Exhibit 10.2.23
LOAN AND SECURITY AGREEMENT
THE PARTIES
This Loan and Security Agreement (the "Agreement") is made effective the 1st day
of October, 1992, by and between General Motors Acceptance Corporation, a New
York corporation with a branch operations offices located at (i) 000 Xxxxxxxx
Xxxxxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx 00000; (ii) 0000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000-0000; (iii) 00 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000; and (iv) 000 Xxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000
("GMAC") and Xxxxxx Motors Partnership t/a Xxxxxx Toyota, of 000 Xxxxx 000,
Xxxxxx Xxxx, Xxx Xxxxxx 00000, a New Jersey general partnership with its
principal administrative office located at Attention: Chief Financial Officer,
EMCO Group, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 (the "Dealer").
II. THE RECITALS
A. WHEREAS, GMAC is in the business of providing various credit accommodations
to motor vehicle dealers to facilitate their purchase, sale, lease, rental,
and servicing of motor vehicles; and
B. WHEREAS, Dealer is a newly formed entity created by its partners for the
purpose of acquiring, selling, leasing, renting, and servicing new and used
motor vehicles; and
C. WHEREAS, Dealer is an affiliate of approximately twenty-four motor vehicle
dealerships having substantially similar, financial, ownership, and
management interests as Dealer. Dealer and each such affiliate existing on
the date hereof is listed on the attached Schedule "A" which schedule
contains the name, local business address, and the underlying ownership
interest of the Dealer and each such affiliate. (With the exception of the
Dealer, all such affiliates are hereinafter collectively referred to as
"Affiliates" and each individually referred to as "Affiliate"); and
D. WHEREAS, the Dealer has requested GMAC to provide various credit
accommodations to finance its purchase, sale, lease, and rental of vehicles
(the "Dealership Financing"); and
E. WHEREAS, each of the Affiliates has requested GMAC to provide various
credit accommodations to finance its purchase, sale, lease, and rental of
vehicles (the "Affiliate Financing"); and
F. WHEREAS, GMAC is willing to provide Dealership Financing, but only in
accordance with the terms and conditions of this Agreement and may, from
time to time, provide Affiliate Financing.
III. THE AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises herein
contained, the sufficiency of which is hereby acknowledged, Dealer and GMAC
hereby agree as follows:
1. FINANCING ACCOMMODATIONS
(a) ESTABLISHMENT OF A WHOLESALE LINE OF CREDIT. GMAC hereby establishes
a wholesale floorplan line of credit for Dealer for the exclusive
purpose of enabling Dealer to acquire new and used motor vehicles from
manufacturers, distributors, customers, dealers, and other sellers
thereof (the "Wholesale Financing"). The Wholesale Financing shall be
subject to this Agreement and the terms and conditions provided in the
agreements and instruments set forth in subparagraph 1(g) below.
(b) AMOUNT OF WHOLESALE FINANCING. The total maximum number of vehicles
for which GMAC will provide Wholesale Financing is 560, including 500
for new motor vehicles and 60 for used motor vehicles, although the
number may increase or decrease at the discretion of GMAC.
(c) OTHER FINANCING. From time to time, GMAC may also provide other
categories of vehicle inventory financing for Dealer, including,
without limitation, financing under GMAC's so-called Delayed Payment
Privilege, Shop Rental Plan, Rental Plan, Wholesale Demonstration, and
the like (the "Other Financing").
(d) RETAIL FINANCING. GMAC may also provide retail finance and lease
accommodations to Dealer or customers of the Dealer in accordance with
its customary practices (the "Retail Financing").
(e) DEALER OBLIGATIONS. The amounts and obligations now or hereafter
owing to GMAC by Dealer for Wholesale Financing, Other Financing,
Retail Financing, and any and all other indebtedness, obligations, or
liabilities of Dealer, whether direct or indirect, liquidated or
contingent (including obligations of Dealer for any other loans or for
guaranties of Affiliates or Affiliate Financing, or otherwise) shall
be referred to herein as "Dealer Obligations." Dealer hereby promises
to pay to GMAC all Dealer Obligations promptly on demand, or otherwise
in accordance with the express
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terms and conditions of this Agreement and the Documentation.
(f) ABSOLUTE DISCRETION OF GMAC. The amount, terms, conditions, interest
rate, repayment terms, advance rate, existence, documentation, and
administration of the Wholesale Financing shall, at all times, be
subject to change, suspension, and cancellation at the sole, absolute
discretion of GMAC, notwithstanding anything herein or otherwise to
the contrary.
