EXHIBIT 10.61
NISSAN MOTOR ACCEPTANCE CORPORATION
AUTOMOTIVE WHOLESALE FINANCING
AND SECURITY AGREEMENT
This Agreement between NISSAN MOTOR ACCEPTANCE CORPORATION, 000 X. 000xx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("NMAC"), and FIRST CHOICE STUART 1, INC. DBA
STUART NISSAN, located at 0000 X. XXXXXXX XXXXXXX, XXXXXX, XX 00000 ("Dealer"),
sets out the basic terms under which NMAC may establish and maintain for Dealer
a wholesale line of credit, and make advances to or on behalf of Dealer
thereunder, to finance new and used automobiles, trucks, truck-tractors,
trailers, semi-trailers, buses, mobile homes, motor homes, other vehicles and
other merchandise for Dealer whether held by dealer for sale, lease or otherwise
as inventory, equipment or otherwise ("the Property"). It is therefore agreed as
follows:
1. ADVANCES MADE BY NMAC
NMAC at all times shall have the right, in its sole discretion, to determine the
extent to which the terms and conditions on which, and the period for which it
will make advances to or on behalf of Dealer, or extend credit to Dealer, NMAC
may at any time and from time to time in its sole discretion establish, rescind
or change limits or the extent to which financing accommodations under this
Agreement will be made available to Dealer. This Agreement contemplates that
NMAC may extend credit and make advances to Dealer by paying the invoice amount
of Property ordered by or shipped to Dealer by a manufacturer, distributor or
other seller of such Property to Dealer and NMAC may pay to any such person the
invoice amount thereof, and NMAC shall be fully protected in relying in good
faith upon any invoice or advice from any manufacturer, distributor or seller
that the property described therein has been ordered by or shipped to Dealer and
the invoice amount therefor is correctly stated. Any such payment made by NMAC
to any such manufacturer, distributor or seller shall be an advance made by NMAC
to or on behalf of Dealer pursuant hereto and shall be repayable by Dealer in
accordance with the terms hereof. In addition, NMAC may make loans or other
advances directly to Dealer with respect to property of any type held by Dealer
for sale or lease and any such loan or other advance shall be an advance made by
NMAC to or on behalf of Dealer pursuant hereto and shall be repayable by Dealer
in accordance with the terms hereof. NMAC from time to time shall furnish
statements to Dealer of advances made by NMAC to or on behalf of Dealer pursuant
hereto. Promptly upon receipt by Dealer of any such statement, Dealer shall
review the same and advise NMAC in writing of any discrepancy therein. In the
event Dealer shall fail to advise NMAC of any discrepancy in any such statement
within ten calendar days from the receipt thereof by Dealer, such statement
shall be deemed to be conclusive evidence of advances by NMAC to or on behalf of
Dealer pursuant hereto unless Dealer or NMAC establishes by a preponderance of
evidence that such advances were not made or were made in different amounts than
as set forth in such statement.
2. INTEREST RATE AND FLAT CHARGES
All advances made by NMAC to or on behalf of Dealer pursuant hereto shall bear
interest from the date of advance by NMAC to the date of repayment in good funds
by Dealer at the rate established by NMAC from time to time for Dealer (the
"Rate"); provided, however, that any amount not paid when due hereunder shall
bear interest at 2% per annum in excess of the Rate, or the maximum contract
rate permitted by law of the state where Dealer maintains its business as
indicated above, whichever is the lesser. In addition to such interest, the
financing of property hereunder shall be subject to service and insurance flat
charges ("Flat Charges") established by NMAC from time to time for Dealer. NMAC
shall advise Dealer in writing from time to time of changes in the Rate and Flat
Charges. Such changes in the Rate and Flat Charges shall be effective from the
date stated in such notice; provided, however, that in the event any such notice
advises Dealer of an increase in the Rate or Flat Charges, Dealer shall have the
option of terminating this Agreement by paying to NMAC the full unpaid balance
outstanding under Dealer's wholesale line of credit and all other amounts due or
to become due hereunder in good funds within ten calendar days after receipt of
such notice by Dealer, in which event such increased Rate or Flat Charges shall
not become effective. Interest shall be calculated daily on the unpaid principal
balance outstanding at the close of business each day. In no event shall Dealer
be obligated to pay interest for any period which exceeds the maximum interest
permitted by the applicable law for that period.
