MASTER LOAN AND SECURITY AGREEMENT
THIS
MASTER LOAN AND SECURITY AGREEMENT (this "Agreement"), dated February ____,
2006, is by and between HOMETOWN AUTO FRAMINGHAM, INC., a Massachusetts
corporation (''Borrower'') and FORD MOTOR CREDIT COMPANY, a Delaware corporation
("Lender"), whose address is 000 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000 ("Lender's
Address").
In
consideration of the promises, covenants and undertakings set forth herein
and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged by the parties hereto, Lender and Borrower hereby agree
as
follows:
1. Definitions.
For
purposes of this Agreement, all capitalized terms shall have the meanings set
forth herein and in the Loan Supplements, including the following defined terms:
(a) The
term
"Agreement" shall mean this Agreement, and any and all modifications and
amendments thereof.
(b) The
term
"Collateral" shall mean, collectively, all personal property now owned or
hereafter acquired by Borrower, including without limitation (1) all equipment,
fixtures, furniture, demonstrators and service vehicles, supplies and machinery
and other goods of every kind, (2) all motor vehicles, tractors, trailers,
implements, service parts and accessories and other inventory of every kind
and
any accessions thereto (numbers (1) and (2) above collectively referred to
as
the "Personalty"), and (3) all accounts, instruments, chattel paper, general
intangibles, contract rights, documents and supporting obligations thereto
(collectively, the "Intangibles").
(c) The
term
"Franchiser" shall mean Nissan North America, Inc.
(d) The
term
"Guarantor" shall mean collectively, all present and future guarantors of the
Indebtedness and the Obligations.
(e) The
term
"Indebtedness" shall mean the principal of and interest on and all other
amounts, payments, and premiums due under the Loan and the Other Loans,
including any amendments, increases, modifications, renewals and extensions
thereof.
(f) The
term
"Lien" shall mean security interest, lien or other encumbrance.
(g) The
term
"Loan" shall mean a loan by Lender to Borrower pursuant to the terms and
conditions of this Agreement and the applicable Loan Supplement, and any and
all
extensions, renewals, modifications and amendments thereof.
(h) The
term
"Loan Supplement" shall mean the supplement(s) executed by Borrower and Lender
and attached to this Agreement which describe the terms and conditions of a
Loan, and any and all extensions, renewals, modifications and amendments
thereof.
(i) The
term
"Obligations" shall mean any and all of the covenants, promises and other
obligations (other than the Indebtedness) made or owing by Borrower and others
to or due to Lender under the Loan and the Other Loans and as set forth in
the
Security Documents, and any and all extensions, renewals, modifications and
amendments of any of the foregoing.
(j) The
term
"Organizational Documents" shall mean Borrower's and Guarantor's Articles or
Certificate of Incorporation (if Borrower/Guarantor is a corporation), its
Partnership Agreement (if Borrower/Guarantor is a partnership), its Articles
of
Organization/Certificate of Formation (if Borrower/Guarantor is a limited
liability company), or its Trust Agreement (if Borrower/Guarantor is a
trust).
(k) The
term
"Receivables" shall mean (1) all credits due and to become due to Borrower
from
Franchiser, or any of its subsidiaries or affiliates, or from any other
manufacturer or distributor of automotive products, (2) all notes and trade
and
other accounts receivable now owned or hereafter acquired by Borrower, and
(3)
all credits due and to become due to Borrower from any and all financial
institutions in connection with Borrower's sale of installment sales contracts
and leases to such financial institutions.
(l) The
term
"Other Loans" shall mean collectively, (1) a Mortgage Loan made by FORD MOTOR
CREDIT COMPANY to BAY STATE REALTY HOLDINGS, INC. pursuant to a Promissory
Note
dated February ____, 2006 in the amount of $6,035,000.00, (2) a Wholesale Line
of Credit made by FORD MOTOR CREDIT COMPANY to HOMETOWN AUTO FRAMINGHAM, INC.
dated March 2, 2001, (3) a Wholesale Line of Credit made by FORD MOTOR CREDIT
COMPANY to FAMILY FORD, INC. dated February 28, 2001, (4) a Wholesale Line
of
Credit made by FORD MOTOR CREDIT COMPANY to SHAKER’S INC. dated February 28,
2001 and (5) a Wholesale Line of Credit made by FORD MOTOR CREDIT COMPANY to
HOMETOWN BRATTLEBORO, INC. dated March 2, 2001, and (6) any and all other loans
now or hereafter outstanding made by Lender to Borrower and/or Guarantor, and
any and all extensions, increases, amendments, renewals and modifications of
the
foregoing.
