GUARANTY AND SECURITY AGREEMENT
This
GUARANTY
AND SECURITY AGREEMENT,
dated
February ____, 2006, is from HOMETOWN
AUTO FRAMINGHAM, INC.,
a
Massachusetts corporation, FAMILY
FORD, INC.,
a
Connecticut corporation, SHAKER’S
INC.,
a
Connecticut corporation, HOMETOWN
BRATTLEBORO, INC.,
a
Vermont corporation, and SHAKER
AUTO GROUP, INC.,
a
Connecticut corporation (collectively "Guarantor"), whose addresses are
respectively 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, XX 00000; 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000; 000 Xxxxxxx Xxxxxxxx, Xxxxxxxxx, XX 00000; 0000 Xxxxxx
Xxxx, Xxxxx Xxxxxxxxxxx, XX 00000; and 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, XX
00000 (collectively "Guarantor's Address"), to FORD
MOTOR CREDIT COMPANY,
a
Delaware corporation ("Lender").
BAY
STATE REALTY HOLDINGS, INC.,
a
Massachusetts corporation ("Borrower") has requested a mortgage loan from Lender
in the principal amount of $6,035,000.00 (the "Loan"), to be evidenced by the
Promissory Note, dated as of even date herewith (the "Note"), from Borrower
to
the order of Lender, in the principal amount of the Loan. The Loan will be
secured by the Mortgage, Assignment of Leases and Rents, Security Agreement
and
Fixture Filing dated as of even date herewith (the "Mortgage"), from Borrower,
as mortgagor, to Lender, as mortgagee.
Lender
will not make the Loan unless Guarantor guarantees payment and performance
of
the terms thereof and provides a security interest to secure its guaranty,
and
Borrower has requested Guarantor to execute this Guaranty. Borrower will use
the
proceeds of the Loan to pay off an existing mortgage loan, and Guarantor
acknowledges that he will be benefited directly and indirectly from the Loan.
NOW,
THEREFORE, in consideration of the premises and other valuable consideration,
receipt of which is hereby acknowledged, and to induce Lender to make the Loan,
Guarantor hereby covenants and agrees with Lender as follows:
1. Definitions.
The
terms "Event of Default", "Indebtedness", "Obligations", "Transaction
Documents", "Lender's Address", "Property", "Investor" and "Rating Agency"
shall
have the meanings set forth in the Note and the Mortgage. In addition, the
following terms shall have the following meanings:
(a) The
term
"Collateral" means all of the following personal property, whether now owned
or
hereafter acquired, (1) equipment, furniture, fixtures, supplies, machinery,
materials and other goods of every kind, (2) motor vehicles, tractors, trailers,
implements, service parts and accessories and inventory of every kind, (3)
accounts, instruments, contract rights, chattel paper, general intangibles,
commercial tort claims, deposit accounts, investment property, letter of credit
rights, letters of credit, money, oil, gas and other minerals before extraction,
documents and supporting obligations thereto, (4) general intangibles
(including, without limitation, all trade names, trademarks, servicemarks,
logos, copyrights, goodwill, books and records), (5) all monies or credits
relating to the foregoing due to Borrower from any manufacturer, dealer or
distributor of the foregoing, and (6) all proceeds of the foregoing, including
without limitation, rentals due under any leases, proceeds of sale, exchange
or
other disposition of the foregoing, and any insurance proceeds of the foregoing,
or any part thereof, by whomsoever obtained, together with all accessions,
replacements and substitutions thereto or therefore and the proceeds and
products thereof.
(b) The
term
"Financial Information" means balance sheets, statements of profit and loss
and
other financial data furnished by Guarantor to Lender in connection with the
Loan.
2. Guaranty.
Guarantor absolutely, irrevocably and unconditionally guarantees to Lender
(a)
the due and punctual payment of the Indebtedness as and when it shall become
due
and payable whether by lapse of time, by acceleration of maturity or otherwise,
and (b) the performance of the Obligations, irrespective of the validity,
regularity or enforceability of the Note or the other Transaction Documents.
This is a guaranty of performance and payment, and not of
collection.
