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EXHIBIT 10.2
NISSAN MOTOR ACCEPTANCE CORPORATION
VEHICLE FINANCING
AND SECURITY AGREEMENT
This Vehicle Financing and Security Agreement (hereinafter referred to as the
"Agreement") is entered into by and between Nissan Motor Acceptance Corporation,
000 X. 000xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"NMAC") and Budget Rent-A-Car Systems, Inc., 0000 Xxxxxxxxxx Xxxx, Xxxxx,
Xxxxxxxx 00000 (hereinafter referred to as the "Debtor"). The parties agree to
the following terms:
1. Financing. Debtor agrees to borrow from NMAC and NMAC agrees to lend to
Debtor the sum of $100,000,000.00 for a single line of credit (the "Loan")
evidenced by one or more Schedules for the purpose of financing, in whole or in
part, the purchase price of the Nissan motor vehicles and other property
described in the Schedule(s) (hereinafter referred to as the "Property"). NMAC
may advance proceeds of the Loan to pay to any manufacturer, dealer, dealer
finance source, distributor, or other seller of the Property, the invoice amount
thereof, and NMAC shall be fully protected in relying in good faith upon any
invoice or statement from any manufacturer, dealer, dealer finance source,
distributor, or seller that the Property has been ordered by or shipped to
Debtor and the invoice amount therefor is correctly stated. Any such payment
made by NMAC to any such manufacturer, dealer, dealer finance source,
distributor or seller shall be an advance made by NMAC to or on behalf of Debtor
pursuant hereto and shall be repayable by Debtor in accordance with the terms
hereof. In addition, NMAC may revise any limit placed by NMAC on advances under
the Loan. Advances will be limited to vehicles identified in a 2001 or 2002
MODEL NISSAN DAILY RENTAL COMBINATION RISK and REPURCHASE PROGRAM AGREEMENT,
(herein after referred to a "Program Agreement") between Nissan North America
Inc. and Budget Rent a Car Corporation. The term "Schedule(s)", as used in this
Agreement, shall mean each Schedule A to Vehicle Financing and Security
Agreement, whether now existing or hereafter created, that indicates on the face
thereof that it pertains to this Agreement. All Schedules are hereby
incorporated into and made a part of this Agreement. The term "Indebtedness", as
used in this Agreement shall mean the aggregate of the figures set forth as the
"Total Amount Financed" on the final page of each Schedule. Debtor hereby agrees
to pay to NMAC or its order the Amount Financed set forth in each Schedule(s)
with respect to each respective item of Property in successive monthly
installments in the amount set forth for curtailments on each of the
Schedule(s), not to exceed EIGHT (8) MONTHS; together with interest on the
unpaid principal balance of each Total Amount Financed at the rate of NMAC PRIME
RATE - 0.50% (hereinafter referred to as the "Rate"). "NMAC Prime Rate" shall
mean the per annum interest rate from time to time announced by a majority of
the following banks: The Chase Manhattan Bank, N.A., Bank of America N.T. &
S.A., Bankers Trust Company, Citibank, N.A., and Xxxxxx Guaranty Trust Co. of
New York, as their respective prime rate; provided that if less than three of
such banks have the same rate in effect, the median of the five rates shall be
the NMAC Prime Rate. Payments hereunder shall include curtailments of each
Amount Financed to the last installment, as stated on each Schedule A. The
unpaid balance of each Amount Financed with respect to each item of the
Property, if any, shall be due and payable on the date the last installment with
respect thereto shall be due, together with interest thereon at the Rate set
forth on the Schedule. Any amount not paid when due shall be subject to the
greater of a late payment charge equal to two percent per month of the amount
due, or the maximum rate permitted by applicable law. Payments shall be due and
payable on the 15th day of each month, commencing in the month set forth in the
applicable column of the Schedule. Payments made by the Debtor will be first
applied to unpaid interest charges and then to principal.
