CONTINUING GUARANTY AND SECURITY AGREEMENT
THIS
CONTINUING GUARANTY AND SECURITY AGREEMENT (this "Guaranty"), dated February
_____, 2006, is from the undersigned (collectively, "Guarantor"), whose
addresses are set forth below (collectively, "Guarantors' Address"), to FORD
MOTOR CREDIT COMPANY, a Delaware corporation ("Lender").
In
consideration of the financing provided to HOMETOWN AUTO FRAMINGHAM, INC.,
a
Massachusetts corporation ("Borrower") and other good and valuable
consideration, receipt of which are hereby acknowledged, and to induce Lender
to
enter into the Master Loan and Security Agreement, dated February ____, 2006
(the "Agreement") and to provide the Loans thereunder to Borrower, each
Guarantor hereby agrees as follows:
1. Definitions.
Unless
otherwise specifically defined herein, all capitalized terms shall have the
meanings set forth in the Agreement.
2. Guaranty.
(a) Each
Guarantor, jointly and severally, hereby absolutely, irrevocably and
unconditionally guarantees to Lender (1) the due and punctual payment of the
Indebtedness now or hereafter outstanding, as and when it shall become due
and
payable whether by lapse of time, by acceleration of maturity or otherwise,
and
(2) the due and punctual performance of the Obligations now or hereafter
outstanding, irrespective of the validity, regularity or enforceability of
the
Agreement or the Security Documents. The obligations of each Guarantor herein
shall remain in effect as long as the Indebtedness and Obligations are
outstanding, including all extensions or modifications thereof.
(b) This
is a
guaranty of payment and performance, and not of collection. Immediately upon
the
occurrence of an Event of Default and written demand by Lender, each Guarantor
shall pay to Lender 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 any and all Guarantors for payment of the Indebtedness or
performance of the Obligations, without first pursuing or exhausting any remedy
that Lender then may have against Borrower, the Collateral or any other security
for or guarantor of the Indebtedness. Any failure of Lender to exercise its
right to proceed directly against any or all Guarantors, or any delay in the
exercise thereof, shall not be construed as a waiver by Lender with respect
thereto and shall not release any Guarantor from its liability hereunder. Lender
may proceed directly against each and every Guarantor at any time after the
occurrence of an Event of Default. Each Guarantor waives any defenses based
upon
any election of remedies by Lender under this Guaranty, the Agreement or the
Security Documents.
(c) Each
Guarantor waives notice of acceptance, presentment for payment, demand for
payment, protest or notice of protest and dishonor, notice of demand, and all
other notices and demands of any kind and description now or hereafter provided
by any law or statute, and all other rights and defenses, the assertion or
exercise of which would in any way diminish the liability of any Guarantor
hereunder.
(d) Each
Guarantor assumes full responsibility for keeping fully informed with respect
to
the business, operation, condition and assets of Borrower and all circumstances
bearing on the risk of non-payment of the Indebtedness and non-performance
of
the Obligations. Each Guarantor waives any duty on the part of Lender to
disclose or report to any 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 any Guarantor intends to assume
or has reason to believe that such facts are unknown to any Guarantor or has
a
reasonable opportunity to communicate such facts to any Guarantor.
(e) This
Guaranty and the liability of each Guarantor hereunder shall not be affected,
diminished or released by (1) any extension, forbearance or leniency extended
by
Lender to Borrower with respect to the Loan, without notice to or consent by
Guarantor, including notice of any default by Borrower; (2) any amendment,
modification or extension of the terms and conditions of the Agreement and
the
Security Documents, without notice to or consent by Guarantor; or (3) any
release by Lender of any other guarantor of the Loan, without notice to or
consent by Guarantor. Any joinder, waiver, consent or agreement by Borrower,
by
its own operation, shall be deemed to be a joinder, consent, waiver or agreement
by each Guarantor with respect thereto and each Guarantor shall continue as
Guarantor with respect to the Agreement and the Security Documents as so
modified, extended, amended or otherwise affected.
