EXHIBIT I
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY (this "Guaranty"), dated as of February 27, 1998,
made by each Subsidiary (as defined in the Credit Agreement referred to below)
signatory hereto on the date hereof and each other Subsidiary that may from
time to time become, pursuant to the terms of the Credit Agreement, a party
hereto (individually a "Guarantor" and collectively the "Guarantors"), in favor
of THE BANK OF NOVA SCOTIA, as administrative agent (in such capacity, the
"Administrative Agent") for each of the Secured Parties (as defined below).
WITNESSETH:
WHEREAS, pursuant to a Credit Agreement, dated as of February 27, 1998
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Credit Agreement"), among United Auto Group, Inc., a Delaware
corporation (the "Borrower"), the various financial institutions from time to
time party thereto (collectively, the "Lenders") and the Administrative Agent,
the Lenders and the Issuer have extended Commitments to make Credit Extensions
to the Borrower;
WHEREAS, as a condition precedent to the making of the Credit
Extensions (including the initial Credit Extension) under the Credit Agreement,
each Guarantor is required to execute and deliver this Guaranty;
WHEREAS, each Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of each Guarantor to execute this
Guaranty inasmuch as each Guarantor will derive substantial direct and indirect
benefits from the Credit Extensions made from time to time to the Borrower by
the Lenders and the Issuer pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lenders and the Issuer
to make Credit Extensions (including the initial Credit Extension) to the
Borrower pursuant to the Credit Agreement, each Guarantor jointly and severally
agrees, for the benefit of each Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guarantor" and "Guarantors" are defined in the preamble.
"Guaranty" is defined in the preamble.
"Lenders" is defined in the first recital.
"Taxes" is defined in clause (a) of Section 2.9.
SECTION I.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION II.1. Guaranty. Each Guarantor hereby jointly and severally,
absolutely, unconditionally and irrevocably
(a) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of the Borrower
and each other Obligor now or hereafter existing, whether for
principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic
stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. ss.362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. ss.502(b) and ss.506(b)), and
(b) indemnifies and holds harmless each Secured Party and
each holder of a Note for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Secured
Party or such holder, as the case may be, in enforcing any rights
under this Guaranty;
provided, however, that each Guarantor shall be liable under this Guaranty only
for the maximum amount of such liability that can be hereby incurred (taking
into account, among other things, Section 2.8 hereof) without rendering this
Guaranty, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This Guaranty constitutes a guaranty of payment when due and
not merely of collection, and each Guarantor specifically agrees that it shall
not be necessary or required that any Secured Party or any holder of any Note
exercise any right, assert any claim or demand or enforce any remedy whatsoever
against the Borrower or any other Obligor (or any other Person) before or as a
condition to the obligations of such Guarantor hereunder. Each Guarantor
acknowledges and agrees that each obligation hereunder shall be a joint and
several obligation of such Guarantor.
SECTION II.2. Acceleration of Guaranty. Each Guarantor agrees that,
upon the occurrence of any Default described in any of clauses (a) through (d)
of Section 8.1.9 of the Credit Agreement, and if such event shall occur at a
time when any of the Obligations of the Borrower and each other Obligor may not
then be due and payable, each Guarantor jointly and severally agrees that it
will pay to the Lenders forthwith the full amount which would be payable
hereunder by such Guarantor if all such Obligations were then due and payable.
