EXHIBIT 10.2
FORBEARANCE AGREEMENT AND RELEASE
This Forbearance Agreement and Release ("Agreement") is entered into by
Car Rental Direct, Inc., fkna Car Rental Direct.com, Inc. a Nevada corporation
("Borrower"), MAII Holdings, Inc., a Texas corporation ("Guarantor"), Christie
Tyler, Keenan Cheung, Car Rental Direct Holdings, Inc., ("CRD Holdings"), Car
Rental Direct of Central Arizona, Inc., an Arizona corporation ("CRD Arizona"),
and Ford Motor Credit Company, a Delaware corporation ("Ford Credit" or
"Lender"), effective as of January 21, 2003 (each is a "Party" and collectively
the "Parties").
RECITALS
A. Plaintiff Ford Credit is, and at all material times has been, a
Delaware corporation, having its principal place of business in the State of
Michigan.
B. Defendant, Borrower is a Nevada corporation that is qualified to do
business in the State of California with its principal place of business in Van
Nuys, County of Los Angeles, California.
C. Defendant, Guarantor is a Texas corporation that is qualified to do
business in the State of California with its principal place of business in Van
Nuys, County of Los Angeles, California.
D. All parties to this Agreement stipulate and agree that there is
complete diversity between Ford Credit and all other signers to this Agreement
as defined under 28 U.SC. Section 1332 and applicable case law. The parties
agree and consent to the jurisdiction of the District Court for the Central
District of California for all purposes and that any
-1-
disputes arising under this Agreement on the Stipulation shall be heard and
resolved in that forum.
E. Borrower owns and operates a rental car business. By a Master Loan
and Security Agreement dated February 21, 2002, as amended and supplemented
("Loan Agreement") between Borrower and Lender, Lender agreed to provide
financing to Borrower from time to time to finance the acquisition of motor
vehicles for use in its rental car business. Borrower requested loans and
identified motor vehicles for acquisition through Loan Supplements.
F. In consideration of the loans under the Loan Agreement and to secure
Borrower's obligations to Lender, Borrower granted Lender a security interest in
certain of Borrower's inventory of motor vehicles, proceeds of the motor
vehicles and rental income from any lease of the motor vehicles as described in
the Loan Agreement (the "Collateral").
G. Ford Credit perfected its security interest in the Collateral by
filing UCC-1 financing statements with the Offices of the Secretary of State of
California and the Secretary of State of Nevada and by notating the Certificates
of Title to vehicle Collateral as lien holder.
H. To induce Ford Credit to enter into the Loan Agreement, Guarantor
executed and delivered to Lender a Continuing Guaranty dated December 14, 2001,
of all obligations of Borrower owing to Lender.
I. The Loan Agreement and the other documents identified on Exhibit A
to this Agreement and the documents executed in connection with those loan
documents are generally referred to as the "Loan Documents."
-2-
J. By an Amendment to Master Loan and Security Agreement dated April
19, 2002, between Borrower and Lender, Lender agreed, among other things, to
increase the maximum loan amount under the Loan Agreement.
K. By an Asset Purchase Agreement dated May 1, 2002, by and among Gisa
Holdings, Inc., an Arizona Corporation, dba Discount Rent A Car ("Gisa"), JMG
Holdings, LLC, Jack Gunion, Martha Gunion and CRD Arizona, Gisa agreed to sell
certain assets to CRD Arizona (the "Gisa Transaction"). Included within these
assets to be sold were assets of Gisa subject to a security interest in favor of
Ford Credit.
L. By an Operating Agreement dated May 1, 2002, by and between Gisa and
CRD Arizona, CRD Arizona assumed the operation and management of Gisa, took
possession and used the Gisa assets which were subject to a security interest in
favor of Ford Credit, and agreed to pay Gisa's operating expenses pending the
close of the Gisa Transaction. Included within the Gisa operating expenses were
payment of monthly obligations of Gisa owing to Ford Credit.
M. In late August 2002, Borrower announced that the Asset Purchase
Agreement with Gisa had been terminated.
N. On September 4, 2002, Lender notified Borrower that the maximum loan
under Loan Agreement was being reduced.
O. In October 2002, Borrower demanded that Lender increase the maximum
loan amount under the Loan Agreement. Ford Credit and Borrower engaged in
meetings, an exchange of letters and negotiations concerning the Loan Agreement.
During this period, Borrower and Christie Tyler asserted claims for damages on
behalf of Borrower, and himself individually, against Ford Credit.
-3-
P. In November 2002, Ford Credit notified the Borrower that it would
terminate the Loan Agreement effective March 2, 2003, and, it notified the
Borrower to obtain an alternative finance source.
Q. Borrower defaulted on its obligations owing to Lender under the Loan
Documents by failing to pay the monthly amortization and interest payments that
came due on October 15, 2002. As of January 15, 2003, Borrower owes Lender for
monthly amortization payments due October 15, November 15, and December 15,
2002, in the combined amount of $1,302,901.79 (the "Past Due Payments).