3. Representations
and Warranties.
(a)
Guarantor represents and warrants to Lender that (1) Guarantor has received
copies of the Transaction Documents and is familiar with and fully understands
all of their terms and conditions; (2) Lender has not made any representations
or warranties to Guarantor regarding the creditworthiness of Borrower or the
prospects of repayment from sources other than Borrower; (3) this Guaranty
is
executed at the request of Borrower; (4) Guarantor has established adequate
means of obtaining from Borrower on a continuing basis any information
concerning Borrower's financial condition, business operations, assets and
other
matters bearing on the risk of non-payment of the Indebtedness, as Guarantor
may
deem material to its obligations hereunder, and (5) Guarantor has the power
and
authority to enter into this Guaranty and to guaranty the repayment of the
Indebtedness and the performance of the Obligations and has taken all necessary
action to insure that this Guaranty is legally valid and enforceable against
Guarantor in accordance with its terms and conditions.
(b) Further,
Guarantor represents and warrants to Lender that (1) all Financial Information
fairly presents the financial condition of Guarantor as of the dates thereof,
and the results of its operations for the periods for which the same are
furnished; (2) all other information, reports, papers and data furnished to
Lender in connection with the Loan are accurate and correct in all material
respects and complete insofar as completeness may be necessary to give Lender
a
true and accurate knowledge of the subject matter thereof; (3) there has been
no
change in the assets, liabilities or financial condition of Guarantor from
that
set forth in the Financial Information, other than changes in the ordinary
course of business, none of which changes have been materially adverse to
Guarantor; (4) except as specifically disclosed (as to creditor or debtor,
amount and security in the Financial Information), Guarantor does not have
outstanding any loan or indebtedness, other than from Lender; (5) none of the
property of Guarantor is, as of the date hereof, subject to any security
interest, lien or other encumbrance in favor of anyone other than Lender; (6)
there is no litigation, legal or administrative proceeding, investigation or
other action of any nature pending or, to the knowledge of Guarantor, threatened
against or affecting Guarantor which involves the possibility of any judgment
or
liability not fully covered by insurance or which may materially and adversely
affect any of the assets of Guarantor or its right or ability to carry on the
business now conducted by Guarantor; (7) all Federal, state and other tax
returns and reports of Guarantor required by law to be filed have been duly
filed; and (8) all Federal, state and other taxes, assessments, fees and other
governmental charges (other than those presently payable without penalty and
other than those disclosed in the Financial Information) imposed upon Guarantor
or the property or assets of the Guarantor which are due and payable have been
paid.
4. Security.
Contemporaneous with the Loan to Borrower and to secure the payment and
performance of all of Guarantor's obligations under this Guaranty, Guarantor
grants to Lender a security interest in the Collateral and the proceeds thereof,
now owned or hereafter acquired. Upon Lender's request, Guarantor will provide
Lender with a list of all states where the Collateral is located. Guarantor
hereby authorizes Lender to manually or electronically file this Guaranty and
any other financing statements to perfect Lender's interest under this Guaranty
in the Collateral and/or the Receivables.
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5. Covenants.
Until
the Indebtedness shall have been paid in full, Guarantor hereby covenants and
agrees as follows:
(a) Guarantor
will maintain its existence and good standing as a corporation wherever it
transacts its business, maintain the existence of its franchised dealership
for
the sale and service of motor vehicles and of parts, accessories and equipment
therefor, and continue to transact the business presently conducted by
it.
(b) Guarantor
will keep books of record and account of its operations in such form as will
be
satisfactory to Lender; and furnish to Lender (1) within 20 days after the
end
of each month, or at such other frequency as Lender may from time to time direct
in writing, balance sheets and statements of profit and loss for such month,
in
such detail as Lender may reasonably require from time to time and certified
as
to the truth, accuracy and completeness of the information contained therein,
in
such form and by Guarantor or such directors, officers, managers, employees,
or
representatives of Guarantor as Lender may reasonably require from time to
time,
(2) at Lender's request, within 120 days after the close of each of Guarantor's
fiscal years, or at such other frequency as Lender may from time to time direct
in writing, a complete executed copy of a report of an examination of
Guarantor's financial affairs acceptable to Lender, such report to include
balance sheets and statements of profit and loss for such year in such detail
as
Lender may reasonably require from time to time, and (3) such other financial
statements as Lender may reasonably require from time to time.