SECTION II.3. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of the
Borrower and each other Obligor have been paid in full in cash, all obligations
of each Guarantor hereunder shall have been paid in full in cash, all Letters
of Credit have been terminated or expired, all Rate Protection Agreements have
been terminated and all Commitments shall have terminated. Each Guarantor
guarantees that the Obligations of the Borrower and each other Obligor will be
paid strictly in accordance with the terms of the Credit Agreement and each
other Loan Document under which they arise, regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms (as they relate to the obligations of the Borrower under the Loan
Document to which it is a party) or the rights of any Secured Party or any
holder of any Note with respect thereto. The liability of each Guarantor under
this Guaranty shall be joint and several, and shall be absolute, unconditional
and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Credit Agreement, any Note or any other Loan Document;
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(b) the failure of any Secured Party or any holder of any
Note
(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower, any other Obligor or
any other Person (including any other guarantor (including
any Guarantor)) under the provisions of the Credit Agreement,
any Note, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor (including any Guarantor) of, or collateral
securing, any Obligations of the Borrower or any other
Obligor;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower or
any other Obligor, or any other extension, compromise or renewal of
any Obligation of the Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination
(other than as a result of the payment in cash) of any Obligations of
the Borrower or any other Obligor for any reason, including any claim
of waiver, release, surrender, alteration or compromise, and shall not
be subject to (and each Guarantor hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations of the Borrower, any other
Obligor or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Credit Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Secured Party or any holder of any Note securing
any of the Obligations of the Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any other Obligor, any surety or any guarantor.
SECTION II.4. Reinstatement, etc. Each Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be,
if at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any
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Secured Party or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of the Borrower, any other Obligor or otherwise, all as though
such payment had not been made.
SECTION II.5. Waiver, etc. Each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrower or any other Obligor and this Guaranty and any
requirement that the Administrative Agent, any other Secured Party or any
holder of any Note protect, secure, perfect or insure any security interest or
Lien, or any property subject thereto, or exhaust any right or take any action
against the Borrower, any other Obligor or any other Person (including any
other guarantor) or entity or any collateral securing the Obligations of the
Borrower or any other Obligor, as the case may be.
SECTION II.6. Postponement of Subrogation, etc. Each Guarantor agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until the prior payment in full in cash of all Obligations of the Borrower and
each other Obligor, the termination or expiration of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments. Any amount paid to such Guarantor on account of any such
subrogation rights prior to the payment in full in cash of all Obligations of
the Borrower and each other Obligor shall be held in trust for the benefit of
the Secured Parties and each holder of a Note and shall immediately be paid to
the Administrative Agent for the benefit of the Secured Parties and each holder
of a Note and credited and applied against the Obligations of the Borrower and
each other Obligor, whether matured or unmatured, in accordance with the terms
of the Credit Agreement; provided, however, that if
(a) such Guarantor has made payment to the Secured Parties
and each holder of a Note of all or any part of the Obligations of the
Borrower or any other Obligor, and
(b) all Obligations of the Borrower and each other Obligor
have been paid in full in cash, all Letters of Credit have been
terminated or expired, all Rate Protection Agreements have been
terminated and all Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at any Guarantor's
request, the Administrative Agent, on behalf of the Secured Parties and the
holders of the Notes, will execute and deliver to such Guarantor appropriate
documents (without recourse and without representation or warranty) necessary
to evidence the transfer by subrogation to such Guarantor of an interest in the
Obligations of the Borrower and each other Obligor resulting from such payment
by such Guarantor. In furtherance of the foregoing, for so long as any
Obligations or Commitments remain outstanding, each Guarantor shall refrain
from taking any action or commencing any proceeding against the Borrower or any
other Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to
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recover any amounts in the respect of payments made under this Guaranty to any
Secured Party or any holder of a Note.
SECTION II.7. Successors, Transferees and Assigns; Transfers of Notes,
etc. This Guaranty shall:
(a) be binding upon each Guarantor, and each Guarantor's
successors, transferees and assigns; and
(b) inure to the benefit of and be enforceable by the
Administrative Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including this Guaranty) or otherwise,
subject, however, to any contrary provisions in such assignment or transfer,
and to the provisions of Section 10.11 and Article IX of the Credit Agreement.
SECTION II.8. Right of Contribution. Each Guarantor hereby agrees that
to the extent that any Guarantor shall have paid more than its proportionate
share of any payment made hereunder, such Guarantor shall be entitled to seek
and receive contribution from and against any other Guarantor hereunder who has
not paid its proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.6. The
provisions of this Section 2.8 shall in no respect limit the obligations and
liabilities of any Guarantor to the Secured Parties and each holder of a Note,
and each Guarantor shall remain liable to the Secured Parties and each holder
of a Note for the full amount guaranteed by such Guarantor hereunder.
