[LOGO] FORD MOTOR COMPANY
AUTOMOTIVE WHOLESALE INSTALLMENT
SALE AND SECURITY AGREEMENT
To: Ford Motor Company (hereinafter called "Ford") Date: 11/28/90
The undersigned Shakers, Inc. (hereafter
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(DEALER'S EXACT BUSINESS NAME)
called "Dealer") of 0000 XXXXX XXXX XXXXXX XXXXXXXXX XX 00000
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(STREET AND NUMBER) (CITY) (STATE) (ZIP CODE)
proposes to buy certain merchandise (hereinafter called "Merchandise" from Ford
on an installment basis subject to the following provisions of this Agreement:
1. Installment Sales
Sales shall be made pursuant to the terms of an Installment Sale Contract
(hereinafter called the "Contract"), a copy of which is attached hereto. Subject
to the provisions of the Sales and Services Agreement (hereinafter called the
Sales Agreement) between Dealer and Xxxx, Xxxx may change the terms of the
Contract by giving reasonable notice to Dealer of the change and stating an
effective date for the implementation of the new contract. Notwithstanding the
provisions of the Sales Agreement, any sale of Merchandise made by Ford to
Dealer pursuant to this Agreement will be on an installment basis rather than
for cash. The invoice covering any item of Merchandise sold by Ford to Dealer on
an installment basis shall be subject to the provisions of this Agreement and
the provisions of the Contract furnished to Dealer covering such item of
Merchandise.
Ford at all times shall have the right in its sole discretion to determine the
extent to which it will sell Merchandise to Dealer under Contracts. Ford shall
provide notice to Dealer of the effective date on and after which the sale of
Merchandise to Dealer will be made on an installment basis pursuant to the
provisions of this Agreement. Ford may terminate the sale of Merchandise to
Dealer on an installment basis by giving notice to Dealer stating an effective
date for such termination.
The Purchase Date set forth in the Contract with respect to each item of
Merchandise sold on an installment basis to the Dealer shall be as of the
delivery date of the Merchandise to the carrier or to the Dealer, whichever
occurs first.
2. Installment Sale Contracts
Ford shall furnish copies of Contracts to Dealer. Dealer shall review the same
promptly upon receipt and advise Ford in writing of any discrepancy therein. If
Dealer shall fail to advise Ford of any discrepancy in any such Contract within
ten calendar days following the receipt thereof by Dealer, such Contract shall
be deemed to be conclusive evidence of sale made on the Purchase Date by Ford
pursuant hereto unless Dealer or Ford establishes by a preponderance of evidence
that such installment sale was not made or was made in different amounts than as
set forth in such Contract.
3. Interest and Service and Insurance Flat Charges
All Contracts shall bear interest from the delivery date of the Merchandise to
the carrier or to the Dealer, whichever occurs first, to the date of repayment
in good funds by Dealer at the rates established by Ford or its assignee from
time to time for Dealer, except that any amount not paid when due hereunder
shall bear interest at a rate that is four percentage points higher than the
current pre-default rate up to the maximum contract rate permitted by law of the
state where the Dealer maintains his business as set out above. In addition to
interest, the installment sale of Merchandise pursuant hereto shall be subject
to service and insurance flat charges established by Ford or its assignee from
time to time for Dealer.
Dealer shall be advised in writing from time to time of any change in the
interest rate and service and insurance flat charges applicable to Dealer and
the effective date of such change. Such change shall not become effective,
however, if Dealer elects to terminate this Agreement and pay the full unpaid
balance outstanding under Contracts and all other amounts due or to become due
hereunder in good funds within ten calendar days after the receipt of such
notice by Dealer.
4. Payments by Dealer
The aggregate amount outstanding from time to time of all Contracts and all
other amounts outstanding to Ford and its assignee with respect to wholesale
financing of merchandise shall constitute a single obligation of Dealer,
notwithstanding that installment sales or advances are made from time to time.
5. Ford's Security Interest
As security for all Contracts or other advances now or hereafter made by Ford
and its assignee, and for the observance and performance of all other
obligations of Dealer to Ford or its assignee in connection with the wholesale
financing of merchandise for Dealer, Dealer hereby grants to Ford and its
assignee a security interest in the Merchandise now owned or hereafter acquired
by Dealer and in the proceeds, in whatever form, of any sale or other
disposition thereof; and Dealer hereby assigns to Ford and grants to Ford a
security interest in, all amounts that may now or hereafter be payable to Dealer
by the manufacturer, distributor or seller of any of the Merchandise by way of
rebate or refund of all or any portion of the purchase price thereof.