2. Security Interest. As security for (i) payment of the Indebtedness,
interest thereon and all other amounts due or to become due under this agreement
and (ii) the strict observance and performance of all other obligations of
Debtor to NMAC under this Agreement, Debtor hereby grants to NMAC, its
successors and assigns a security interest in (a) the Property, whether now or
hereafter existing or acquired, whether or not inventory and whether or not in
Debtor's possession including all attachments, accessories and accessions
thereto, whether now or hereafter installed thereon, and all cash or non-cash
proceeds thereof; (b) all monies or credits relating to the Property due or to
become due to Debtor from, and all claims against, any manufacturer, dealer or
distributor of the Property; (c) without limitation, all leases of the Property
entered into by Debtor, all rentals due or to become due under any lease of any
item of the Property, all other rentals, proceeds of sale, exchange or other
disposition of any item of the Property (whether or not such sale, exchange or
other disposition is authorized under this Agreement) and the proceeds of any
insurance covering the Property or any part thereof; and (d) all accounts
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receivable, chattel paper, security agreements, instruments, contract rights,
policies and certificates of insurance, manufacturer's certificates or
statements of origin, or certificates of title or ownership relating to
vehicles, bills of sale, receipts, journals, records, files, book and ledger
sheets, documents and general intangibles now held or hereafter acquired by
Debtor, relative to the Property, including all monies and credits now due or to
become due to Debtor from, and all claims against, manufacturers or distributors
of inventory or other lending institutions, relative to the Property, and the
proceeds of all of the foregoing. Such identifiable proceeds as stated above
shall be accounted for to NMAC upon request, and payment of such proceeds shall
be made by the Debtor to NMAC upon demand by NMAC after and during the
continuation of a default under this Agreement. Failure to pay NMAC upon demand
will result in Debtor placing all proceeds in trust for NMAC and promptly
turning over said funds to NMAC. A full accounting of the trust will be made to
NMAC upon request. In addition, Debtor will reflect NMAC as lienholder on all
vehicle titles related to the Property.
3. Prepayment. Debtor may prepay the principal balance in whole or in part
at any time, together with all interest accrued to the date of prepayment on the
principal amount being prepaid without premium.
4. Purpose of Financing. Debtor's possession of the Property shall be for
the purpose of daily rental in the ordinary course of Debtor's business, or, as
authorized by NMAC for the disposition of the Property in a used condition upon
its return to Debtor by Debtor's customers.
5. Representations and Warranties of Debtor. Debtor hereby represents and
warrants to NMAC that (i) Debtor is a corporation, the execution and delivery of
this Agreement and the performance of all of Debtor's obligations hereunder have
been duly approved by all requisite corporate actions of Debtor; (ii) Debtor has
good and marketable title to the Property free and clear of all claims, liens,
encumbrances, security interests and rights of third parties, with the exception
of those created by or as contemplated under this Agreement; (iii) no financing
statement covering any of the Property is on file in any public office in any
state or jurisdiction; (iv) any lease or other agreement of rental of any item
of the Property is or will be genuine, legally valid and enforceable, and each
such item has been or promptly will be delivered to the Lessee thereunder; and
(v) no lease or other agreement of rental or any item of property has been or
will be placed in the hands of any other party as security for the payment of
any monies alleged to be due to such party; and (vi) a certificate of title to
each item of the Property evidencing the security interest of NMAC hereunder has
been or immediately will be applied for by Debtor if permitted by law; and (vii)
Debtor agrees to indemnify NMAC for any legal action regarding the use or rental
agreement presently in effect.