SECTION II.9. Payments Free and Clear of Taxes, etc. Each Guarantor
hereby agrees that all payments made by such Guarantor hereunder shall be made
in accordance with Section 4.6 of the Credit Agreement free and clear of, and
without deduction for any present or future income, excise, stamp or franchise
taxes and other taxes, fees, duties, withholdings or other charges of any
nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by the Lender's net income of receipts
(such non-excluded items being called "Taxes"). In the event that any
withholding or deduction from any payment to be made by such Guarantor
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then such Guarantor will
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
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(ii) promptly forward to the Administrative Agent an
official receipt or other documentation reasonably
satisfactory to the Administrative Agent evidencing such
payment to such authority; and
(iii) pay to the Administrative Agent for the
account of the Secured Parties such additional amount or
amounts as is necessary to ensure that the net amount
actually received by each Secured Party (including with
respect to amounts paid pursuant to this Guaranty) will equal
the full amount such Lender would have received had no such
withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the
Administrative Agent or any Secured Party with respect to any payment
received by the Administrative Agent or such Secured Party hereunder,
the Administrative Agent or such Secured Party may pay such Taxes and
such Guarantor will promptly pay such additional amounts (including
any penalties, interest or expenses) as is necessary in order that the
net amount received by such person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount
such person would have received had not such Taxes been asserted.
(a) If such Guarantor fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative
Agent, for the account of the respective Secured Party , the required
receipts or other required documentary evidence, such Guarantor shall
indemnify the Secured Parties for any incremental Taxes, interest or
penalties that may become payable by any Secured Party as a result of
any such failure. For purposes of this Section, a distribution
hereunder by the Administrative Agent or any Secured Party to or for
the account of any Secured Party shall be deemed a payment by such
Guarantor.
(b) Any Secured Party claiming any indemnity payment or
additional amount payable pursuant to this Section shall use
commercially reasonable efforts to file any certificate or document
reasonably requested by such Guarantor or to change the jurisdiction
of its applicable lending office if the making of such a filing or
change would avoid the need for or reduce the amount of any such
indemnity payment or additional amount which may thereafter accrue and
such filing or change is not inconsistent with that Secured Party's
internal policies.
(c) Without prejudice to the survival of any other agreement
of such Guarantor hereunder, the agreements and obligations of such
Guarantor contained in this Section shall survive the payment in full
in cash of the principal of and interest on the Credit Extensions and
all other Obligations.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES
SECTION III.1. Representations and Warranties. Each Guarantor hereby
represents and warrants to each Secured Party that the representations and
warranties contained in Article VI of the Credit Agreement, insofar as the
representations and warranties contained therein are applicable to such
Guarantor and its properties, are true and correct in all material respects,
each such representation and warranty set forth in such Article (insofar as
applicable as aforesaid) and all other terms of the Credit Agreement to which
reference is made therein, together with all related definitions and ancillary
provisions, being hereby incorporated into this Guaranty by reference as though
specifically set forth in this Section.
ARTICLE IV
COVENANTS, ETC.
SECTION IV.1. Covenants. Each Guarantor covenants and agrees that, so
long as any portion of the Obligations shall remain unpaid, any Letters of
Credit shall be outstanding, any Rate Protection Agreement shall remain in full
force and effect or any Lender shall have any outstanding Commitment, such
Guarantor will, unless the Required Lenders shall otherwise consent in writing,
perform, comply with and be bound by all of the agreements, covenants and
obligations contained in Article VII of the Credit Agreement which are
applicable to such Guarantor or its properties, each such agreement, covenant
and obligation contained in such Article and all other terms of the Credit
Agreement to which reference is made therein, together with all related
definitions and ancillary provisions, being hereby incorporated into this
Guaranty by reference as though specifically set forth in this Section.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION V.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including Article X thereof.