3. PAYMENTS BY DEALER
The aggregate amount outstanding from time to time of all advances made by NMAC
to or on behalf of Dealer pursuant hereto shall constitute a single obligation
of Dealer, notwithstanding such advances are made from time to time, and such
amount, or so much thereof as may be demanded, together with NMAC's interest and
Flat Charges with respect thereto, shall be payable by Dealer to NMAC upon
demand. Notwithstanding that NMAC shall not have demanded payment therefor, upon
any sale, lease, transfer or other disposition of property financed pursuant to
this Agreement, dealer shall, on or before the close of the next business day
following such sale, pay over to NMAC an amount equal to the unpaid balance of
the amount advanced with respect to the item sold together with interest
thereon; provided, however, that if Dealer is in default, Dealer shall, on or
before the close of the next business day following such sale, pay over to NMAC
the entire proceeds of such sale, but nothing herein contained shall be deemed
to authorize any sale of any Collateral (as hereinafter defined) while Dealer is
in default. Dealer shall also pay to NMAC upon demand, the full amount of any
rebate, refund or other credit received by Dealer with respect to any property
financed by NMAC hereunder. Dealer shall pay NMAC the earned and accrued
interest on the unpaid balance of all advances made from time to time upon the
earlier of demand by NMAC or the fifteenth day of each calendar month.
4. NMAC'S SECURITY INTEREST
As security for (i) all advances now or hereafter made by NMAC to or on behalf
of Dealer pursuant hereto, (ii) any other indebtedness of Dealer to NMAC now in
existence or hereafter arising and (iii) the observance of performance of all
other obligations of Dealer to NMAC in connection with the financing of property
for Dealer; Dealer hereby grants to NMAC, its successors and assigns, a security
interest in the following: the "Collateral."
This financing statement covers the following types (or items) of collateral,
wherever located, now owned or hereafter acquired by Debtor(s):
A. All automobiles, trucks, truck-tractors, trailers, semi-trailers, buses,
mobile homes, motor homes, other vehicles and other merchandise and all parts,
accessories and furnishings, now held or hereafter acquired by Debtor, 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 Debtor, and the proceeds of all of the foregoing;
C. All accounts receivable, chattel paper, security agreements,
instruments, contract rights, policies and certificates of insurance, dealer
reserve accounts, manufacturer's statements of origin (MSO's) or certificates of
title or ownership relating to vehicles, documents and general intangibles now
held or hereafter acquired by Debtor, 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, and the proceeds of all
of the foregoing; and
D. All other assets now held or hereafter acquired by Debtor, with the
exception of real property, but including fixtures.
