EXHIBIT 10.35.6
GUARANTY
THIS GUARANTY is made and given this 30th day of September, 1997 by
Mr. Bill A. Gilliland ("Guarantor") to and in favor of Mr. R. Douglas
Spedding ("Lender").
RECITAL OF FACTS
WHEREFORE, Lender has agreed to make a loan (the "Loan") to, on behalf
and for the benefit of Cross-Continent Auto Retailers, Inc., Toyota West
Sales and Service, Inc., Douglas Toyota, Inc. and Sahara Imports, Inc.
(collectively referred to herein as the "Borrower") to finance the
construction of new automobile dealership facilities on certain real
properties owned by Borrower in Denver, Colorado and Las Vegas, Nevada (the
"Project"), with the metes and bounds or other legal descriptions of such
properties being more particularly set forth in Exhibit "A" attached hereto
and made a part hereof by reference (the "Parcels"); and
WHEREFORE, the Loan is for the amount of $7,400,000, bearing interest in
accordance with the provisions of that certain Promissory Note of even date
herewith (the "Note"), a copy which is attached as Exhibit "B" and
incorporated herein by this reference. Interest is payable monthly as
provided in the Note, which is secured by a Second Deed of Trust on the
Parcels and the Project, a Security Agreement and Financing Statements, this
Guaranty, and certain other loan documents (hereinafter collectively referred
to as the "Security Instruments"); and
WHEREFORE, to induce Lender to make the Loan and to provide Lender with
additional security for the performance of Borrower's obligations under the
Security Instruments, Guarantor has agreed to guarantee (1) repayment of the
principal amount of the Loan; (2) payment of interest and other monetary
obligations of Borrower under the Security Instruments; (3) the performance
of all covenants, obligations, and conditions provided in the Security
Instruments; and (4) the completion of the Project in conformance with the
plans and specifications. The purpose of this Guaranty is to specify the
terms and conditions of those guarantees.
NOW, THEREFORE, incorporating the recitals of facts above, and to induce
Lender to make the Loan to Borrower, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Guarantor agrees as follows:
1. GUARANTY OF PAYMENT. Guarantor hereby absolutely and
unconditionally guarantees to Lender the timely, complete, and full payment
of all principal, interest, and other sums presently due and owing or which
in the future become due and owing to Lender from Borrower in connection with
the Interim Construction and Master Loan Agreement of even date herewith, or
the Loan contemplated thereby or any promissory note, deed of trust, security
agreement, or any other Security Instrument now or hereafter made in
connection herewith. It is understood that this Guaranty is a guarantee of
immediate payment and that Lender may enforce this right to immediate payment
without proceeding against or joining the Borrower and without applying or
enforcing any security for the Loan.
2. GUARANTY OF PERFORMANCE. Guarantor hereby absolutely and
unconditionally
guarantees to Lender the full observance and performance of all conditions,
agreements, covenants, and obligations of Borrower under the Security
Instruments, including without limitation the satisfactory completion of the
Project in accordance with the plans and specifications approved by Lender
from time to time, free and clear of any and all materialmens' and mechanics'
liens. In the event of any default by Borrower in its obligations under any
of the Security Instruments, Guarantor agrees upon notification by Lender, to
assume responsibility for the completion of the Project and, at Guarantor's
own cost and expense, to cause the Project to be fully and satisfactorily
completed.
3. ASSIGNMENT. Lender may assign or transfer this Guaranty and its
rights hereunder, in whole or in part, in connection with the assignment or
transfer of the Loan. The benefit of this Guaranty shall automatically pass
with a transfer or assignment of Lender or his successor or assign in the
Loan or any portion thereof to any subsequent party to the extent of such
party's interest in the Loan. In the event of any such transfer or
assignment, this Guaranty shall remain in full force and effect with respect
to any interest which is retained by Lender. All rights and privileges of
Lender herein shall inure to the benefit of each and every assign and
successor to the rights of Lender, regardless of whether such assign or
successor holds an interest in the Loan currently with Lender, and all
references to Lender herein shall be deemed to include every assignee or
successor of Lender or any subsequent holder of the Loan or any portion
thereof.
