EXHIBIT 10.66
DEALER EQUIPMENT LOAN AND SECURITY AGREEMENT
THIS EQUIPMENT LOAN AND SECURITY AGREEMENT ("AGREEMENT") IS EXECUTED BY AND
BETWEEN B & B FLORIDA ENTERPRISES, INC., A FLORIDA CORPORATION, DBA STUART
NISSAN ("BORROWER"), AND NISSAN MOTOR ACCEPTANCE CORPORATION, A CALIFORNIA
CORPORATION ("NMAC"). IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS
HEREIN CONTAINED, THE PARTIES HERETO COVENANT AND AGREE AS FOLLOWS:
1. LOAN. SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, NMAC
AGREES TO MAKE ADVANCES (AS DEFINED BELOW) TO BORROWER (COLLECTIVELY, THE
"LOAN") IN AGGREGATE PRINCIPAL AMOUNT NOT IN EXCESS OF $250,000.00. THE PROCEEDS
OF THE LOAN MADE HEREUNDER SHALL BE USED SOLELY FOR THE PURCHASE OF EQUIPMENT,
MACHINERY AND FURNITURE TO BE USED IN THE OPERATION OF BORROWER'S BUSINESS, AT
THAT CERTAIN DEALERSHIP COMMONLY KNOWN AS STUART NISSAN.
1.1 ADVANCES. AT ANY TIME AND FROM TIME TO TIME FROM NOVEMBER 1, 1995
THROUGH JANUARY 31, 1996 (THE "DRAW PERIOD"), BORROWER MAY SUBMIT WRITTEN
REQUESTS TO LENDER FOR DISBURSEMENT OF PROCEEDS OF THE LOAN (EACH SUCH
DISBURSEMENT AN "ADVANCE"). EACH REQUEST FOR AN ADVANCE SHALL SPECIFY THE AMOUNT
OF THE REQUESTED ADVANCE (WHICH, WHEN ADDED TO THE OUTSTANDING PRINCIPAL BALANCE
OF THE LOAN AS OF THE DATE OF THE REQUESTED ADVANCE, SHALL NOT CAUSE THE
AGGREGATE PRINCIPAL BALANCE OF THE LOAN TO EXCEED $250,000), SHALL INCLUDE
INSTRUCTIONS FOR WIRING OR OTHERWISE DISBURSING THE ADVANCE, AND SHALL BE
ACCOMPANIED BY (A) A XXXX OF SALE FOR EACH ITEM OF EQUIPMENT, MACHINERY AND
FURNITURE PURCHASED BY BORROWER FOR WHICH BORROWER IS REQUESTING THE ADVANCE AS
REIMBURSEMENT, (B) A SIGNED UCC AMENDMENT SATISFACTORY TO LENDER DESCRIBING IN
DETAIL (INCLUDING SERIAL NUMBERS) ALL SUCH EQUIPMENT, MACHINERY AND FURNITURE AS
ADDITIONAL COLLATERAL (AS DEFINED BELOW), (C) A SIGNED AMENDMENT OF OR ADDITION
TO SCHEDULE A ATTACHED HERETO DESCRIBING IN DETAIL (INCLUDING SERIAL NUMBERS)
ALL NEW COLLATERAL, AND (D) SUCH OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS AS
LENDER MAY REASONABLY REQUEST. ONCE ADVANCED, LOAN PROCEEDS CANNOT BE REPAID AND
REBORROWED.
2. PAYMENTS OF INTEREST AND PRINCIPAL. FOR VALUE RECEIVED, BORROWER AGREES TO
PAY TO THE ORDER OF NMAC THE TOTAL PRINCIPAL AMOUNT OF $250,000 OR SUCH LESSER
SUM AS IS OUTSTANDING HEREUNDER, PLUS INTEREST THEREON AT THE INTEREST RATE
DEFINED BELOW.