SECTION V.2. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.7, this
Guaranty shall be binding upon each Guarantor and its successors, transferees
and assigns and shall inure to the benefit of and be enforceable by each
Secured Party and each holder of a Note and their respective successors,
transferees and assigns (to the full extent provided pursuant to Section 2.7);
provided,
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however, that no Guarantor may assign any of its obligations hereunder without
the prior written consent of all Lenders; provided, further, however, that upon
the transfer, sale or other disposition of the Capital Stock of any Guarantor
in accordance with the terms of the Credit Agreement (other than to the
Borrower or another Guarantor), such Guarantor shall automatically and without
further action be released from its obligations hereunder.
SECTION V.3. Amendments, etc. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by any Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent (on behalf of the Lenders or the
Required Lenders, as the case may be) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION V.4. Notices. All notices hereunder shall be given in
accordance with Section 10.2 of the Credit Agreement, and shall be addressed,
in the case of any Guarantor, to such Guarantor in care of the Borrower.
SECTION V.5. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of any
Secured Party or any holder of a Note to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION V.6. Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION V.7. Setoff. In addition to, and not in limitation of, any
rights of any Secured Party or any holder of a Note under applicable law, each
Secured Party and each such holder shall, upon the occurrence of any Default
described in any of clauses (a) through (d) of Section 8.1.9 of the Credit
Agreement or with the consent of the Required Lenders, any Event of Default,
have the right to appropriate and apply to the payment of the obligations of
each Guarantor owing to it hereunder, whether or not then due, and each
Guarantor hereby grants to each Secured Party and each such holder a continuing
security interest in, any and all balances, credits, deposits, accounts or
moneys of such Guarantor then or thereafter maintained with such Secured Party,
or such holder or any agent or bailee for such Secured Party or such holder;
provided, however, that any such appropriation and application shall be subject
to the provisions of Section 4.8 of the Credit Agreement.
SECTION V.8. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
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SECTION V.9. Additional Guarantors. Upon the execution and delivery by
any other Person of an instrument in the form of Annex I hereto, such Person
shall become a "Guarantor" hereunder with the same force and effect as if
originally named as a Guarantor herein. The execution and delivery of any such
instrument shall not require the consent of any other Guarantor hereunder. The
rights and obligations of each Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Guarantor as a party to this
Guaranty.
SECTION V.10. Governing Law, Entire Agreement, etc. THIS GUARANTY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS GUARANTY AND THE
OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION V.11. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES
OR ANY GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF
THE STATE OF NEW YORK, NEW YORK COUNTY OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH GUARANTOR HEREBY IRREVOCABLY APPOINTS CT
CORPORATION SYSTEM (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT
1633 BROADWAY, NEW YORK, NEW YORK 10019, UNITED STATES, AS ITS AGENT TO
RECEIVE, ON SUCH GUARANTOR'S BEHALF AND ON BEHALF OF SUCH GUARANTOR'S PROPERTY,
SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY
BE SERVED IN ANY
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SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A
COPY OF SUCH PROCESS TO SUCH GUARANTOR IN CARE OF THE PROCESS AGENT AT THE
PROCESS AGENT'S ABOVE ADDRESS, AND SUCH GUARANTOR HEREBY IRREVOCABLY AUTHORIZES
AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN
ALTERNATIVE METHOD OF SERVICE, EACH GUARANTOR FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH GUARANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, SUCH GUARANTOR HEREBY IRREVOCABLY WAIVES
SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER
LOAN DOCUMENTS.
SECTION V.12. Waiver of Jury Trial. EACH GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR EACH GUARANTOR
IN CONNECTION HEREWITH OR THEREWITH. EACH GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE
CREDIT AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION V.13. Counterparts. This Guaranty may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
UNITED AUTO GROUP, INC.
By: /s/ Philip N. Smith, Jr.
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Name: Philip N. Smith, Jr.
Title: Senior Vice President
UNITED AUTOCARE, INC.
UNITED AUTOCARE PRODUCTS, INC.
UAG CAPITAL MANAGEMENT, INC.
UAG FINANCE COMPANY, INC.
DIFEO PARTNERSHIP, INC.
DIFEO PARTNERSHIP VIII, INC.
DIFEO PARTNERSHIP IX, INC.
DIFEO PARTNERSHIP X, INC.
DIFEO PARTNERSHIP HCT, INC.