(g) DOCUMENTATION OF DEALER OBLIGATIONS. Dealer shall duly execute and
deliver to GMAC at least one original version of each of the following
documents, instruments, or agreements customarily provided by GMAC to
evidence the parties' intentions as to all Dealer Obligations, copies
of which are attached hereto as Exhibit "A" (the "Documentation").
Wholesale Financing GMAC Form No.
------------------- -------------
(i) Wholesale Security Agreement 178
(ii) UCC-1 Financing Statement
(iii) Signature Card 524
(iv) Amendment to Wholesale
Security Agreement
(v) Non-GM Manufacturing Letter
(vi) Addendum to Financial
Statement 505 C
(vii) Loan Agreement 176 GLA
(viii) Promissory Note 176 GPN
(ix) Agreement Amending the
Wholesale Security Agreement 570
(x) Factory Authorization Letter
(xi) Wholesale Demonstration Plan 135
Other Financing GMAC Form No.
--------------- -------------
(xii) GMAC Shop Rental Plan
Agreement 269 R
(xiii) GMAC Rental Plan Master
Lease Agreement 370 DR
(xiv) Certificate of Resale for
Rental Plan
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Retail Financing GMAC Form No.
---------------- -------------
(xv) GMAC Retail Plan RP-1
(xvi) Non Recourse Confirmation
Letter
(xvii) Mechanical Service Agreement
Letter
(xviii) Credit Life and A&H Agreement
Letter
(xix) Participation Agreement
for Special Retail
Finance Rate Incentive
Program
(xx) National Quality Finance
Plan/Participating Discount
Confirmation Letter
(xxi) GMAC Lease Plan Dealer
Agreement 682 DLP
(xxii) Power of Attorney
(xxiii) Dealer Credit Accounts
Adjustment Letter
(xxiv) GMAC MAPS Dealer Agreement
(xxv) SmartBuy Dealer Agreement
(xxvi) Landlord's Waiver of
Rights to Distrain
(xxvii) Agency Agreement with
MIC Life 5215
(xxviii) MRP Membership MRP 501
(xxix) Value Guard Participation
Agreement MRP 309
(xxx) Signature Card-DLP 686 DLP
Dealer shall duly execute and deliver to GMAC such other documents,
instruments, or agreements and any amendments thereto, as GMAC
customarily require from time to time. The existence of Agreement,
representations, covenants, terms of default, and the like is in no
way intended to alter the demand nature of all Dealer Obligations
which in every instance are subject to change, suspension and
cancellation at the sole, absolute discretion of GMAC.
(h) GMAC'S ACCOUNTS. GMAC shall maintain on its books in accordance with
its usual practice an account or accounts with respect to the Dealer
Obligations, which account or accounts shall include, without
limitation, (i) the outstanding principal amounts of the Wholesale
Financing, Other Financing, and Retail Financing, including the amount
of principal and interest due, (ii) all other fees, costs, expenses,
losses, and indemnities due from Dealer under this Agreement, and all
amounts received by GMAC with respect to the foregoing. Provided
that regular statements of the account information is provided by GMAC
to Dealer in
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the ordinary course of business, for purposes of any ?? action or
proceeding arising out of or in connection with this Agreement and for
all other purposes, the entries made in such account or accounts
maintained by GMAC pursuant to this paragraph shall constitute, in the
absence of manifest error, conclusive evidence as to the existence and
amounts of the foregoing, however, failure to maintain its books with
respect to such account or accounts shall not affect Dealer's
obligations to GMAC.
2. GRANT OF SECURITY INTEREST AND ASSIGNMENT. To secure the payment and
performance of any and all Dealer Obligations, and subject to liens
permitted by this Agreement. Dealer hereby grants to GMAC a first and
perfected security interest in and a collateral assignment of any and all
of the following described property in which Dealer now or hereafter has an
interest, wherever located, and any and all proceeds thereof, in form (the
"Collateral"):
(a) inventory of all types and kinds including new and used motor
vehicles, chassis, trailers, cars and trucks, service parts and
accessories.
(b) equipment of all types and kinds including fixtures, tools, signs,
furniture, electronic and computer devices, software programs,
analyzers, and goods.
(c) all types and kinds of general intangibles, contract rights,
receivable, rebates, refunds, open accounts, reserve accounts, chattel
paper, franchise rights, cash, instruments, goodwill, accounts
documents, and contracts.
Upon demand by GMAC, Dealer shall segregate and account for the
Collateral and the proceeds thereof.