(m) The
term
"Related Parties" shall mean any officer, director, manager or affiliate of
Borrower and Guarantor.
(n) The
term
"Security Documents" shall mean this Agreement and all Loan Supplements attached
hereto and any and all other documents now or hereafter outstanding securing
the
payment of the Indebtedness or the observance or performance of the Obligations.
2. The
Loans.
Upon
the request of Borrower, Lender may make Loans to Borrower from time to time;
provided that (a) the terms and conditions of each Loan will be subject to
the
terms and conditions of this Agreement and the applicable Loan Supplement,
(b)
Borrower's request for any Loan is subject to the prior written approval of
Lender, and Lender may, in its sole discretion, decline to make a Loan to
Borrower or may condition its approval of such Loan on the satisfaction of
any
additional or modified conditions precedent or such additional or modified
terms
and conditions, (c) at the time each such Loan is made, no material adverse
change in the financial condition or creditworthiness of Borrower or any
Guarantor has occurred, (d) all representations and warranties of Borrower
in
this Agreement shall be true and correct as of the date of the Loan, and (e)
no
Event of Default or default shall have occurred under the Security Documents
or
under any other indebtedness or obligation of Borrower and/or Guarantor to
Lender. Each Loan will be evidenced by a Loan Supplement, the terms and
conditions of which are incorporated herein by reference. Borrower will provide
such Financial Information and other data requested by Lender in connection
with
any request for a Loan.
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3. Term
and Termination.
The
term of this Agreement shall commence on the date hereof and shall continue
until terminated by either Lender or Borrower upon thirty days prior written
notice of the effective date of such termination of this Agreement (the
"Termination Date"); provided, however, that the terms and conditions of the
Security Documents, including the security interests and other security provided
hereunder, and the Indebtedness and Obligations of Borrower under the Security
Documents for any Loans made prior to the Termination Date shall remain in
effect until all Obligations have been fulfilled and all Indebtedness has been
paid in full.
4. Security.
As
security for the payment of the Indebtedness and the performance of the
Obligations and the payment and performance of any other indebtedness and/or
obligations of Borrower to Lender, Borrower hereby grants to Lender a security
interest in the Collateral and assigns to Lender its interests in the
Receivables, subject to the terms and conditions of this Agreement. This Loan
is
cross-defaulted and cross-collateralized with the Other Loans (as defined
herein). This security interest shall survive termination of this Agreement
until all Obligations have been fulfilled and all Indebtedness has been paid
in
full. Borrower authorizes Lender to manually or electronically file this
Agreement and any financing statements to perfect Lender's interests under
this
Agreement in the Collateral and/or the Receivables.
5. Representations
and Warranties.
In
order to induce Lender to enter into this Agreement and to make Loans hereunder,
Borrower represents and warrants to Lender that:
(a) Qualification
and Compliance.
Borrower is operating under a duly executed Sales and Service Agreement with
Franchiser and is authorized and qualified to do business in every jurisdiction
in which the nature of its business or properties makes such qualification
necessary, and is in compliance with all laws, regulations, ordinances and
orders of public authorities applicable to Borrower. Borrower and Guarantor
have
each filed all federal, state and other income tax returns they are required
to
file and have paid all taxes due pursuant to such tax returns (except for such
taxes and assessments which Borrower or Guarantor is contesting in good faith),
and Borrower does not know of any basis for additional assessment in connection
with such tax returns.
(b) Validity
of Agreement.
In
accordance with all outstanding agreements and commitments of Borrower and
its
Organizational Documents, Borrower has the power and authority to borrow money
from Lender, to grant Lender a security interest in the Collateral and to assign
the Receivables and to execute and perform the Security Documents; Borrower
has
taken all steps necessary to ensure that the parties signing the Security
Documents on behalf of Borrower are authorized and empowered to execute the
Security Documents; and the Security Documents are legally valid and enforceable
against Borrower in accordance with their terms and conditions.