4. ACTIONS BY LENDER. No action Lender may take or omit to take
in connection with the Loan or any security given therefor, nor any course of
dealing with Borrower or any representative or employee of Borrower, shall
relieve Guarantor of its obligations hereunder, or affect this Guaranty in
any way. By way of example, but not in limitation of the foregoing,
Guarantor hereby expressly agrees that Lender may, from time to time and
without notice to Guarantor:
(a) Amend, change, or modify, in whole or in part, the Security
Instruments;
(b) Accelerate, change, extend, or renew the time for payment of
any promissory note given in connection with the Loan;
(c) Waive any terms, conditions, or covenants of any of the
Security Instruments, or grant any extension of time or forbearance for
performance of the same;
(d) Compromise or settle any amount due or owing or claimed to be
due or owing under any of the Security Instruments; or
(e) Surrender, release, or subordinate any or all of the security
for the Loan or accept additional or substituted security therefor.
The provisions of this Guaranty shall extend and be applicable to all
renewals, amendments, extensions, and modifications of the Security
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Instruments, and all references to any Security Instruments shall be deemed
to include any such renewal, extension, amendment, or modification thereof.
5. WAIVER. Guarantor expressly waives notice of acceptance of
this Guaranty, presentment of payment, or performance of Borrower's
obligations under the Security Instruments, protest and notice of protest,
demand, notice of dishonor, notice of any and all proceedings to collect
amounts due under the Security Instruments, and to enforce any security given
for the Loan, and diligence in collecting sums due under the Loan or to any
liability under this Guaranty.
Guarantor also waives any right to require Lender to proceed against
Borrower, to proceed against or exhaust any security held to guarantee
performance of Borrower's obligations to Lender, or to pursue any other
remedy whatsoever available to Lender. Guarantor expressly waives any
defense arising by reason of any disability or other defense of Borrower, by
reason of the cessation from any cause whatsoever of the liability of
Borrower, or by reason of Lender's election of any remedy against Borrower or
Guarantor, or both, including without limitation election of Lender to
exercise its rights under the power of sale contained in any deed of trust
securing the Loan and the potential loss by Guarantor of the right to recover
any deficiency from Borrower. Until all indebtedness of Borrower to Lender
shall have been paid in full, Guarantor shall have no right of subrogation
and Guarantor hereby expressly defers any right to enforce any remedy which
Lender now has or may hereafter have against Borrower and defers any benefit
of any right to participate in any security now or hereafter held by Lender.
In the event Borrower or Guarantor shall at any time become insolvent or make
a general assignment, or if a petition in bankruptcy or any insolvency or
reorganization proceeding shall be filed or commenced by, against, or in
respect of the Borrower or Guarantor, such action shall not in any manner
affect the continuing obligations of Guarantor hereunder. The validity of
this Guaranty and the obligations of the Guarantor shall not be terminated,
affected, or impaired by the relief, discharge, or release of any or all of
the indebtedness by operation of law or otherwise, including, without
limitation, a discharge in bankruptcy, receivership, or other proceedings, a
disaffirmation or rejection of the indebtedness by a trustee or other
representative in bankruptcy, a stay or other enforcement restriction, or any
other reduction, modification, impairment, or limitation of any of the
indebtedness.
In addition, Guarantor agrees that Lender shall have no duty to disclose
to Guarantor any information it receives regarding the financial status of
the Borrower, whether or not such information indicates that the risk that
Guarantor may be required to perform hereunder has been or may be increased.
Guarantor assumes full responsibility for being and keeping informed of all
such matters.
6. INDEPENDENT OBLIGATION. The obligations of Guarantor hereunder
are independent of the obligations of Borrower, and Lender may proceed
directly to enforce its rights under this Guaranty without proceeding against
or joining the Borrower and without applying or enforcing any security for
the Loan. Guarantor hereby waives any rights it may have to compel Lender to
proceed against the Borrower or any security or to participate in any
security for the sums guaranteed hereby.
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7. DEFAULT. In case of any default in the performance of the
Security Instruments, Lender shall have the right (1) to enforce its rights
under this Guaranty or (2) to enforce its rights against Borrower, including
without limitation its rights under any instrument securing the payment or
performance of the Loan, in any order, and all remedies available to Lender
shall be nonexclusive. Guarantor hereby empowers Lender, its successors and
assigns, in their sole discretion, with notice to Guarantor, to exercise any
right or remedy which they may have, including but not limited to judicial
foreclosure, exercise of rights of power of sale, taking a deed or assignment
in lieu of foreclosure or sale, appointment of a receiver to protect the
security or to collect rents and profits, exercise of remedies against
personal property, or enforcement of an assignment of leases, as to any
security, whether real, personal, or intangible, and Guarantor shall be
liable to Lender for any failure of such securities to fully satisfy the
Loan, but in no event more than the full amount due and owing, even though
any rights which Guarantor may have against the Borrower or others may be
diminished or destroyed by the exercise or election to exercise any such
remedy. In the event Lender, in its sole discretion, elects to foreclose
against all or any portion of the security given for the loan, the amount bid
by Lender or the amount received by Lender at the sale of the security shall
be conclusive evidence of the value of the security for purposes of
determining any remaining deficiency judgment to be enforced against the
Guarantor.