3. DEFAULT AND CROSS-DEFAULT. The occurrence of any default in or material
breach of any term or condition (including any misrepresentation of
material facts) of (a) this Agreement; or (b) the Documentation; or (c) any
other agreement between Dealer and GMAC now existing or hereafter arising;
or (d) any agreement or documentation pertaining to Affiliate Financing
(including any guaranty thereof) now existing or hereafter arising, shall
constitute an immediate default of this Agreement, the Documentation, and
all such other agreements, irrespective of whether such occurrence is
caused by Dealer or any Affiliate.
4. REQUIRED GUARANTY OF DEALER OBLIGATIONS. All Dealer Obligations must
immediately and continuously be supported by the unconditional, continuing
guaranty of payment of each and every one of the following persons and
entities now or hereafter arising (the "Supporting Guaranties");
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(a) all Affiliates; and
(b) all general partners of the Affiliates (the "General Partners"; and
(c) all shareholders of any general partner of the Affiliates which
general partner is or becomes a corporate entity (the "Shareholders");
and
(d) all legal entities owned by any Shareholder (A) which is operated as a
motor vehicle dealership, or (B) which owns, leases, rents, or deals
in real estate of or pertaining to such motor vehicle dealership, the
Affiliate or the Dealer (the "Related Entities"); and
The Supporting Guaranties shall be on a form substantially similar to
the one attached to this Agreement as Exhibit "B". Unless waived by
GMAC (which it hereby does for individual Guarantors), the Supporting
Guaranties shall be secured with the grant to GMAC of a first
perfected security interest in and/or a collateral assignment of all
tangible and intangible, real and personal property of the issuer
thereof, in which the issuer now or hereafter has an interest,
excluding any partnership interest of a guarantor in any Dealer or
Affiliate (the "Additional Collateral").
5. CONDITIONS OF INITIAL FINANCING. The initial extension of credit
accommodations hereunder is subject to the following conditions precedent:
(a) GMAC shall have received a certified copy of all corporate and
partnership action taken by the Dealer, Affiliates, and issuers of all
Supporting Guaranties authorizing the execution, delivery, and
performance of this Agreement, the Documentation, and all other
documents, agreements, instruments, and obligations attendant thereto.
(b) GMAC shall have received an opinion of counsel to the Borrower, in
form and substance satisfactory to counsel to GMAC as to the matters
referred to in subparagraphs 7(a) and (b) and further to the effect
that this Agreement and the Documentation has been duly authorized,
executed and delivered and is a legal, valid, binding, and enforceable
agreement of the Dealer and other signatories thereto (excepting
GMAC).
(c) GMAC shall have received an opinion of counsel to the Borrower, in
form and substance satisfactory to counsel to GMAC as to the matters
referred to in subparagraphs 7(a) and (b) and further to the effect
that this Agreement and the Documentation has been duly
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authorized, executed, and delivered and is a legal, valid, binding,
and enforceable agreement of the Dealer and other signatories thereto
(excepting GMAC).
(d) GMAC shall have received each of the Supporting Guaranties required in
paragraph 4 of this Agreement.
(e) Dealer shall have duly executed and delivered to GMAC the
Documentation.
(f) Dealer shall certify, to the satisfaction of GMAC, its initial
capitalization of $1,769,000.00, consisting of as cash or its
equivalent and tangible personal property. This initial minimum
capitalization amount shall be maintained by Dealer at all times.
Neither vehicle inventory nor intangible assets shall be considered as
part of the initial capitalization.
(g) Dealer shall be duly and continuously approved (i) by the original
manufacturer or distributor to sell and service the brand of new motor
vehicles contemplated by the parties hereto; and (ii) by any pertinent
local, state, or federal government agency to purchase, sell, lease,
and service motor vehicles as a new and used dealer thereof.
(h) 21 International Holdings, Inc., a New York corporation and partial
owner of EMCO Motors Holdings, Inc. a Delaware Corporation, shall
confirm and recognize that GMAC is a third party beneficiary of a one
million dollar payment guaranty provided by it to certain of the
Related Entities pursuant to the lease of properties by Dealer or one
or more Affiliate.
(i) Execution by GMAC of the customary vehicle factory (i) drafting the
delivery instructions and (ii) repurchase agreement between GMAC and
the manufacturer or distributor of the new motor vehicles which Dealer
intends to acquire.
6. ADDITIONAL COVENANTS. Until full and faithful payment and performance of
all Dealer Obligations, Dealer agrees that, unless GMAC shall otherwise
consent in writing:
(a) FINANCIAL REPORTS. Dealer will furnish GMAC:
(i) the first full calendar month after the date of this Agreement,
its financial statement which fairly and accurately reflects a
condition not adversely and materially changed from the PRO FORMA
statement last provided to GMAC by Dealer prior to the date of
this Agreement.