6. Covenants of Debtor. Debtor hereby covenants and agrees with NMAC that
(i) Debtor shall not rent the Property to a third person, other than on a daily
rental basis; (ii) all Property will remain in the continental United States;
(iii) Debtor shall promptly pay or cause to be paid all taxes due in connection
with the Property and its use or operation and shall keep the Property and the
proceeds thereof free from all liens and encumbrances, except as expressly
contemplated under this Agreement, and Debtor shall pay on demand as an
additional obligation secured under this agreement any amounts that may be paid
by NMAC to protect the Property, (iv) without the written consent of NMAC,
Debtor shall not sell, transfer or otherwise dispose of any of the Property or
any interest therein until Debtor has fully paid the Indebtedness and all other
amounts due or to become due under this Agreement, provided, however, that
NMAC's consent shall not be required with respect to any sale, transfer or
disposition of the Property which produces sufficient proceeds to pay the
Indebtedness allocated to such Property on the Schedules in full (including any
accrued and unpaid interest related thereto) and such proceeds are promptly paid
to NMAC by Debtor; (v) Debtor will not use or permit the use of any item of the
Property illegally or for any purpose in conflict with the terms of this
Agreement; (vi) Debtor shall furnish to NMAC such balance sheets, statements of
profit or loss, such other statements of Debtor's financial condition and such
other information concerning Debtor as NMAC may from time to time reasonably
request; (vii) Debtor shall maintain adequate records for the purpose of
identifying any of the Property in the possession of third persons under lease
or rental, together with the names and addresses of such persons and the
respective periods of such leases or rentals and, upon request by NMAC, furnish
such information to it; (viii) if NMAC exercises its right to retake any item of
the Property upon Debtor's default under this Agreement, Debtor's right to
possession of any such item upon the subsequent expiration of any lease or
rental thereof shall be subordinate and subject to NMAC's rights to retake such
item, and Debtor accordingly hereby authorizes and empowers NMAC in its own name
or in the name of Debtor to take any and all action and to do any and all things
necessary and property to effectuate such right to
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retake such Property upon the expiration of any such lease or rental (it being
agreed that any direct and indirect costs relating to the repossession of said
Property by NMAC will be paid be Debtor); (ix) Debtor shall from time to time,
and immediately on request, sign and execute alone or with NMAC any financing
statement or other document and procure any document deemed necessary or
appropriate by NMAC to fully carry out the terms of this Agreement and to
protect and perfect the security interest granted under this Agreement against
the rights and interests of third persons; and (x) Debtor shall strictly perform
all of its obligations and agreements related to NMAC and shall pay without
set-off all amounts due from Debtor to NMAC when due.
7. Risk Loss. Debtor shall have the sole risk of any damage to or loss or
destruction of any of the Property, and no damage to or loss or destruction of
the property shall release Debtor from its obligations under this Agreement.
8. Insurance and Indemnification. Debtor shall procure and maintain
insurance protecting the respective interests of debtor and NMAC against all
damage to or loss or destruction of the Property, in such form and amounts as
NMAC may require and approve from time to time. Debtor shall indemnify NMAC
against and hold NMAC harmless from all claims for injury or damage to persons
or property arising in connection with the ownership, use or operation of the
Property, including without limitation costs and attorneys' fees, and Debtor
shall procure and maintain insurance against all such liability protecting the
interest of Debtor and including NMAC as an additional named insured, in such
form and amounts as NMAC may require and approve of from time to time. All such
insurance under this section shall provide that it shall not be cancelable
except on ten (10) days prior written notice to NMAC. If Debtor does not procure
and maintain any such insurance, NMAC shall have the right to procure such
insurance at Debtor's expense.
9. Debtor's Default. Debtor shall be in default under this Agreement if
any of the following occurs:
9.1 Failure to Pay. Debtor does not make when due any payment to NMAC which
it is obligated to make, other than payments of principal and interest, under
this Agreement within three (3) days after notice of the same.
9.2 Default or Breach. Debtor defaults in the performance of or breaches
any of the terms, conditions, covenants or obligations of Debtor under this
Agreement, or Debtor attempts to make any assignment or transfer prohibited
under paragraph 12.1 hereof.
9.3 Inaccuracy of Any Representation or Warranty. Any representation,
warranty or statement made or caused to be made by Debtor in connection with
this Agreement is untrue, inaccurate or breached in any material respect.
9.4 Material Loss of Property. The loss, theft, destruction, sale or
encumbrance of or damage to any of the Property without prompt replacement or
repair thereof by Debtor which is acceptable to NMAC, except as permitted under
paragraph 7 of this Agreement; the making of any levy, seizure or attachments
thereof or thereon.
9.5 Bankruptcy, Insolvency, Etc. The commencement of any proceeding under
any bankruptcy, reorganization or insolvency law of the United States, any state
or any political subdivision thereof by or against, insolvency of or inability
to pay debts as they mature of, Debtor, Budget Group, Inc. or Budget Rent A Car
Corporation; appointment of a receiver, trustee or custodian for Debtor or all
or a substantial part of Debtor's property, an assignment by Debtor for the
benefit of creditors, or levy of an order of attachment, execution,
sequestration or other order in the nature of a writ on a substantial portion of
the Property.
9.6 Death, Dissolution, Etc. Dissolution, termination of existence, any
sale or assignment of the assets, any sale, assignment or other transfer of the
stock, merger or consolidation with or into other entity (whether or not Debtor
is the surviving entity) or cessation of business or a transfer of all or any
substantial part of the property of any Debtor.