R. As of January 15, 2003, Borrower is obligated to Lender under the
Loan Agreement as follows:
<Table>
Unamortized Balance $11,279,981.06
Past Due Payments $ 1,302,901.79
January 15, 2003 Payment $ 441,500.07
Total $13,024,382.92
</Table>
S. As a result of Borrower's defaults under the Loan Documents, on
November 19, 2002, Lender filed its complaint against Borrower and Guarantor in
the United States District Court for the Central District of California (the
"Court"), Case Number CV 02-8880 GHK (RCx), entitled Ford Motor Credit Company
v. Car Rental Direct, Inc., fkna Car Rental Direct.com, Inc., a Nevada
corporation, MAII Holdings, Inc. a Texas corporation (the "Action").
T. On December 20, 2002, Lender filed and served the Complaint and an
Ex Parte Application for Order for Writ of Possession and Injunctive Relief (the
"Motion"). On December 26, 2002, Borrower filed an opposition to the Motion. On
December 27,
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2002, the Court issued a temporary restraining order concerning any transfer of
the Collateral and set hearing for the Motion on January 10, 2003. After oral
argument on January 10, 2003, the Court granted the Motion and issued its
"Memorandum of Decision and Order Granting Application for Writ of Possession
(Claim and Delivery)" (the "Order For Writ").
U. Borrower and Guarantor have requested that Lender forbear from
exercising its rights and remedies as a result of the defaults by Borrower under
the Loan Documents and as authorized by the Court's Order for Writ. Borrower has
proposed that Lender modify the Loan Agreement under the terms and conditions
contained in this Agreement. Because of the existence of the defaults under the
Loan Documents, Lender has no obligation to make any further advances under the
Loan Documents and has the current right to exercise all its rights and remedies
under the Loan Documents and under the Order For Writ of Possession. Although
Lender is under no obligation to do so, Lender is willing to forbear from
exercising its defaults rights against Borrower and Guarantor under the terms
and conditions set forth in this Agreement.
NOW THEREFORE for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS. Each of the above recitals is
incorporated herein and deemed to be the agreement of the Parties and is relied
upon by each Party to this Agreement in agreeing to the terms of this Agreement.
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2. TERMS OF FORBEARANCE. Lender will forbear from exercising its rights
and remedies against Borrower and Guarantors due to the events of default
described above or defaults disclosed by Borrower to Lender prior to the date of
this Agreement, and in the Court's Order for Writ on the following terms and
conditions:
(a) PAST DUE PAYMENTS: Borrower shall pay $1,200,000 on
account of the Past Due Payments as follows:
(i) $100,000 no later than 10:00 a.m. Pacific time on
Friday, January 24, 2003; and
(ii) Monthly, commencing February 10, 2003, and
continuing thereafter, $50,000 on the 10th day and
$50,000 on the 20th day of each month (or the first
business day thereafter), until the total sum of
$1,200,000 has been paid.
Provided that no further defaults occur under this
Agreement or the Loan Documents, upon payment of the entire
$1,200,000, Borrower's and Guarantor's obligations to Lender
on account of the Past Due Payments shall be discharged on
account of such Past Due Payments. Upon default under this
Agreement or further default under the Loan Documents, the
entire amount of Past Due Payments as identified in Recital
paragraph Q, less any payments received, together with
interest and other charges from such payment due dates shall
be due and owing.
(b) JANUARY 15, 2003 PAYMENT. Borrower shall pay to Lender the
January 15, 2003 payment of $441,500.07 no later than
10:00 a.m. Pacific time on Friday, January 24, 2003.
-6-
(c) UNAMORTIZED PAYMENT AMOUNTS. Monthly, commencing on
February 1, 2003, Lender shall bill Borrower in its normal
course of business for the amount due in arrears for the
previous month in the same manner as it has in the past.
Borrower shall pay each monthly billing on the 10th day
and 20th day of each month, with 50% of the total bill due
on the 10th day of the month and 50% due on the 20th day
of the month (or the first business day thereafter),
EXCEPT THAT the payments due February 10 and 20, 2003,
shall be paid on or before December 31, 2003, and the
payments due March 10, 2003 and March 20, 2003, may be
partially deferred in the amount of $150,000 each, and
this $300,000 total deferred amount will be repaid by
increasing the payments due August 10 and 20, September 10
and 20, and October 10 and 20, 2003 by $50,000 each. The
monthly billing may include payoffs on individual units
which payoffs will include the unamortized balance plus
three monthly amortizations for the Past Due Payment
attributable to that unit. Lender will not release the
certificate of title to a vehicle unless it receives the
complete payoff of all amounts including Past Due Payments
attributable to that vehicle. Past Due Payments received
for payoffs will be credited to satisfaction of the
obligation under subparagraph 2(a). The monthly billing
will also include and require payoffs on individual units
which are damaged or out of service for 30 days or more.
-7-
(d) NO ADDITIONAL ADVANCES OR EXTENSIONS. Lender may, in its
sole discretion, but is not obligated, to make any new or
additional advances, or grant any extension under the Loan
Documents for the Borrower's acquisition of inventory or
for any other purpose.
(e) GUARANTOR. Guarantor shall reaffirm its Guaranty of all
obligations of Borrower owing to Lender as set forth in
paragraph 7 below.
(f) VEHICLE LOCATION. Borrower shall immediately upon
execution of this Agreement and every ninety (90) days
thereafter deliver to Lender a list identifying the
location of each Vehicle subject to Lender's security
interest by VIN number. As of and after the date of
December 16, 2002, Borrower may relocate vehicles between
its locations within a state, but Borrower shall not
relocate any vehicles to states other than the state for
garaging indicated in the Loan Documents.