2.1 INTEREST. THE LOAN SHALL BEAR INTEREST AT A VARIABLE RATE (THE
"INTEREST RATE") THAT IS ONE AND THREE-QUARTERS PERCENT (1.75%) PER ANNUM ABOVE
THE PER ANNUM INTEREST RATE FROM TIME TO TIME ANNOUNCED BY A MAJORITY OF THE
FOLLOWING NEW YORK CITY BANKS: THE CHASE MANHATTAN BANK, N.A.; CHEMICAL BANK;
CITIBANK, N.A.; BANKERS TRUST COMPANY; AND XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, AS THEIR RESPECTIVE PRIME RATES (THE "NMAC PRIME RATE"); PROVIDED THAT IF
FEWER THAN THREE OF SUCH BANKS HAVE THE SAME RATE IN EFFECT, THE MEDIAN OF THE
FIVE RATES SHALL BE THE NMAC PRIME RATE. FOR THE PURPOSES OF COMPUTING THE
INTEREST RATE, THE NMAC PRIME RATE IN EFFECT ON THE LAST DAY OF A MONTH SHALL BE
DEEMED TO BE SUCH RATE IN EFFECT THROUGHOUT THE SUCCEEDING MONTH. IN NO EVENT
SHALL THE INTEREST PROVIDED FOR HEREIN EXCEED THE MAXIMUM PERMITTED BY LAW,
WHICH THE PARTIES RECOGNIZE MAY CHANGE FROM TIME TO TIME. THE INTEREST RATE ON
THE DATE OF EXECUTION OF THIS AGREEMENT IS 10.50% PER ANNUM.
2.2 PAYMENTS OF INTEREST AND PRINCIPAL. DURING THE DRAW PERIOD, PAYMENTS OF
ACCRUED INTEREST ONLY SHALL BE MADE AS BILLED, BASED UPON THE OUTSTANDING
PRINCIPAL BALANCE OF THE LOAN AS OF THE LAST DAY OF EACH CALENDAR MONTH. EACH
SUCH INTEREST PAYMENT SHALL BE DUE ON THE FIFTEENTH DAY OF EACH CALENDAR MONTH,
COMMENCING DECEMBER 15, 1995. THE PRINCIPAL AMOUNT OF THE LOAN BALANCE
OUTSTANDING AS OF THE END OF THE DRAW PERIOD SHALL BE PAYABLE IN 59 EQUAL,
SUCCESSIVE MONTHLY INSTALLMENTS OF PRINCIPAL (CALCULATED ON THE BASIS OF A
60-MONTH AMORTIZATION PERIOD), PLUS ACCRUED INTEREST (COLLECTIVELY, THE "MONTHLY
INSTALLMENTS"), PLUS ONE FINAL PAYMENT OF THE OUTSTANDING BALANCE OF ALL
PRINCIPAL AND ACCRUED INTEREST, PLUS ANY COSTS, FEES AND CHARGES THEN DUE AND
UNPAID (THE "FINAL PAYMENT"). MONTHLY INSTALLMENTS SHALL BE DUE AND PAYABLE AS
BILLED ON THE FIFTEENTH OF EACH MONTH, BEGINNING ON FEBRUARY 15, 1996. THE FINAL
PAYMENT SHALL BE DUE AND PAYABLE AS BILLED ON JANUARY 15, 2001.
3. GRANT OF SECURITY INTEREST. AS SECURITY FOR THE PROMPT PAYMENT OF THE LOAN
AND ANY EXTENSIONS, RENEWALS OR AMENDMENTS THEREOF, AND THE PAYMENT AND
PERFORMANCE OF ALL OTHER OBLIGATIONS OF BORROWER TO NMAC UNDER THIS AGREEMENT,
INCLUDING OBLIGATIONS OF PERFORMANCE AS WELL AS OBLIGATIONS OF PAYMENT, BORROWER
HEREBY ASSIGNS AND PLEDGES TO NMAC, AND GRANTS TO NMAC A SECURITY INTEREST IN
THE PROPERTY DESCRIBED IN SCHEDULE A ATTACHED HERETO, AND IN ANY AMENDMENTS OR
ADDITIONS TO SUCH SCHEDULE A, TOGETHER WITH ALL PRESENT AND FUTURE ATTACHMENTS
AND ACCESSORIES TO SUCH PROPERTY AND REPLACEMENTS AND PROCEEDS THEREOF,
INCLUDING AMOUNTS PAYABLE UNDER ANY INSURANCE POLICIES PERTAINING TO SUCH
PROPERTY (ALL OF WHICH ARE HEREAFTER REFERRED TO COLLECTIVELY AS THE
"COLLATERAL").
