EXHIBIT 10.7.4
GUARANTY AGREEMENT
TO: NISSAN MOTOR ACCEPTANCE CORPORATION DATE: July 12 96
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COUNTY OF DeKalb
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STATE OF Georgia
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To induce NISSAN MOTOR ACCEPTANCE CORPORATION (hereinafter referred to as
"NMAC"), to extend or continue to extend credit to PEACHTREE NISSAN, INC., 5211
Peachtree Industrial Blvd., Chamblee, Georgia 30341 (hereinafter referred to as
the "DEALER"), and for and in consideration of good and valuable consideration,
the receipt of which is hereby acknowledged, the Undersigned (which term refers
both to each of the Undersigned individually and to all or any two or more
jointly) hereby jointly and severally unconditionally and irrevocably deliver
this Guaranty to NMAC and hereby jointly and severally, unconditionally and
irrevocably guarantee to NMAC, and any transferee of this Guaranty or of any
liability guaranteed hereby, the full and prompt payment of all present and
future liabilities of the DEALER to NMAC irrespective of its nature or the time
it arises. If any liability guaranteed hereby is not paid when due, the
Undersigned hereby agree to and will immediately pay same, without resort by the
holder thereof to any other person or party.
The liabilities covered by this Guaranty and hereby guaranteed by the
Undersigned (herein referred to collectively and individually as the
"liabilities") include all obligations and liabilities of the DEALER to NMAC
(whether individually or jointly with others, and whether direct, indirect,
absolute or contingent as maker, endorser, guarantor, surety or otherwise) now
existing or hereafter coming into existence and renewals or extensions in whole
or in part of any of said liabilities and include any and all damages, losses,
costs, interest, charges, attorney's fees and expenses of every kind, nature and
description suffered or incurred by NMAC, arising in any manner out of or in any
way connected with, or growing out of, said liabilities. As used herein, the
term person includes natural persons, partnerships, and incorporated and
unincorporated entities and associations of every kind.
Any payment of the Undersigned hereunder may be applied to any of the
liabilities which NMAC may choose. The obligation of the Undersigned hereunder
is an addition to and shall not prejudice or be prejudiced by any other
agreement, instrument, surety
GUARANTY AGREEMENT
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or guaranty (including any agreement, instrument, surety or guaranty signed by
the Undersigned) which NMAC may now or hereafter hold relative to any of the
liabilities. The obligation of the Undersigned to NMAC hereunder is primary,
absolute and unconditional.
The Undersigned acknowledges that there may be future advances by NMAC to
the DEALER (although NMAC is under no obligation to make such advances) and that
the number and amount of the liabilities are unlimited and may fluctuate from
time to time hereafter. The Undersigned expressly agree that the Undersigned's
obligation hereunder shall remain absolute, primary and conditional
notwithstanding such future advances and fluctuations, if any, and agree that,
in any event, this agreement is a continuing Guaranty and shall remain in force
at all times hereafter, whether there are any liabilities outstanding or not;
until a written notice of termination from the Undersigned is received and
acknowledged by NMAC stating an effective date of no less than two (2) business
days following receipt of such notice by NMAC, but such termination shall not be
effective as to any Undersigned who has failed to give such notice, and shall
not release the Undersigned from liability for payment of (i) any and all
liabilities (as hereinbefore defined) then in existence, (ii) any renewals or
extensions thereof, in whole or in part of, whether such renewals or extensions
are made before or after such termination, and (iii) any damages, losses, costs,
interest, charges, attorney's fees or expenses then or thereafter incurred in
connection with said liabilities or any renewals or extensions thereof.
The Undersigned hereby consent and agree that, at any time or times,
without notice to or further approval of the Undersigned or the DEALER, and
without in any way affecting the obligation of the Undersigned hereunder, NMAC
may, with or without consideration, (i) release, compromise, or agree not to
sue, in whole or in part, the DEALER, any of the Undersigned or any other
obligor, guarantor, endorser or surety upon any of the liabilities; (ii) waive,
rescind, renew, extend, modify, increase, decrease, delete, terminate, amend, or
accelerate in accordance with its terms, either in whole or in part, any of the
liabilities, any of the terms thereof, or any agreement, covenant, condition, or
obligation of or with the DEALER, any of the Undersigned or any other obligor,
guarantor, endorser or surety upon any of the liabilities to any of liabilities
which NMAC may choose.