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(ii) within ninety days after the end of each fiscal year of the
Dealer, copies of balance sheets, statements of income and
retained earnings, and financial statements reviewed by
independent certified public accountants selected by Dealer and
satisfactory to GMAC.
(iii) within thirty days of each period beginning on December 31, 1992,
and every six months thereafter, at least every six months
beginning after the date of this Agreement, detailed balance,
operating, and financial statements of the Dealer.
(iv) from time to time, such further information regarding the
business affairs and financial condition of the Dealer as GMAC
may reasonably request.
(v) within thirty days after the end of each calendar year, current
financial statements of all issuers of Supporting Guaranties.
All financial statements delivered hereunder shall be prepared on the
basis of generally accepted accounting principles and practices
applied on a basis consistent with those used in the preparation of
the audited financial statements of Dealer.
(b/c) WORKING CAPITAL. Dealer will at all times maintain minimum net
working capital of current assets in excess of consolidated current
liabilities of the Dealer of $2,075,000.00, which amount shall
increase or decrease only in conformity with the minimum net working
capital standards required from time to time by the Dealer's motor
vehicles franchisor.
(d) LIENS, ETC. Dealer will not create, incur, or suffer any lien,
mortgage, pledge, assignment, or other encumbrance on, or security
interest in, any of its properties, assets, or receivables, now owned
or hereafter acquired, securing Dealer Obligations (all such security
being herein called "liens"), except:
(i) liens to GMAC;
(ii) materialmen's, suppliers', tax, and other like liens arising in
the ordinary course of business and securing obligations that are
not overdue or are being contested in good faith by appropriate
proceedings.
(iii) purchase money security interests in [I] property described on
the attached Exhibit "C" or [II]
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property hereafter acquired by Dealer, provided that absolutely
no interest shall be granted or allowed to any other person for
any motor vehicles.
(e) TAXES, ETC. All taxes, levies, and assessments of whatever
description will be paid before interest or penalties accrue thereon,
unless the same is being contested in good faith by appropriate
proceedings.
(f) Dividends. Dealer will not, after the date hereof, authorize or allow
any withdrawal, loans, disbursements, or distributions of any assets
or capital of Dealer, or make any payment on account of the purchase,
acquisition, redemption, or other retirement of any partnership
interest, without the prior written consent of GMAC; provided that
such consent is unnecessary if the aforementioned financial covenants
are not breached by such distribution or if necessary to ensure
compliance with subparagraph (e) above.
(g) REORGANIZATIONS, ACQUISITIONS, CHANGE OF NAME. Dealer will not, (i)
merge or consolidate with or into any partnership, trust, or
corporation with the exception of EMCO Motor Holdings, Inc. or any
affiliate, general partner, or shareholder of Dealer; (ii) sell,
lease, transfer, or otherwise dispose of all or any substantial part
of its assets (except in the ordinary course of business), whether now
owned or hereafter acquired; or (iii) change its name, except with the
prior written authorization of GMAC, which consent shall not be
unreasonably withheld.
(h) MANAGEMENT; Ownership. Except in the case of unforeseen death,
disability, or other similar emergency, Dealer will not make any
significant change in its structure or management without a minimum
thirty day's prior written notification to GMAC. Dealer will not
permit a transfer of its capital or other ownership interest to others
than the present holders thereof.
(i) ADMINISTRATIVE RELEASE PERIOD. The administrative release period
within which Dealer shall promptly and faithfully remit the principal
amount financed for Wholesale Financing and Manufacturer Financing
shall in no event exceed three business days for the time a vehicle is
sold or leased by Dealer.
(j) RESTRICTION ON OTHER Indebtedness. Dealer shall not incur any
indebtedness for borrowed money or extensions of credit except:
(i) the Dealer Obligations;
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(ii) indebtedness incurred by Dealer in the ordinary course of
business for necessary merchandise, services, equipment,
materials, and supplies, all of which shall be paid not more than
ninety days from the date of invoice and none of which shall be
past due more than forty-five days;
(iii) any other indebtedness the repayment of which is expressly
subordinated, in writing, to the repayment to GMAC of all Dealer
Obligations;
(iv) indebtedness for purchase money financing permitted by
subparagraph 6(d)(iii).
(k) POSSESSION OF TITLES. Dealer shall permit GMAC upon demand to hold
all invoices, manufacturer certificates of origin, and titles for its
motor vehicles.