(c) Guarantor
will promptly pay when due all taxes, assessments and charges imposed upon
it or
upon its properties, assets, operations, products, income or securities and
will
also promptly pay all claims which constitute, or if unpaid may become, a lien,
charge or encumbrance upon any of its properties, assets, operations, products,
income or securities.
(d) Guarantor
will obtain and maintain insurance on Guarantor's property against risks, in
amounts and with insurers acceptable to Lender, and cause notice of the interest
of Lender, if any, to be noted on the policies of insurance. If Guarantor fails
to obtain or maintain such insurance, or to furnish satisfactory evidence
thereof upon request, Lender may, but shall not be required to, and without
prejudice to Lender's rights hereunder if it does not, obtain such insurance,
and in such event Guarantor shall pay to Lender forthwith upon demand, as an
additional obligation of Guarantor to Lender, the amount incurred by Lender
for
such insurance, with interest thereon at the highest lawful contract rate.
Guarantor hereby assigns to Lender any monies that may become payable under
such
insurance, including return or unearned premiums, and requests and authorizes
any insurance company to make payment of such monies directly to Lender.
Guarantor waives and releases Lender from all claims with respect to any and
all
rights.
(e) Guarantor
will provide safe storage and properly care for the Collateral and make all
proper repairs thereto and at all times use, operate and enjoy the same strictly
in accordance with all laws from time to time in force.
(f)
Guarantor
will provide Lender with at least 30 days' prior written notice of a change
in
Guarantor's (1) legal name, (2) state of incorporation, registration or
organization, (3) social security or Federal tax identification number, (4)
location of its chief executive office, or (5) type of business organization
(such as, corporation, partnership, limited liability company).
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(g) Guarantor
will not create, suffer or permit any security interest, lien or other
encumbrance to be levied upon or become a charge against any of the property
of
Guarantor, other than security interests, liens or other encumbrances which
are
(1) in favor of or subordinated to Lender, or (2) specifically disclosed by
the
Financial Information, or (3) for taxes not delinquent or being contested in
good faith, or (4) liens of mechanics or materialmen arising in the ordinary
course of business with respect to obligations that are not overdue or that
are
being contested in good faith, or (5) resulting from deposits or pledges to
secure payments of workmen's compensation, unemployment insurance, old age
pensions or other social security.
(h) Guarantor
will not endorse, guarantee or become surety for the payment of any debt or
obligation of any individual, partnership, or corporation, directly or
contingently, except for recourse on the obligations of retail purchasers of
merchandise from Guarantor and in connection with endorsing checks and other
negotiable instruments for deposit and collection and except for the Loan to
Borrower.
(i)
Guarantor
will not (1) sell, exchange, transfer or otherwise dispose of any of Guarantor's
property, except in the normal course of business; (2) consolidate with or
merge
into any other business concern or permit any other business concern to
consolidate with or merge into Guarantor; (3) sell, exchange, transfer, lease
or
otherwise dispose of all or any substantial part of the capital assets of
Guarantor; (4) make any payment upon or transfer any assets in satisfaction,
in
whole or in part, of any indebtedness subordinated to any obligation owing
to
Lender; or (4) make or have outstanding, except loans and advances specifically
disclosed by the most recent financial statement furnished by Guarantor to
Lender prior to the date of this Guaranty, any loan or advance to any
individual, partnership or corporation, purchase any security of any corporation
or invest in the obligations of any individual, partnership or
corporation.
(j)
Guarantor
will not create or have outstanding any indebtedness for money borrowed except
for (1) indebtedness owing to Lender, (2) indebtedness specifically disclosed
by
the most recent financial statement or other statements furnished by or on
behalf of Guarantor to Lender prior to the date of this Guaranty, and (3)
indebtedness subordinated to all obligations owing by Guarantor to
Lender.
6.
Default
and
Remedies.