(g) STIPULATED JUDGMENT. Lender and Borrower will stipulate to
the Court's entry of Judgment against Borrower and
Guarantor substantially in the form of Exhibit B attached
hereto (the "Stipulation").
(h) CONTINUED PERFORMANCE UNDER LOAN DOCUMENTS. Borrower shall
strictly observe and perform each and every of the terms,
conditions and promises contained in the Loan Documents,
except as expressly excused or modified in this Agreement.
In particular,
-8-
Borrower will permit Lender to conduct audits as provided
under the Loan Documents.
(i) PAYMENT. All payments must be received by Lender on the
due date and in certified funds or by wire transfer. It is
the responsibility of Borrower to strictly perform these
requirements.
(j) TERM. The balance of all money owing shall be paid on
December 31, 2003. In the event that the Unamortized
Balance is paid in full, at any time prior, the balance of
$1,200,000 owed under section 2(a) above shall be due and
payable at such time.
3. FORBEARANCE. Lender will forbear from pursuing its rights and
remedies under the Loan Documents, this Agreement and in the Action arising out
of the events of default contained in the Recitals above or defaults disclosed
by Borrower to Lender prior to the date of this Agreement, so long as the
Borrower timely performs as provided in paragraph 2 above. If Borrower fails to
perform timely or satisfy any of the terms or conditions of this Agreement or
the Loan Documents, Lender may immediately exercise any and all rights and
remedies as provided by the Loan Documents, this Agreement, the Order For Writ,
the Stipulation and applicable law. If Borrower fails to perform or satisfy any
of the terms or conditions of this Agreement, or the Loan Documents, then Lender
is no longer obligated to forbear and may proceed to exercise its rights under
this Agreement, the Stipulation, the Order for Writ and the Loan Documents.
-9-
4. NON WAIVER. Lender by this Agreement is not waiving any existing
default and such defaults shall remain until full compliance with this Agreement
and payment in full of all amounts owed Lender.
5. PROVISIONAL REMEDIES. Borrower and Guarantor expressly acknowledge
that due to Borrower's default under the Loan Documents and the Court's issuance
of the Order For Writ, Lender has the right to enforce a writ of possession and
a preliminary injunction, which right Lender is forbearing from exercising under
the terms of this Agreement. By this Agreement, Borrower and Guarantor each
expressly waive any right to oppose Lender's recovery or realization on property
of Borrower subject to Lender's security interest after December 31, 2003 or any
additional default of Borrower under the Loan Documents or this Agreement, and
Borrower and Guarantor each agree to cooperate in Lender's exercise of rights to
recover and realize on such property if Borrower fails to perform under this
Agreement or the Loan Documents.
6. EFFECT OF PRIOR DOCUMENTS. The Loan Documents remain in full force
and effect, except as specifically modified by this Agreement, and this
Agreement shall not be construed to:
a) Impair the validity, perfection or priority or any lien or
security interest securing Borrower's or Guarantor's
obligations to Lender;
-10-
b) Waive or impair any rights, powers or remedies of Lender
under the Loan Documents;
c) Constitute an agreement by Lender or require Lender to
extend any period of forbearance or grant additional
forbearance or extend the term of the Loan Agreement or the
time for payment of any of Borrower's or Guarantor's
obligations to Lender, none of which Lender agrees or has
agreed to do, and all of which matters are in Lender's sole
and absolute discretion; or
d) Require Lender to make any loans or other extensions of
credit to Borrower or Guarantors at the termination of the
period of forbearance set forth in this Agreement.
7. CONFIRMATION OF GUARANTY. Guarantor reaffirms its obligations under
the Guaranty and reaffirms and restates each and every term, condition and
provision of the Guaranty. In addition, Guarantor hereby agrees that its
obligations under the Guaranty shall be unconditional, irrespective of (1) the
absence of any attempt to collect under the Loan Documents from Borrower or any
other guarantor or any other action to enforce the same, or (2) the waiver or
consent by Lender with respect to any provision of any instrument evidencing the
Loan Documents or any party thereof. Guarantor further reaffirms that its
obligations under the Guaranty are primary and are separate and distinct from
Borrower's obligations. Guarantor further represents and warrants that it has no
defense or claims against Lender that would or might affect the enforceability
of the Guaranty and that the Guaranty remains in full force and effect.
-11-
8. RELEASE. By this Agreement, Borrower, Guarantor, Christie Tyler,
Keenan Cheung, CRD Holdings, and CRD Arizona ("Releasors") for themselves, their
successors and assigns, release, acquit and forever discharge Lender, its
agents, servants, successors, heirs, executors, officers, directors,
shareholders, employees, attorneys, or any parent, subsidiary or affiliate
entity, past, present or future, from any and all rights, claims, demands,
losses, debts, damages, obligations, costs, including attorneys' fees,
liabilities, rights of action, causes of action, suits, liens, expenses,
compensation, indemnities, responsibilities or damage of every kind and nature,
whether in law or in equity, or known or unknown, or suspected or unsuspected,
which Releasors ever had or now have or make claim to or have against Lender of
any type, nature or description arising out of, relating to, or in any way
connected with the Loan Documents, the Action or the Gisa Transaction.
