EXHIBIT 10.64
NISSAN MOTOR ACCEPTANCE CORPORATION
DEALER CAPITAL LOAN AND
SECURITY AGREEMENT
Nissan Motor Acceptance Corporation ("NMAC") and B & B Florida Enterprises,
Inc., a Florida corporation, dba Stuart Nissan ("Dealer"), for good and valuable
consideration received, hereby agree as follows:
I. LOAN
Dealer hereby promises to pay to the order of NMAC the maximum sum of
$1,200,000 ("Principal") and interest at the rate of 1.75 percentage points per
annum over the NMAC Prime Rate (as defined in Schedule A attached hereto and
made a part hereof), but in no event more than the maximum allowed by law, on
that portion of the Principal remaining unpaid from time to time. The Principal
shall be payable in 59 successive monthly installments of $20,000 each, followed
by one final installment equal to the then unpaid Principal, all accrued and
unpaid interest and all other fees, costs and charges due and owing under the
terms of this loan. Installments are payable monthly on the 15th day of each
month commencing on the 15th day of the month following the loan closing, until
the Principal is paid in full. Interest accrued through the end of the preceding
month shall be payable with each installment of Principal, provided that all
unpaid interest accrued to the date thereof shall be due and payable with the
last installment of Principal. Payments shall be applied first to accrued and
unpaid interest, then to Principal and finally to costs, fees, charges and
expenses.
II. SECURITY
As security for the payment of the Principal and interest thereon, and for
all other obligations and performances now or hereafter owing by Dealer to NMAC
under this Agreement and any other agreement between said parties, Dealer hereby
grants to NMAC a security interest in the following property ("Collateral"), now
owned or hereafter acquired by Dealer, and in the proceeds thereof:
(a) all automobiles, trucks, truck-tractors, trailers,
semi-trailers, busses, mobile homes, motor homes, other
vehicles and other merchandise, and all parts, accessories and
furnishings used in connection therewith, now held or
hereafter acquired by Dealer, including all goods hereafter
added to or acquired in replacement of the foregoing, and the
proceeds of all of the foregoing, whether or not inventory or
other and whether or not new, used, repossessed, surrendered
or other;
(b) all goods, including without limitation, all machinery,
equipment, tools, appliances, trucks, motor vehicles and
office furniture and fixtures now held or hereafter acquired
by Dealer, and the proceeds of all of the foregoing;
(c) all accounts receivable, chattel paper, security agreements,
instruments, contract rights, policies and certificates of
insurance, documents and general intangibles now held or
hereafter acquired by Dealer, including all monies and credits
now due or to become due to Dealer from, and all claims
against, manufacturers or distributors of inventory or other
lending institutions, and the proceeds of all the foregoing;
and
(d) all other assets now held or hereafter acquired by Dealer with
the exception of real property, exclusive of fixtures.
III. COVENANTS, REPRESENTATIONS AND WARRANTIES
Dealer hereby covenants, represents, warrants and agrees as follows:
(a) The above indebtedness arises from a loan (the "Loan") made by NMAC to
Dealer simultaneously with the execution of this Dealer Capital Loan
and Security Agreement, the proceeds of which shall be used as working
capital of Dealer.
(b) Prior to the funding of the Loan, Xxxxxx XxXxxx, Xx. and Xxx Xxxx own
51% and 49%, respectively, of the issued and outstanding stock of the
Dealer. Immediately following the funding of the Loan, and for so long
as any portion of the Loan is outstanding, each of the persons named
below ("Dealer Principals"), respectively, shall have an ownership
interest in the Dealer and shall participates in the active management
and operation of the Dealer as follows:
OWNERSHIP
NAME PERCENTAGE POSITION
Xxxxxx XxXxxx, Xx. 51% President
Xxxxxxx X. Xxxxxxxxxxx 34% ___________
Xxxxx X. Xxxxxxxxxx 15% Inactive
(c) Additional covenants, representations and warranties and other
agreements are set forth in Schedule A hereto. If there is any
conflict between the provisions of this Dealer Capital Loan and
Security Agreement and those set forth in Schedule A, the
provisions of this Dealer Capital Loan and Security Agreement
shall govern. This Dealer Capital Loan and Security Agreement,
together with Schedule A hereto, constitutes the entire agreement
between Dealer and NMAC with respect to the subject matter
hereof, and supersedes all prior undertakings and agreements
between Dealer and NMAC with respect thereto, including without
limitation any capital loan application or commitment letter.
