and its successors
and assigns, including each and every holder or owner of any of the Indebtedness
guaranteed hereby. In the event that there shall be more than one such holder
or owner, this Guaranty shall be deemed a separate contract with each holder and
owner. In the event that any person other than the Lender shall become a holder
or owner of any of the Indebtedness, each reference to the Lender hereunder
shall be construed as if it referred to each such holder or owner.
8. This Guaranty shall be binding upon Guarantor and his successors and
assigns, and shall continue in effect until Guarantor shall deliver to the
Lender (and each other holder or owner of the Indebtedness) thirty (30) days
advance written notice of termination, which delivery of notice must be
acknowledged in writing by Lender to be effective; provided that this Guaranty
shall continue in effect thereafter with respect to all Indebtedness in
existence on the effective date of such termination (including all extensions
and renewals thereof and all subsequently accruing interest and other charges
thereon) until all such Indebtedness shall be fully paid.
9. Guarantor agrees that recourse may be had against his earnings and
separate property for all of Guarantor's obligations under this Guaranty.
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10. Guarantor warrants and represents to the Lender that any and all financial
statements concerning his personal financial condition delivered to the Lender
are true and correct in all material respects as of the date of such statements,
and if such statements are not current, that there has been no material adverse
change in the financial situation of Guarantor from the date of such statement
to the date of deliver of this Guaranty to the Lender. Guarantor acknowledges
that in accepting this Guaranty, the Lender has relied upon any such financial
statements, and Guarantor agrees to provided the Lender a statement of his
current financial condition in a form satisfactory to the Lender at least
annually upon the Lender's request.
11. The liability of each Guarantor executing this Guaranty shall be joint and
several and the term "Guarantor" shall mean each and all such Guarantors.
Masculine terms, as used herein, shall also refer where applicable to the
feminine gender and the neuter gender and the singular reference shall also
include the plural of any word, if the context so requires.
12. No modifications, recision, waiver, release or amendment of any provision
of this Continuing Guaranty shall be made or accepted, except by a written
agreement duly executed by Guarantor and Lender.
13. This Guaranty and all rights and obligations hereunder, including matters
of construction, validity and performance, shall be governed by the laws of the
State in which this Guaranty is executed.
14. THIS GUARANTY IS FREELY AND VOLUNTARILY GIVEN TO THE LENDER BY GUARANTOR,
JOINTLY AND SEVERALLY, WITHOUT ANY DURESS OR COERCION, AND AFTER GUARANTOR,
JOINTLY AND SEVERALLY, HAS EITHER CONSULTED WITH COUNSEL OR BEEN GIVEN AN
OPPORTUNITY TO DO SO, AND GUARANTOR, JOINTLY AND SEVERALLY, HAS CAREFULLY AND
COMPLETELY READ ALL OF THE TERMS AND PROVISIONS OF THIS GUARANTY.
United Landers, Inc.
/s/ George G. Lowrance /s/ Carl Spielvogel
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Attest By: Carl Spielvogel
Its: Chairman & CEO
Date: August 15, 1995
375 Park Avenue
New York, New York 10152
Loan #
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