4. REPRESENTATIONS AND WARRANTIES. BORROWER HEREBY REPRESENTS AND WARRANTS THAT:
4.1 THE COLLATERAL DOES NOT COMPRISE A PART OF BORROWER'S INVENTORY AND IT
WILL ONLY BE USED BY BORROWER IN BORROWER'S BUSINESS AND WILL NOT BE HELD FOR
SALE OR LEASE, OR REMOVED FROM THE PREMISES WHERE PRESENTLY LOCATED, OR
OTHERWISE DISPOSED OF BY BORROWER WITHOUT NMAC'S PRIOR WRITTEN CONSENT.
4.2 THE LIEN AND SECURITY INTEREST GRANTED TO NMAC IN THE COLLATERAL
CONSTITUTES AND SHALL AT ALL TIMES CONSTITUTE A FIRST LIEN THEREON; BORROWER IS
THE ABSOLUTE OWNER OF THE COLLATERAL WITH FULL RIGHT TO PLEDGE, SELL, TRANSFER
AND CREATE A SECURITY INTEREST IN THE SAME, FREE AND CLEAR OF ANY AND ALL
CLAIMS, ENCUMBRANCES AND ADVERSE INTERESTS; AND BORROWER WILL FOREVER WARRANT
AND, AT NMAC'S REQUEST, DEFEND THE SAME FROM ALL CLAIMS AND DEMANDS OF ALL OTHER
PERSONS
4.3 BORROWER HAS FULL AUTHORITY TO ENTER INTO THIS AGREEMENT AND IN SO
DOING IS NOT VIOLATING ANY LAW OR REGULATION, OR AGREEMENT WITH THIRD PARTIES,
AND BORROWER HAS TAKEN ALL SUCH ACTION AS MAY BE NECESSARY OR APPROPRIATE TO
MAKE THIS AGREEMENT BINDING UPON IT; AND
4.4 ALL INFORMATION HERETOFORE, HEREIN OR HEREAFTER SUPPLIED TO NMAC BY OR
ON BEHALF OF BORROWER WITH RESPECT TO THE COLLATERAL IS TRUE AND CORRECT.
5. COVENANTS BY BORROWER.
5.1 BORROWER AGREES: (A) TO MAINTAIN THE COLLATERAL IN GOOD CONDITION AND
REPAIR AND TO TAKE ALL OTHER ACTION THAT MAY BE NECESSARY TO MAINTAIN, PRESERVE
AND PROTECT THE COLLATERAL, (B) NOT TO SELL, LEASE OR OTHERWISE TRANSFER OR
DISPOSE OF ALL OR ANY PART OF THE COLLATERAL OR ANY INTEREST THEREIN WITHOUT THE
PRIOR WRITTEN CONSENT OF NMAC; (C) NOT TO CREATE, INCUR OR PERMIT TO EXIST ANY
SECURITY INTEREST, LIEN OR OTHER ENCUMBRANCE UPON ALL OR ANY PART OF THE
COLLATERAL, OR ANY INTEREST THEREIN, EXCEPT IN FAVOR OF NMAC; (D) WITHOUT THE
PRIOR WRITTEN CONSENT OF NMAC, REMOVE ALL OR ANY PART OF THE COLLATERAL FROM THE
PREMISES WHERE PRESENTLY LOCATED.
5.2 BORROWER AGREES TO COMPLY WITH ALL LAWS AND REGULATIONS APPLICABLE TO
THE COLLATERAL OR ANY PART THEREOF OR TO THE OPERATION OF BORROWER'S BUSINESS.
5.3 BORROWER AGREES TO MAINTAIN INSURANCE, WITH SUCH INSURANCE COMPANIES,
IN SUCH AMOUNTS AND COVERING SUCH RISKS AS ARE AT ALL TIMES SATISFACTORY TO
NMAC. ALL POLICIES COVERING THE COLLATERAL ARE TO BE MADE PAYABLE TO NMAC, IN
CASE OF LOSS, UNDER A STANDARD NON-CONTRIBUTORY "LENDER'S" OR "SECURED PARTY"
CLAUSE.