DIFEO PARTNERSHIP RCM, INC.
DIFEO PARTNERSHIP RCT, INC.
DIFEO PARTNERSHIP SCT , INC.
HUDSON TOYOTA, INC.
SOMERSET MOTORS, INC.
SHANNON AUTOMOTIVE LTD.
UAG NORTHEAST, INC.
UAG NORTHEAST (NY), INC.
UNITED LANDERS, INC.
LANDERS AUTO SALES, INC.
LANDERS UNITED AUTO GROUP, INC.
LANDERS UNITED AUTO GROUP NO. 2, INC.
LANDERS UNITED AUTO GROUP NO. 3, INC.
LANDERS UNITED AUTO GROUP NO. 4, INC.
LANDERS UNITED AUTO GROUP NO. 5, INC.
BPT HOLDINGS, INC.
CENTRAL FORD CENTER, INC.
UAG ATLANTA, INC.
ATLANTA TOYOTA, INC.
UAG ATLANTA II, INC.
UNITED NISSAN, INC. (GA)
UAG ATLANTA III, INC.
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PEACHTREE NISSAN, INC.
UAG ATLANTA IV, INC.
UAG ATLANTA IV MOTORS, INC.
UAG ATLANTA V, INC.
CONYERS NISSAN, INC.
UAG ATLANTA VI, INC.
UNITED JEEP EAGLE CHRYSLER PLYMOUTH
OF STONE MOUNTAIN, INC.
UAG WEST, INC.
LRP, LTD.
SA AUTOMOTIVE, LTD.
SCOTTSDALE AUDI, LTD.
SCOTTSDALE MANAGEMENT GROUP, LTD.
SK MOTORS, LTD.
SL AUTOMOTIVE, LTD.
SPA AUTOMOTIVE, LTD.
SUN BMW, LTD.
6725 DEALERSHIP, LTD.
UAG CAROLINA, INC.
REED-LALLIER CHEVROLET, INC.
GENE REED CHEVROLET, INC.
MICHAEL CHEVROLET-OLDSMOBILE, INC.
UAG TENNESSEE, INC.
UNITED NISSAN, INC. (TN)
UAG TEXAS, INC.
UAG TEXAS II, INC.
UAG NEVADA, INC.
UNITED NISSAN, INC. (NV)
UAG EAST, INC.
AUTO MALL PAYROLL SERVICES, INC.
AUTO MALL STORAGE, INC.
FLORIDA CHRYSLER PLYMOUTH, INC.
NORTHLAKE AUTO FINISH, INC.
PALM AUTO PLAZA, INC.
WESTBURY NISSAN, LTD.
WESTBURY SUPERSTORE, LTD.
WEST PALM AUTO MALL, INC.
WEST PALM INFINITI, INC.
WEST PALM NISSAN, INC.
UAG YOUNG, INC.
UAG YOUNG II, INC.
UAG YOUNG AUTOMOTIVE GROUP, LLC
D. YOUNG CHEVROLET, LLC
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PARKWAY CHEVROLET, INC.
DAN YOUNG, INC.
DAN YOUNG TIPTON, LLC
YOUNG MANAGEMENT GROUP, INC.
UAG KISSIMMEE MOTORS, INC.
UAG PARAMOUNT MOTORS, INC.
UAG CENTURY MOTORS, INC.
UAG GRACELAND, INC.
THE NEW GRACELAND DODGE, INC.
UAG GRACELAND II, INC.
UAG MEMPHIS, INC.
COVINGTON PIKE DODGE, INC.
UAG MEMPHIS II, INC.
UAG MEMPHIS III, INC.
UAG MEMPHIS IV, INC.
UAG MEMPHIS V, INC.
UAG CLASSIC, INC.
UAG KNOXVILLE, INC.
UAG KNOXVILLE II, INC.
UNITEDAUTO DODGE OF SHREVEPORT, INC.
UAG-CARIBBEAN, INC.
By: /s/ Philip N. Smith, Jr.
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Name: Philip N. Smith, Jr.
