Exhibit 10.39
LEASE GUARANTY
THIS LEASE GUARANTY (this
“Guaranty”) is made as of this
day of
,
, by SONIC
AUTOMOTIVE, INC., a Delaware corporation (
“Guarantor” ), in favor of
,
a
( “Landlord” ).
WHEREAS,
,
a
( “Tenant” ), and Landlord executed that certain
Lease Agreement, dated
,
(the
“Lease” ), the terms and conditions of which
Lease are hereby incorporated by reference, for certain premises
located at
,
,
(the “Premises” ); and
WHEREAS, Landlord under the Lease
requires as a condition to its execution of the Lease that
Guarantor guarantee the performance and obligations of Tenant under
the Lease. Guarantor desires to have Landlord and Tenant enter into
the Lease and therefore desires to guaranty Tenant’s
performance under the Lease as hereinafter provided.
NOW, THEREFORE, in consideration of,
and as an inducement for the granting, execution and delivery of
the Lease, and in further consideration of the sum of One Dollar
($1.00) and other good and valuable consideration paid by Landlord,
the receipt and sufficiency of which are hereby acknowledged,
Guarantor hereby covenants as follows:
1. Guaranty . Guarantor
absolutely, unconditionally and irrevocably guarantees to Landlord
the full, faithful and prompt performance of all obligations
imposed on Tenant by the terms of the Lease, including, but not
limited to: (a) the payment of any and all Rent payable by
Tenant under the Lease, and (b) the performance and observance
of all the covenants, terms, conditions and agreements of the Lease
(including, without limitation, Section 3(c) thereof) to be
performed and observed by Tenant. Guarantor does hereby become
surety to Landlord for and with respect to all of the aforesaid
obligations of Tenant under the Lease.
2. Covenants . If Tenant
defaults in the payment of any Rent payable by Tenant under the
Lease or in the performance of any of the covenants, terms,
conditions and agreements contained in the Lease, Guarantor will
immediately: (a) pay such Rent to Landlord and any arrears
thereof; (b) faithfully perform and fulfill all of such
covenants, terms, conditions and agreements; and (c) pay the
Landlord all damages, costs and expenses that may arise in
consequence of any default by Tenant under Lease (including,
without limitation, all Reasonable Attorneys’ Fees (as
defined hereafter) incurred by Landlord or caused by any such
default and/or by the enforcement of this Guaranty). This Guaranty
is a primary, absolute, continuing and unconditional guaranty of
payment and of performance and not of mere collection.
Guarantor’s liability hereunder is direct and may be enforced
without Landlord being required to resort to any other right,
remedy or security. The validity of this Guaranty and the
obligations of Guarantor hereunder shall not be terminated,
affected or impaired by reason of the assertion or the failure to
assert by Landlord against Tenant of any of the rights or remedies
reserved to Landlord pursuant to the provisions of the
Lease.
3. Non-Release . This
Guaranty shall remain in full force and effect without regard to,
and shall not be released, discharged or in any way impaired by:
(a) any amendment or modification of, or supplement to, or
extension or renewal (pursuant to an option granted, holding over,
or otherwise) of the Lease (whether material or otherwise) or any
assignment or transfer thereof, all of which Guarantor hereby
consents to; (b) any exercise or non-exercise of any right,
power, remedy or privilege under or in respect of the Lease or this
Guaranty or any waiver, consent or approval by Landlord with
respect to any of the covenants, terms, conditions or agreements
contained in the Lease or any indulgences, forbearance or
extensions of time for performance or observance allowed to Tenant
from time to time and for any length of time; (c) the
voluntary or involuntary liquidation or dissolution of Tenant, the
sale of substantially all of the assets of Tenant, the marshaling
of assets on liabilities, receiverships, conservatorship,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganizations, arrangement, composition or readjustment of, or
other similar proceeding affecting Tenant or any of Tenant’s
assets; (d) any limitation on the liability or obligation of
Tenant under the Lease or its estate in bankruptcy or of any remedy
for the enforcement thereof, resulting from the operation of any
present or future provision of the National Bankruptcy
Act
or other statute or from the decision of any
court; or (e) any extension, forbearance or leniency extended
by Landlord to Tenant.