(c) Financial
Information.
All
balance sheets, statements of profit and loss and other financial data that
have
been given to Lender by or on behalf of Borrower and Guarantor (the "Financial
Information") are complete and correct in all material respects, accurately
present the financial condition of Borrower and Guarantor, as the case may
be,
and the results of its operations for the periods specified in the Financial
Information, and have been prepared in accordance with generally accepted
accounting principles consistently followed throughout the periods covered
thereby. There has been no change in the assets, liabilities or financial
condition of either Borrower or Guarantor from that set forth in the Financial
Information, other than changes in the ordinary course of business, none of
which has been materially adverse to Borrower or Guarantor. Except as
specifically disclosed (as to creditor or debtor, amount and security) by the
Financial Information, neither Borrower nor Guarantor have outstanding any
loan
or indebtedness, direct or contingent, to any party, other than the
Indebtedness, and none of Borrower's assets is subject to any Lien in favor
of
any one other than Lender.
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(d) Litigation.
Except
as specifically disclosed to Lender by Borrower in the Financial Information
or
in a separate attachment hereto, there is not now pending against Borrower
or
Guarantor, nor to the knowledge of Borrower is there threatened, any action,
suit or proceeding at law or in equity or before any administrative agency
that
could have a material adverse effect upon its financial condition or operations
if adversely determined against Borrower or Guarantor. No judgment, decree
or
order of any court or governmental or administrative agency or instrumentality
has been issued against Borrower or Guarantor that has or may have any material
adverse effect on the business or financial condition of Borrower.
(e) Collateral
and Receivables.
Borrower owns the Collateral and the Receivables free and clear of any Lien,
other than the Liens granted to Lender, and Borrower has the right to grant
a
security interest in the Collateral and assign the Receivables in accordance
with this Agreement. There are no defenses or counterclaims with respect to
the
Receivables. Upon Lender's request, Borrower will provide Lender with a list
of
all states where the Collateral is located.
(f) Ownership
and Management of Borrower.
The
Related Parties named below participate in the active management and operation
of Borrower and have ownership interest in Borrower, as follows:
HOMETOWN
AUTO FRAMINGHAM, INC.
Name
|
Ownership
Percentage
|
|
Position
|
||||
Hometown
Auto Retailers, Inc.
Xxxxx
Xxxxxx
|
100.00
0.00
|
%
%
|
Shareholder
President
|
Borrower
acknowledges that Lender has confidence in the integrity and ability of the
Related Parties named above to operate Borrower and that by entering into this
Agreement, Lender is relying on these Related Parties to continue to have an
ownership interest in or be involved in the active management and operation
of
Borrower in the manner set forth above.
6. Covenants.
Until
the entire Indebtedness shall have been paid in full, Borrower hereby covenants
and agrees as follows:
(a) Compliance
with Laws; Payment of Taxes.
Borrower will maintain its existence, rights, franchises and trade names; pay
when due all taxes, assessments and other charges imposed on Borrower or its
property; be duly authorized to carry on its business as now conducted; and
comply with all present and future laws, ordinances, rules, regulations, orders
and requirements of public authorities, which may be applicable to Borrower.
(b) Collateral
and Receivables.
Borrower will keep the Personalty in good order and condition and make all
necessary or appropriate repairs, replacements and renewals thereof and will
use
its best efforts to prevent any act which might impair the value or usefulness
of the Collateral and the Receivables. Borrower will obtain any consent with
respect to any or all of the Receivables as Lender requests. As often as Lender
may reasonably request, Borrower shall permit any person designated by Lender,
at reasonable times during business hours, to inspect the Collateral and the
location of the Collateral.
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(c) Insurance.
Borrower will (1) maintain insurance on the Personalty and its other property
against loss by fire and such other hazards, casualties and contingencies as
are
normally covered by extended coverage policies in effect in the locality where
such property is located and such other risks as may be specified by Lender,
from time to time, in amounts and with insurers acceptable to Lender but not
less than the full replacement value of the Personalty, (2) designate Lender
as
both additional insured or loss payee regardless of any breach or violation
by
Borrower of any warranties, declarations or conditions contained in such policy;
(3) endeavor to provide Lender with 30 days prior written notice of any
cancellation or material change to the policy for any reason and provide that
such cancellation or change will not be effective as to Lender for 30 days
after
receipt by Lender of such notice; and (4) provide that any adjustment of losses
will be subject to the approval of Lender. Borrower will deliver to Lender
copies of each such insurance policy upon the execution of this Agreement and
copies of each renewal policy not less than 30 days prior to the expiration
of
the preceding policy and receipt that the premiums thereon have been
paid.