(l) APPLICATION TO FUTURE AFFILIATES. Any motor vehicle dealership entity
which comes into existence, is not listed on the attached Schedule and
has substantially similar financial, ownership, and management
interest as the Affiliates shall, upon execution of a Loan and
Security Agreement substantially to this Agreement, be deemed to be an
"Affiliate" within the meaning of this Agreement for all intents and
purposes.
7. REPRESENTATIONS. Dealer hereby represents to GMAC that:
(a) EXISTENCE AND POWER. Dealer is general partnership duly formed,
validly existing, and in good standing under the laws of the State of
New Jersey and is duly qualified to transact business or own real
property in each state or other jurisdiction in which its principal
real properties are located or in which it conducts any important or
material part of its business; and Dealer has power to make this
Agreement and to borrow hereunder.
(b) AUTHORITY. The making and performance by Dealer of this Agreement
Documentation and Deal`er Obligations have been duly authorized by all
necessary action and will not violate any provision of law or of its
charter, or result in the breach of or constitute a default or require
any consent under, or result in the creation of any lien, charge, or
encumbrance upon any property or assets of the Borrower pursuant to
any indenture or other agreement or instrument to which the Dealer is
a party or by which Dealer or its property may be bound or affected,
other than as specifically provided herein.
(c) FINANCIAL Condition. The balance sheets and statements of income and
retained earnings of Dealer and
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Affiliates, heretofore furnished to GMAC, are complete and correct and
fairly represent the financial condition of Dealer and Affiliate as at
the dates of said financial statements and the results of their
operations for the periods ending on said dates. Neither Dealer nor
the Affiliates has any material contingent obligations, liabilities
for taxes, long-term leases, or unusual forward or long-term
commitments not disclosed by, or reserved against in, said balance
sheets or the notes thereto; and at the present time, there are no
material realized or anticipated losses from any unfavorable
commitments of Dealer or Affiliates. Said financial statements were
prepared in accordance with generally accepted principles and
practices of accounting consistently maintained throughout the periods
involved. Since the date of the latest of such statements, there has
been no material adverse change in the financial condition from that
set forth in said balance sheets as at that date.
(d) LITIGATION. There are no suits or proceedings pending, or to the
knowledge of the Dealer threatened, against or affecting Dealer that,
if adversely determined, would have a material adverse effect on the
financial condition or business of Dealer and its subsidiaries; and
there are no proceedings by or before any governmental commission,
board, bureau, or other administrative agency pending or to the best
of Dealer's knowledge and belief, threatened against Dealer or
Affiliates, which is adversely determined, would have a material
adverse effect on the financial condition or business of Dealer.
(e) NO OTHER FINANCING STATEMENTS. No UCC-1 or other financing statements
covering the Collateral described in paragraph 2 have been executed or
are on file in any public office except the financing statements of
GMAC and any other secured party permitted under subparagraph
6(d)(iii).
8. CONSENT AND WAIVER. Dealer recognizes that GMAC has ongoing business
relationships with others including certain Shareholders and Related
Entities. GMAC's dealings with these others may require it to act in
providing and administering credit different than its dealings with Dealers
or Affiliates. Dealer hereby acknowledges, consents to, and waives any
claim or defense it may have with respect to such differences.
9. NOTICES. All notices, requests, and demands shall be in writing and be
given to or made upon the respective parties at the addresses set forth in
Section I of this Agreement, or to such other address as either party shall
designate for
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itself in writing to the other party. Notice shall be deemed given when
received by the addressee and may include hand delivery, overnight courier,
certified mail, or electronic written transmission by public or private
means.
10. ADOPTION AND RATIFICATION. Any and all acts, disclosures, notices,
executions, and deliveries which may have been made by Dealer to or in
favor of GMAC prior to (a) the execution of this Agreement or (b) the legal
formation of Dealer's existence as a general partnership, is hereby
ratified and adopted as the legal, valid, and binding act of the Dealer as
though authorized and empowered as of such act, etc. This ratification and
adoption includes, without limitation, the execution and delivery of UCC-1
financing statements and the delivery of financial information concerning
the Dealer.