Upon
the occurrence of an Event of Default and in the event that Guarantor does
not
pay the Indebtedness or perform the Obligations in accordance with the terms
and
conditions of the this Guaranty and the other Transaction Documents upon receipt
of the demand therefor by Lender, Lender may thereupon exercise any one or
more
of the following remedies:
(a) Institute
proceedings for collection of the Indebtedness or performance of the Obligations
against Guarantor and/or any other party obligated therefor;
(b) Repossess
the Collateral, and Lender, personally, or by agents or attorneys, may take
possession of the Collateral or any portion thereof from Guarantor, with or
without notice or process of law and free from all claims of Guarantor, as
follows: (1) Lender may enter upon Guarantor's premises where any of the
Collateral is located, remove the Collateral without liability for suit, action
or proceeding by Guarantor and use in connection with such removal of any and
all services, supplies, and other facilities of Guarantor; or (2) Lender may
direct Guarantor in writing to assemble the Collateral and deliver the
Collateral to Lender at any place or places designated by Lender and reasonably
convenient for Guarantor, including any facilities of Guarantor for maintenance
or storage. In accordance with the direction of Lender, Guarantor shall at
its
own expense move and deliver the Collateral to Lender. Guarantor acknowledges
that its obligation hereunder to deliver the Collateral to Lender is of the
essence of this Agreement and that upon application to a court of equity having
jurisdiction, Lender shall be entitled to a decree requiring specific
performance by Guarantor of such obligation. Lender may, without charge, keep
any of the Collateral repossessed by Lender pursuant to this paragraph on the
premises of Guarantor pending further action by Lender. Lender also may take
possession of any or all proceeds arising from the disposition of the Collateral
or any portion thereof;
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(c) Dispose
of the Collateral, and Lender may sell the Collateral, or any portion thereof,
at one or more public or private sales, in such manner, at such time or times
and upon such terms as Lender may determine, following notice to Guarantor.
Guarantor agrees that any notice of sale shall be reasonable if given at least
five days before the time of any intended public sale, or before the time after
which private sale is to be made. Lender may hold, lease, operate or otherwise
use or permit the use of the Collateral, or any portion thereof, in such manner,
for such time and upon such terms as Lender may determine, and collect and
retain all earnings, rents, profits and other amounts due and to become due
with
respect thereto. Any disposition of the Collateral may be made on the premises
of Guarantor or elsewhere, at the option of Lender. Guarantor hereby agrees
that
Lender may, in the exercise of its remedies hereunder, use the premises on
which
the Collateral is located and may exercise all rights of Guarantor with respect
to such premises. If Guarantor is the lessee of such premises, Guarantor hereby
assigns to Lender all of Guarantor's right, title and interest in and to
Guarantor's lease covering such premises (such assignment to become effective,
however, only at such time as Lender shall notify Guarantor in writing thereof),
and Guarantor agrees to use its best efforts to attempt to obtain any necessary
consent to such assignment by the lessor thereof;
(d) Exercise
any rights of Lender with respect to that portion of the Collateral described
in
Section 1 (a) (3), including, without limitation, the right (1) to settle,
adjust and compromise all present and future claims arising thereunder or in
connection therewith; and (2) to sell, assign, pledge or make any other
agreement with respect thereto or the proceeds thereof; and (3) to exercise
any
and all other rights and remedies that Lender would have with respect thereto
if
it were the absolute owner thereof. Borrower shall deliver to Lender, upon
demand, all of its books and records relating to the Intangibles and all
instruments and other writings relating to, evidencing or constituting all
or
any portion of the Intangibles; and
(e) Exercise
any other remedies granted to it under this Guaranty and the other Transaction
Documents, and exercise any other remedy specifically granted to a secured
party
under the Uniform Commercial Code or now or hereafter existing in equity, at
law, by virtue of statute or otherwise.