(d) Encumbrances
and Claims.
Borrower shall not create, incur or permit to exist any Liens on any of its
property, except for Liens (1) in favor of, or subordinated to, Lender, (2)
specifically approved by Lender, (3) for taxes not delinquent or being contested
in good faith, (4) 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, and (5) resulting from deposits or pledges to secure
payment of workmen's compensation, unemployment insurance, old age pensions
or
other social security. Borrower shall promptly defend any action, proceeding
or
claim affecting Borrower, the Collateral or its other property. Borrower shall
promptly notify Lender of the institution of any action, proceeding or claim
or
the occurrence of any other event that could have a material adverse effect
on
the Collateral, Borrower's other property or the financial condition or
operations of Borrower if adversely determined.
(e) Transfers,
Acquisitions, Mergers, etc.
Borrower shall not (1) sell, exchange, transfer or otherwise dispose of any
of
Borrower's property, except in the normal course of business; (2) buy, rent,
lease or acquire, directly or indirectly, property from any Related Party or
in
which a Related Party has an interest, except in the ordinary course of
business, or as disclosed in the Financial Information; (3) sell, exchange,
transfer, lease or otherwise dispose of all or any substantial part of its
capital assets; (4) make any payments upon or transfer any assets in
satisfaction, in whole or in part, of any indebtedness subordinated to the
Indebtedness or any other indebtedness owing to Lender; (5) make or have
outstanding any loan or advance to any individual or entity, including without
limitation any Related Party, except as specifically disclosed in the Financial
Information; (6) purchase any security of any corporation or invest in the
obligations of any individual or entity; (7) consolidate with or merge into
any
other business concern or permit any other business concern to consolidate
with
or merge into Borrower; or (8) allow the sale, assignment, pledge, encumbrance
or transfer to a third party any of the voting stock, partnership interests
or
ownership interests (as the case may be) of Borrower.
(f) Guaranties.
Borrower shall not endorse, guaranty or become surety for the payment of any
debt or obligation of any party or contingency, except for (1) recourse on
the
obligations of retail purchasers of merchandise from Borrower, (2) endorsements
to checks and other negotiable instruments for deposit and collection, and
(3)
any guaranties executed by Borrower to Lender.
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(g) Books
and Records; Inspection.
Borrower shall maintain full and complete books of account and other records
reflecting the results of Borrower's operations, in accordance with generally
accepted accounting principles applied on a consistent basis and shall permit
any person designated by Lender, at reasonable times during normal business
hours and as often as Lender may reasonably request, to inspect such books
and
records and to make extracts therefrom.
(h) Periodic
Financial Statements.
At
Lender's request, Borrower shall furnish to Lender the following Financial
Information in such detail as Lender may reasonably request:
(1) within
20
days after the end of each month, or at such other frequency as Lender may
reasonably request from time to time, the balance sheet of Borrower and each
Guarantor, prepared as of the end of such month and their statement of profit
and loss for such month in such detail as Lender may require from time to time,
each certified by Borrower and Guarantor (or by an employee or representative
of
Borrower and Guarantor acceptable to Lender) as having been prepared in
accordance with accounting principles consistent with those reflected in
financial statements required hereunder and as to the truth, accuracy and
completeness of the information contained therein;
(2) at
Lender's request, within 120 days after the end of each of its fiscal years,
or
at such other frequency as Lender may reasonably request from time to time,
a
balance sheet and a statement of profit and loss and corporate tax return for
such year. Such balance sheet and statement of profit and loss and corporate
tax
return shall fairly present, in all material respects, the financial condition
of Borrower and Guarantor and the results of their operations in conformance
with generally accepted accounting principles applied on a consistent basis;
and
(3) such
other financial or other statements respecting the condition, operation and
affairs of Borrower, Guarantor and their property.
(i) Actions,
Claims, etc.