11. RIGHTS AND REMEDIES OF GMAC UPON DEFAULT. Upon the occurrence of default
as set forth in Paragraph 3 herein or if any substantial portion of
Collateral is in imminent danger of misuse, loss, seizure or confiscation,
GMAC may take immediate possession of the Collateral without demand or
further notice and without legal process. In furtherance thereof, Dealer
shall, if GMAC so requests, assemble Collateral and make it available to
GMAC at a reasonable, convenient place designated by GMAC. GMAC shall have
the right, and Dealer hereby authorizes and empowers GMAC, to enter upon
the premises wherever Collateral may be and remove same. In addition,
after default, GMAC shall have the right to exercise one or more of the
following remedies:
(a) institute proceedings to collect all or a portion of the Dealer
Obligation and to recover a judgment for the same and to collect upon
such judgment out of any property of the Dealer wherever situated;
(b) to offset and apply any monies, credits or other proceeds of property
of Dealer that has or may come into possession or under the control of
GMAC against any amount owing by Dealer to GMAC;
(c) with respect to accounts, contract rights, chattel paper, tax refund
and general intangibles constituting Collateral herein, GMAC
(i) may settle, adjust and compromise all present and future claims
arising thereunder or in connection therewith,
(ii) may sell, assign, pledge or make any other agreement with respect
thereto or the proceeds thereof;
(iii) may notify all such account, contract right, etc., debtors of
GMAC's interest therein and
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require direct payment to GMAC of such obligations;
(iv) may receive, sign, endorse, and deliver in its name or the name
of the Dealer any and all notes, instruments, documents, titles,
negotiable instruments and the like necessary and appropriate to
effect the collection of such intangibles, and Dealer hereby
waives notice of presentment, protest and non-payment of any
instrument so endorsed.
(v) is hereby constituted and appointed by Dealer as Dealer's
attorney-in-fact with power to accept and to receipt and endorse
Dealer's name upon any notes, acceptances, checks, drafts, money
orders or other evidences of payment or Collateral that may come
into GMAC's possession; to notify the Post Office authorities to
change the address for delivery of mail addressed to Dealer to
such address as GMAC may designate; to do all other acts and
things necessary to carry out this Agreement. Except for gross
negligence and willful misconduct, all acts of said attorney or
designee are hereby ratified and approved, and said attorney or
designee shall not be liable for any acts of omission or
commission, nor for any error of judgment or mistake of fact or
law made in good faith; this power being coupled with an interest
is irrevocable while any of the Dealer Obligations remains
unpaid.
(d) sell or lease the Collateral, or any portion thereof, after five days'
written notice at public or private sale for the account of the
Dealer.
Dealer agrees that the sale by GMAC of any new or unused property repossessed by
GMAC to the original seller thereof, or to any person designated by such seller
at the invoice cost thereof to Dealer less any credits 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 GMAC shall solicit bids from three or more other
dealers in the type of property repossessed by GMAC hereunder, any sale by GMAC
of such property in bulk or in parcels to the bidder submitting the highest cash
bid therefor also 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 GMAC
shall have the right to dispose of any property repossessed hereunder by any
commercially reasonable means. GMAC's remedies hereunder are cumulative and may
be enforced successively or concurrently. Dealer shall pay all
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expenses and reimburse GMAC for any expenditures, including reasonable attorney
fees and legal expenses, in connection with GMAC's exercise of any of its rights
and remedies under this Agreement. In addition to the rights specified herein,
all the rights and remedies afforded GMAC by applicable law shall apply.
Nothing herein contained shall be construed to constitute Dealer as agent
of GMAC for any purpose whatsoever, and GMAC shall not be responsible nor
liable for any shortage, discrepancy, damage, loss or destruction of any
part of the Collateral wherever the same may be located and regardless of
the cause thereof, except to the extent the same results from GMAC's own
gross negligence or willful misconduct. GMAC shall not, under any
circumstances or in any event whatsoever, have any liability for any error
or omission or delay of any kind occurring in the settlement, collection or
payment of any of the Collateral or any instrument received in payment
thereof or for any damage resulting therefrom, except to the extent the
same results from GMAC's own gross negligence or willful misconduct. GMAC
does not by anything herein or in any assignment or otherwise, assume any
of Dealer's obligations under any contract or agreement assigned to GMAC,
and GMAC shall not be responsible in any way for the performance by Dealer
of any of the terms and conditions thereof.
12. TERMINATION. Dealer or GMAC may elect to terminate this Agreement at any
time, in its sole and absolute discretion, by providing the other party
hereto with written notice of its intent to terminate this Agreement no
less than ninety days prior to the effective date of the election to
terminate. In addition, GMAC may elect to immediately terminate this
Agreement upon (a) the termination of any Supporting Guaranty or (b) the
occurrence of any Default. All debts, obligations, and remedies extant
upon any election to terminate this Agreement by either party shall
continue in full force and effect until fully discharged, subject to the
terms and conditions of this Agreement.