Title: Vice President
COUNTY AUTO GROUP PARTNERSHIP
By: DIFEO PARTNERSHIP RCT, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
---------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
DANBURY AUTO PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
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DANBURY CHRYSLER PLYMOUTH
PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
DIFEO BMW PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
DIFEO CHEVROLET-GEO PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
DIFEO CHRYSLER PLYMOUTH JEEP EAGLE
PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
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DIFEO HYUNDAI PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
DIFEO LEASING PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
DIFEO NISSAN PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
FAIR CHEVROLET-GEO PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
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FAIR HYUNDAI PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
HUDSON MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP HCT, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
J&F OLDSMOBILE PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
OCM PARTNERSHIP
By: DIFEO PARTNERSHIP IX, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
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OCT PARTNERSHIP
By: DIFEO PARTNERSHIP VIII, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
ROCKLAND MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP RCM, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
SOMERSET MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP SCT, INC.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
SHANNON AUTOMOTIVE LTD.
By: UAG TEXAS II, INC.
its general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
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6725 AGENT PARTNERSHIP
By: SCOTTSDALE AUDI, LTD.
a general partner
By: /s/ Philip N. Smith, Jr.
----------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
-19-
ANNEX I to
Subsidiary Guaranty
SUPPLEMENT NO. dated as of , (this "Supplement"), to
the Guaranty, dated as of February 27, 1998 (as amended, supplemented, amended
and restated or otherwise modified, from time to time, the "Guaranty"), among
the initial signatories thereto and each other Person which from time to time
thereafter becomes a party thereto pursuant to Section 5.9 thereof (each
individually a "Guarantor" and collectively the "Guarantors"), in favor of The
Bank of Nova Scotia, as administrative agent (in such capacity, the
"Administrative Agent") for each of the Secured Parties.
WITNESSETH:
WHEREAS, capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Guaranty;
WHEREAS, the Guaranty provides that additional parties may become
Guarantors under the Guaranty by execution and delivery of an instrument in the
form of this Supplement;
WHEREAS, pursuant to the provisions of Section 5.9 of the Guaranty, the
undersigned is becoming a Guarantor under the Guaranty; and
WHEREAS, the undersigned desires to become a Guarantor under the
Guaranty in order to, among other things, induce the Lenders and the Issuer to
continue to make and maintain Credit Extensions under the Credit Agreement as
consideration therefor;
NOW, THEREFORE, the undersigned agrees, for the benefit of each
Secured Party, as follows:
1. In accordance with the Guaranty, the undersigned by its signature
below becomes a Guarantor under the Guaranty with the same force and effect as
if it were an original signatory thereto as a Guarantor and the undersigned
hereby (a) agrees to all the terms and provisions of the Guaranty applicable to
it as a Guarantor thereunder and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true
and correct on and as of the date hereof. In furtherance of the foregoing, each
reference to a "Guarantor" in the Guaranty shall be deemed to include the
undersigned.
2. The undersigned hereby represents and warrants that this Supplement
has been duly authorized, executed and delivered by the undersigned and the
Guaranty constitutes a legal,
valid and binding obligation of the undersigned, enforceable against it in
accordance with its terms.
3. In the event any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty shall not in any way be affected or impaired.
4. Without limiting the provisions of the Credit Agreement (or any
other Loan Document, including the Guaranty), the undersigned agrees to
reimburse the Administrative Agent for its reasonable expenses in connection
with this Supplement, including reasonable attorneys' fees and expenses of the
Administrative Agent.
5. WITHOUT LIMITING THE EFFECT OF SECTION 5.12 OF THE GUARANTY, THE
UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS SUPPLEMENT, THE GUARANTY OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
7. This Supplement hereby incorporates by reference the provisions of
the Guaranty, which provisions are deemed to be a part hereof, and this
Supplement shall be deemed to be a part of the Guaranty.
8. This Supplement is a Loan Document executed pursuant to the Credit
Agreement and the Guaranty.
IN WITNESS WHEREOF, the undersigned has duly executed this Supplement
to the Supplement as of the day and year first above written.
[NAME OF ADDITIONAL GUARANTOR]
By:
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Title:
ACCEPTED BY:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
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Title:
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