5. DEALER'S POSSESSION AND SALE OF MERCHANDISE
Dealer's possession of the Property financed pursuant hereto shall be for the
sole purpose of storing and exhibiting the same for sale or lease in the
ordinary course of Dealer's business. Dealer shall keep all new Property brand
new and all used Property in at least as good condition as when it was acquired
by Dealer, all of which shall be subject to inspection by NMAC. Dealer shall
keep all such Property free from all taxes, liens and encumbrances. Any sum of
money that may be paid by NMAC in release or discharge of any taxes, liens or
encumbrances on any Collateral, or on any documents executed in connection
therewith, shall become an obligation of Dealer to NMAC and shall be paid by
Dealer to NMAC upon demand. Dealer shall keep the Collateral at the premises
described above or at such other place as NMAC may approve in writing. Dealer
shall not, except as expressly permitted under this paragraph 5, sell, transfer,
lease, mortgage or otherwise dispose of the Collateral or any part thereof or
interest therein, remove the Collateral from such premises or attempt any such
sale, transfer, lease, mortgage, removal or other disposition of the Collateral
without the prior written consent of NMAC. Unless and until an event of default
shall have occurred, Dealer may sell the Property financed pursuant to this
Agreement in the ordinary course of the Dealer's business, but nothing herein
shall be deemed to waive or release any interest NMAC may have hereunder or
under any other agreement and in any proceeds of such Property, including any
accounts receivable, chattel paper, security agreements, instruments, contract
rights, documents and general intangibles. Except as may be necessary to remove
or transport the same from a freight depot to Dealer's place of business. Dealer
shall not use or operate, or permit the use or operation of, any Property
financed hereunder for demonstration or otherwise without the express prior
written consent of NMAC in each case, and Dealer shall not in any event use such
Property illegally, improperly or for hire. Dealer shall not mortgage, pledge or
loan any of such Property and shall not transfer or otherwise dispose of the
same except by sale or lease in the ordinary course of Dealer's business. Dealer
represents and warrants that it has good title to the Collateral, that the
Collateral is free and clear of all liens and encumbrances other than those
created by this Agreement, that Dealer has authority to convey a security
interest in the Collateral, that NMAC need not look behind the Dealer
signatories hereto to verify such authority, that Dealer will comply with all
laws and regulations affecting the Collateral, and that Dealer shall maintain
adequate records for the purpose of identifying the disposition of any of the
Property. As used in this paragraph 5, "sale in the ordinary course of Dealer's
business" shall include only (i) a bona fide retail sale to a purchaser for his
own use at the fair market value of the Property sold, and (ii) an occasional
sale of such Property to another dealer at a price not less than Dealer's cost
of the Property sold, provided such sale is not a part of a plan or scheme to
liquidate all or any portion of Dealer's business; and "lease in the ordinary
course of Dealer's business" shall include only a bona fide lease to a lessee
for his own use at a fair rental value of the Property leased.
6. RISK OF LOSS AND INSURANCE REQUIREMENTS
Except to the extent of any insurance proceeds actually received by NMAC with
respect thereto under insurance obtained by NMAC pursuant to this Agreement or
any other agreement, all Property financed hereunder shall be at Dealer's sole
risk of any loss or damage to the same. Dealer hereby indemnifies NMAC against
and holds NMAC harmless from all claims for injury or damage to persons or
property caused by the use, operation or other holding of the Collateral; and if
requested to do so by NMAC, Dealer shall maintain at its own expense liability
insurance in connection therewith in such form and amounts and with such
insurers as NMAC may reasonably require from time to time. In addition, Dealer
shall insure all Collateral financed hereunder that is or may be used for
demonstration or operated for any other purpose against loss due to collision,
subject in each case to the deductible amounts and limitations required by NMAC.
If Dealer fails to furnish acceptable evidence of any insurance required by
NMAC, NMAC may, but shall not be required to, obtain such insurance at Dealer's
expense.
7. CREDITS AND SETOFFS
All funds or other property belonging to NMAC and received by Dealer shall be
received by Dealer in trust for NMAC and shall be remitted to NMAC forthwith.
NMAC shall at all times have a right to offset and apply any and all credits,
monies or properties of Dealer in NMAC's possession or control against any
obligation of Dealer to NMAC.
8. INFORMATION CONCERNING DEALER
To induce NMAC to extend financing accommodations hereunder, Dealer has
submitted information concerning its business organization and financial
condition; and Dealer hereby certifies that the information is complete, true
and correct in all respects and that the financial information contained
therein, and any other financial information that may be furnished to NMAC from
time to time hereafter, does and shall fairly present the financial condition of
Dealer in accordance with generally accepted accounting principles applied on a
consistent basis. Dealer shall submit to NMAC (i) within 120 days after the end
of Dealer's fiscal year, a complete statement of Dealer's financial condition
for that year in a form which is reasonably satisfactory to NMAC, (ii) within 15
days after the last day of each calendar month, a balance sheet and profit and
loss statement for that preceding month, and (iii) any other financial records
or reports which NMAC may reasonably request. In addition, Dealer agrees to
notify NMAC immediately of any material change in its ownership, control,
business organization or financial condition or of any information relating
thereto previously furnished to NMAC. Dealer acknowledges and intends that NMAC
shall rely, and shall have the right to rely, on such information in extending
and continuing to extend financing accommodations to Dealer. Dealer hereby
authorizes NMAC from time to time and at all reasonable times to examine,
appraise and verify, through contacts with retail purchasers and otherwise, the
existence and condition of all inventory, goods, documents, commercial or other
paper and other property in which NMAC has or has had any title, title
retention, lien, security or other interest, and all of Dealer's books and
records in any way relating to its business.