5.4 AS SOON AS PRACTICABLE, AND IN ANY EVENT WITHIN TEN (10) DAYS, BORROWER
SHALL NOTIFY NMAC OF: (A) ANY ATTACHMENT OR OTHER LEGAL PROCESS LEVIED AGAINST
ANY OF THE COLLATERAL; (B) ANY SUBSTANTIAL CHANGE IN THE COLLATERAL OR OF THE
OCCURRENCE OF ANY EVENT WHICH MAY IN ANY MANNER MATERIALLY AND ADVERSELY AFFECT
THE VALUE OF THE COLLATERAL OR THE RIGHTS AND REMEDIES OF NMAC WITH RESPECT
THERETO; AND (C) THE REMOVAL OF ANY OF THE COLLATERAL TO A NEW LOCATION OTHER
THAN THE DEALERSHIP ADDRESS. ANY NOTICE DELIVERED PURSUANT TO THIS SECTION 5.4
SHALL SET FORTH THE NATURE OF SUCH EVENT AND THE ACTION WHICH BORROWER PROPOSES
TO TAKE WITH RESPECT THERETO.
5.5 IN THE EVENT THAT BORROWER FAILS TO PERFORM ANY OBLIGATION SET FORTH
HEREIN, NMAC MAY, BUT SHALL NOT BE OBLIGATED TO, PERFORM THE SAME, AND THE COST
THEREOF SHALL BE PAYABLE BY BORROWER TO NMAC ON DEMAND AND SHALL BEAR INTEREST
AT THE INTEREST RATE.
6. EVENTS OF DEFAULT. THE OCCURRENCE OF ANY OF THE FOLLOWING SHALL CONSTITUTE AN
"EVENT OF DEFAULT" HEREUNDER:
6.1 BORROWER FAILS TO MAKE ANY PAYMENT WHEN DUE, OR FAILS TO PERFORM ANY
OBLIGATION, UNDER THIS AGREEMENT OR UNDER ANY OTHER INDEBTEDNESS TO NMAC, AND
SUCH FAILURE REMAINS UNCURED FOR TEN (10) BUSINESS DAYS OR MORE AFTER WRITTEN
NOTICE THAT SUCH PAYMENT WAS NOT MADE OR SUCH OBLIGATION WAS NOT PERFORMED; OR
6.2 ANY REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT PROVES TO
HAVE BEEN INCORRECT IN ANY MATERIAL RESPECT WHEN MADE; OR
6.3 BORROWER OR ANY GUARANTOR IS DISSOLVED, LIQUIDATED OR TERMINATED, OR
ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF BORROWER OR ANY GUARANTOR ARE SOLD OR
OTHERWISE TRANSFERRED WITHOUT NMAC'S PRIOR WRITTEN CONSENT; OR
6.4 BORROWER OR ANY GUARANTOR IS THE SUBJECT OF AN ORDER FOR RELIEF BY A
BANKRUPTCY COURT, OR IS UNABLE OR ADMITS ITS INABILITY TO PAY ITS DEBTS AS THEY
MATURE, OR MAKES AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS; OR BORROWER OR ANY
GUARANTOR APPLIES FOR OR CONSENTS TO THE APPOINTMENT OF ANY RECEIVER, TRUSTEE,
CUSTODIAN, CONSERVATOR, LIQUIDATOR, REHABILITATOR OR SIMILAR OFFICER FOR IT OR
ANY PART OF ITS PROPERTY; OR ANY RECEIVER, TRUSTEE, CUSTODIAN, CONSERVATOR,
LIQUIDATOR, REHABILITATOR OR SIMILAR OFFICER IS APPOINTED WITHOUT THE
APPLICATION OR CONSENT OF BORROWER OR ANY GUARANTOR, AS THE CASE MAY BE, AND THE
APPOINTMENT CONTINUES UNDISCHARGED AND UNSTAYED FOR 60 OR MORE DAYS.