(f) If
at any
time any whole or partial payment of the Indebtedness or performance of the
Obligations is or is sought to be rescinded or must otherwise be restored or
returned by the Lender as a result of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Borrower or the appointment of a receiver,
intervenor or conservator or trustee or similar officer for Borrower or any
substantial part of its property or otherwise, then this Guaranty shall continue
to be effective or shall be reinstated, as the case may be, all as though such
payments and performance had not been made.
(g) Nothing
herein contained is intended or shall be construed to give any Guarantor any
right of subrogation in or under the Agreement or the Security 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 Agreement and/or the Security
Documents, notwithstanding any payments made by any Guarantor, all such rights
of subrogation and participation being hereby expressly waived and released
by
each Guarantor.
(h) Each
Guarantor and Lender (by its acceptance of this Guaranty) confirm that the
parties intend that this Guaranty and the obligations of each 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 each 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.
3. Security.
Contemporaneous with the Loan to the Borrower pursuant to the Agreement, and
to
secure the payment and performance of all of Guarantors' obligations under
this
Guaranty and any other agreements between Guarantor and Lender, Guarantors
hereby grant to Lender a security interest in the following property now owned
or hereafter acquired by Guarantor and located at Guarantors' Address or
elsewhere (the "Collateral"), and in the proceeds thereof:
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(a) all
equipment, fixtures, furniture, demonstrators and service vehicles, supplies
and
machinery and other goods of every kind;
(b) all
motor
vehicles, tractors, trailers, implements, service parts and accessories and
other inventory of every kind and any accessions thereto; and
(c) all
accounts, instruments, chattel paper, general intangibles, contract rights,
documents and supporting obligations thereto.
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.
4. Representations
and Warranties of Guarantor.
Each
Guarantor hereby represents and warrants to Lender that:
(a) Each
Guarantor has received copies of the Agreement and the Security Documents and
is
familiar with and fully understands all of their terms and conditions;
and
(b) 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 and Guarantor has made its own independent decision to enter
into
this Guaranty and any agreements related thereto based on its own investigation
and review of the creditworthiness and financial condition of Borrower and
such
other information as Guarantor has determined relevant; and
(c) Each
Guarantor has established adequate means of obtaining from Borrower on a
continuing basis financial and other information pertaining to the business
of
Borrower; and
(d) Each
Guarantor will be benefited directly or indirectly by the financing arrangements
contemplated by the Agreement and that the waivers set forth in this Guaranty
are knowingly made in contemplation of such benefits.
(e) Guarantor,
BAY STATE REALTY HOLDINGS, INC., is a corporation duly organized, legally
existing and in good standing under the laws of the State (or equivalent
authority) of Massachusetts, engaging in business at the Guarantor's
Address.
(f) Guarantor,
FAMILY FORD, INC., is a corporation duly organized, legally existing and in
good
standing under the laws of the State (or equivalent authority) of Connecticut
and is a duly authorized and franchised dealer for the sale and service of
motor
vehicles and of parts, accessories and equipment therefor, engaging in business
at the Guarantor's Address.
(g) Guarantor,
SHAKER’S INC., is a corporation duly organized, legally existing and in good
standing under the laws of the State (or equivalent authority) of Connecticut
and is a duly authorized and franchised dealer for the sale and service of
motor
vehicles and of parts, accessories and equipment therefor, engaging in business
at the Guarantor's Address.
(h) Guarantor,
HOMETOWN BRATTLEBORO, INC., is a corporation duly organized, legally existing
and in good standing under the laws of the State (or equivalent authority)
of
Vermont and is a duly authorized and franchised dealer for the sale and service
of motor vehicles and of parts, accessories and equipment therefor, engaging
in
business at the Guarantor's Address.
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(i) Guarantor,
SHAKER AUTO GROUP, INC., is a corporation duly organized, legally existing
and
in good standing under the laws of the State (or equivalent authority) of
Connecticut, engaging in business at the Guarantor's Address.
(j) Borrower
is an affiliate of BAY STATE REALTY HOLDINGS, INC., Guarantor.
(k) Borrower
is an affiliate of FAMILY FORD, INC., Guarantor.
(l) Borrower
is an affiliate of SHAKER’S INC., Guarantor.