The
proceeds of any sale, lease or use of the Collateral, less the expenses incurred
by Lender in taking, holding, selling, leasing, using, preparing for sale,
lease
or use, and reasonable attorneys' fees and other legal expenses, shall be
applied by Lender to the partial or complete satisfaction of the Indebtedness
and the Obligations. Guarantor agrees to reimburse Lender upon demand for all
loss, damage and expense incurred by Lender in the enforcement of the Agreement,
this Guaranty, the Note and the Security Documents, including without
limitation, reasonable attorneys' fees and expenses, together with interest
on
the amount thereof from the date the same accrued at the highest rate of
interest permitted by law.
-5-
7.
Continuation
of Liability.
The
liability of the Guarantor shall in no way be affected or impaired by (a) any
amendment, alteration, extension, renewal, waiver, indulgence or other
modification of the Transaction Documents; (b) any settlement or compromise
in
connection with the Indebtedness or the Transaction Documents; (c) any
subordination of payments under the Indebtedness or Transaction Documents to
any
other debt or claim; (d) any substitution, exchange, release or other
disposition of all or any part of the Indebtedness or Transaction Documents;
(e)
any failure, delay, neglect, act or omission by Lender to act in connection
with
the Indebtedness or Transaction Documents; (f) any advances for the purpose
of
performing any covenant or agreement of the Borrower, or curing any breach
or
Event of Default; (g) the filing by or against Borrower of bankruptcy,
insolvency, reorganization or other debtor's relief afforded Borrower pursuant
to the present or future provisions of the Bankruptcy Code or any other state
or
federal statute or by the decision of any court; (h) any action taken by Lender
which would afford Borrower a defense based on any anti-deficiency statute
of
the state where the Property is located, including without limitation, the
exercise by Lender of its right to conduct a sale of all or any part of the
Property, or (i) any other matter whether similar or dissimilar to the
foregoing. The obligations of Guarantor are unconditional, notwithstanding
any
defect in the genuineness, validity, regularity or enforceability of the
Indebtedness or the Transaction Documents, or any other circumstances whether
or
not referred to herein, which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, excluding the acts or omissions
of Lender. Guarantor and Lender (by its acceptance of this Guaranty) confirm
that the parties intend that this Guaranty and the obligations of Guarantor
hereunder not be a fraudulent transfer or conveyance for purposes of the federal
bankruptcy law, any state insolvency, receivership, fraudulent conveyance or
transfer law, or any other applicable federal or state law, Therefore, the
obligations of Guarantor under this Guaranty at any time shall be limited to
the
maximum amount as will result in the obligations of such Guarantor not
constituting a fraudulent conveyance or transfer.
8. Waivers.
(a)
Guarantor waives (1) notice of acceptance of this Guaranty and of creations
of
Indebtedness by Borrower to Lender; (2) presentment and demand for payment
of
any Indebtedness; (3) protest, notice of protest, notice of demand, and notice
of dishonor or default to Guarantor or to any other party with respect to the
Indebtedness or the Transaction Documents; (4) all other notices and demands
to
which Guarantor might be otherwise be entitled under any other instrument or
agreement or applicable law; (5) any demand for payment under this Guaranty;
(6)
any defense arising by reason of any disability or other defense of Borrower
by
reason of the cessation of the liability of Borrower as a result of any cause
whatsoever; (7) any rights to extension, composition or otherwise under the
Bankruptcy Code, or under any state or other federal statute; (8) any right
or
claim or claim of right to cause a marshalling of Borrower's assets; and (9)
all
other rights and defenses, the assertion or exercise of which would in any
way
diminish the liability of Guarantor hereunder.
(b) Guarantor
waives any duty on the part of Lender to disclose or report to Guarantor any
information now or hereafter known to Lender relating to the business,
operation, condition or assets of Borrower; regardless of whether Lender has
reason to believe that any such facts materially increase the risk beyond that
which Guarantor intends to assume or has reason to believe that such facts
are
unknown to Guarantor or has a reasonable opportunity to communicate such facts
to Guarantor. Lender shall have no duty to inquire into the authority or powers
of Borrower or any officer, employee or agent of Borrower with regard to any
Indebtedness, and all Indebtedness made or created in good faith reliance upon
the professed exercise of any such authority or powers shall be guaranteed
hereunder.