It is the intention of Releasors that this Agreement shall be effective
as a full and final release of each and every claim, obligation and matter
included within the claims released herein. In furtherance of this intention,
Releasors hereby expressly waive the provisions of California Civil Code section
1542 or any similar state or federal law, which provides that:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
-12-
Releasors acknowledge, warrant and represent that they are familiar
with section 1542 of the California Civil Code and that the effective import of
that provision has been fully explained to them by their attorneys, and
specifically waive and relinquish any right or benefit which they may have under
California Civil Code section 1542 to the full extent they may lawfully waive
such right or benefit. In connection with such waiver and relinquishment
Releasors acknowledge that they fully understand that they may hereafter
discover facts in addition to or different from those which they now know or
believe to be true with respect to the subject matter of this Agreement, but
that it is their intention hereby to fully, finally and forever release the
claims, released herein, known or unknown, suspected or unsuspected, which now
exist, may exist in the future and heretofore have existed, and that in
furtherance of such intention, the release given herein shall be and remain in
effect as a full and complete release of the matters released herein,
notwithstanding the discovery or existence of any such additional or different
facts.
9. JURY WAIVER AND FORUM SELECTION.
a) JURY WAIVER. EACH PARTY HEREBY WAIVES ITS RESPECTIVE
RIGHT TO TRIAL BY JURY OF ANY CONTROVERSY OR CLAIM
ARISING OUT OF THIS AGREEMENT.
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b) JURISDICTION AND FORUM: In any action arising out of
the Loan Documents, this Agreement, the Stipulation,
or any claim related to the conduct of the parties in
connection with the Loan Documents, the parties agree
that any action shall be brought in the United States
District Court for the Central District of California
and consent to the jurisdiction of that court to
resolve any and all such disputes.
c) CONFLICT. To the extent any provision of this dispute
resolution clause is different than the terms of any
Loan Document, the terms of this dispute resolution
clause shall prevail.
10. MISCELLANEOUS.
a) AGREEMENT TO COOPERATE. All parties agree to and will
cooperate fully with each other in the performance of
this Agreement and the Loan Documents, including,
without limitation, executing any additional
documents and instruments reasonable or necessary to
the full performance of this Agreement.
b) INTEGRATION. This Agreement incorporates all the
negotiations of the parties hereto and is the final
expression and agreement of the parties as of the
effective date. Borrower and Guarantor each
acknowledge that they are relying on no written or
oral agreement, representation, warranty or
understanding of any kind made by Lender or any
employee or agent of Lender, except for the
agreements of the Lender set forth herein or in the
other Loan Documents. Except as expressly
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set forth in this Agreement, the other Loan Documents
remain unchanged and in full force and effect.
c) SEVERABILITY. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, such
provision shall be severable from the remainder of
this Agreement and the validity, legality and
enforceability of the remaining shall not in any way
be affected or impaired thereby.
d) MODIFICATION. This Agreement may not amended, waived
or modified in any manner without the written consent
of all the parties hereto.
e) BINDING EFFECT; NO THIRD PARTY BENEFICIARIES. This
Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto,
their respective successors and assigns. No other
person or entity shall be entitled to claim any right
or benefit hereunder, including, without limitation,
the status of a third party beneficiary hereunder,
except the parties receiving the release in Section 7
above.
f) DEBTOR-CREDITOR RELATIONSHIP. This Agreement and the
other Loan Documents shall not be deemed or construed
to create a partnership, tenancy in common, joint
tenancy, joint venture, co-ownership or any other
relationship aside from a continuing debtor-creditor
relationship between Borrower and Guarantor on the
one hand, and Lender on the other.
g) BANKRUPTCY. In the event Borrower seeks relief under
Title 11 of the United States Code, Borrower agrees
that it will not oppose a motion
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for relief from stay by Lender pursuant to 11 U.S.C.
Section 362 unless it continues to make the payments
required under this Agreement. Borrower acknowledges
and agrees that such payments made in a timely manner
represent adequate protection of Lender's interest in
the Vehicle Collateral.
h) REIMBURSEMENT OF ATTORNEYS' FEES AND COSTS. Borrower
and Guarantor shall reimburse Lender for all costs
and expenses, including without limitation,
reasonable attorneys' fees and disbursements (and
fees and disbursements of Lender's in-house counsel)
expended or incurred by Lender subsequent to the
effective date of this Agreement in any arbitration,
mediation, judicial reference, legal action or
otherwise in connection with (a) the negotiation,
preparation, amendment, interpretation, and
enforcement of the Loan Documents, including without
limitation, during any workout, attempted workout,
and/or in connection with the rendering of legal
advise as to Lender's rights, remedies and
obligations under the Loan Documents, (b) collecting
any sum which becomes due Lender under any Loan
Document, (c) any proceeding for declaratory relief,
any counterclaim to any proceeding, or any appeal, or
(d) the protection, preservation or enforcement of
any rights of Lender. For purposes of this Section,
attorneys' fees shall include without limitation,
fees incurred in connection with the following: (1)
contempt proceedings; (2) discovery; (3) any motion,
proceeding or other activity of any kind in
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connection with a bankruptcy proceeding or case
arising out of or relating to any petition under
Title 11 of the United States Code, as the same shall
be in effect from time to time, or any similar law;
(4) garnishment, levy and debtor and third party
examination; and (5) post judgment motions and
proceedings of any kind, including without
limitation, any activity taken to collect or enforce
any judgment. All of such costs and expenses shall
bear interest from the time of demand at the rate
then in effect under the Security Agreements.