9.7 Acceleration Under Any Agreement. Any event which results in
acceleration of the indebtedness in excess of $10,000,000 owed by Debtor to any
creditor or entity.
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10. NMAC's Rights and Remedies.
10.1 NMAC's Rights. NMAC may enter upon Debtor's premises at any reasonable
time and from time to time to inspect the Property and Debtor's books and
records pertaining to the Property or its proceeds, and Debtor agrees to assist
NMAC in whatever way necessary to make any such inspection.
10.2 NMAC's Additional Rights and Remedies Upon Debtor's Default. If Debtor
is at any time in default, then:
(i) NMAC may, at its election and without notice, declare the
entire unpaid amount then due to NMAC from Debtor to be immediately due and
payable (and any amounts which did not theretofore bear interest shall
thereafter bear interest, to the extent permitted by law, at the Rate);
(ii) NMAC shall have all of the rights and remedies of a secured
party under the Uniform Commercial Code. Without limitation, upon its default
Debtor agrees to immediately assemble the Property and to make it available to
NMAC at a place to be designated by NMAC which is reasonably convenient to both
parties; and
(iii) Without limiting the generality of any of the rights and
remedies conferred upon NMAC under this Agreement or under the Uniform
Commercial Code, NMAC may enter upon the premises of Debtor and take immediate
possession of the Property, either personally or by means of a receiver
appointed by a court therefor, provided that such can be done without a breach
of the peace.
(iv) NMAC may at any time notify any lessee under any lease or
other agreement or rental of any of the property, or without limitation any
account debtor or obligor on an instrument in connection with the Property or
the proceeds thereof, to make payment directly to NMAC whether or not Debtor was
theretofore making collections on such lease, rental agreement or other
collateral, and NMAC also may take control of any proceeds to which NMAC is
entitled under the Uniform Commercial Code; and
(v) Debtor does hereby nominate, designate and appoint NMAC and/or
any employee or employees designated by NMAC as Debtor's true and lawful
attorney-in-fact with full authority in the place and stead of Debtor to
execute, sign, endorse, transfer or deliver in the name of Debtor notes, checks,
drafts or other instruments for the payment of money and receipts, certificates
of origin, applications for certificates of titles or any other documents or
instruments appropriate to evidence, perfect and realize upon the security
interest granted by Debtor and the other obligations of Debtor under this
Agreement.
10.3 Collection Rights of NMAC. Any exercise of NMAC's rights under this
paragraph 10 or the public or private sale or, without limitation, other
disposition or use of the Property or any portion of the proceeds thereof by
NMAC shall not impair, constitute a waiver of or otherwise defeat NMAC's rights
to charge back to Debtor any uncollected collateral and to full recourse against
Debtor for any remaining amounts due to NMAC, whether or not in respect of the
Property sold or otherwise disposed of, or to receive a deficiency in respect
thereto.
11. WAIVER OF NOTICES BY DEBTOR. DEBTOR HEREBY WAIVES, TO THE EXTENT
PERMITTED BY LAW, ALL RIGHTS TO NOTICE, PRESENTMENT AND MANNER OF PROCEDURE.
12. General
12.1 Assignment (Successors). No part of this Agreement, any interest herein
nor any rights hereunder may under any circumstances be directly or indirectly
assigned or transferred by Debtor without the prior written consent of NMAC.
This agreement shall be binding upon and shall inure to the benefit of the
permitted successors, licensees, assignees and transferee of the parties hereto
whether by license, sale, merger, reverse merger, consolidation, sale of stock
or assets, will or other testamentary disposition, operation of law or, without
limitation, otherwise. No transfer, renewal, extension or assignment of this
Agreement or any interest hereunder (whether or not permitted hereunder) will
relieve Debtor of its obligations and liabilities under this Agreement.
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12.2 Waivers. NMAC may waive any of its rights or any breach or default of
Debtor under this Agreement, provided that such waiver will not be effective
unless it is in writing, is signed by a duly authorized officer of NMAC and
specifically refers to this Agreement. Waivers may be made in advance or after
the right waived has arisen or the breach of default waived has occurred. Any
waiver may be conditional. Any waiver of a condition of this Agreement is not a
waiver of the remaining portions of the Agreement. Waiver by NMAC of any default
of Debtor or any other act or omission of Debtor shall not operate as a waiver
by NMAC of any other or future default or act or omission by Debtor, whether or
not of the same kind.
