CROSS-DEFAULT AND CROSS-COLLATERALIZATION AGREEMENT
CROSS-DEFAULT
AND CROSS-COLLATERALIZATION
AGREEMENT
THIS
CROSS-DEFAULT AND CROSS-COLLATERALIZATION AGREEMENT (this "Agreement") dated
February _____, 2006, is by and among HOMETOWN AUTO FRAMINGHAM, INC., a
Massachusetts corporation, XXXXXX XXXXXX, an individual, BAY STATE REALTY
HOLDINGS, INC., a Massachusetts corporation, FAMILY FORD, INC., a Connecticut
corporation, SHAKER’S INC., a Connecticut corporation, HOMETOWN BRATTLEBORO,
INC., a Vermont corporation, SHAKER AUTO GROUP, INC., a Connecticut corporation,
XXXXX XXXXXX, an individual, XXXXXX XXXXXX, an individual, XXXXX XXXXXX, an
individual, and XXXXXX XXXXXX, an individual (each an "Obligor" and
collectively, "Obligors") and FORD MOTOR CREDIT COMPANY ("Lender").
WHEREAS,
Obligors are affiliates, shareholders and/or partners of each other, and
Obligors have or may have financing outstanding with Lender, as more
particularly described in Schedule A attached hereto (collectively, the
"Loans"); and
WHEREAS,
as a condition of the financing evidenced on Schedule A, Lender has required
that each of the Loans be cross-defaulted and cross-collateralized with each
other Loan; and
NOW,
THEREFORE, in consideration of the promises and other valuable consideration,
receipt of which is hereby acknowledged, Obligors and Lender hereby covenant
and
agree as follows:
1. As
used
herein, the following terms shall have the following meanings:
(a) Event
of
Default: An Event of Default or any other default under any document evidencing
the Loans or under any Security Document.
(b) Indebtedness:
The principal of and interest on and all other amounts, payments and premiums
due under the Loans and all other indebtedness of each Obligor to Lender under
and/or secured by the Security Documents, or any amendments, modifications,
renewals and extensions of any of the foregoing.
(c) Loans:
Collectively, each of the Loans as listed in Schedule A.
(d) Obligations:
Any and all of the covenants, promises and other obligations (other than the
Indebtedness) made or owing by the Obligors and others to or due to Lender
under
and/or as set forth in the documents evidencing the Loans and/or the Security
Documents, and any and all extensions, renewals, modifications and amendments
of
any of the foregoing.
(e) Security
Documents: All deeds of trust, mortgages, assignments, loan agreements, security
agreements and any and all other documents now or hereafter created securing
the
payment of the Indebtedness or the observance or performance of the
Obligations.
2. Cross-Default
and Cross-Collateralization. The Security Documents are hereby amended to
provide that an Event of Default with respect to any Loan shall be an Event
of
Default with respect to all Loans, and upon the occurrence of an Event of
Default, Lender shall have the right to exercise any and all remedies granted
to
Lender under the Security Documents in accordance with the terms and conditions
of such Security Documents. The collateral securing each of the Loans shall
secure all the other Loans.
3. Governing
Law. This Agreement shall be deemed to have been made under, and shall be
governed by, and construed and enforced in accordance with, the laws of the
Commonwealth of Massachusetts.
4. Reaffirmation
of Loan Obligations. Obligors hereby confirm and reaffirm their liabilities,
obligations and agreements under the Security Documents.
5. Reaffirmation
of Guaranty. Each Obligor confirms and restates its joint and several
liabilities, obligations and agreements under the guaranty or guaranties by
such
Obligor of any other Obligor's indebtedness and obligations to Lender as set
forth in Schedule A attached hereto and as such obligations have been amended
by
this Agreement (the "Guaranty"). Each Obligor acknowledges and agrees that
every
right, power and remedy of Lender under this Agreement relating to any document
evidencing any loan to any Obligor is in full force and effect, including,
without limitation, such rights, powers and remedies relating to this Agreement
and the payment of the indebtedness and performance of the obligations
thereunder or under the Guaranty. Without limiting the foregoing, each Obligor
intends by execution and delivery of this Agreement to absolutely, irrevocably
and unconditionally reaffirm its Guaranty to Lender of (i) the due and punctual
payment of the indebtedness due and payable under the Guaranty and (ii) the
performance by Obligor of the obligations under this Agreement. Each Obligor
acknowledges and declares that it has no defense, claim, charge, plea or set-off
whatsoever in law or equity against the Lender, the Guaranty, this Agreement
or
any other instrument or document executed by each Obligor in connection with
the
Guaranty or this Agreement. Each Obligor waives and releases any and all
defenses which might accrue to it by the execution of this
Agreement.
6. Amendment
of Terms and Conditions. The terms of 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.
7. Miscellaneous.
(a) All
terms
used in the singular shall also include the plural and all terms used in the
plural shall also include the singular. Pronouns indicating gender shall include
all genders. The covenants and agreements of each Obligor contained herein
shall
be deemed to be the joint and several covenants and agreements of each person
and/or entity named in the definition of the term "Obligors".