i) GOVERNING LAW. Except as otherwise provided herein,
this Agreement and all other Loan Documents and the
rights and obligations of the parties hereto shall be
governing by the laws of the State of California
without regard to principles concerning choice of
law. In any action arising out of or connected with
this Agreement, Borrower and Guarantor each hereby
expressly consent to the personal jurisdiction of any
state and federal court located in the State of
California and also consent to service of process by
any means authorized by federal or governing state
law.
j) COUNTERPARTS. This Agreement may be executed in any
number of counterparts which, when taken together,
shall constitute the one Agreement.
k) CONFIDENTIALITY. The Parties and their counsel agree
that they will not disclose the terms of this
Agreement, specifically or generally, except to the
extent reasonably believed necessary to comply with
applicable
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law or regulations, to carry out the obligations set
forth in this Agreement, or to respond to requests by
their auditors.
l) INTERPRETATION. In the event of any inconsistency
between the terms of this Agreement and any other
Loan Document, this Agreement shall govern. Borrower
and Guarantors each acknowledge that it has consulted
with counsel and with such other experts and advisors
as they have deemed necessary in connection with the
negotiation, execution and delivery of this
Agreement, or have had an opportunity to so consult
and have knowingly chosen not to do so. This
Agreement shall be construed without regard to any
presumption or rule requiring that it be construed
against the party causing this Agreement or any part
hereof to be drafted. The headings used in this
Agreement are for convenience only and shall be
disregarded in interpreting the substantive
provisions of this agreement.
IN WITNESS WHEREOF, Lender, Borrower and Guarantors have executed this
Agreement as of the date set forth above.
BORROWER: Car Rental Direct, Inc. fkna Car Rental
Direct.com, Inc., a Nevada corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for Notice
---------------------------------------
Telephone No.
--------------------------
Facsimile No.
--------------------------
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LENDER: Ford Motor Credit Company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for Notice
---------------------------------------
Telephone No.
--------------------------
Facsimile No.
--------------------------
GUARANTOR: MAII Holdings, Inc., a Texas Corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for Notice:
---------------------------------------
Telephone No.
--------------------------
Facsimile No.
--------------------------
CHRISTIE TYLER:
---------------------------------------
Christie Tyler
Address for Notice:
---------------------------------------
Telephone No.
--------------------------
Facsimile No.
--------------------------
KEENAN CHEUNG: ---------------------------------------
Keenan Cheung
Address for Notice:
-19-
---------------------------------------
Telephone No.
--------------------------
Facsimile No.
--------------------------
CRD HOLDINGS: Car Rental Direct Holdings, Inc.,
a Delaware Corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for Notice
---------------------------------------
Telephone No.
--------------------------
Facsimile No.
--------------------------
CRD ARIZONA: Car Rental Direct of Central Arizona,
an Arizona Corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for Notice
---------------------------------------
Telephone No.
--------------------------
Facsimile No.
--------------------------
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EXHIBIT "A"
IDENTIFICATION OF LOAN DOCUMENTS
<Table>
<Caption>
DOCUMENT NO. DESCRIPTION DATE
Document 1: Master Loan and Security Agreement 2/21/02
Document 2: Loan Supplement Attachments
15 vehicles 10/29/02
30 vehicles 7/10/02
9 vehicles 6/25/02
1 vehicle 6/20/02
28 vehicles 6/4/02
20 vehicles 6/4/02
90 vehicles 5/24/02
32 vehicles 5/21/02
4 vehicles 5/15/02
2 vehicles 5/15/02
20 vehicles 5/8/02
100 vehicles 5/8/02
32 vehicles 5/7/02
30 vehicles 5/1/02
15 vehicles 5/1/02
29 vehicles 4/26/02
21 vehicles 4/25/02
9 vehicles 4/19/02
10 vehicles 4/16/02
4 vehicles 4/16/02
3 vehicles 4/16/02
36 vehicles 4/16/02
25 vehicles 4/16/02
19 vehicles 4/9/02
28 vehicles 4/5/02
57 vehicles 4/4/02
10 vehicles 4/4/02
10 vehicles 3/18/02
27 vehicles 3/16/02
24 vehicles 2/21/02
</Table>
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<Table>
1 vehicle 2/19/02
4 vehicles 2/2/02
5 vehicles 12/27/01
41 vehicles 12/26/01
5 vehicles 11/30/01
1 vehicle 11/28/01
6 vehicles 11/20/01
7 vehicles 11/20/01
5 vehicles 11/19/01
9 vehicles 11/1/01
2 vehicles 10/16/01
10 vehicles 10/8/01
1 vehicle 10/8/01
1 vehicle 8/29/01
10 vehicles 8/28/01
Document 3: Security Agreements Undated
Document 4: Amendment to Master Loan and Security
Agreement 4/19/02
Document 5: Addendum Changing Applicable Interest
Rate 4/26/02
Document 6: UCC-1 Financing Statements
California Amendment (filed) 3/11/02
California (filed) 8/5/01
Nevada (filed) 3/26/02
Document 7: Continuing Guaranty 12/14/02 (sic)
</Table>
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MARK JOSEPH KENNEY (State Bar No. 87345)
DUANE M. GECK (State Bar No. 114823)
DAVID E. PINCH (State Bar No. 124851)
SEVERSON & WERSON
A Professional Corporation
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
Telephone: (415) 398-3344
Facsimile: (415) 956-0439
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
<Table>
FORD MOTOR CREDIT COMPANY, a Delaware Corporation, ) No. 02-8880 GHK(RCx)
)
Plaintiff, ) STIPULATION FOR JUDGMENT AND ENTRY OF JUDGMENT UPON
) DEFAULT
vs. )
)
CAR RENTAL DIRECT, INC. fkna CAR RENTAL DIRECT.COM, ) Judge: George H. King
INC., a Nevada Corporation, MAII HOLDINGS, INC., a Texas )
Corporation, , )
)
Defendant. )
)
- ---------------------------------------------------------
</Table>
The parties to this Stipulation for Judgment and Entry of Judgment Upon
Default ("Stipulation") are plaintiff, Ford Motor Credit Company, a Delaware
Corporation ("Ford Credit" or "Plaintiff"), on the one hand, and defendants Car
Rental Direct, Inc. fkna Car Rental Direct.com, a Nevada Corporation ("CRD" or
"Borrower") and MAII Holdings, Inc., a Texas Corporation ("MAII" or "Guarantor")
on the other hand.