IV. ACCELERATION OF LOAN
NMAC shall have the option to declare the unpaid portion of the Principal,
and accrued and unpaid interest thereon, to be immediately due and payable,
without demand or notice of any kind:
(a) in the event that either (i) any of the changes in ownership interest
in and active management and operation of Dealer described in Section
III (b), above fails to occur immediately following the funding of the
Loan or (ii) following the occurrence of such changes, as described in
Section III (b), above, there shall occur any further variation in the
ownership interest in or active management and operation of Dealer
with respect to the Dealer Principals, or
(b) upon the occurrence of an Event of Default (as defined in Schedule A
hereto), and thereupon, in either instance, NMAC may exercise any or
all of its remedies and rights set forth in Schedule A.
Dated: 10-12, 1995
B & B FLORIDA ENTERPRISES, INC. NISSAN MOTOR ACCEPTANCE CORPORATION,
a Florida corporation, dba Stuart Nissan a California corporation
By: /s/ Xxxxxx XxXxxx, Xx. By: /s/ Xxxx Doi
--------------------------- -----------------
Name: Xxxxxx XxXxxx, Xx. Xxxx Doi
Title: President Corporate Manager, Commercial Credit
SCHEDULE A TO NMAC
DEALER CAPITAL LOAN AND SECURITY AGREEMENT
ARTICLE I. DEFINITIONS
A. "Net Assets" shall mean the value of Borrower's assets (determined
in accordance with generally accepted accounting principles) other than
franchise and license values, goodwill, organization expenses, patents,
trademarks and trade names and other intangible assets, less the liabilities of
Borrower other than liabilities that are subordinated to obligations owing by
Borrower to Nissan Motor Acceptance Corporation ("NMAC").
B. "NMAC Prime Rate" shall mean the per annum interest rate from time
to time announced by a majority of the following New York City banks: Bankers
Trust Company, Chase Manhattan Bank, N.A., Chemical Bank, Citibank, N.A., and
Xxxxxx Guaranty Trust Company of New York, as their respective 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 interest hereunder, 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.
C. "Agreement" shall mean this Schedule A and the Dealer Capital Loan
and Security Agreement to which this Schedule A is attached.
D. "Borrower" shall mean the Dealer who has executed the attached
Dealer Capital Loan and Security Agreement with NMAC.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
A. As inducement for NMAC to enter into a Dealer Capital Loan and
Security Agreement with Borrower, Borrower hereby represents and warrants to
NMAC the following:
1. Dealership. Borrower is operating under a duly executed Sales and
Service Agreement with Nissan Motor Corporation in U.S.A., and Borrower is
duly authorized, licensed and franchised to operate such business.
2. Financial Information. All balance sheets, statements of profit and
loss and other financial data that have been given to NMAC by or on behalf
of Borrower are complete and correct in all material respects, accurately
present the financial condition of Borrower as of the dates thereof, and
the results of its operations for the periods for which the same have been
furnished, and have been prepared in accordance with generally accepted
accounting principles consistently followed throughout the periods covered
thereby and from period to period. Except as specifically disclosed by the
most recent financial or other statements furnished by or on behalf of
Borrower to NMAC, Borrower does not have outstanding any indebtedness,
direct or contingent, other than to NMAC; none of its assets is subject to
any security interest, lien or other encumbrance in favor of anyone other
than NMAC and Borrower does not have outstanding any loan or advance to any
individual or to any partnership, corporation or other entity. There has
been no change in the assets, liabilities or financial condition of
Borrower from that set out in the most recent financial statements given to
NMAC with respect to Borrower other than changes in the ordinary course of
business, none of which changes has been materially adverse to Borrower.