Borrower
shall promptly defend any action, proceeding or claim affecting Borrower, the
Collateral or its other property and shall promptly notify Lender of the
institution of any such action, proceeding or claim if the same could have
a
material adverse effect upon the financial condition or operations of Borrower
if adversely determined. Borrower also shall promptly notify Lender of the
occurrence of any other event the effect or outcome of which could have such
a
material adverse effect. Borrower indemnifies and holds Lender harmless from
and
against any claims and liability arising out of or in connection with the use,
operation or ownership of the Collateral.
(j) Compensation.
Borrower shall not directly or indirectly (1) increase the compensation paid
by
Borrower to the Related Parties specified in Paragraph 5(f), or (2) make any
other distributions or payments to such Related Parties, other than in the
ordinary course of business.
(k) Other.
Borrower shall provide Lender with at least 30 days' prior written notice of
a
change to Borrower'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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(a) The
term
"Event(s) of Default", as used in the Security Documents, shall mean the
occurrence or happening, from time to time, of any one or more of the
following:
(1) Payment
of Indebtedness.
If
Borrower shall default in the due and punctual payment of all or any portion
of
any installment of the Indebtedness and such default shall continue for a period
of ten days after written notice thereof by Lender to Borrower.
(2) Performance
of Obligations.
If
Borrower shall default in the due observance or performance of any of the
Obligations other than payment of money and such default shall not be curable,
or if curable shall continue for a period of thirty days after written notice
thereof from Lender to Borrower.
(3) Bankruptcy,
Receivership, Insolvency, Etc.
If
voluntary or involuntary proceedings under the Federal Bankruptcy Code, as
amended, or other similar federal or state laws, shall be commenced by or
against Borrower and the same shall not be dismissed within sixty days of the
filing of such proceedings.
(4) False
Representation.
If any
representation or warranty made by Borrower or Guarantor under the Security
Documents or any other agreement between Borrower and Lender or in any report,
certificate, financial statement or other statement furnished by Borrower or
Guarantor to Lender shall prove to have been false or misleading as of the
date
such representation or warranty was made.
(5) Change
in Ownership and Management.
If
there is a change in the ownership or active management and operation by the
Related Parties in Borrower from that set forth in Paragraph 5(f) hereof, or
in
the Guarantor, without the prior written consent of Lender.
(6) Default
under Other Agreements.
If a
default shall occur under the Security Documents or any other agreement between
Borrower and Lender, or if any other indebtedness of Borrower to Lender shall
be
accelerated, or if payment of any other indebtedness of Borrower to Lender
which
is payable on demand shall be demanded.
(7) Judgment.
If a
final judgment for the payment of money in excess of Twenty-Five Thousand
Dollars shall be rendered against Borrower or Guarantor and the same shall
remain unpaid for a period of 60 consecutive days during which period execution
shall not be effectively stayed.
(b) If
an
Event of Default shall occur, Lender may exercise one or more of the following
remedies:
(1) Acceleration.
Lender
may declare the unpaid portion of the Indebtedness to be immediately due and
payable, without further notice or demand (each of which is hereby expressly
waived by Borrower).
(2) Exercise
Right of Offset.
Lender
may offset and apply any monies, credits or other proceeds or property of
Borrower that has or may come into the possession or under the control of Lender
against the Indebtedness.
(3) Exercise
Rights with Respect to Intangibles and Receivables.
With
respect to the Intangibles and Receivables, Lender shall have the right (A)
to
settle, adjust and compromise all present and future claims arising thereunder
or in connection therewith; and (B) to sell, assign, pledge or make any other
agreement with respect thereto or the proceeds thereof; (C) to exercise any
and
all other rights and remedies that Lender would have with respect thereto as
if
it were the absolute owner thereof, and (D) to endorse any checks, drafts or
other instruments for the payment of money, payable to Borrower or order, that
may be received by Lender in connection therewith. Borrower shall deliver to
Lender, upon demand, all of its books and records relating to the Intangibles
and the Receivables and all instruments and other writings relating thereto
that
evidence or constitute all or any portion of the Intangibles and
Receivables.
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(4) Exercise
Other Remedies.