1 STIPULATION FOR JUDGEMENT AND ENTRY
OF JUDGMENT
RECITALS
A. On November 19, 2002, Ford Credit filed its complaint in District
Court for the Central District of California, Los Angeles Division, as Case No.
02-8880 GHK(RCx). The complaint alleges six causes of action: (1) Breach of
Security Agreement Against Defendant CRD; (2) Replevin (Claim and Delivery)
against Defendant CRD; (3) Specific Performance against Defendant CRD; (4)
Injunctive Relief against Defendant CRD; (5) Breach of Continuing Guaranty
Against Defendant MAII; (6) Book Account against Defendant CRD; and, (7)
Conversion against Defendant CRD (the "Complaint").
B. On or about January 10, 2003, this court issued a Memorandum of
Decision and Order for Writ of Possession in favor of Ford Credit and against
Defendants CRD and MAII. Neither CRD nor MAII have filed answers to the
Complaint.
C. After various settlement discussions, CRD and MAII have agreed to
make payments to payoff and satisfy all amounts that they owe to Ford Credit.
The specific terms for repayment of the principal obligation and all past due
and defaulted payments on that principal obligation are set forth in the terms
of a separately executed Forbearance Agreement and Release (the "Agreement").
CRD and MAII entered into the Agreement at the same time that they have executed
this Stipulation. The terms for repayment as set forth in the Agreement are
incorporated herein. If CRD or MAII default on the payments as set forth below,
then Ford Credit may file this Stipulation and seek entry of judgment in the
amount of $13,024,382.92, plus accrued interest, costs, and attorney's fees as
allowed under the Agreement, less credit for any payments made thereto.
D. The Agreement is to remain confidential and is not to be appended to
this Stipulation but its terms are fully incorporated herein. In the event of a
default under the terms of the Agreement or this Stipulation, Ford Credit may
submit a copy of the Agreement to the Court in support of its application for
entry of Judgment without violating the confidentiality provision of the
Agreement or this Stipulation.
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OF JUDGMENT
STIPULATION
1. INCORPORATION OF RECITALS. Each of the recital paragraphs A through
D, inclusive, are incorporated by this reference and admitted by the parties to
be true. The recitals are part of the entire agreement between the parties, and
their terms are contractual and not mere recitals.
2. STIPULATION TO JUDGMENT. CRD and MAII stipulate to judgment in favor
of Ford Credit in the amount of $13,024,382.92, plus all accrued interest,
costs, and attorney's fees as are allowed under the Agreement, less credit for
any payments made thereto. In addition, any judgment entered shall include
judgment for possession of all of Ford Credit's collateral as identified in the
complaint and the Order for Writ of Possession. CRD and MAII hereby consent to
and approve of the form and content of the judgment (the "Judgment") which is
attached hereto as Exhibit 1. CRD and MAII consent to and approve of and admit
the enforceability of the form and content of the Judgment. Ford Credit agrees
to forbear from entering the Judgment pursuant to this Stipulation so long as
CRD and MAII comply with the terms described in Paragraph 4 below and as set
forth in the Agreement. The specific terms and schedule for payment of the
obligation are set forth in the Agreement and those terms are incorporated
herein by reference. Ford Credit specifically agrees that if all payments are
tendered timely then the dispute set forth by the lawsuit shall be deemed
satisfied for the amounts specified in the Agreement and Ford Credit shall move
promptly to dismiss the lawsuit with prejudice.
Upon the filing of this Stipulation the Parties shall not be required
to comply with the requirements of Federal Rule of Civil Procedure 26 or any
local rules intended to move this action to a final judgment. The intent of this
Stipulation is to finally conclude the litigation and disputes between the
parties subject to a default in the performance of the Stipulation and/or
Agreement.
3. ENTRY OF AND EXECUTION ON JUDGMENT. Ford Credit agrees to forbear
from filing and entering the Judgment in the amount of $13,024,382.92, plus all
accrued interest, costs, and attorney's fees as are allowed under the Agreement,
less credit for any payments made thereto, and forbear from enforcing the
Judgment and initiating its rights and remedies under the Judgment, so long as
CRD and MAII comply with the terms described in Paragraph 4 below and
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OF JUDGMENT
as set forth in the Agreement. In addition, the Judgment shall include judgment
for possession of Ford Credit's collateral, and in particular of the Vehicles as
described in the Court's prior order for Writ of Possession.