3. Other Information. All other information, reports, papers and data
given to NMAC by or on behalf of Borrower are accurate and correct in all
material respects and complete insofar as completeness may be necessary to
give NMAC a true and accurate knowledge of the subject matter.
4. Tax Matters. Borrower has filed all federal, state, county,
municipal and other tax returns required to have been filed by it and has
paid all taxes which have become due pursuant to such returns or pursuant
to any assessment received by it, and Borrower does not know of any basis
for additional assessment in respect of such taxes.
5. Litigation. Except as specifically disclosed to NMAC by the most
recent financial or other statements furnished by or on behalf of Borrower
to NMAC, there are no unsatisfied liens or judgments against Borrower nor
is there now pending against Borrower, nor to the knowledge of Borrower is
there threatened, any action, suit or proceeding at law or in equity or by
or before any administrative agency that could have a material adverse
effect upon its financial condition or operations if adversely determined.
6. Validity of Agreement. Having due regard to all outstanding
agreements and commitments of Borrower, and, if Borrower is a corporation,
all restrictions contained in its Articles or Certificate of Incorporation
and By-Laws, or if Borrower is a partnership, all restrictions contained in
its Articles or Agreement of Partnership, Borrower has the power and
authority to borrow money from, and pledge its assets to, NMAC and to
execute and perform this Agreement; and Borrower has taken all steps
necessary to insure that this Agreement is legally valid and enforceable
against Borrower in accordance with its terms and conditions.
ARTICLE III. COVENANTS
A. Borrower hereby covenants and agrees that until the Principal and
interest thereon and any future advances and interest thereon made by NMAC to
Borrower shall have been paid in full:
1. Legal and Other Requirements. Borrower shall preserve and keep in
full force and effect its existence, rights, franchises and trade names; be
legally authorized and otherwise authorized by, and in good standing with,
other persons necessary to carry on its business as now conducted, and
comply with, conform to and obey all present and future laws, ordinances,
rules, regulations, orders of public authorities and other requirements
applicable to it.
2. Protection, Repair and Replacement of Property. Borrower shall
maintain, preserve, protect and keep in good order and condition all
property used or useful in the conduct of its business and from time to
time make all necessary or appropriate repairs, replacements and
improvements thereto. Borrower also shall permit any person designated by
NMAC, at reasonable times during business hours and as often as NMAC may
reasonably request, to inspect such property.
3. Taxes. Borrower shall pay, as and when the same shall become due
and payable, all taxes, assessments, fees and charges of any kind
whatsoever imposed upon Borrower or its property, and all claims which
constitute, or if unpaid may become, a lien, charge or encumbrance upon any
of its property.
4. Insurance. Borrower shall obtain and maintain insurance protecting
its property against loss or physical damage from risks, in amounts and
with insurers acceptable to NMAC. In addition, Borrower shall:
(a) cause each insurance policy issued pursuant to the above to
provide, and the insurer issuing such policy to certify to NMAC, that
(i) NMAC will be insured as its interest may appear, (ii) adjustment
of losses will be subject to the approval of NMAC, (iii) all amounts
payable thereunder, including return of unearned premiums, will be
paid to NMAC for the accounts of NMAC and Borrower as their respective
interests may appear (such amounts to be applied to the restoration,
repair or replacement of property damaged or destroyed if an Event of
Default, or other event for which NMAC may exercise the remedies set
out in Article IV (B) hereof, is not then existing, or, at the option
of NMAC, to the payment of the Principal, interest thereon and all
other amounts owing by Borrower to NMAC, in the manner specified in
Article IV (F) hereof, if any such event is then existing), (iv) the
interest of NMAC will be insured regardless of any breach or violation
by Borrower of any warranties, declarations or conditions contained in
such policy and (v) such insurer will promptly notify NMAC if such
policy be cancelled or materially changed for any reason whatsoever,
and such cancellation or change will not be effective as to NMAC for
30 days after receipt by NMAC of such notice; and
(b) deliver to NMAC copies of each such insurance policy upon the
funding of the Loan and copies of each renewal policy not less than 30
days prior to the expiration of the original policy or preceding
renewal policy, as the case may be, and receipts or other evidence
that the premiums thereon have been paid.