Lender
may take possession of the Collateral and dispose of it in any manner permitted
by law, and Lender may exercise any remedy specifically granted to a secured
party under the Uniform Commercial Code or any other remedy now or hereafter
existing in equity, at law or by virtue of statute or otherwise. Lender may
resort to any other security for the Indebtedness in such order and manner
as
Lender may elect.
(c) Application
of Proceeds.
The
proceeds of any disposition 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. Lender shall account to Borrower for any surplus, and Borrower
shall be liable to Lender for any deficiency.
(d) Remedies
Cumulative and Concurrent.
The
rights and remedies of Lender as provided in this Agreement and in the Security
Documents shall be cumulative and in addition to any other right, remedy or
power herein specifically granted or now or hereafter existing in equity, at
law
or by virtue of statute or otherwise and may be pursued separately,
successively, concurrently, independently or together against Borrower or any
Guarantor or against other obligors or against the Collateral, or any one or
more of them, at the sole discretion of Lender, and may be exercised as often
as
occasion therefor shall arise. The failure to exercise any such right or remedy
shall in no event be construed as a waiver or release thereof, nor shall the
choice of one remedy be deemed an election of remedies to the exclusion of
other
remedies. Acceptance of payments in arrears shall not waive or affect any right
of Lender to accelerate the Indebtedness as herein provided.
(e) Waiver.
Borrower waives presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of any amounts due under
this Agreement, and all other notices in connection with the delivery,
acceptance, performance, default, or enforcement of the payment of the amounts
due under this Agreement. Borrower waives (to the extent that the same may
be
waived) the benefit of all valuation, appraisement, and exemption, stay of
execution and redemption laws now or hereafter in effect.
(f) Late
Charges and Interest.
Time is
of the essence and if any installment of the Indebtedness is not paid within
ten
(10) days of when due, Borrower shall pay to Lender a late charge payment equal
to five percent (5%) of the amount of such installment or the maximum rate
permitted by law, whichever is less. If an Event of Default shall occur, then
Borrower shall pay interest on the Principal Balance of a Loan at the rate
of
three percent (3%) per annum over the Applicable Interest Rate for such Loan
from the date such Event of Default occurred and thereafter.
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8. Miscellaneous.
(a) Further
Assurances.
Borrower, upon the reasonable request of Lender, will execute, acknowledge
and
deliver such further instruments (including, financing statements, estoppel
certificates and declarations of no set-off) and do such further acts as may
be
necessary, desirable or proper to carry out more effectively the purpose of
this
Agreement and the Security Documents, to facilitate the assignment or transfer
of this Agreement, and the Security Documents, and to subject to the liens
of
this Agreement and Security Documents any property intended by the terms thereof
to be covered thereby, and any renewals, additions, substitutions, replacements
or betterments thereto. Upon any failure by Borrower to execute and deliver
such
instruments, certificates and other documents on or before fifteen (15) days
after receipt of written request therefor, Lender may make, execute and record
any and all such instruments, certificates and Borrower irrevocably appoints
Lender the agent and attorney-in-fact of Borrower to do so. Further, Borrower
will cooperate with Lender in the correction or completion of the Security
Documents to reflect the agreed upon terms.
(b) Notice.
All
notices, demands, requests and other communications required under this
Agreement shall be in writing and shall be deemed to have been properly given
if
sent by U. S. first-class mail, postage prepaid, addressed to the party for
whom
it is intended at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 (hereinafter
"Borrower's Address") or the Lender's Address, as the case may be.
(c) Lender's
Right to Perform the Obligations.
Time is
of the essence. If Borrower shall fail to make any payment or perform any act
required by the Security Documents, then Lender, upon lapse of any grace or
notice periods and without further notice to or demand upon Borrower and without
waiving or releasing any obligation or default, may make such payment or perform
such act for the account of and at the expense of Borrower, as Lender elects.
All reasonable and necessary sums so paid by Lender, and all costs and expenses,
including, without limitation, reasonable attorneys' fees and expenses so
incurred together with interest thereon, shall constitute additions to the
Indebtedness, and shall be paid by Borrower to Lender, on demand.
(d) Severability.
If any
provision of this Agreement is prohibited by, or is unlawful or unenforceable
under, or any one or more of the Obligations is invalid, illegal or
unenforceable in any respect under, any applicable law, such provision or
Obligation shall be ineffective to the extent of such prohibition without
invalidating the remaining provisions of this Agreement; provided, however,
that
where the provisions of any such applicable law may be waived, they hereby
are
waived by Borrower to the full extent permitted by law.
