EXHIBIT 10.7.11
UAG GUARANTY OF ARGONNE 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 ARGONNE
ENTERPRISES, INC., a Georgia corporation, its successors, successors-in-title
and assigns ("Argonne").
WITNESSETH:
WHEREAS, Argonne, as "Landlord," and Hickman 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 3393 Malone
Drive, Chamblee, Georgia, 30341; and
WHEREAS, Argonne 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 Argonne:
(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 Argonne if:
(a) there is an Event of Default (as defined in the Lease) by the
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 Argonne. Argonne 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 Argonne
harmless from and against any and all loss, damage, cost, expense, injury, or
liability Argonne 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 Argonne to any Indebtedness is
rescinded or returned by Argonne 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 Argonne, and this Guaranty shall continue to be effective or be
reinstated, as
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the case may be, as to such Indebtedness, all as though such application by
Argonne 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 Argonne, 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 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 Argonne 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 Argonne; (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 Argonne from
whatsoever source on account of any Indebtedness may be applied by Argonne to
the payment of such Indebtedness, and in such order or application, as Argonne
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 Argonne until such time as Argonne shall have
received payment of the full amount of all Indebtedness and the Obligations
shall have been performed to Argonne's satisfaction.
8. WAIVER. Guarantor expressly waives: (i) notice of the acceptance by
Argonne 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 Argonne to inform
Guarantor of any facts Argonne may now or hereafter know about
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the Corporation or the Lease, it being understood and agreed that Argonne 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 Argonne to
proceed against the Corporation for collection, and the failure or refusal by
Argonne 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
Argonne 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 Argonne except as expressly set
forth in a writing duly signed and delivered on behalf of Argonne.
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 Argonne 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
represent Argonne in any other proceedings whatsoever in connection with this
Guaranty or the Lease or any property subject thereto, then Guarantor shall pay
to Argonne upon demand the costs of collection and the actual reasonable
attorneys' fees and expenses incurred by Argonne, 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 Argonne; 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
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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 adjudicated 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 Argonne and Guarantor. If this Guaranty is executed in
several counterparts, each of those counterparts shall deemed an original, and
all them together shall constitute one and the same instrument.
13. SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY. This is 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 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 Argonne:
Argonne Enterprises, Inc.
3393 Argonne Drive
Atlanta, Georgia 30305
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with a copy to:
Davis, Matthews & Quigley, P.C.
14th Floor, Lenox Towers II
3400 Peachtree Road
Atlanta, Georgia 30326
Attn: William M. Matthews, Esq.
If to Guarantor:
United Auto Group, Inc.
375 Park Avenue
New York, New York 10022
Facsimile No.: (212) 223-5148
Attn: Georgia G. Lowrance, Esq.
with a copy to:
Rogers & Hardin
2700 Cain Tower, Peachtree Center
229 Peachtree Street, NE
Atlanta, Georgia 30303
Facsimile No.: (404) 525-2224
Attn: Michael Rosenzweig
Except as otherwise specifically required herein, notice of the exercise of
any right, option or power granted to Argonne by this Guaranty is not required
to be given.
IN WITNESS WHEREOF, the undersigned has executed, sealed and delivered this
instrument as of the day and year first above written.
GUARANTOR:
AUTO GROUP, INC.
By: /s/ George Lowrance
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Its: Executive Vice President
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[Corporate Seal]
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