Irrespective of Borrower's compliance with the provisions hereof, the
funding of the Loan shall constitute an assignment by Borrower to NMAC
of any amounts that may become payable under any such insurance policy
for application as provided above. NMAC may (and Borrower hereby
appoints NMAC as Borrower's attorney in fact so to do) endorse
Borrower's name upon any checks, drafts, money orders, notes or other
orders or instruments for the payment of any such amounts payable to
or to the order of Borrower.
5. Financial and Other Statements. Borrower shall maintain full and
complete books of account and other records reflecting the results of its
operations in accordance with generally accepted accounting principles
applied on a consistent basis and shall permit any person designated by
NMAC, at reasonable times during business hours and as often as NMAC may
reasonably request, to inspect such books and records and to make extracts
therefrom. Borrower also shall furnish to NMAC:
(a) within 15 days after the end of each month, or at such other
frequency as NMAC may request from time to time, its balance sheet as
of the end of such month and its statement of profit and loss for such
month in such detail as NMAC may reasonably request from time to time,
each certified by Borrower (or by an employee or representative of
Borrower acceptable to NMAC) as having been prepared in accordance
with accounting principles consistent with those reflected in the
audited financial statements of Borrower and as to the truth,
accuracy, and completeness of the information contained therein.
(b) within 120 days after the end of each of its fiscal years, or
at such other frequency as NMAC may request from time to time, a
complete, executed copy of a report of an examination of its financial
statements made by independent, certified public accountants selected
by Borrower and acceptable to NMAC, such report to include a balance
sheet and a statement of profit and loss for such year in such detail
as NMAC may reasonably request from time to time and an unqualified
opinion to the effect that such balance sheet and statement of profit
and loss fairly present the financial condition of Borrower and the
results of its operations in conformance with generally accepted
accounting principles applied on a consistent basis, except as may be
described in such opinion; and
(c) such other financial or other statements respecting the
condition, operation and affairs of Borrower or its property as NMAC
may from time to time reasonably request.
6. Litigation. Borrower shall promptly defend any action, proceeding
or claim affecting Borrower or its property and shall promptly notify NMAC
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 NMAC of the occurrence of any other event the effect or
outcome of which could have such a material adverse effect.
B. Borrower hereby covenants and agrees that until the Principal and
interest thereon and any future advances made by NMAC to Borrower shall have
been paid in full, without the prior written consent of NMAC:
1. Indebtedness. Borrower shall not create or have outstanding any
indebtedness for money borrowed except for (i) indebtedness owing to NMAC,
(ii) indebtedness specifically disclosed by the most recent financial or
other statements furnished by or on behalf of Borrower to NMAC prior to the
date of this Agreement and that is not to be paid with the proceeds of the
Loan, and (iii) indebtedness subordinated to all obligations owing by
Borrower to NMAC.
2. Encumbrances. Borrower shall not create, incur or permit to exist
on any of its property any security interest, lien or other encumbrance
except for (i) security interests, liens or other encumbrances in favor of,
or subordinated to, NMAC, (ii) security interests, liens or other
encumbrances specifically disclosed by the most recent financial or other
statements furnished by or on behalf of Borrower to NMAC prior to the date
of this Agreement and that are securing indebtedness not to be paid with
the proceeds of the Loan, (iii) liens for taxes not delinquent or being
contested in good faith, (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, and (v) liens resulting
from deposits or pledges to secure payment of worker's compensation,
unemployment insurance, old age pensions or other social security.
3. Guaranties. Borrower shall not endorse, guaranty 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 Borrower and in
connection with endorsing checks and other negotiable instruments for
deposit and collection.