(b) The
Obligors authorize Lender to manually or electronically file this Agreement
and
any financing statements to perfect Lender's interests, under this Agreement
and
the agreements described in Schedule A, in the Collateral and/or the Receivables
as defined in the agreements described in Schedule A.
-
2 -
(c) Upon
Lender's request, the Obligors will provide Lender with a list of all states
where the Collateral (as defined in the agreements described in Schedule A
hereto) is located.
(d) The
Obligors shall provide Lender with at least 30 days' prior written notice of
a
change to Obligor'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).
IN
WITNESS WHEREOF, the parties hereto 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
|
||
| OBLIGOR: | ||
|
HOMETOWN
AUTO FRAMINGHAM, INC.,
a
Massachusetts corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx,
President
|
||
| By: | ||
|
Xxxxxxx
Xxxxxxxx,
Secretary
|
||
| Obligor's Federal Tax ID Number: __________________________ | ||
-
3 -
|
BAY
STATE REALTY HOLDINGS, INC.,
a
Massachusetts corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx,
President
|
||
| By: | ||
|
Xxxxxxx Xxxxxxxx,
Secretary
|
||
| Obligor's Federal Tax ID Number: __________________________ | ||
|
FAMILY
FORD, INC.,
a
Connecticut corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx,
President
|
||
| By: | ||
|
Xxxxxxx Xxxxxxxx,
Secretary
|
||
| Obligor's Federal Tax ID Number: __________________________ | ||
-
4 -
|
SHAKER’S
INC.,
a
Connecticut corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx,
President
|
||
| By: | ||
|
Xxxxxxx Xxxxxxxx,
Secretary
|
||
| Obligor's Federal Tax ID Number: __________________________ | ||
|
HOMETOWN
BRATTLEBORO, INC.,
a
Vermont corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx,
President
|
||
| By: | ||
|
Xxxxxxx Xxxxxxxx,
Secretary
|
||
| Obligor's Federal Tax ID Number: __________________________ | ||
|
SHAKER
AUTO GROUP, INC.,
a
Connecticut corporation
|
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxx,
President
|
||
| By: | ||
|
Xxxxxxx Xxxxxxxx,
Secretary
|
||
| Obligor's Federal Tax ID Number: __________________________ | ||
-
5 -
| |
|
|
|
XXXXXX XXXXXX |
||
|
XXXXX
XXXXXX
|
||
|
XXXXXX XXXXXX |
||
|
XXXXX XXXXXX |
||
|
XXXXXX XXXXXX |
||
-
6 -
SCHEDULE
A
(a) the
Promissory Note dated February ____, 2006 in the original principal amount
of
$6,035,000.00 from BAY STATE REALTY HOLDINGS, INC., a Massachusetts corporation
to the order of Lender pursuant to which Lender made a Mortgage Loan to BAY
STATE REALTY HOLDINGS, INC. (229879);
(b) the
Automotive Wholesale Plan Application for Wholesale Financing and Security
Agreement dated March 2, 2001 from HOMETOWN AUTO FRAMINGHAM, INC., a
Massachusetts corporation pursuant to which Lender extended a wholesale line
of
credit to HOMETOWN AUTO FRAMINGHAM, INC. to finance new and used motor vehicles,
and any and all advances now or hereinafter outstanding hereunder;
(c) the
Automotive Wholesale Plan Application for Wholesale Financing and Security
Agreement dated February 28, 2001 from FAMILY FORD, INC., a Connecticut
corporation pursuant to which Lender extended a wholesale line of credit to
FAMILY FORD, INC. to finance new and used motor vehicles, and any and all
advances now or hereinafter outstanding hereunder;
(d) the
Automotive Wholesale Plan Application for Wholesale Financing and Security
Agreement dated February 28, 2001 from SHAKER’S INC., a Connecticut corporation
pursuant to which Lender extended a wholesale line of credit to SHAKER’S INC. to
finance new and used motor vehicles, and any and all advances now or hereinafter
outstanding hereunder;
(e) the
Automotive Wholesale Plan Application for Wholesale Financing and Security
Agreement dated March 2, 2001 from HOMETOWN BRATTLEBORO, INC., a Vermont
corporation pursuant to which Lender extended a wholesale line of credit to
HOMETOWN BRATTLEBORO, INC. to finance new and used motor vehicles, and any
and
all advances now or hereinafter outstanding hereunder;
(f) the
Master Loan and Security Agreement dated February _____, 2006 from HOMETOWN
AUTO
FRAMINGHAM, INC., a Massachusetts corporation to the order of Lender and any
and
all Loan Supplements thereto, pursuant to which Lender extended a credit
facility to HOMETOWN AUTO FRAMINGHAM, INC.; and
(g) any
and
all other loans now or hereafter outstanding made by Lender to any Obligor,
and
any and all extensions, increases, amendments, renewals and modifications of
the
foregoing.
-
7 -