The Undersigned hereby consent and agree that NMAC may at any time, either
with or without consideration, surrender, release or receive any property or
other security of any kind or nature whatsoever held by it or any person on its
behalf or for
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its account securing any indebtedness of the DEALER or any liability, or
substitute any collateral so held by NMAC for other collateral of like kind, or
any kind, without notice to or further consent from the Undersigned, and such
surrender, receipt, release or substitution shall not in any way affect the
obligation of the Undersigned hereunder. NMAC shall have full authority to
adjust, compromise and receive less than the amount due upon any such
collateral, and may enter into any accord and satisfaction agreement with
respect to the same as may seem advisable to NMAC without affecting the
obligation of the Undersigned hereunder, which shall remain absolute, primary
and unconditional. NMAC shall be under no duty to undertake to collect upon
such collateral or any part thereof, and shall not be liable for any negligence
or mistake in judgment in handling, disposing of, obtaining, or failing to
collect upon, or perfecting a security interest in, any such collateral. NMAC
may collect or otherwise liquidate any collateral in any manner and bid and
purchase at any sale without affecting or impairing the obligation of the
Undersigned.
This Guaranty covers all liabilities to NMAC purporting to be made on
behalf of the DEALER by any officer, agent or partner of said DEALER, without
regard to the actual authority of such officer, agent or partner to bind the
DEALER, and without regard to the capacity of the DEALER or whether the
organization or charter of the DEALER is in any way defective.
The Undersigned hereby waive notice of acceptance of this agreement and of
the creation, extension or renewal of any liability of the DEALER to which it
related and of any default by the DEALER. The Undersigned hereby waive
presentment, demand, protest and notice of dishonor of any of the liabilities,
and hereby waive any failure to promptly commence suit against any party thereto
or liable thereon and give any notice to or make any claim or demand upon the
Undersigned or the DEALER. No act, failure to act or omission of any kind on
the part of the Undersigned, the DEALER, NMAC or any other person shall be a
legal or equitable discharge or release of the Undersigned from their obligation
hereunder. This Guaranty shall not be affected by any change which may arise by
reason of the death of the Undersigned, or of any partner(s) of the Undersigned,
or of the DEALER, or of the accession to any such partnership of any one of more
new partners.
This agreement shall bind and inure to the benefit of NMAC, its successors
and assigns, and likewise shall bind and inure to the benefit of the
Undersigned, their heirs, executors, administrators, estates, successors and
assigns.
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If any legal action or actions are instituted by NMAC to enforce any of its
rights against the Undersigned hereunder, then the Undersigned, jointly and
severally, agree to pay NMAC all expenses incurred by NMAC relative to such
legal action or actions, including, but not limited to, court costs plus 15% of
the total amount of principal and accrued interest then due NMAC hereunder as
attorney's fees.
The obligation of the Undersigned hereby created is joint and several, and
NMAC is authorized and empowered to proceed against the Undersigned or any of
them, without joining the DEALER of any of the others of the Undersigned. All
of said parties may be sued together, or any of them may be sued separately
without first or contemporaneously suing the others. There shall be no duty or
obligations upon NMAC, whether by notice under any applicable stature or
otherwise, (i) to proceed against the DEALER or any of the Undersigned, (ii) to
initiate any proceeding or exhaust any remedy against the DEALER or any of the
Undersigned, or (iii) to give any notice to the Undersigned or the DEALER,
whatsoever, before bringing suit, exercising any right to any collateral to
security, or instituting proceedings of any kind against the DEALER, the
Undersigned or any of them.
The Undersigned hereby ratify, confirm, and adopt all the terms,
conditions, agreements and stipulations of all notes and other evidences of the
liabilities heretofore executed. Without in any way limiting the generality of
the foregoing, the Undersigned, and each of them, waive and renounce, each for
himself and family, any and all homestead or exemption rights any of them may
have under or by virtue of the constitution or laws of any state, or the United
States, as against the obligation hereby created, and the Undersigned do hereby
each transfer, convey and assign, and direct any Trustee in Bankruptcy or
receiver to deliver to NMAC or holder hereof, a sufficient amount of property or
money in any homestead or exemption that may be allowed to the Undersigned, or
any of them to pay any liability guaranteed hereby in full and all costs of
collection. The undersigned also waive and renounce for themselves any defenses
to any of the liabilities which may be available to or could be asserted by the
DEALER, except for payment, and further waive any setoffs and counterclaims.