4. SATISFACTION OF STIPULATION AND AGREEMENT . CRD and MAII agree to
and shall pay and satisfy the amounts due and owing under this lawsuit pursuant
to the terms of the Stipulation and Agreement by making payment to Ford Credit
as set forth in Agreement. This Stipulation incorporates by reference the
specific terms and schedule for payment of the Judgment as are set forth in the
Agreement. Ford Credit specifically agrees that if all payments are tendered
timely as specified in this Stipulation and the Agreement, then Ford Credit
shall file a request for dismissal of this lawsuit with prejudice.
5. ENFORCEMENT OF JUDGMENT. In the event CRD and MAII, either
individually or collectively, fail to comply with any term of Paragraph 4 of
this Stipulation above, and the Agreement, then Ford Credit shall no longer be
obligated to forbear from filing the Stipulation and seeking entry of Judgment.
Time is of the essence as to each and every obligation contained in this
Stipulation and the Agreement. Upon any default, Ford Credit may prepare and
file a competent declaration setting forth that CRD and/or MAII have defaulted
on the terms of the Stipulation and/or Agreement and an Ex Parte Application
requesting entry of Judgment in the form that is appended to this Stipulation. A
default by any one Defendant shall entitle Ford Credit to Judgment against both
Defendants. A copy of the Declaration, Ex Parte Application, and form of
proposed Judgment shall be faxed to Richard Griffin as counsel for CRD and MAII
at (713)752-4221 at any time prior to the filing of the Ex Parte Application.
CRD and MAII may not oppose entry of the Judgment on any grounds other than
competent evidence that they have not defaulted under the terms of the
Stipulation and/or Judgment. CRD and MAII shall have no opportunity for notice
and cure of the stated default(s). CRD and MAII waive the right to contest the
entry of Judgment on any other grounds other than a lack of breach. CRD and MAII
shall bear the burden of proof to establish the failure of a breach of the
Stipulation and/or Agreement. Any opposition to the entry of Judgment shall be
submitted to the District Court for the Central District
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OF JUDGMENT
of California within three (3) court days after service of the Declaration and
Ex Parte Application on Richard Griffin. CRD and MAII shall serve any opposition
that it files with the Court on Mark Kenney, Esq., Severson & Werson, a
Professional Corporation, by facsimile transmission at (415) 956-0439.
Upon the filing of the Ex Parte Application and the expiration of three
(3) court days as set forth above, the Court shall enter Judgment, without
further notice or hearing, in favor of Ford Credit and against CRD as Borrower
and MAII as Guarantor. Ford Credit shall be entitled to Judgment in the amount
of $13,024,382.92, plus all accrued interest, costs, and attorney's fees as
allowed under the Agreement, less credit for any payments made thereto. In
addition, the Judgment shall include judgment for possession of Ford Credit's
collateral, and in particular of the Vehicles as described in the Court's prior
order for Writ of Possession.
CRD, MAII and Ford Credit expressly acknowledge and agree that Ford
Credit shall not be obligated to file any motion to seek entry of Judgment and
that the Court may enter the Judgment as set forth above. CRD and MAII expressly
waive any rights under CCP Section 664.6 to require Ford Credit to notice a
hearing before the Court enters the Judgment, unless the Court orders such
notice.
6. EXECUTION OF JUDGMENT. After entry of Judgment, Ford Credit may take
any and all steps it chooses, in its absolute discretion, and as allowed by law
to execute the Judgment and enforce its rights.
7. AGREEMENT BINDING UPON SUCCESSORS. This Stipulation and the terms,
covenants and conditions contained herein and in the Agreement shall be binding
upon the parties and their representatives, agents, assigns, heirs, and
successors-in-interest.
8. ATTORNEYS' FEES. In the event that any party brings an action to
enforce or interpret or for breach of this Stipulation, the prevailing party in
that action shall be entitled to recover his/its costs and attorneys' fees.
9. GOVERNING LAW. This Stipulation and the rights and obligations of
the parties hereto shall be governed by the substantive and procedural law of
the State of California.
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OF JUDGMENT
10. NO THIRD PARTY BENEFICIARIES. No provision of this Stipulation is
intended or shall be interpreted to provide or create any rights of any kind in
any third party, including without limitation any rights as a third party
beneficiary.
11. FURTHER ASSURANCES. All of the parties hereto agree and will
cooperate fully with each other in the performance of this Stipulation, and will
execute such additional agreements, documents or instruments as may reasonably
be required to carry out the intent of the parties.
12. TIME IS OF THE ESSENCE. Time is of the essence in the performance
of the obligations required by this Stipulation.
13. ENTIRE AGREEMENT, TERMS READ AND UNDERSTOOD. This Stipulation and
the Agreement contain the entire agreement between the parties hereto. The terms
of this Stipulation and Agreement are contractual and not mere recitals. The
undersigned hereby certify that they have read all of the foregoing Stipulation
and Agreement, including the Judgment and other exhibits, have conferred with
counsel pertaining to the same, and fully understand all of the terms hereof,
and the parties acknowledge and represent that they enter into this Stipulation
of their own will and not due to any representation, commitment, promise,
pressure or duress from any other party.
14. COUNTERPARTS. This Stipulation may be executed and delivered in two
or more counterparts, each of which when so executed and delivered shall be an
original, but such counterparts together shall constitute but one and the same
instrument.