9. DEFAULT
The happening of any of the following events or conditions shall constitute a
default as such term is used herein:
A. Dealer defaults in the payment of any indebtedness for advances made
hereunder or otherwise due NMAC or in the performance of any of the terms,
conditions or obligations of Dealer under this Agreement or any other agreement
between NMAC and Dealer;
B. Any warranty, representation or statement made or caused to be made by
Dealer in connection with this Agreement or any other agreement between NMAC and
Dealer is or becomes false or breached in any material respect;
C. Loss, theft, damage, destruction, sale (except as permitted in paragraph
5) or encumbrance of the Collateral or the making of any levy, seizure or
attachment thereon;
D. Inability of Dealer to pay debts as they mature, insolvency, appointment
of a receiver, trustee or custodian for Dealer or Dealer's property, assignment
for the benefit of creditors by Dealer, commencement of any proceeding under any
bankruptcy or insolvency law of the United States, any state or any political
subdivision thereof by or against Dealer, or an order of attachment, execution,
sequestration or other order in the nature of a writ is levied on the
Collateral;
E. Death of the Dealer if the Dealer is a natural person, or death of any
partner of the Dealer if it is a partnership;
F. Dissolution, merger, or consolidation of any Dealer which is a
corporation or a partnership or a transfer of all or any substantial part of the
property of any Dealer; or
G. Revocation, surrender, suspension or termination of any license,
certificate, franchise, permit or any agreement necessary to allow Dealer to
engage in the business which it presently conducts or which materially affects
the ability of Dealer to carry on its business as it is presently conducted.
Whenever a default shall occur, or at any time thereafter, NMAC at its option
and without demand or notice of any kind, may terminate this Agreement and
declare the indebtedness to be immediately due and payable. Upon default, NMAC
shall have all the remedies of a secured creditor under the Uniform Commercial
Code with respect to the Collateral and all other security pursuant to any other
agreements between NMAC and Dealer. Dealer grants to NMAC, in any such event,
the right to take possession of the Collateral and such other security by any
means not involving a breach of the peace and to sell the same. For such
purpose, NMAC may enter upon the premises on which the Collateral or other
security may be situated and remove the same to such other place as NMAC may
determine, and Dealer waives any notice or hearing with respect to such taking
of possession. Dealer shall, upon NMAC's demand, assemble and make the
Collateral or other security available to NMAC at a place to be designated by
NMAC which is reasonably convenient to both parties. Further, NMAC may collect
all monies and credits then due or to become due to Dealer from, and all claims
against, manufacturers or distributors of inventory or other lending
institutions. If any notice is required by law, such notice shall be deemed
reasonably and properly given if mailed first class mail, postage prepaid, to
the address of Dealer indicated above at least five days before the event with
respect to which notice is required.
In the event of any default, Dealer shall pay all costs incurred by NMAC in
enforcing the terms of this Agreement and collecting any amounts due hereunder,
including those incurred in bankruptcy proceedings, expenses of locating the
goods, expense of any repairs to any realty or other property to which any of
the goods may be affixed or be a part, and reasonable attorney's fees and legal
expenses. The security interest granted hereunder shall be deemed to secure, in
addition to all other sums of money due hereunder, the repayment of all such
costs of collection and enforcement and all amounts expended by NMAC on behalf
of the Dealer. Dealer 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 Dealer less any credit granted to Dealer with respect thereto
and reasonable costs of transportation and reconditioning, shall be deemed to be
a commercially reasonable means of disposing of the same. Dealer 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.