4. Transfers, Acquisitions, Mergers, etc. Borrower shall not sell,
exchange, transfer or otherwise dispose of any of Borrower's property,
except in the normal course of business; buy, rent, lease or otherwise
acquire property from any Dealer Principal, or in which any of the Dealer
Principals has an interest, direct or indirect; consolidate with or merge
into any other business concern or permit any other business concern to
consolidate with or merge into Borrower; sell, exchange, transfer, lease or
otherwise dispose of all or any substantial part of the capital assets of
Borrower; make any payments upon or transfer any assets in satisfaction, in
whole or in part, of any indebtedness subordinated to any obligation owing
to NMAC; or make or have outstanding, except loans and advances
specifically disclosed by the most recent financial statement furnished by
Borrower to NMAC prior to the date of this Agreement, 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.
5. Compensation. Borrower shall not make any loan to or increase the
present annual compensation of any director, officer, manager or Dealer
Principal of Borrower, directly or indirectly, or permit any of the
foregoing to withdraw from Borrower money in any manner other than in the
normal and usual course of business.
6. Dividends. If a corporation, Borrower shall not declare or pay any
dividend on any shares of its capital stock, make any other distribution on
any such shares or retire or issue any additional shares of its capital
stock or other securities.
ARTICLE IV. DEFAULT
A. Events of Default. If any of the following events (herein called an
"Event of Default") shall occur, NMAC may declare the unpaid portion of the
Principal, and accrued and unpaid interest thereon, and any other obligation to
NMAC with interest thereon, to be immediately due and payable, without notice or
demand to anyone, and may proceed in the manner set out in Article IV (B)
hereof.
1. Default in Payment. Borrower fails to pay in full any installment
of the Principal, or interest thereon, as and when the same becomes due and
payable. Acceptance of payments in arrears shall not waive or affect any
right to accelerate as herein provided.
2. Breach of Covenant or Agreement. Borrower breaches any other
covenant or agreement made by it hereunder or in any other agreement
between Borrower and NMAC, whether now existing or hereafter arising.
3. Misrepresentation. Any representation or warranty made by Borrower
to NMAC, whether set forth in this Agreement, in any other agreement
between Borrower and NMAC, in any report, certificate, financial statement
or other statement furnished to NMAC, or otherwise, shall prove to have
been false or misleading in any material respect as of the date on which
the same was made.
4. Default Under Other Agreements. Any other indebtedness of Borrower
to NMAC shall be accelerated under the terms of the instrument evidencing
such indebtedness as a result of a default by Borrower, or, if payable upon
demand, shall be demanded.
5. Bankruptcy, Receivership, Insolvency. Bankruptcy, receivership,
insolvency, assignment for the benefit of creditors, reorganization,
arrangement, dissolution, liquidation or other similar proceedings shall be
instituted by or against Borrower or all or any part of its property under
the laws of the United States or of any state or other competent
jurisdiction.
6. Variance in Ownership or Management of Borrower. NMAC has
confidence in the integrity and ability of the Dealer Principals and in
making the Loan is relying on such individuals to continue to have
ownership interest in or be in the active management and operation of
Borrower, or both, as the case may be, in the manner set out in this
Agreement. In the event there shall be any variation in the ownership
interest in, or active management and operation of, Borrower with respect
to the Dealer Principals, NMAC may declare the unpaid portion of the
Principal, and accrued and unpaid interest thereon, to be immediately due
and payable, without notice or demand to anyone, and may proceed in the
manner set out in Article IV (B) hereof.
B. Remedies. If an Event of Default shall occur, or in the event there
shall be any variation in the ownership interest in or active management and
operation of Borrower with respect to the Dealer Principals, NMAC may exercise
any one or more of the following remedies:
1. Acceleration. NMAC may declare the unpaid portion of the Principal,
and accrued and unpaid interest thereon, to be immediately due and payable,
without notice or demand to anyone.
2. Suit. NMAC may institute proceedings to collect the Principal and
interest thereon and to recover judgment for the same and to collect upon
such judgment out of any property of Borrower wheresoever situated.