(m) Borrower
is an affiliate of HOMETOWN BRATTLEBORO, INC., Guarantor.
(n) Borrower
is an affiliate of SHAKER AUTO GROUP, INC., Guarantor.
(o) In
accordance with all outstanding agreements and its formation and operating
documents, each Guarantor has the power and authority to guaranty the repayment
of the Indebtedness and performance of the Obligations, to enter into this
Guaranty, and to grant the security interest in the Collateral securing this
Guaranty. Each Guarantor has taken all steps necessary to insure that this
Guaranty is legally valid and enforceable against Guarantor in accordance with
its terms and conditions.
(p) All
balance sheets, statements of profit and loss and other financial data that
have
been furnished by each Guarantor to Lender (the "Financial Information") fairly
present 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;
all
other information, reports, papers and data furnished to Lender 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; and 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. Except as specifically disclosed (as to
creditor or debtor, amount and security in the Financial Information), each
Guarantor does not have outstanding any loan or indebtedness, other than from
Lender, and 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.
(q) There
is
no litigation, legal or administrative proceeding, investigation or other action
of any nature pending or, to the knowledge of each 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.
(r) All
Federal, state and other tax returns and reports of each Guarantor required
by
law to be filed have been duly filed, and 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.
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5. Affirmative
Covenants of the Guarantor.
Until
the Indebtedness shall have been paid in full, each Guarantor hereby covenants
and agrees that it will:
(a) BAY
STATE
REALTY HOLDINGS, INC. shall maintain its existence and good standing as a
corporation wherever it transacts its business.
(b) FAMILY
FORD, INC. shall 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 Ford Motor Company & affiliated
entities motor vehicles and of parts, accessories and equipment therefor, and
continue to transact the business presently conducted by it.
(c) SHAKER’S
INC. shall 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 Ford Motor Company & affiliated entities motor
vehicles and of parts, accessories and equipment therefor, and continue to
transact the business presently conducted by it.
(d) HOMETOWN
BRATTLEBORO, INC. shall 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 DaimlerChrylser Motors Corp
& affiliated entities motor vehicles and of parts, accessories and equipment
therefor, and continue to transact the business presently conducted by
it.
(e) SHAKER
AUTO GROUP, INC. shall maintain its existence and good standing as a corporation
wherever it transacts its business.
(f) Keep
books of record and account of its operations in such form as will be
satisfactory to Lender; and furnish to Lender (i) 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 each Guarantor or such directors, officers, managers,
employees, or representatives of Guarantor as Lender may reasonably require
from
time to time, (ii) at Lender's request, within 120 days after the close of
each
of Guarantors' 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 Guarantors' 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 (iii) such
other financial statements as Lender may reasonably require from time to
time.
(g) 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.
(h) Obtain
and maintain insurance on Guarantors' 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.
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(i) Provide
safe storage and properly care for Guarantors' property 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.
(j) Guarantor
shall provide Lender with at least 30 days' prior written notice of a change
in
Guarantors' (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).
6. Negative
Covenants of the Guarantor.
Until
the Indebtedness is paid in full, each Guarantor hereby covenants and agrees
that it will not, without the prior written consent of Lender:
(a) 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 (i) in favor of or
subordinated to Lender, or (ii) specifically disclosed by the Financial
Information, or (iii) for taxes not delinquent or being contested in good faith,
or (iv) 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 (v) resulting from deposits or pledges to secure
payments of workmen's compensation, unemployment insurance, old age pensions
or
other social security.
(b) 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.
(c) Sell,
exchange, transfer or otherwise dispose of any of Guarantors' property, except
in the normal course of business; consolidate with or merge into any other
business concern or permit any other business concern to consolidate with or
merge into Guarantor; sell, exchange, transfer, lease or otherwise dispose
of
all or any substantial part of the capital assets of Guarantor; 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 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.
(d) Create
or
have outstanding any indebtedness for money borrowed except for (i) indebtedness
owing to Lender, (ii) 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 (iii) indebtedness
subordinated to all obligations owing by Guarantor to Lender.
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(e) Make
any
loan to Borrower.
(f) Permit
the sale, transfer or other disposition of any capital assets of
Guarantor.