13. RIGHTS AND REMEDIES NOT WAIVED. No course of dealing between the Dealer
and GMAC or any failure or delay on the part of GMAC in exercising any
rights or remedies hereunder shall operate as a waiver of any rights or
remedies of GMAC and no single or partial exercise of any rights or
remedies hereunder shall operate as a waiver or preclude the exercise of
any other rights or remedies hereunder.
14. COMPLETE AGREEMENT. Except as otherwise provided or referred to herein
(e.g., the Documentation), there are no other agreements or understandings,
either oral or in writing, between the parties affecting this Agreement or
relating to any of the subject matters covered by this Agreement. No
agreement between GMAC and Dealer which relates to matters covered herein,
and no change in,
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addition to (except the filling in of blank lines), or erasure of any
printed portion of this Agreement will be binding unless it is approved in
a written agreement executed by a duly authorized representative of each
party.
15. BINDING EFFECT. This Agreement shall be binding upon the parties'
successors and assigns provided, however, that Dealer shall have no right
of assignment absent prior written consent of GMAC.
16. SEVERABILITY. Any provision hereof prohibited by law shall be ineffective
to the extent of such prohibitions without invalidating the remaining
provisions hereof.
17. GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the laws of the State of New Jersey.
18. CAPTIONS. The captions of the various sections and paragraphs of this
Agreement have been inserted only for the purposes of convenience; such
captions are not a part of this Agreement and shall not be deemed in any
manner to modify, explain, enlarge or restrict any of the provisions of
this Agreement.
19. Counterparts. This Agreement may be executed by the parties hereto
individually or in any combination, in one or more counterparts, each of
which shall be an original and all of which shall together constitute one
and the same agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
by its duly authorized representatives this 1st day of October, 1992.
GENERAL MOTORS ACCEPTANCE CORPORATION
("GMAC")
By: /s/ Xxxx X. Given
-----------------------------------------
Xxxx X. Given, Control Branch Manager
XXXXXX MOTORS PARTNERSHIP T/A XXXXXX
TOYOTA ("Dealer")
By: /s/ Xxxx Xxxxx
-----------------------------------------
Its Erza X. Xxxxx CEO
-----------------------------------------
and
By: /s/ Xxxxxx X. XxXxx
-----------------------------------------
Its Xxxxxx X. XxXxx Exec. V.P.
-----------------------------------------
- 15 -
Page 1 of 3 Pages
SCHEDULE "A"
County Auto Group Partnership
t/a County Toyota
000 Xxxxx 00
Xxxxx, XX 00000
Rockland Motors Partnership
t/a Rockland Mitsubishi
00 Xxxxx Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxx, XX 00000
Somerset Motors Partnership
t/a DiFeo Lexus
X.X. Xxx 000
Xxxxx Xxxxx, XX 00000
DiFeo Oldsmobile Partnership
t/a DiFeo Volkswagen of Bridgewater
Xxxxx 00 Xxxx
X.X. Xxx 000
Bound Brook, NJ 08805
Fair Motors Partnership
t/a Fair Mitsubishi
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Fair Chevrolet-Geo Partnership
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Fair Hyundai Partnership
t/a Fair Suzuki
000X Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Fair Infiniti Partnership
000X Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Fair Imports Partnership
t/a Fair Acura
000X Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Danbury-Mt. Kisco Saturn Partnership
t/a Saturn of Danbury
000X Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Page 2 of 3 Pages
Fair Cadillac-Oldsmobile-Isuzu Partnership
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
DiFeo Jeep-Eagle Partnership
000 Xxxxxxxxx Xxxxxx / Xxxxx 000
Xxxxxx Xxxx, XX 00000
DiFeo Autocenter Partnership
t/a DiFeo Mazda
Xxxxxx Xxxx & Xxxxx 000
Xxxxxx Xxxx, XX 00000
DiFeo Subaru Partnership
000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
DiFeo Hyundai Partnership
Xxxxxx Xxxx & Xxxxx 000
Xxxxxx Xxxx, XX 00000
DiFeo Buick-Pontiac-GMC Truck Partnership
000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
DiFeo BMW Partnership
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
DiFeo Imports Partnership
t/a Jersy City Mitsubishi
000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
J & F Oldsmobile-Isuzu Partnership
000 Xxxxxxxxx Xxxxxx/Xxxxx 000
Xxxxxx Xxxx, XX 00000
Xxxxxx Motors Partnership
t/a Xxxxxx Toyota
000 Xxxxx 000
Xxxxxx Xxxx, XX 00000
DiFeo Volkswagen Partnership
000 Xxxxx 000
Xxxxxx Xxxx, XX 00000
- 2 -
Page 3 of 3 Pages
Danbury Auto Partnership
t/a Fair Honda
[TO BE FORMED]
000X Xxxxxxx Xxxx
Xxxxxxx, XX 00000
DiFeo Nissan Partnership
[TO BE FORMED]
000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
DiFeo Chevrolet-Geo Partnership
[TO BE FORMED]
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
J&S Ford Partnership
[TO BE FORMED]
000 Xxxxx 000
Xxxxxx Xxxx, XX 00000
North Jersey Manhattan Saturn Partnership
[TO BE FORMED]
000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
- 3 -
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
I. THE PARTIES
The First Amendment to Loan and Security Agreement (the "First Amendment") is
made effective the 7th day of April, 1993, by and between General Motors
Acceptance Corporation, a New York corporation with branch operations offices
located at (i) 000 Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx 00000; (ii) 0000
Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000-0000; (iii) 00 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000; and (iv) 000 Xxxx Xxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxxx 00000 ("GMAC"); and Xxxxxx Motors Partnership t/a Xxxxxx Toyota, a
New Jersey general partnership with its principal administrative office located
at 000 Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxxxx 00000, and with a local operating
office located at 000 Xxxxx 000, Xxxxxx Xxxx, XX 00000 ("Dealer").
