CROSS COLLATERAL, CROSS DEFAULT, AND GUARANTY AGREEMENT
Exhibit 10.3
THIS
AGREEMENT is effective this 16th day of February,
2018, and is entered into among Ally Financial Inc., a Delaware
corporation (“Ally”), Ally Bank (Ally Capital in Hawaii,
Mississippi, Montana and New Jersey), a Utah chartered state bank,
both Ally and Ally Bank having a local business office currently
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Ally and Ally Bank are hereinafter referred to as “Ally
Parties”), and the entities and individuals listed below
(each entity a “Dealership,” each individual a
“Dealer,” and collectively the “Dealership
Parties”):
1.
RMBL Missouri, LLC, a Delaware entity,
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇; and
2.
RumbleOn, Inc., a Nevada entity, located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
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Recitals:
A.
One or more of the
Ally Parties have made loans and advances to some or all of the
Dealership Parties, which are affiliated and share a close business
nexus.
B.
One or more of the
Ally Parties may make additional loans, advances and other
extensions of credit to some or all of the Dealership Parties, or
continue to extend credit to one or more of the Dealership Parties,
if Dealership Parties agree to provide additional security by
cross-collateralizing, cross-defaulting and guarantying all of said
existing, proposed and future loans, advances or extensions of
credit.
C.
It is the intention
of the Dealership Parties and the Ally Parties that all of the
Dealership Parties’ assets which one or more of the Ally
Parties now has, or may hereafter obtain, a lien on or security
interest in, secures payment and performance for all current and
future loans, advances and extensions of credit made by the Ally
Parties to some or all of the Dealership Parties.
D.
It is the intention
of the Dealership Parties and the Ally Parties that any default in
the payment or performance of any obligation of any of the
Dealership Parties to any of the Ally Parties, at the option of one
or more of the Ally Parties, will constitute a default in all
payments and performance of all obligations of all Dealership
Parties to the Ally Parties now or hereafter obtained.
E.
It is the intention
of each of the Dealership Parties individually to guaranty the
performance and payment of Obligations of every other of the
Dealership Parties under all Security Agreements (as these terms
are defined below).
For
good and valuable consideration, the receipt and sufficiency of
which are acknowledged, including the inducement of each of the
Ally Parties, in its sole discretion, to extend credit or continue
existing financial accommodations to the Dealership Parties, it is
agreed as follows:
Agreement:
1)
DEFINITIONS: As used in this
Agreement, the terms listed below have the following
meaning:
a)
Obligation(s) means any
liability, indebtedness or obligation of every kind and nature, now
existing or hereafter arising, whether created directly, indirectly
or acquired by assignment, whether matured or unmatured, and any
cost or expense, including without limitation reasonable
attorneys’ fees, incurred in the collection or enforcement of
any such obligation of any one or more of the Dealership Parties,
owed by any one or more of the Dealership Parties to one or more of
the Ally Parties, any successor, assign, subsidiary or affiliate of
Ally Parties.
b)
Security Agreement(s) means any
existing or future agreement between one or more of the Dealership
Parties and one or more of the Ally Parties which creates or
provides for a security interest in or lien upon any of the assets
or property (tangible or intangible, real or personal) of any of
the Dealership Parties, including but not limited to this
Agreement, wholesale floorplan agreements (i.e., Wholesale Security
Agreement or Inventory Financing and Security Agreement), other
security agreements, deeds of trust and mortgages.
c)
Financing Accommodation(s)
means the Security Agreement(s) and any and all other agreements
evidencing an Obligation.
2)
CROSS-COLLATERALIZATION: To
secure payment and performance of all Obligations, each of the
Dealership Parties grants to each of the Ally Parties a continuing
security interest in all collateral in which one of the Ally
Parties now has a security interest, and each of the Dealership
Parties agree that any future grant of a security interest in any
assets of any one of the Dealership Parties to one of the Ally
Parties will be deemed a grant to the other of the Ally Parties.
Each of the Dealership Parties agree that either or both of the
Ally Parties are authorized to file financing statements, ▇▇▇▇
chattel paper, notify account debtors, note liens on documents of
title, and take all other actions necessary to establish, confirm
and maintain a perfected security interest in such existing and
future collateral. Each of the Dealership Parties agree that all
collateral now or hereafter subject to a security interest or lien
of one or more of the Ally Parties pursuant to any or all of the
Security Agreements secures any and all Obligations, including
Obligations subsequently assigned to one of the Ally Parties by the
other of the Ally Parties or by a third party, and subject to
applicable law, each of the Ally Parties may apply, in its sole,
absolute discretion, proceeds of any collateral to any of the
Obligations of any of the Dealership Parties.
3)
CROSS DEFAULT: In addition to
and not in substitution for any provisions in any of Financing
Accommodations, it is agreed that any default or breach by any of
the Dealership Parties in the payment or performance under any of
the Financing Accommodations will, at the option of the Ally
Parties, constitute a default under each Financing
Accommodation.