7. Continuation
of Ownership and Management of the Guarantor.
Guarantor acknowledges that Lender has elected to enter into the Agreement
and
to make the Loan based on Lender's confidence in the integrity and the ability
of Borrower and the Related Parties of Borrower and that Lender is relying
on
Borrower to continue to have an ownership interest in Guarantor and/or
participate in the active management and operation of Guarantor, as set forth
in
Section 4 hereof, and the Related Parties to continue to have an ownership
interest in Borrower and/or participate in the active management and operation
of Borrower in accordance with the terms and conditions of the Agreement.
Guarantor acknowledges that the covenant set forth in this Section 7 is also
a
covenant of the Borrower under the terms and conditions of the Agreement, and
that change in the ownership interest of Borrower in Guarantor and/or a change
in the participation of Borrower in the active management and operation of
Guarantor as set forth in Section 4 hereof and/or a change in the ownership
interests of the Related Parties in Borrower and/or a change in the
participation of the Related Parties in the active management and operation
of
Borrower is an Event of Default under the Agreement and this Guaranty.
8. Default.
Each
Guarantor acknowledges that any default by the Guarantor hereunder, including
without limitation the covenant of Guarantor set forth in Section 7 and Section
4 hereof, and any default by Guarantor on any indebtedness or obligation of
Guarantor under any other agreement or instrument now or hereafter in existence
between Guarantor and Lender (the "Other Indebtedness") shall constitute an
Event of Default under the Agreement and the Security Documents, which would
allow Lender to declare all or any part of the Indebtedness immediately due
and
payable and to exercise its remedies under the Agreement and this Guaranty
or as
otherwise provided by law. Any default by Guarantor under the Agreement and
the
Security Documents shall constitute an Event of Default under the Other
Indebtedness, which would allow Lender to declare all or any part of the Other
Indebtedness immediately due and payable and to exercise its remedies with
respect thereto.
9. Remedies.
Upon
the occurrence of an Event of Default under the Agreement and in the event
that
each Guarantor does not pay the Indebtedness or perform the Obligations in
accordance with the terms and conditions of the Agreement and this Guaranty
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: (A) Lender may enter upon Guarantors' 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 (B) 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 Guarantors' right, title and interest in and to
Guarantors' 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 3(c), including, without limitation, 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; and (C) 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 the Security Documents. Lender may
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.
(f) 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.
10. Termination.
A
Guarantor may terminate this Guaranty with respect to his, her or its
obligations under this Guaranty only by written notice sent to Lender by
registered mail, postage prepaid, at Lender's Address stating an effective
date
of such termination which may not be earlier than 30 days after the receipt
of
such notice by Lender, provided however that the obligations of such Guarantor
under this Guaranty shall continue in full force and effect with respect to
any
Indebtedness and Obligations of Borrower arising prior to the effective date
of
termination. In addition, this Guaranty shall continue in full force and effect
with respect to any other Guarantor who has not given notice of termination.
The
death of any Guarantor shall not terminate this Guaranty.
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11. Miscellaneous.
(a) The
remedies of Lender under this Guaranty are separate and cumulative and are
in
addition to any other legal or equitable remedy which Lender may have under
the
Security Documents or the Agreement and may be pursued separately, successively,
concurrently, independently or together against Borrower, any Guarantor, any
other obligors, 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 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. Nothing in this
Guaranty is intended to prevent Lender, upon the occurrence of an Event of
Default and in its sole discretion, from foreclosing the liens of the Agreement
and the Security Documents and enforcing the provisions thereof.
(b) Subject
to the notice requirements of Paragraph 4 above with respect to termination
of a
Guarantors' obligations under this Guaranty, any notice required or permitted
to
be given pursuant hereto, or in connection herewith, shall be deemed to have
been duly given when addressed and mailed by First Class United States Mail,
postage prepaid, to Lender at Lender's Address and to Guarantor at Guarantors'
Address, or to such other places as either of the parties may for themselves
designate in writing from time to time for the purpose of receiving notices
pursuant hereto.
(c) The
warranties, representations, covenants and agreements set forth in this
Agreement and the Security Documents shall survive the delivery hereof and
shall
continue in full force and effect until the Indebtedness is paid in
full.