4. Rejection of Lease . This
Guaranty will continue unchanged by any bankruptcy, reorganization
or insolvency of Tenant or any successor or assignee thereof, or by
a disaffirmance or abandonment by a trustee of Tenant. If the Lease
is rejected or disaffirmed by Tenant or Tenant’s trustee in
bankruptcy pursuant to any bankruptcy law or any other law
affecting creditor’s rights, then Guarantor shall, and does
hereby (without the necessity of any further agreement or act)
assume all obligations and liabilities of Tenant under the Lease to
the same extent as if: (a) Guarantor were originally named
Tenant under the Lease; and (b) there had been no such
rejection or dissafirmance. Guarantor shall, upon Landlord’s
request, promptly confirm in writing such assumption. No limitation
on the liability of Tenant under the Lease which may now or
hereafter be imposed by any federal, state or other statute, law or
regulation applicable to such proceedings shall in any way limit
the obligation of Guarantor hereunder, which obligation is
co-extensive with Tenant’s liability set forth within the
Lease without regard to any such statutory or legal
limitation.
5. Waiver . Guarantor has
been advised of and hereby waives and agrees not to assert or take
advantage of any of the following rights: (a) presentment,
demand for payment, and protest of non-performance under the Lease;
(b) notice of any kind, including but not limited to notice of
acceptance, notice of default and/or notice of any obligations or
liabilities contracted or incurred by Tenant; (c) any right to
require Landlord to enforce its rights and remedies against Tenant
under the Lease or otherwise; (d) any right to require
Landlord to proceed against any security held from Tenant or any
other penalty; (e) any and all right of subrogation;
(f) any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other person or
persons or the failure of Landlord to file or enforce a claim
against the estate (in administration, bankruptcy or any other
proceeding) of any other person or persons; (g) any defense
based upon an election of remedies by Landlord; (h) any
invalidity, irregularity or unenforceability, in whole or in part,
of any one or more provisions of the Lease; and (i) any
defense based upon Sections 49-25 and/or 49-26 of the Code of
Virginia (1950), as amended.
6. Joint and Several
Liability . Guarantor’s liability shall be primary and
joint and several with that of Tenant, notwithstanding the fact
that Guarantor has had no prior notice of any default or of any
forbearance or extension. Landlord may proceed against Guarantor
under this Guaranty without initiating or exhausting any legal
remedy against Tenant and may proceed against Tenant and Guarantor
separately or concurrently. This is a guaranty of payment and not
of collection.
7. Assignment by Landlord .
Landlord may, without notice, assign this Guaranty in whole or in
part and no assignment or transfer of the Lease shall operate to
extinguish or diminish the liability of the Guarantor
hereunder.
8. Tenant’s Affiliates
. Landlord may enter into leases with Affiliates of Tenant. As an
inducement to Landlord entering into leases with Tenant’s
Affiliates: (a) Guarantor hereby unconditionally and
irrevocably subordinates all payments due or to become due by
Tenant by reason of any and all debts and other obligations,
including the obligation to pay salaries or other compensation, and
(b) Guarantor, Tenant and Tenant’s Affiliates shall not
receive or collect any payments, dividends, disbursements,
distributions, contributions or any other sums from Tenant or
Tenant’s Affiliates at any time after an Event of Default has
occurred under the Lease or any other lease between Landlord and:
(i) Tenant; (ii) any Affiliate of Tenant;
(iii) Guarantor; or (iv) any Affiliate of
Guarantor.
9. Representations, Warranties
and Covenants . Guarantor hereby represents, warrants and
covenants to Landlord as follows:
(a) Change in
Financial Condition . The financial statements of
Guarantor, and the notes related thereto, included in the Form 10K
for the fiscal year ended
,
and 10Q for the
quarter ended
,
, present fairly
the consolidated financial condition of Guarantor as of the dates
indicated and the results of the operations and changes in
consolidated cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis; and as of the
date of this Guaranty, there has occurred no material adverse
change in the financial condition of Guarantor since the date of
such financial statements.
- 2 -
(b) Proceedings . There is no
action, suit, litigation or proceeding pending or, to the knowledge
of Guarantor, threatened against the Tenants, Guarantor, or the
Premises that could reasonably be expected to have a material
adverse effect on the financial condition of Guarantor or its
ability to execute or deliver, or perform its obligations under,
this Guaranty.
(c) Financial
Statements . Guarantor shall provide Landlord and any
mortgagee (as defined in the Lease), at the times set forth herein
(or more often as may be reasonably requested by Landlord), the
following financial information during the Lease Term (as defined
in the Lease); (i) within forty-five (45) days after the
end of each fiscal quarter, Guarantor-prepared year-t