7. ACCELERATION AND OTHER REMEDIES. UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT,
NMAC MAY, AT ITS OPTION AND IN ITS ABSOLUTE DISCRETION, WITH OR WITHOUT FURTHER
NOTICE TO BORROWER, DO ANY OR ALL OF THE FOLLOWING:
7.1 BY WRITTEN NOTICE TO BORROWER, DECLARE THE PRINCIPAL OF THE NOTE AND
ALL OTHER AMOUNTS OWING UNDER THIS AGREEMENT, TOGETHER WITH ALL ACCRUED INTEREST
AND OTHER AMOUNTS OWING IN CONNECTION THEREWITH, TO BE IMMEDIATELY DUE AND
PAYABLE, REGARDLESS OF ANY OTHER SPECIFIED DUE DATE;
7.2 TERMINATE ALL COMMITMENTS TO MAKE LOANS OR OTHERWISE EXTEND OR CONTINUE
CREDIT TO BORROWER;
7.3 FORECLOSE OR OTHERWISE ENFORCE THE SECURITY INTERESTS CREATED UNDER
THIS AGREEMENT IN ANY MANNER PERMITTED BY LAW;
7.4 SELL, ASSIGN, LEASE, OR OTHERWISE DISPOSE OF ALL OR ANY PART OF THE
COLLATERAL AT ONE OR MORE PUBLIC OR PRIVATE SALES, IN LOTS OR IN BULK, FOR CASH,
ON CREDIT OR OTHERWISE, WITH OR WITHOUT REPRESENTATIONS OR WARRANTIES, AND UPON
SUCH TERMS AND IN SUCH MANNER AS NMAC SHALL DETERMINE IN THE EXERCISE OF ITS
SOLE AND ABSOLUTE DISCRETION;
7.5 ENTER ANY PREMISES WHERE ANY COLLATERAL MAY BE LOCATED FOR THE PURPOSE
OF SECURING, PROTECTING, INVENTORYING, APPRAISING, INSPECTING, REPAIRING,
PRESERVING, STORING OR TAKING POSSESSION OF SUCH COLLATERAL;
7.6 TAKE POSSESSION OF ANY OR ALL COLLATERAL AND TO REMOVE FROM ANY
PREMISES WHERE ANY COLLATERAL MAY BE LOCATED THE COLLATERAL AND ANY AND ALL
DOCUMENTS, INSTRUMENTS, FILES AND RECORDS RELATING TO THE COLLATERAL;
7.7 REQUIRE BORROWER TO ASSEMBLE THE COLLATERAL AND MAKE IT AVAILABLE TO
NMAC AT SUCH PLACES AS NMAC MAY DESIGNATE;
7.8 EXERCISE ANY AND ALL OTHER RIGHTS AND REMEDIES THAT NMAC MAY HAVE IN
ANY JURISDICTION WHERE ENFORCEMENT OF THIS AGREEMENT IS SOUGHT, INCLUDING,
WITHOUT LIMITATION, ALL RIGHTS AND REMEDIES OF A SECURED PARTY UNDER ANY
APPLICABLE UNIFORM COMMERCIAL CODE.
BORROWER EXPRESSLY WAIVES ANY RIGHT TO DIRECT THE ORDER AND MANNER OF SALE OF
ANY COLLATERAL. NMAC OR ANY PERSON ON NMAC'S BEHALF MAY BID AND PURCHASE AT ANY
SUCH SALE OR OTHER DISPOSITION. BORROWER AND ANY OTHER PERSON THEN OBLIGATED
THEREFOR SHALL PAY TO NMAC ON DEMAND ANY DEFICIENCY WITH REGARD THERETO WHICH
MAY REMAIN AFTER SUCH SALE, DISPOSITION, COLLECTION OR LIQUIDATION OF THE
COLLATERAL. NMAC WILL SEND OR OTHERWISE MAKE AVAILABLE TO BORROWER REASONABLE
NOTICE OF THE TIME AND PLACE OF ANY PUBLIC SALE THEREOF OR OF THE TIME ON OR
AFTER WHICH ANY PRIVATE SALE THEREOF IS TO BE MADE. THE REQUIREMENT OF SENDING
REASONABLE NOTICE CONCLUSIVELY SHALL BE MET IF SUCH NOTICE IS MAILED, FIRST
CLASS MAIL, POSTAGE PREPAID, TO BORROWER AT ITS ADDRESS SET FORTH IN THIS
AGREEMENT, OR DELIVERED OR OTHERWISE SENT TO BORROWER, AT LEAST FIVE (5)
BUSINESS DAYS BEFORE THE DATE OF THE SALE. BORROWER EXPRESSLY WAIVES ANY RIGHT
TO RECEIVE NOTICE OF ANY PUBLIC OR PRIVATE SALE OF ANY COLLATERAL OR OTHER
SECURITY EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS PARAGRAPH.