6. Dealer's Possession and Sale of Merchandise
Dealer's possession of the Merchandise 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 the Merchandise brand new and subject to inspection
by Ford and free from all taxes, liens and encumbrances, and any sum of money
that may be paid by Ford in release or discharge of any taxes, liens or
encumbrances on the Merchandise or on any documents executed in connection
therewith shall be paid by Dealer to Ford upon demand. 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,
the Merchandise for demonstration, hire or otherwise without the express prior
written consent of Ford in each case, and shall not in any event use the
merchandise illegally or improperly. Dealer shall not mortgage, pledge or loan
any of the Merchandise, and shall not transfer or otherwise dispose of the same
except by sale or lease in the ordinary course of Dealer's business. Any and all
proceeds of any sale, lease or other disposition of the Merchandise by Dealer
shall be fully, faithfully and promptly accounted for and remitted by Dealer to
Ford to the extent of Dealer's obligation to Ford with respect to the
Merchandise. As used in this paragraph 6, (a) "sale in the ordinary course of
Dealer's business" shall include only (i) bona fide retail sale to a purchaser
for his own use at the fair market value of the Merchandise sold and (ii) an
occasional sale of such Merchandise to another dealer at a price not less than
Dealer's cost of the Merchandise sold, unless such sale is a part of a plan or
scheme to liquidate all or any portion of Dealer's business, and (b) "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 Merchandise leased.
7. Risk of Loss and Insurance Requirements
The Merchandise shall be at Dealer's sole risk of any loss or damage to the
same, except to the extent of any insurance proceeds actually received by Ford
with respect thereto under insurance obtained by Ford. Dealer shall indemnify
Ford against all claims for injury or damage to persons or property caused by
the use, operation or holding of the Merchandise, and, if requested to do so by
Ford maintain at its own expense liability insurance in connection therewith in
such form and amounts as Ford may reasonably require from time to time. In
addition, Dealer shall insure each item of the Merchandise 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
specified by Ford.
If Dealer fails to furnish acceptable evidence of any insurance required
hereunder, Ford may, but shall not be required to, obtain such insurance at
Dealer's expense.
8. Credits
All funds or other property belonging to Ford and received by Dealer shall be
remitted to Ford pursuant hereto. Ford, at all times, shall have a right to
offset and apply any and all credits, monies or properties of Dealer in Ford's
possession or control against any obligation of Dealer to Ford.
9. Information Concerning Dealer
To induce Ford to sell merchandise on an installment basis, Dealer has submitted
information concerning its business organization and financial condition, and
certifies that the same is complete, true and correct in all respects and that
the financial information contained therein and any that may be furnished to
Ford 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 agrees to notify Ford promptly of any
material change in its business organization or financial condition or in any
information relating thereto previously furnished to Ford. Dealer acknowledges
and intends that Ford 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 Ford from time to time and at all reasonable
times to examine, appraise and verify the existence and condition of all
Merchandise, documents, commercial or other paper and other property in which
Ford 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.
10. Default
The following shall constitute an Event of Default hereunder:
(a) Dealer shall fail to promptly pay any amount now or hereafter owning to Ford
or its assignee hereunder or under any other agreement as and when the same
shall become due and payable, or
(b) Dealer shall fairly to duly observe or perform any other obligation secured
hereby, or
(c) any representation made by Dealer to Ford shall prove to have been false or
misleading in any material respect as of the date on which the same was made, or
(d) a proceeding in bankruptcy, insolvency or receivership shall be instituted
by or against Dealer or Dealer's property.