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(c) AS
SPECIFIC INDUCEMENT FOR LENDER TO EXTEND CREDIT TO THE BORROWER, AND AFTER
HAVING THE OPPORTUNITY TO CONSULT COUNSEL, GUARANTOR AND LENDER EXPRESSLY WAIVE
ANY RIGHT HE MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION
OR
PROCEEDING ARISING FROM OR RELATED TO THIS GUARANTY.
9. No
Reliance by Guarantor.
Guarantor is fully aware of the financial condition of Borrower, and delivers
this Guaranty based solely on its own independent investigation and does not
rely in any way on any representation or statement of Lender with respect to
Borrower's financial condition. Guarantor is in a position to and assumes full
responsibility for obtaining any information concerning Borrower's financial
condition, business operations, assets and other matters bearing on the risk
of
non-payment of the Indebtedness, as Guarantor may deem material to its
obligations hereunder.
10. Subordination.
In the
event that for any reason whatsoever Borrower is now or hereafter becomes
indebted to Guarantor, Guarantor agrees that the amount of such indebtedness
and
all interest thereon and any security interests related thereto shall at all
times be subordinate as to lien, time of payment and in all other respects
to
the Indebtedness and Lender's rights under the Transaction Documents, and that
Guarantor shall not be entitled to enforce or receive payment thereof until
all
sums then due and owing to Lender shall have been paid in full. Nothing herein
contained is intended or shall be construed to give to Guarantor any right
of
subrogation in or under the Transaction Documents, or any right to participate
in any way therein, or in the right, title and interest of Lender in and to
the
collateral covered by the Transaction Documents, notwithstanding any payments
made by Guarantor under this Guaranty, all rights of subrogation, reimbursement,
contribution and participation being hereby expressly waived and
released.
11. Exercise
of Rights by Lender.
(a)
Immediately upon the occurrence of an Event of Default and written demand by
Lender, Guarantor shall pay to Lender the full amount of the Indebtedness and
shall do and perform each of the Obligations, as if the Indebtedness and the
Obligations constituted the direct and primary obligations of Guarantor. Lender
shall be entitled to proceed directly against Guarantor for payment of the
Indebtedness or performance of the Obligations, without first pursuing or
exhausting any remedy that Lender then may have against Borrower, any other
guarantor or third party, or any security or collateral for the Indebtedness
and
Obligations. Any failure of Lender to exercise its right to proceed directly
against Guarantor, or any delay in the exercise thereof, shall not be construed
as a waiver by Lender with respect thereto.
(b) All
remedies afforded to Lender by reason of this Guaranty are separate and
cumulative remedies. No one of such remedies, whether exercised by Lender or
not, shall be deemed to be in exclusion of any of the other remedies available
to Lender, and shall in no way limit or prejudice any other legal or equitable
remedy which Lender may have in any security or collateral for the Indebtedness
and the Obligations. Nothing in this Guaranty is intended or shall be construed
to prevent Lender, upon the occurrence of an Event of Default, in the exercise
of its sole discretion, from foreclosing the liens of the Transaction Documents
and enforcing the provisions thereof.
(c) This
Guaranty shall continue to be effective, or be reinstated, as the case may
be,
if at any time any whole or partial payment of the Indebtedness or performance
of Obligations is or is sought to be rescinded or must otherwise be restored
or
returned by the Lender upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of Borrower, or upon or as a result of the appointment of
a
receiver, intervenor or conservator or trustee or similar office for, Borrower
or any substantial part of its property, or otherwise, all as though such
payments and performance had not been made.
-7-
12. General.
(a) Any
notice, demand or request by Lender or Guarantor to the other shall be in
writing, and shall be deemed to have been duly given or made if either delivered
personally to the other party or mailed by certified mail or registered mail
addressed to Guarantor at Guarantor's Address, or to Lender at Lender's Address,
as the case may be.