The undersigned further agree that if at any time all or any part of any
payment theretofore applied by NMAC to any of the liabilities is or must be
rescinded or returned by NMAC for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of the DEALER), such
liabilities shall, for the purposes of the Guaranty, to the extent that such
payment is or must be rescinded or returned, be deemed to have
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continued in existence, notwithstanding such application by NMAC, and this
Guaranty shall continue to be effective or be reinstated, as the case may be, as
to such liabilities, all as though such application by NMAC had not been
continue to be effective or be reinstated, as the case may be, as to such
liabilities, all as though such application by NMAC has not been made.
All NMAC's rights and remedies are cumulative and those granted hereunder
are in addition to any rights and remedies available to NMAC under law. If any
provision of this agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this agreement or the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each provision of this agreement shall be valid and
enforceable to the full extent permitted by law. The failure or forbearance of
NMAC to exercise any right hereunder, or otherwise granted to it by law or
another agreement, shall not affect the obligation of the Undersigned hereunder
and shall not constitute a waiver of said right. This Guaranty contains the
entire agreement between the parties, and no provision hereof may be waived,
modified, or altered except by a writing executed by the Undersigned and NMAC.
There is no understanding that any person other than or in addition to the
Undersigned shall execute this Guaranty.
It is contemplated that this is and is intended to be the personal guaranty
of payment and performance of each individual who signs this instrument, and any
language in connection with any signature indicating a capacity other than
personal shall be deemed stricken from and shall not be part of the signature,
but this provision shall not apply to the signature of a person who signs as an
officer of a corporation which is not the DEALER, and which executes this
instrument as its corporate guaranty.
THE UNDERSIGNED'S EXECUTION OF THIS GUARANTY WAS NOT BASED UPON ANY FACTS
OR MATERIALS PROVIDED BY NMAC NOR WAS THE UNDERSIGNED INDUCED TO EXECUTE THIS
GUARANTY BY ANY REPRESENTATION, STATEMENT OR ANALYSIS MADE BY NMAC. THE
UNDERSIGNED ACKNOWLEDGE AND AGREE THAT THE UNDERSIGNED ASSUME SOLE
RESPONSIBILITY FOR INDEPENDENTLY OBTAINING ANY INFORMATION OR REPORTS DEEMED
ADVISABLE BY THE UNDERSIGNED WITH REGARD TO THE DEALER OR ANY OF THE
UNDERSIGNED, AND THE UNDERSIGNED AGREE TO RELY SOLELY ON THE INFORMATION OR
REPORTS SO OBTAINED IN REACHING ANY DECISION TO EXECUTE OR NOT TO TERMINATE THIS
GUARANTY. THE UNDERSIGNED ACKNOWLEDGE AND AGREE THAT NMAC IS AND SHALL BE UNDER
NO OBLIGATION NOW OR IN THE FUTURE TO FURNISH ANY INFORMATION TO THE UNDERSIGNED
CONCERNING THE DEALER, THE LIABILITIES OR ANY OF
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THE OTHER UNDERSIGNED, AND THAT NMAC DOES NOT AND SHALL NOT BE DEEMED IN THE
FUTURE TO WARRANT THE ACCURACY OF ANY INFORMATION OR REPRESENTATION CONCERNING
THE DEALER, THE UNDERSIGNED OR ANY OTHER PERSON WHICH MAY INDUCE THE UNDERSIGNED
TO EXECUTE OR NOT TO TERMINATE THIS GUARANTY.
EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
GUARANTY AGREEMENT
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This agreement and its performance, interpretation and enforcement shall in
all respects be governed by the laws of the State where the DEALER is located.
IN WITNESS HEREOF, and in agreement hereto the undersigned individual(s)
have affixed their signatures and seals and the undersigned corporation(s) have
caused their seals to be affixed by their duty authorized officers this 12 day
of July, 1996.
FOR CORPORATE GUARANTORS:
UAG Atlanta III, Inc.
375 Park Ave. Ste. 2201,
BY: /s/ Carl Spielvogel New York, NY 10152
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Carl Spielvogel, President Address
Attest: /s/ George Lowrance
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Secretary
(CORPORATE SEAL)
United Auto Group, Inc.
375 Park Ave, Ste. 2201,
BY: /s/ Carl Spielvogel New York, NY 10152
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Carl Spielvogel, President Address
Attest: /s/ George Lowrance
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Secretary
(CORPORATE SEAL)