(e) Modification.
This
Agreement may not be changed, waived, discharged or terminated orally, but
only
by an instrument in writing signed by the party against which enforcement of
the
change, waiver, discharge or termination is asserted, and then such
modification, waiver or consent shall be effective only in the specific instance
and for the specific purpose given.
(f) Maximum
Rate of Interest.
Notwithstanding any provision in the Security Documents, the total liability
of
Borrower under the Loan for payments of interest and payments in the nature
of
interest, including without limitation, all charges, fees or other sums that
may
be deemed to be interest (collectively, "Interest Payments"), shall not exceed
the limits imposed by applicable usury laws (the "Legal Rate"). In the event
the
Interest Payments for any month or other interest payment period exceed the
Legal Rate, Lender shall apply all Interest Payments collected in excess of
the
Legal Rate for the period in question to the outstanding Principal Balance
as of
the date of receipt. Further, upon notice to Borrower, Lender may waive, reduce
or limit the collection of any Interest Payments in excess of the Legal
Rate.
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(g) Survival
of Warranties and Covenants.
The
warranties, representations, covenants and agreements set forth in this
Agreement shall survive the making of the Loan and continue in full force and
effect until the Indebtedness shall have been paid in full.
(h) Binding
Effect.
This
Agreement shall be binding upon, and shall inure to the benefit of, the
successors and assigns of Borrower and Lender.
(i) No
Representations by Lender.
By
accepting or approving anything required to be observed, performed or fulfilled
or to be given to Lender pursuant to this Agreement, including without
limitation any insurance policy, balance sheet, profit or loss statement,
financial statement, Intangible or agreement, Lender shall not be deemed to
have
warranted or represented the sufficiency, legality, effectiveness or legal
effect of such document, or of any term, provision or condition
thereof.
(j) Applicable
Law.
This
Agreement shall be deemed to have been made under, and shall be governed by
and
construed according to the laws of the state of Borrower's place of business
as
indicated above, including matters of construction, validity and
performance.
(k) Loan
Expenses.
Borrower shall pay all costs and expenses in connection with the preparation,
execution, delivery and performance of this Agreement and all other agreements
and instruments executed in connection herewith, including without limitation
reasonable fees and disbursements of its and Lender's counsel and recording
costs and expenses.
(l) Headings,
Etc.
The
article headings and the section and subsection captions are inserted for
convenience or reference only and shall in no way alter or modify the text
of
such articles, sections and subsections. All references herein to articles,
sections, sub-sections, paragraphs, clauses and other subdivisions refer to
the
corresponding articles, sections, sub-sections, paragraphs, clauses and other
subdivisions of this Agreement; and the words "herein", "hereof", "hereby",
"hereto", "hereunder" and words of similar import refer to this Agreement as
a
whole and not to any particular article, section, sub-section, paragraph, clause
or other subdivision hereof. Whenever used, the singular number shall include
the plural, the plural shall include the singular.
(m) Entire
Agreement.
The
Security Documents, this Agreement, the Loan Supplements that are now or
hereafter attached hereto and the other documents executed by Borrower,
Guarantor and/or Lender in connection with this Agreement constitute the sole
and entire agreement of the parties with respect to the subject matter
hereof.
(n) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which shall together constitute one and the same
agreement.
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Borrower
and Lender have executed this Agreement as of the date set forth above intending
to be legally bound hereby.
LENDER: | ||
FORD
MOTOR CREDIT COMPANY,
a
Delaware corporation
|
||
|
|
|
By: | ||
Xxxxxxx
X. Xxxxxxxx
Branch
Manager
|
BORROWER: | ||
HOMETOWN
AUTO FRAMINGHAM, INC.,
a
Massachusetts corporation
Chief
Executive Office:
000
Xxxxxxxxx Xxxx
Xxxxxxxxxx,
XX 00000
|
||
|
|
|
By: | ||
Xxxxx Xxxxxx President
|
||
By: | ||
Xxxxxxx
Xxxxxxxx
Secretary
|
||
Borrower's Federal Tax ID Number: | ||
|
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