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. In
addition to all other rights and remedies of NMAC, Dealer shall be liable for
the amounts by which the indebtedness of Dealer to NMAC hereunder shall exceed
the amount realized by NMAC from any of the Collateral and other security, but
nothing herein shall require NMAC to look to any or all of the Collateral in
satisfaction of Dealer's indebtedness to NMAC.
10. GENERAL
Time shall be of the essence herein. Any delay on the part of NMAC in the
exercise of any right or remedy shall not operate as a waiver thereof, and no
single or partial exercise by NMAC of any right or remedy shall preclude any
other or further exercise thereof or the exercise of any other right or remedy.
The word "indebtedness" is used herein in its most comprehensive sense and
includes any and all advances, debts, obligations and liabilities of Dealer,
heretofore, now, or hereafter made, incurred or created, whether voluntary or
involuntary, whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether Dealer may be liable
individually or jointly with others.
Any reference herein to NMAC shall include the successors and assigns of NMAC.
If more than one party shall execute this Agreement, the term "Dealer" shall
mean all parties signing this Agreement, (other than NMAC) and each of them, and
all such parties shall be jointly and severally obligated and liable hereunder.
The covenants and conditions of this Agreement shall apply to and be binding
upon the heirs, executors, administrators, successors and assigns of Dealer and
shall inure to the benefit of NMAC, its successors and assigns. This Agreement
shall not be assignable by Dealer except with the express written consent of
NMAC.
The neuter pronoun when used herein shall include the masculine and the feminine
and also the plural.
Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
Dealer further agrees that the Collateral is now and shall continue to be
personal property, notwithstanding the manner and degree of affixation of the
Collateral to any real property.
Except as herein provided, no modification hereof may be made except by written
instrument duly executed by, or pursuant to the express written authority of, an
executive officer of NMAC.
Dealer shall execute and deliver to NMAC promissory notes or other evidences of
Dealer's indebtedness hereunder, security agreements, trust receipts, chattel
mortgages or other security instruments and any other documents which NMAC may
reasonably request to confirm Dealer's obligation to NMAC and to confirm NMAC's
security interest in any collateral by NMAC, and if NMAC so requests, the terms
and conditions hereof shall be deemed to be incorporated therein. NMAC's
security or other interest in any Collateral shall not be impaired by the
delivery to Dealer of such Collateral or of bills of lading, certificates of
origin, invoices or other documents pertaining thereto or by the payment by
Dealer of any curtailment, security or other deposit or portion of the amount
financed. The execution by Dealer or on Dealer's behalf of any document for the
amount of any credit extended shall be deemed evidence of Dealer's obligation
and not payment thereof.
NMAC may, for and in the name of Dealer, endorse and assign any obligation
transferred to NMAC by Dealer and any check or other medium of payment intended
to apply upon such obligation. NMAC may complete any blank space and fill in
omitted information on any document or paper furnished to it by Dealer.
Unless the context clearly requires, the terms used herein shall be given the
same meaning as ascribed to them under the provisions of the Uniform Commercial
Code.
Section headings are inserted for convenience only and shall not affect any
construction or interpretation of this Agreement. This Agreement shall be
interpreted in accordance with the laws of the state of the Dealer's place of
business indicated above.
11. EFFECTIVE DATE AND TERMINATION
This Agreement shall become effective on the date NMAC first extends credit to
Dealer hereunder and shall be binding on Dealer and NMAC and their respective
successors and assigns from such date until terminated by receipt of written
notice by either party from the other, provided, however, that any such
termination shall not relieve either party from any obligation incurred prior to
the effective date thereof, nor shall it affect the security interest granted
hereunder which shall continue until all outstanding obligations and
indebtedness of Dealer to NMAC are satisfied in full. Such termination shall not
affect the obligations of any guarantor of the obligations and indebtedness of
the Dealer hereunder.
Dated: 7-21-97
FIRS CHOICE STUART 1, INC. NISSAN MOTOR ACCEPTANCE CORPORATION
DBA STUART NISSAN
0000 X. XXXXXXX XXXXXXX
XXXXXX, XX 00000
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx Doi
--------------------- --------------------
Xxxx X. Xxxxx Xxxx Doi
President Senior Manager, Commercial Credit