II. RECITALS
A. WHEREAS, on or after October 1, 1992, GMAC and Dealer executed a Loan and
Security Agreement and related documents by which GMAC agreed to provide
various credit accommodations to Dealer (the "Dealer Agreement"); and
B. WHEREAS, Dealer is an affiliate of twenty-six or more other dealerships
having similar and common ownership, management, and financial interests
(the "Affiliates"); and
C. WHEREAS, the Dealer and Affiliates have hired and retained DiFeo-EMCO
Management Partnership, a New Jersey general partnership (the "Management
Company"), for the purpose of coordinating, managing, and supervising
various business, financial, organizational, management, and operational
matters for Dealer and Affiliates; and
D. WHEREAS, GMAC and Management Company executed a Term Loan and Borrowing
Base Credit Line Loan Agreement and related documents, of even date
herewith (the "Management Company Loan Agreement") by which GMAC agreed to
provide various credit accommodations to Management Company (the
"Management Company Financing") which credit accommodations have been
guaranteed by Dealer and Affiliates all as of the date of this First
Amendment; and
E. WHEREAS, GMAC and Dealer desire and intend to amend the Dealer Agreement,
partially in response to the Management Company Financing.
III. THE AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises herein
contained, the sufficiency of which is hereby acknowledged, Dealer and GMAC
hereby agree as follows:
1. The Dealer Agreement is hereby amended, effective immediately, in the
following way:
(a) No direct floorplan finance accommodations shall be made available to
Dealer for any used vehicles now or hereafter owned by Dealer.
(b) The "administrative release period" set forth in subparagraph 6(i)
shall be increased from three (3) business days to four (4) business
days.
(c) The second sentence of subparagraph 5(e) shall be substituted with the
following language: "This initial minimum capitalization amount, in
addition to all such amounts for Affiliates, shall at all times be
maintained by Dealer, Affiliates, DiFeo Leasing Partnership, a New
Jersey general partnership, and DiFeo-EMCO Management Partnership, a
New Jersey general partnership, in an amount not less than Ten Million
Five Hundred Thousand Dollars ($10,500,000)."
(d) The entirety of subparagraph (b/c) shall be substituted with the
following language: "Dealer will at all times maintain minimum net
working capital in conformity with the standards required from time to
time by the Dealer's motor vehicle manufacturer/distributor
franchisor."
2. In all other respects, the Dealer Agreement remains unchanged and in full
force and effect.
3. Dealer hereby acknowledges and agrees that Dealer has carefully examined
the Management Company Loan Agreement, understands how it works and the
implications thereof, and consents to, affirms, and supports each and every
representation, warranty, and covenant undertaken by Management Company
thereunder.
- 2 -
IN WITNESS WHEREOF, GMAC and Dealer have caused this First Amendment to be
executed by its duly authorized representative.
GENERAL MOTORS ACCEPTANCE CORPORATION
("GMAC")
By:
-----------------------------------------
Xxxx X. Given, Control Branch Manager
XXXXXX MOTORS PARTNERSHIP
T/A XXXXXX TOYOTA
By:
-----------------------------------------
Title:
---------------------------------------
and
By:
-----------------------------------------
Title:
---------------------------------------
- 3 -