3. Offset. NMAC may offset and apply any monies, credits or other
proceeds or property of Borrower that have or may come into the possession
or under the control of NMAC against any amount owing by Borrower to NMAC.
NMAC may convert any such proceeds or property to cash and deduct from the
amount applied the cost of converting the same to cash.
4. Other Remedies. NMAC may exercise its rights as a secured creditor
under the Uniform Commercial Code, and, in addition, exercise any of the
rights granted it in this Article IV or elsewhere in this Agreement or any
other document, instrument or agreement executed in connection with this
Agreement, or exercise any rights and pursue any remedies otherwise
available to it at law or in equity.
C. Rights with Respect to Intangibles. In addition to the rights
granted to NMAC with respect to accounts, contract rights, chattel paper, tax
refunds and general intangibles (hereinafter called the "Intangibles") pursuant
to this Agreement, NMAC may:
1. settle, adjust and compromise all present and future claims arising
thereunder or in connection therewith;
2. sell, assign, pledge or make any other agreement with respect
thereto or the proceeds thereof; and
3. exercise any and all other rights and remedies that NMAC would have
with respect thereto if it were the absolute owner thereof.
Borrower shall deliver to NMAC 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.
D. Repossession of Collateral. NMAC may
1. personally, or by agents or attorneys, take possession of the
Collateral or any portion thereof, from Borrower, with or without notice or
demand or process of law and free from all claims by Borrower, and for that
purpose NMAC may enter upon Borrower's premises where any of the same is
located, remove the same without liability for suit, action or proceeding
by Borrower and use in connection with such removal any and all services,
supplies, aids and other facilities of Borrower, and
2. take possession of the Collateral, or any portion thereof, free
from all claims by Borrower, by directing Borrower in writing to assemble
the same and deliver the same to NMAC at any place or places at which
Borrower then maintains facilities for maintenance or storage or to any
other place or places designated by NMAC and reasonably convenient to
Borrower and NMAC, in which event Borrower shall at its own expense
forthwith cause the same to be moved to the place or places so designated
by NMAC and there delivered to NMAC, it being understood that Borrower's
obligation so to deliver the same is of the essence of this Agreement and
that, accordingly, upon application to a court of equity having
jurisdiction, NMAC shall be entitled to a decree requiring specific
performance by Borrower of such obligation. NMAC may, without charge, keep
any of the Collateral repossessed by NMAC pursuant to this clause on the
premises of Borrower pending further action by NMAC. NMAC also may take
possession of any or all proceeds arising from the disposition of the
Collateral or any portion thereof.
E. Disposition of Collateral. NMAC may, at its option:
1. 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 NMAC may determine, following notice to Borrower (which hereby agrees
that any such notice given at least five (5) days before the time of any
intended public sale, or before the time after which private sale, of the
Collateral, or any portion thereof, is to be made, shall be reasonable
notice of such sale); and/or
2. 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 NMAC may determine, and, in connection therewith, collect and
retain all earnings, rents, profits and other amounts due and to become due
with respect thereto.
Borrower agrees that the sale by NMAC of any new or unused property
repossessed by NMAC to the manufacturer, distributor or seller thereof, or
to any person designated by such manufacturer, distributor or seller, at
the invoice cost to Borrower less any credit granted to Borrower with
respect thereto and reasonable costs of transportation and reconditioning,
shall be deemed to be a commercially reasonable means of disposing of the
same. Borrower further agrees that if NMAC shall solicit bids from three or
more other dealers in the type of property repossessed by NMAC hereunder,
any sale by NMAC of such property in bulk or in parcels to the bidder
submitting the highest cash bid therefor shall also be deemed to be a
commercially reasonable means of disposing of the same. Borrower further
agrees that return by NMAC of any property to the manufacturer, distributor
or seller thereof in accordance with any agreement between Borrower and
such manufacturer, distributor or seller shall be deemed to be a
commercially reasonable means of disposing of the same. Notwithstanding the
foregoing, it is expressly understood that such means of disposal shall not
be exclusive, and that NMAC shall have the right to dispose of any property
repossessed hereunder by any commercially reasonable means. Nothing herein
shall require NMAC to look to any or all of the Collateral in satisfaction
of Borrower's indebtedness to NMAC.