8. PROCEEDS. Guarantor hereby authorizes Lender, with notice to
Guarantor, to apply all payments and credits received from Borrower or from
Guarantor to payment of the Loan or in satisfaction of any of the covenants
and conditions set forth in the Security Instruments, in such manner and in
such priority as Lender, in its sole judgment, shall see fit.
9. INDEMNITY. Guarantor agrees to indemnify Lender for, and hold
Lender harmless against, all loss, cost, and expense, including without
limitation all court costs and reasonable attorneys' fees (including
appellate fees, if any), reasonably incurred or paid by Lender in enforcing
or compromising any rights under this Guaranty.
10. DELEGATION. Guarantor's obligations hereunder shall not be
assigned or delegated.
11. AMENDMENT. This Guaranty may not be changed orally, and no
obligation of the Guarantor can be released or waived by Guarantor or
Borrower except in a written amendment hereto signed by Lender.
12. DEATH OR RELEASE OF GUARANTOR. Guarantor agrees that the death
of Guarantor shall not effect a termination of this Guaranty and that nothing
shall discharge or satisfy the liability of Guarantor hereunder except the
full payment and performance of all Borrower's debts and obligations to
Lender with interest.
13. GOVERNING LAW. This Guaranty shall be governed by and
construed in accordance with the laws of the State of Colorado. Guarantor
hereby consents to jurisdiction within the State of Colorado for purposes of
any such litigation and agrees that service of process may be made, and
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personal jurisdiction over Guarantor obtained, by whatever methods are
provided by Colorado law. Nothing contained herein, however, shall prevent
Lender from bringing any action or exercising any rights against the security
for the Loan or against Guarantor, individually or personally, or any
property of Guarantor, within any other state. Initiating such proceedings
or taking such action in any other state shall not, however, constitute a
waiver of the agreement contained herein that the laws of the State of
Colorado shall govern the rights and obligations of Guarantor.
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14. SEVERANCE. 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 law.
15. TERM. This Guaranty shall be irrevocable by Guarantor until
the entire principal amount of the Loan has been repaid to Lender, together
with all accrued interest and other charges due and payable to Lender under
any Security Instrument.
16. NOTICE OF SPECIAL EVENTS. If Guarantor shall become bankrupt
or insolvent, or any application shall be made to have Guarantor declared
bankrupt or insolvent, or Guarantor shall make an assignment for the benefit
of creditors, notice of such occurrence or event shall be promptly furnished
to Lender by Guarantor.
17. RIGHTS CUMULATIVE. The rights of Lender granted and arising
hereunder shall be separate and distinct and cumulative of other powers and
rights which Lender may have at law or in equity, and none of them shall be
exclusive of the others and all of them are cumulative to the remedies for
collection of indebtedness, enforcement of rights under the deed of trust,
and preservation of security as provided by law. No act of Lender shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision or an election of remedies to the bar of any
other remedy allowed at law or in equity, anything herein or otherwise to the
contrary notwithstanding.
18. NO WAIVER BY LENDER. Failure by Lender to exercise any right
which it may have hereunder shall not be deemed a waiver thereof unless so
agreed in writing by Lender and, if any such waiver is given, it shall not be
deemed a continuing waiver or a waiver of any other default or of the same
default on another occasion.
19. NOTICES. All notices hereunder shall be in writing and shall
be deemed to have been sufficiently given or served for all purposes when
presented personally (which includes notices given by messengers or overnight
couriers) or, if sent by mail, shall be deemed given and delivered seven (7)
days after being deposited in any duly authorized United States mail
depository, postage prepaid, certified with return receipt requested, or, if
delivered by telegraph, shall be deemed given upon the sender's receipt of
confirmation of delivery by the telegraph company. Any notices delivered
hereunder shall be addressed to the following unless otherwise notified in
accordance herewith:
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IN WITNESS WHEREOF, this Guaranty has been executed as of the day
and year first above written.
GUARANTOR
/s/ Bill A. Gilliland
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Mr. Bill A. Gilliland
STATE OF TEXAS )
)ss.
COUNTY OF POTTER )
The foregoing instrument was acknowledged before me this 10th day of
October, 1997 by Mr. Bill A. Gilliland.
Witness my hand and official seal.
My commission expires: 5-6-98
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Notary Public: /s/ Kathy Rieken
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