UPON CONSUMMATION OF ANY SALE OF COLLATERAL HEREUNDER, NMAC SHALL HAVE THE RIGHT
TO ASSIGN, TRANSFER AND DELIVER TO THE PURCHASER OR PURCHASERS THEREOF THE
COLLATERAL SO SOLD. EACH SUCH PURCHASER AT ANY SUCH SALE SHALL HOLD THE
COLLATERAL SO SOLD ABSOLUTELY FREE FROM ANY CLAIM OR RIGHT UPON THE PART OF
BORROWER OR ANY OTHER PERSON, AND BORROWER HEREBY WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ALL RIGHTS OF REDEMPTION, STAY AND APPRAISAL WHICH
IT NOW HAS OR MAY AT ANY TIME IN THE FUTURE HAVE UNDER ANY RULE OF LAW OR
STATUTE NOW EXISTING OR HEREAFTER ENACTED.
8. APPLICATION OF PROCEEDS. THE NET CASH PROCEEDS RESULTING FROM ANY COLLECTION,
LIQUIDATION, SALE OR OTHER DISPOSITION OF THE COLLATERAL BY NMAC SHALL BE
APPLIED FIRST TO THE EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OF
RETAKING, HOLDING, STORING, PROCESSING, PREPARING FOR SALE, SELLING, COLLECTING,
LIQUIDATING AND THE LIKE, AND THEN TO PRINCIPAL AND INTEREST ON THE LOAN, WITH
ANY SURPLUS PROCEEDS SUBJECT TO APPLICATION AS NMAC MAY IN ITS SOLE DISCRETION
DETERMINE.
9. CUMULATIVE REMEDIES/NO WAIVER. NMAC'S RIGHTS AND REMEDIES UNDER THIS
AGREEMENT ARE CUMULATIVE AND IN ADDITION TO ALL RIGHTS AND REMEDIES PROVIDED BY
LAW FROM TIME TO TIME. NMAC SHALL HAVE THE RIGHT TO ENFORCE ONE OR MORE OF ITS
REMEDIES SUCCESSIVELY OR CONCURRENTLY. NMAC'S CONSENT TO OR APPROVAL OF ANY ACT
BY BORROWER REQUIRING FURTHER CONSENT OR APPROVAL SHALL NOT BE DEEMED TO WAIVE
OR RENDER UNNECESSARY NMAC'S CONSENT TO OR APPROVAL OF ANY SUBSEQUENT ACT.
10. COSTS AND EXPENSES. BORROWER SHALL REIMBURSE NMAC ON DEMAND FOR ALL COSTS
AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED BY NMAC IN
CONNECTION WITH THE NEGOTIATION, PREPARATION, ADMINISTRATION AND ENFORCEMENT OF
THIS AGREEMENT, REGARDLESS OF WHETHER ANY SUIT IS FILED, INCLUDING, WITHOUT
LIMITATION, ALL COSTS AND EXPENSES INCURRED IN CHECKING, RETAKING, HOLDING,
HANDLING, PREPARING FOR SALE AND SELLING OR OTHERWISE DISPOSING OF ALL OR ANY
PART OF THE COLLATERAL. SUCH REIMBURSEMENT OBLIGATIONS SHALL BEAR INTEREST AT
THE INTEREST RATE.
11. MISCELLANEOUS WAIVERS. THE OBLIGATIONS OF BORROWER ARE JOINT AND SEVERAL.
PRESENTMENT, PROTEST, NOTICE OF PROTEST, NOTICE OF DISHONOR AND NOTICE OF
NONPAYMENT ARE WAIVED WITH RESPECT TO ANY PROCEEDS TO WHICH NMAC IS ENTITLED
HEREUNDER.
12. SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL BIND AND SHALL INURE TO THE
BENEFIT OF NMAC, BORROWER, AND THEIR RESPECTIVE HEIRS, EXECUTORS,
ADMINISTRATORS, SUCCESSORS AND ASSIGNS.
13. NOTICES. ALL NOTICES, DEMANDS, APPROVALS AND OTHER COMMUNICATIONS PROVIDED
FOR HEREIN SHALL BE IN WRITING AND SHALL BE PERSONALLY DELIVERED OR MAILED BY
UNITED STATES MAIL, AS CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED,
POSTAGE PREPAID, TO THE APPROPRIATE PARTY AT THE ADDRESS FOR SUCH PARTY SET
FORTH IN THE FIRST PARAGRAPH OF THIS AGREEMENT. ADDRESSES FOR NOTICE MAY BE
CHANGED FROM TIME TO TIME BY WRITTEN NOTICE TO ALL OTHER PARTIES GIVEN IN
ACCORDANCE HEREWITH. ALL COMMUNICATIONS SHALL BE EFFECTIVE WHEN ACTUALLY
RECEIVED; PROVIDED, HOWEVER, THAT NONRECEIPT OF ANY COMMUNICATION AS A RESULT OF
A CHANGE OF ADDRESS AS TO WHICH THE SENDING PARTY WAS NOTIFIED OR AS A RESULT OF
A REFUSAL TO ACCEPT DELIVERY, SHALL BE DEEMED RECEIPT OF SUCH COMMUNICATION.
14. MISCELLANEOUS. TIME IS OF THE ESSENCE. BORROWER'S REIMBURSEMENT OBLIGATIONS
UNDER THIS AGREEMENT, ALTHOUGH PART OF THE PRINCIPAL BALANCE DUE HEREUNDER AND
UNDER THE NOTE, SHALL NOT BE GOVERNED BY ANY PRINCIPAL REPAYMENT PROVISIONS SET
FORTH HEREIN BUT SHALL INSTEAD BE DUE AND PAYABLE ON DEMAND. THIS AGREEMENT,
TOGETHER WITH ANY AND ALL OTHER DOCUMENTS REFERRED TO HEREIN, CONSTITUTES THE
ENTIRE AGREEMENT BETWEEN NMAC AND BORROWER PERTAINING TO THE SUBJECT MATTER
CONTAINED HEREIN. THIS AGREEMENT MAY NOT BE AMENDED, CHANGED, MODIFIED, ALTERED
OR TERMINATED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY NMAC AND BORROWER.
NEITHER NMAC NOR BORROWER MAY WAIVE ANY RIGHT HEREUNDER EXCEPT BY A SIGNED
WRITTEN INSTRUMENT. IN THE EVENT ANY PROVISION OF THIS AGREEMENT IS HELD INVALID
OR UNENFORCEABLE BY ANY COURT OF COMPETENT JURISDICTION, SUCH HOLDING SHALL NOT
INVALIDATE OR RENDER UNENFORCEABLE ANY OTHER PROVISION HEREOF. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE
WHERE THE BORROWER IS LOCATED. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL, AND ALL OF WHICH
SHALL CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
IN WITNESS WHEREOF, BORROWER AND NMAC HAVE CAUSED THIS AGREEMENT TO BE DULY
EXECUTED AS THIS 12TH DAY OF OCTOBER, 1995.
"BORROWER":
B & B FLORIDA ENTERPRISES, INC.,
A FLORIDA CORPORATION, DBA STUART NISSAN
BY: /S/ XXXXXX XXXXXX, XX.
---------------------------
XXXXXX XXXXXX, XX., PRESIDENT
ADDRESS:
BEFORE 1/1/96: AFTER 1/1/96:
0000 X. XXXXXXX XXXXXXX 0000 X. XXXXXXX XXXXXXX
XXXXXX, XXXXXXX 00000 XXXXXX, XXXXXXX 00000
"NMAC":
NISSAN MOTOR ACCEPTANCE CORPORATION,
A CALIFORNIA CORPORATION
BY: /S/ XXXX X. FRENCH
-----------------------
XXXX X. FRENCH, VICE PRESIDENT
(PRINTED NAME AND TITLE)
ADDRESS:
000 XXXX 000XX XXXXXX
XXXXXXXX, XXXXXXXXXX 00000