12.3 Modifications; Amendment; Sole Discretion. Except as otherwise provided
herein, provisions of this Agreement may be modified, amended or waived only by
a written document specifically identifying this Agreement and signed by a duly
authorized officer of NMAC.
12.4 No Accord and Satisfaction. No receipt or acceptance by NMAC of any
payment of any amount in respect of any of Debtor's indebtedness hereunder which
is less than the amount due shall be deemed to be other than on account of the
amount due before such receipt, acceptance or payment, and no endorsement or
statement accompanying or in respect of any receipt, acceptance or payment shall
be deemed in accord and satisfaction. Without limitation, NMAC may accept any
payment without prejudice to any right it would have but for such acceptance.
12.5 Remedies of NMAC Cumulative. The rights and remedies of NMAC set forth
in this agreement are cumulative with one another and with any other rights or
remedies which NMAC may have at law, in equity, under any agreements of any type
or otherwise, and the exercise or failure to exercise any remedy shall not
preclude the exercise of that remedy at another time or of any other remedy at
any time.
12.6 Severability. Any portion or provision of this Agreement which is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining portions or
provisions hereof in such jurisdiction or, to the extent permitted by law,
rendering that or any other portion or provision of this Agreement invalid,
illegal or unenforceable in any other jurisdiction.
12.7 No Set-Offs. All amounts due from Debtor to NMAC shall be paid without
any set-off, counterclaim or deduction whatsoever.
12.8 No Third Party Beneficiaries. There are no third party beneficiaries of
this Agreement.
12.9 Entire Agreement. This Agreement and the Schedules attached hereto
constitute the entire agreement of the parties and supersede all prior written
or oral and all contemporaneous oral agreements, understandings and negotiations
between the parties with respect to the subject matter hereof.
12.10 Governing Law. This Agreement shall be governed by the laws of the
state where the Debtor is located; provided, however, that procedural issues of
foreclosure or enforcement of the security interests that directly affect the
collateral shall be governed by the laws of the state in which the foreclosure
takes place.
12.11 Attorneys Fees. If any litigation or other proceeding in connection
with or related to this Agreement is commenced, the losing party shall pay the
expenses, including without limitation the costs, attorney fees, and expenses of
investigation, of the prevailing party.
12.12 Article and Section Headings. The paragraph headings included in this
Agreement are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
12.13 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original (as against any party who signed it) and all
of which shall constitute one and the same document.
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12.14 Time of the Essence. Time is of the essence to all of Debtor's
obligations under this Agreement.
12.15 Gender and Number. In this Agreement (unless the context requires
otherwise), the masculine, feminine and neuter genders and the singular and the
plural include one another.
12.16 Notices. All notices, requests, waivers and other communications made
pursuant to this Agreement shall specifically refer to this Agreement, be in
writing and be personally delivered or mailed first-class, postage prepaid, or
by a nationally recognized courier or overnight delivery service, or by
facsimile transmission, to the addresses set forth below or such other address
as a party may from time to time specify in writing to each of the other
parties:
BUDGET RENT-A-CAR SYSTEMS, INC. NISSAN MOTOR ACCEPTANCE CORPORATION
0000 Xxxxxxxxxx Xxxx 000 X. 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxx 00000
Attn:______________________ Manager, Commercial Credit Department
Facsimile(____)_____________ Facsimile (000)000-0000
Notice will be effective only upon receipt by the party being served, except
that notice to Debtor and NMAC by the other party by mail shall be deemed to
have been received on the business day next occurring 72 hours after mailing.
Confirmation of receipt of any facsimile sent must be received in order to
presume that the transmission was received.
12.17 Warranties. Although the manufacturers may have made certain warranties
as to the Property, none of the manufacturer's warranties are in any way
connected with this Agreement.
Dated as of .
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BUDGET RENT-A-CAR SYSTEMS, INC. NISSAN MOTOR ACCEPTANCE CORPORATION
0000 Xxxxxxxxxx Xxxx 000 X. 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxx 00000
By: By:
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Printed Name: Xxxx Doi, Senior Manager
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Title:
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