(d) The
parties intend this writing to be a final expression of their agreements and
a
complete and exclusive statement of the terms and conditions with respect to
the
subject matter hereof and the transactions contemplated hereby. No course of
prior dealings between the parties, usage of the trade, course of performance
or
parol or extrinsic evidence of any nature shall be used or be relevant to
supplement or explain or modify any term used in this Guaranty. This Guaranty
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.
(e) Each
Guarantor and Lender intend that this Guaranty will not violate any valid
applicable law now or hereafter in effect in any jurisdiction. If any provision
hereof is invalid, illegal or unenforceable in any respect under any applicable
law of any jurisdiction, such provision shall be ineffective to the extent
of
such prohibition in such jurisdiction, without invalidating the remaining
provisions of this Guaranty.
(f) Lender's
acceptance or approval of any Obligation performed by Borrower or any Guarantor
(such as delivery of any insurance policy, balance sheet or other financial
information, account, contract right, chattel paper or general intangible)
shall
not be deemed to be a warranty or representation by Lender with respect to
the
accuracy, sufficiency, legality or effectiveness of the same or of any term,
provision or condition thereof.
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(g) Each
Guarantor will pay reasonable attorneys' fees and expenses incurred by Lender
in
enforcement of the Agreement, the Security Documents and this Guaranty. All
items that Guarantor agrees to furnish hereunder or in connection herewith
will
be furnished at Guarantors' sole cost and expense.
(h) This
Guaranty shall be binding upon and shall inure to the benefit of the successors
and assigns of the parties.
(i) This
Guaranty shall be governed by, and construed and enforced in accordance with,
the laws of the Commonwealth of Massachusetts.
(j) Guarantor
authorizes Lender to obtain consumer reports or other credit reports as it
deems
necessary for the origination, review, collection and enforcement of this
Guaranty.
(k) This
Guaranty 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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10 -
Guarantor
has executed this Guaranty as of the date first above written.
|
BAY
STATE REALTY HOLDINGS, INC.,
a
Massachusetts corporation
Chief
Executive Office:
0000
Xxxxx Xxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
||
| |
|
|
| By: | ||
|
Xxxxx
Xxxxxx
President
|
||
| By: | ||
|
Xxxxxxx
Xxxxxxxx
Secretary
|
||
| Guarantor's Federal ID Number: ______________________ | ||
-
11 -
|
FAMILY
FORD, INC.,
a
Connecticut corporation
Chief
Executive Office:
0000
Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
||
| |
|
|
| By: | ||
|
Xxxxx
Xxxxxx
President
|
||
| By: | ||
|
Xxxxxxx
Xxxxxxxx
Secretary
|
||
| Guarantor's Federal ID Number: ______________________ | ||
|
SHAKER’S
INC.,
a
Connecticut corporation
Chief
Executive Office:
000
Xxxxxxx Xxxxxxxx
Xxxxxxxxx,
XX 00000
|
||
| |
|
|
| By: | ||
|
Xxxxx
Xxxxxx
President
|
||
| By: | ||
|
Xxxxxxx
Xxxxxxxx
Secretary
|
||
| Guarantor's Federal ID Number: ______________________ | ||
-
12 -
|
HOMETOWN
BRATTLEBORO, INC.,
a
Vermont corporation
Chief
Executive Office:
0000
Xxxxxx Xxxx
Xxxxx
Xxxxxxxxxxx, XX 00000
|
||
| |
|
|
| By: | ||
|
Xxxxx
Xxxxxx
President
|
||
| By: | ||
|
Xxxxxxx
Xxxxxxxx
Secretary
|
||
| Guarantor's Federal ID Number: ______________________ | ||
|
SHAKER
AUTO GROUP, INC.,
a
Connecticut corporation
0000
Xxxxx Xxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
||
| |
|
|
| By: | ||
|
Xxxxx
Xxxxxx
President
|
||
| By: | ||
|
Xxxxxxx
Xxxxxxxx
Secretary
|
||
| Guarantor's Federal ID Number: | ||
|
|
||
-
13 -