(b) Guarantor
agrees that Lender may (1) transfer or assign the Loan, Note and other
Transaction Documents in accordance with the terms of the Note and the Mortgage,
and (2) assign this Guaranty and all of its rights, interests and remedies
hereunder, to any other person, firm, bank or corporation whatsoever, without
notice to or consent by Guarantor. Guarantor will cooperation with any transfer
or assignment of the Loan, Note and other Transaction Documents as contemplated
by the Note and Mortgage, including, without limitation, the delivery of an
estoppel certificate required in accordance with Section 8.3 of the Mortgage,
such documents as may be reasonably requested by Lender and the information
relating to the Guarantor as described in Section 8.2 of the Mortgage. Further,
Guarantor consents to Borrower providing such information to Lender and Lender
providing such information to Investors, prospective Investors or Rating Agency
in connection with any sale or transfer of the Loan, Note and other Transaction
Documents. This instrument shall inure to the benefit of Lender and Lender's
successors and assigns, and shall bind Guarantor, and Guarantor's heirs,
executors, administrators, legal representatives, successors and
assigns.
(c) In
the
event that more than one person or entity guarantees the Loan, the covenants
and
agreements of Guarantor contained herein shall be the joint and several
covenants and agreements of each such person and/or entity including each
Guarantor hereunder.
(d) Guarantor
agrees to pay reasonable attorneys' fees and expenses incurred by Lender in
enforcement of the Transaction Documents, including this Guaranty.
(e) Guarantor
authorizes Ford Credit to obtain consumer reports or other credit reports as
it
deems necessary for the origination, review, collection and enforcement of
this
Guaranty.
(f) This
Guaranty shall be governed by, and construed and enforced in accordance with,
the laws of the Commonwealth of Massachusetts, without regard to principles
of
conflict of laws, except as may be preempted by federal law.
(g) Lender
and Guarantor intend this writing to be a final expression of this agreement
of
guaranty and a complete and exclusive statement of the terms of this agreement
of guaranty. No modification or waiver of the terms of this Guaranty shall
be
effective unless in writing. No course of prior dealings between the parties,
no
usage of the trade, and no parol or extrinsic evidence of any nature, shall
be
used or be relevant to supplement or explain or modify any term used in this
agreement of guaranty. No notice to or demand on Guarantor shall be deemed
to be
a waiver of the obligation of Guarantor or the right of Lender to take further
action without notice or demand as provided herein nor shall any such waiver
be
applicable except in the specific instance for which given.
-8-
(h) Guarantor
(1) submits to the personal jurisdiction in the Commonwealth of Massachusetts,
the courts thereof and the United States District Courts sitting therein for
the
enforcement of this Guaranty, (2) waives any and all personal rights under
the
law of any jurisdiction to object on any basis (including, without limitation,
inconvenience of forum) to jurisdiction or venue within the Commonwealth of
Massachusetts for the purpose of litigation to enforce this Guaranty and the
other Transaction Documents, and (3) agrees that service of process may be
made
upon Guarantor in any manner prescribed by applicable federal rules of civil
procedure or by applicable local rules or laws of civil procedure for the giving
of notice to Guarantor. Nothing contained here, however, shall prevent Lender
from bringing any action or exercising any rights against Guarantor personally,
its assets and any security for the Guaranty within any other state or
jurisdiction.
Guarantor
has executed this Guaranty as of the date first above written.
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HOMETOWN
AUTO FRAMINGHAM, INC.,
a
Massachusetts corporation
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| By: | ||
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Xxxxx Xxxxxx, President |
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| By: | ||
|
Xxxxxxx Xxxxxxxx, Secretary |
||
|
FAMILY
FORD, INC.,
a
Connecticut corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx, President |
||
| By: | ||
|
Xxxxxxx Xxxxxxxx, Secretary |
||
|
SHAKER’S
INC.,
a
Connecticut corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx, President |
||
| By: | ||
|
Xxxxxxx Xxxxxxxx, Secretary |
||
-0-
|
XXXXXXXX
XXXXXXXXXXX, INC.,
a
Vermont corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx, President |
||
| By: | ||
|
Xxxxxxx Xxxxxxxx, Secretary |
||
|
SHAKER
AUTO GROUP, INC.,
a
Connecticut corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx, President |
||
| By: | ||
|
Xxxxxxx Xxxxxxxx, Secretary |
||
-10-