15. SEVERABILITY. If any provision of this agreement is found to be
contrary to any law, that portion of this Stipulation may be severed from the
balance of the Stipulation and remaining provision will be fully enforceable.
CAR RENTAL DIRECT, INC., a Nevada
Corporation
Dated: January , 2003 By:
--- ------------------------------
Its:
-6- STIPULATION FOR JUDGEMENT AND ENTRY
OF JUDGMENT
Dated: January , 2003 MAII HOLDINGS, INC., a Texas Corporation
---
By:
-----------------------------------------
Its:
Dated: January , 2003 FORD MOTOR CREDIT COMPANY,
--- A Delaware Corporation
By:
-----------------------------------------
Its:
APPROVED AS TO FORM
AND CONTENT:
Dated: January , 2003 JACKSON WALKER, LLP
---
By:
-----------------------------------------
Richard Griffin
Attorneys for Defendants
CAR RENTAL DIRECT, INC. and MAII
HOLDINGS, INC.
Dated: January , 2003 SEVERSON & WERSON
--- A Professional Corporation
One Embarcadero Center, 26th Floor
San Francisco, CA 94111
By:
-----------------------------------------
Mark Joseph Kenney, Esq.
Attorneys for Plaintiff
FORD MOTOR CREDIT COMPANY
SO ORDERED.
Dated:
----------
--------------------------------------------
GEORGE H. KING
UNITED STATES DISTRICT COURT JUDGE
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OF JUDGMENT
MARK JOSEPH KENNEY (State Bar No. 87345)
DENNIS M. TALBOTT (State Bar No. 35277)
DUANE M. GECK (State Bar No. 114823)
DAVID E. PINCH (State Bar No. 124851)
FFSEVERSON & WERSON
A Professional Corporation
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
Telephone: (415) 398-3344
Facsimile: (415) 956-0439
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
<Table>
FORD MOTOR CREDIT COMPANY, a Delaware Corporation, ) No. 02-8880 GHK(RCx)
)
Plaintiff, ) {PROPOSED} JUDGMENT UPON DEFAULT
)
vs. )
) Judge: George H. King
CAR RENTAL DIRECT, INC. fkna CAR RENTAL DIRECT.COM, )
INC., a Nevada Corporation, MAII HOLDINGS, INC., a Texas )
Corporation, , )
)
Defendant. )
)
- ---------------------------------------------------------
</Table>
Plaintiff, Ford Motor Credit Company, a Delaware Corporation ("Ford
Credit" or "Plaintiff"), on the one hand, and defendants Car Rental Direct, Inc.
fkna Car Rental Direct.com, a Nevada Corporation ("CRD" or "Borrower") and MAII
Holdings, Inc., a Texas Corporation ("MAII" or "Guarantor") on the other hand,
entered into a written Forbearance Agreement and Release ("Agreement") and a
separate Stipulation for Judgment and Entry of Judgment Upon Default
("Stipulation"). The Court has previously approved the Stipulation by an order
of this Court.
-8- STIPULATION FOR JUDGEMENT AND ENTRY
OF JUDGMENT
Plaintiff, Ford Credit, has filed a declaration and Ex Parte
Application setting forth, by well pleaded facts which the court has accepted as
true pursuant to Federal Rule of Civil Procedure 52, that Defendants, CRD and
MAII, have defaulted under the terms of the Stipulation and/or Agreement. No
competent evidence has been submitted to contest the evidence of default in the
time that has been permitted under the Stipulation.
GOOD CAUSE APPEARING, the Court enters Judgment in favor of Ford Motor
Credit Company, a Delaware Corporation, and against Defendants, Car Rental
Direct, Inc. fkna Car Rental Direct.com, Inc., a Nevada Corporation, and MAII
Holdings, Inc., a Texas Corporation, as follows:
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Judgment is entered in
favor of Ford Motor Credit Company, a Delaware Corporation, and against
Defendants, Car Rental Direct, Inc. fkna Car Rental Direct.com, Inc., a Nevada
Corporation, and MAII Holdings, Inc., a Texas Corporation, for the following
sums:
<Table>
Principal Balance: $13,024,382.92
Less Credits for Payments under Stipulation $
-------------
Plus Accrued Interest $
-------------
Plus Costs $
-------------
Plus Attorneys Fees $
-------------
TOTAL JUDGMENT: $
-------------
</Table>
IT IS FURTHER ORDERED, ADJUDGED and DECREED that Judgment for
Possession is entered in favor of Ford Motor Credit Company, a Delaware
Corporation, and against Defendants, Car Rental Direct, Inc. fkna Car Rental
Direct.com, Inc., a Nevada Corporation, and MAII Holdings, Inc., a Texas
Corporation, as to the Vehicles, and other collateral, as identified and
attached hereto as Exhibit "A." Ford Credit is entitled to recover the
collateral that is identified in Exhibit "A" and may proceed with private or
public sale as allowed by law for any and all of the identified property. The
proceeds from the sale of the identified property shall be
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OF JUDGMENT
credited against the TOTAL JUDGMENT as defined above.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that Ford Credit may
proceed with all lawful methods of execution upon entry of this Judgment.
Dated:
-----------------------
------------------------------------------
The Hon. George H. King
Judge of the District Court for the
Central District of California
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OF JUDGMENT