4)
GUARANTY: All Dealership
Parties, jointly and severally, unconditionally guarantee the
performance and payment of all Obligations owing by any of the
Dealership Parties to any of the Ally Parties, including
Obligations subsequently assigned to one of the Ally Parties by the
other of the Ally Parties or by a third party. Each of the
Dealership Parties waives and dispenses with notice of acceptance
of this guaranty; notice of non-payment or non-performance; notice
of amount of indebtedness outstanding at any time; protests;
demands; and prosecution of collection, foreclosure and possessory
remedies. Each of the Dealership Parties waives any right to
require any of the Ally Parties to proceed against other persons or
other of the Dealership Parties; to advise the Dealership Parties
of the results of any collateral checks or examinations; to require
any or all of the Dealership Parties to comply with the Financing
Accommodations; or to proceed against or exhaust any security. Any
liability of the Dealership Parties hereunder shall not be affected
by, nor shall it be necessary to procure the consent of any of the
Dealership Parties or give any notice in reference to, any
settlement, or variation of terms of any obligation of the
Dealership Parties, or of a guarantor or any other interested
person, by operation of law or otherwise; nor by failure to file,
record or register any security document. The Dealership Parties
recognize that the Ally Parties may utilize various means of
attempting to verify compliance with the credit terms by any
borrower under any of the Financing Accommodations, including
periodic collateral checks and examination of books and records,
and hereby expressly agrees that such steps are for the sole
benefit of the Ally Parties and the adequacy of such checks and
examinations shall not be considered as a defense to or mitigation
of liability hereunder. Each of the Dealership Parties acknowledges
and agrees that this guaranty is for a commercial obligation and
not a consumer obligation which is primarily for personal, family
or household purposes. Each of the Dealership Parties authorizes
the Ally Parties, from time to time, to investigate any financial
information provided and to examine or review such of the
Dealership Parties’ credit history (including obtaining a
credit report) and agrees to provide the Ally Parties with personal
financial statements satisfactory to the Ally Parties upon request.
This is a continuing guaranty and remains in effect as to each of
the Dealership Parties. However, a single one of the Dealership
Parties can terminate its own guaranty by sending written notice of
its intent to the Ally Parties at their offices designated above,
which termination is effective forty-eight (48) hours after receipt
by both of the Ally Parties of the written termination notice;
provided, however, that such termination will not operate to
release such of the Dealership Parties from liability hereunder
with respect to any Obligations incurred prior to the effective
date of such termination notice. Except as noted in this Agreement,
Ally Parties make no promises to the Dealership Parties to induce
execution of this guaranty provision.
5)
EFFECT ON OTHER AGREEMENTS:
This Agreement constitutes an amendment of and supplement to each
of the Financing Accommodations now or hereafter executed; augments
and is in addition to, and is not in substitution for, any
provisions of any Financing Accommodation, including any other
Cross Collateral, Cross Default and Guaranty Agreements between or
among any of the Dealership Parties and either of the Ally Parties;
and does not otherwise limit or affect the rights and remedies of
any of the Ally Parties under any such Financing
Accommodation.
6)
FUTURE LOANS: Each of the Ally
Parties may, in its sole and absolute discretion, make additional
loans and other financing accommodations to any of the Dealership
Parties, all of which will be subject to the terms of this
Agreement. Notwithstanding anything to the contrary, any future
change in the terms of or indebtedness owed by any of the
Dealership Parties to one or more of the Ally Parties requires the
written consent of the Ally Parties.
7)
WAIVER OF TRIAL BY JURY: Each
of the Dealership Parties waive trial by jury in any action or
proceeding brought by any of the Ally Parties; in any counterclaim
asserted by any of the Ally Parties against one or more of the
Dealership Parties; or in any matter or manner connected with this
Agreement, or any Financing Accommodation.
8)
NOTICES: Any notices or other
communications required or permitted to be given by this Agreement
must be in writing and must be personally delivered, mailed by
prepaid certified, registered, or first class mail, or delivered by
a nationally recognized overnight courier, to the Ally Parties or
to the Dealership Parties to whom such notice or communication is
directed at the address set forth above in this Agreement.
Notwithstanding anything herein to the contrary, any notice or
other communication will be deemed to have been given (whether
actually received or not) on the day it is personally delivered or,
if mailed or delivered by overnight courier, on the third
(3rd) day
after it is mailed or delivered as aforesaid. Any of the Ally
Parties or of the Dealership Parties may change its address for
purposes of this document by giving ten (10) days prior written
notice of such change to the others pursuant to the terms of this
clause.
9)
NO OTHER UNDERSTANDING: The
Dealership Parties acknowledge that the Ally Parties have made no
promises to induce execution of this Agreement except as set forth
herein; that there are no other agreements or understandings,
either oral or in writing, affecting this Agreement; and nothing in
this Agreement may be considered a waiver by any of the Ally
Parties of any existing or future defaults by any of the Dealership
Parties of any Financing Accommodation. Modifications or amendments
to this Agreement can only be made in a writing executed by all of
the Ally Parties and all of the Dealership Parties.
10)
SUCCESSORS AND ASSIGNS: The
provisions of this Agreement bind and inure to the benefit of the
heirs, administrators, successors, and assigns of each of the
Dealership Parties and each of the Ally Parties.
11)
SEVERABILITY: Any provision of
this Agreement prohibited by law is ineffective only to the extent
of the prohibition without invalidating the remaining provisions of
this Agreement.
12)
COUNTERPARTS:
This Agreement may be executed by telecopy or facsimile in multiple
counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. Transmission by
telecopier, facsimile or e-mail of an executed counterpart of this
agreement shall be deemed to constitute due and sufficient delivery
of such counterpart. Each fully executed counterpart of this
Agreement shall be deemed to be a duplicate
original.
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Signed
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RMBL Missouri, LLC
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Signature:
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Title:
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Manager
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2-16-18
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Signed
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President/CEO
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Ally Financial Inc.
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Ally Bank
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