Any disposition of the Collateral may be made on the premises of
Borrower or elsewhere, at the option of NMAC. Borrower hereby agrees that
NMAC may, in the exercise of its remedies hereunder, use the premises on
which the Collateral is located and may exercise all rights of Borrower
with respect to such premises. If Borrower is the lessee of such premises,
Borrower hereby assigns to NMAC all of Borrower's right, title, and
interest in and to Borrower's lease covering such premises (such assignment
to become effective, however, only at such time as NMAC shall notify
Borrower in writing thereof), and Borrower agrees to use its best efforts
to attempt to obtain any necessary consent to such assignment by the lessor
thereof.
F. Application of Proceeds. The proceeds of any sale, lease or use of
the Collateral, less the expenses incurred by NMAC in taking, holding, selling,
leasing, using, preparing for sale or lease and the like, and reasonable
attorneys' fees and other legal expenses, shall be applied by NMAC to the
partial or complete satisfaction of any indebtedness or obligation of Borrower
to NMAC. NMAC shall account to Borrower for any surplus, and Borrower shall be
liable to NMAC for any deficiency.
G. Late Charges and Collection Expenses. Without limiting or otherwise
affecting NMAC's remedies, if Borrower shall fail to pay any installment of the
Principal, when and as the same shall become due and payable, interest
thereafter shall accrue thereon and be payable at a rate that is three (3)
percentage points per annum more than the rate set forth in this Agreement (but
in no event more than the maximum rate allowed under applicable law) until the
same is paid and Borrower shall pay to NMAC, upon demand, all expenses
(including reasonable attorneys' fees and other legal expenses) incurred by NMAC
in effecting, or attempting to effect, collection.
H. Waiver. Borrower hereby waives (to the extent that the same may be
waived) the benefit of all valuation, appraisement, exemption, stay of execution
and redemption laws now or hereafter in effect.
I. Other. NMAC 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.
ARTICLE V. MISCELLANEOUS
A. Prepayment. Borrower may prepay the Principal in whole or in part at
any time. Prepayments of the Principal shall be applied to the installments of
the Principal remaining unpaid in inverse order of their maturity. Any
prepayment shall not be deemed to extend or modify the repayment schedule or the
due date of the final installation.
B. Expenses and Fees. Borrower shall pay all costs and expenses
incurred by NMAC in connection with the preparation, execution and delivery of
this Agreement and all other agreements and instruments executed in connection
herewith, including but not limited to, fees and disbursements of counsel for
NMAC.
C. Performance of Borrower's Obligations. Time is of the essence. If
Borrower shall fail to make any payment or perform any act required by this
Agreement, NMAC may, but shall not be obligated to, and without prejudice to its
rights and remedies if it does not, make such payment or perform such act for
the account and at the expense of Borrower, without notice to or demand upon
Borrower and without waiving or releasing any obligation or default. Borrower
shall indemnify and hold harmless NMAC from and against all losses and expenses
(including, but not limited to, reasonable attorneys' fees) suffered or incurred
by NMAC by reason of any acts performed by it pursuant to this Section; and
Borrower shall pay to NMAC, upon demand, all sums expended, or losses and
expenses suffered or incurred, by NMAC pursuant to this Section, plus interest
thereon at a rate that is three (3) percentage points per annum more than the
rate set forth in this Agreement (but in no event more than the maximum rate
allowed under applicable law) from the date on which such sums are expended, or
losses and expenses suffered or incurred, by NMAC to the date on which Borrower
reimburses NMAC therefor.
D. Rights, Remedies, Powers. Each and every right, remedy and power
granted to NMAC under this Agreement 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, by virtue of statute or otherwise and may be
exercised by NMAC from time to time concurrently or independently and as often
and in such order as NMAC may deem expedient. Any failure or delay on the part
of NMAC in exercising any such right, remedy or power, or abandonment or
discontinuance of steps to enforce the same, shall not operate as a waiver
thereof or affect NMAC's right thereafter to exercise the same, and any single
or partial exercise of any such right, remedy or power shall not preclude any
other or further exercise thereof or the exercise of any other right, remedy or
power. In the event NMAC shall institute proceedings to enforce any such right,
remedy or power and such proceedings shall be determined adversely to NMAC, then
Borrower and NMAC shall be restored to their former positions and the rights,
remedies and powers of NMAC shall continue as if no such proceedings had been
taken.
E. Modification, Waiver, Consent. Any modification or waiver of any
provision of this Agreement, or any consent to any departure by Borrower
therefrom, shall not be effective in any event unless the same is in writing and
signed by a branch manager or any officer of NMAC and then such modification,
waiver or consent shall be effective only in the specific instance and for the
specific purpose given. Any notice to or demand on Borrower in any event not
specifically required of NMAC hereunder shall not entitle Borrower to any other
or further notice or demand in the same, similar or other circumstances unless
specifically required hereunder.
F. Communications. Any notice, request, demand, consent, approval or
other communication provided or permitted under this Agreement shall be in
writing and be given by personal delivery or sent by United States first class
mail, postage prepaid, addressed to the party for whom it is intended at its
address specified in this Agreement; provided, however, that either party may
change its address for purposes of receipt of any such communication by giving
ten days' written notice of such change to the other party in the manner above
prescribed.
Communications shall be mailed to:
Dealer at: NMAC at:
B & B FLORIDA ENTERPRISES, INC., NISSAN MOTOR ACCEPTANCE CORPORATION
dba Stuart Nissan 000 Xxxx 000xx Xxxxxx
Xxxxxxxx, XX 0000-0000
Attention: Manager, Commercial Credit
BEFORE 1/1/96: 0000 X. Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
AFTER 1/1/96: 0000 X. Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. XxXxxx, Xx.
G. Approvals. By accepting or approving anything required to be
observed or performed by Borrower, or to be given to NMAC, pursuant to this
Agreement (including, but not limited to, any policy of insurance or any balance
sheet, statement of profit and loss or other financial statement, any Intangible
or any agreement), NMAC shall not be deemed to have warranted or represented the
sufficiency, legality, effectiveness or legal effect of the same, or of any
term, provision or condition thereof and such acceptance or approval thereof
shall not be or constitute any warranty or representation with respect thereto
by NMAC.
H. Governing Law. This Agreement shall be deemed to have been made
under, and shall be governed in all respects by, the laws of the state in which
Borrower's place of business is located (as set forth in this Agreement),
including matters of construction, validity and performance.
I. Severability. If any provision of this Agreement is prohibited by,
or is unlawful or unenforceable under, any applicable law of any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such prohibition without invalidating the remaining provisions hereof; provided,
however, that any such prohibition in any jurisdiction shall not invalidate such
provision in any other jurisdiction; and provided, further, 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 to the end that this Agreement
shall be deemed to be valid and binding in accordance with its terms.
J. Applicability, If Borrower a Proprietorship. If Borrower is a sole
proprietorship, the warranties and covenants set forth herein shall apply only
to matters connected with Borrower's business herein described.
K. Binding Effect. This Agreement shall be binding upon, and shall
inure to the benefit of, the heirs, executors, administrators, legal
representatives, successors and assigns of Borrower and NMAC.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date set forth
below.
Dated: 10-12, 1995
B & B FLORIDA ENTERPRISES, INC., NISSAN MOTOR ACCEPTANCE CORPORATION,
a Florida corporation, a California corporation
dba Stuart Nissan
By: /s/ Xxxxxx XxXxxx, Xx. By: /S/ Xxxx Doi
--------------------------- ------------------
Name: Xxxxxx XxXxxx, Xx. Xxxx Doi
Title: President Corporate Manager, Commercial Credit