Upon the occurrence of an Event of Default Ford may accelerate, and declare
immediately due and payable, all or any part of the unpaid balance of all
Contracts made hereunder together with accrued interest and flat charges,
without notice to anyone. In addition, Ford may take immediate possession of all
property in which it has a security interest hereunder, without demand or other
notice and without legal process. For this purpose and in furtherance thereof if
Ford so requests, Dealer shall assemble such property and make it available to
Ford at a reasonably convenient place designated by Ford, and Ford shall have
the right, and Dealer hereby authorizes and empowers Ford, its agents or
representatives, to enter upon the premises wherever such property may be and
remove same. In the event Ford acquires possession of such property or any
portion thereof, as hereinbefore provided, Ford may, in its sole discretion (i)
sell the same, or any portion thereof, after five days' written notice, at
public or private sale for the account of Dealer, (ii) declare this agreement,
all wholesale transactions and Dealer's obligations in connection therewith to
be terminated and cancelled and retain any sums of money that may have been paid
by dealer in connection therewith, and (iii) enforce any other remedy that Ford
may have under applicable law. Dealer agrees that the sale of any new and unused
repossessed property to the manufacturer, distributor or seller thereof, or to
any person designated by such manufacturer, distributor or 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 Ford shall solicit bids from three or more other dealers
in the type of property repossessed by Ford hereunder, any sale by Ford 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. Dealer understands and agrees, however, that such means of disposal
shall not be exclusive and that Ford shall have the right to dispose of any
property repossessed hereunder by any commercially reasonable means. Dealer
agrees to pay reasonable attorneys' fees and legal expenses incurred by Ford in
connection with the repossession and sale of any such property. Ford's remedies
hereunder are cumulative and may be enforced successively or concurrently.
11. General
Dealer waives the benefit of all homestead and exemption laws and agrees that
the acceptance by Ford of any payment after it may have become due or the waiver
by Ford of any other default shall not be deemed to alter or affect Dealer's
obligations or Ford's right with respect to any subsequent payment or default.
Neither this agreement, nor any other agreement between Dealer and Ford nor any
funds payable by Ford to Dealer, shall be assigned by Dealer without the express
prior written consent of Ford in each case.
Any provision hereof prohibited by any applicable law shall be ineffective to
the extent of such prohibition without invalidating the remaining provisions
hereof. Except as herein provided, no modification hereof may be made except by
a written instrument duly executed by, or pursuant to the express written
authority of, an exclusive officer of Ford.
Dealer shall execute and deliver to Ford 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 Ford may
reasonably request to confirm Dealer's obligations to Ford and to confirm Ford's
security interest in the Merchandise covered by Contracts or in any other
property as provided hereunder, and in such event the terms and conditions
hereof shall be deemed to be incorporated therein. Ford's security or other
interest in any Merchandise shall not be impaired by the delivery to Dealer of
Merchandise 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. Ford may, for and in the name of Dealer, endorse and assign any
obligation transferred to Ford by Dealer and any check or other medium of
payment intended to apply upon such obligation. Ford may complete any blank
space and fill in omitted information on any document or paper furnished to it
by Dealer.
Unless the context otherwise 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.
It is Ford's intention to assign Contracts from time to time to the person
designated as the assignee in such Contract. Upon the assignment of Contract by
Ford, the assignee shall have all of the rights of Ford hereunder with respect
to such Contract and the Merchandise covered thereby.
This agreement shall be interpreted in accordance with the laws of the state of
the Dealer's place of business set out above.
12. Acceptance and Termination
Dealer waives notice of Ford's acceptance of this Agreement and agrees that it
shall be deemed accepted by Ford at the time Ford shall first sell Merchandise
to Dealer on an installment basis. This agreement shall be binding on Dealer and
Ford and their respective successors and assignees from the date thereof until
terminated by receipt of a written notice by either party from the other, except
that any such termination shall not relieve either party from any obligation
incurred prior to the effective date thereof.
Witness or Attest: SHAKERS, INC.
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(DEALER'S EXACT BUSINESS NAME)
Secretary /s/ [Xxxx Xxxxxx] By: /s/ [Signature] Title President
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POWER OF ATTORNEY FOR WHOLESALE INSTALLMENT SALE CONTRACT
KNOW ALL MEN BY THESE PRESENTS: That the undersigned dealer does hereby make,
constitute and appoint Xxxxx X. Xxxxxxx, Xxxxx X. XxXxxxxx, and Xxxxxxxxx X.
Xxxxxxx, all of Dearborn, Michigan and each of them and any other officer or
employee of Ford Motor Company, a Delaware corporation in Dearborn, Michigan,
its true and lawful attorneys with full power of substitution, for and in its
name, stead and behalf, to prepare, make, execute, acknowledge and deliver to
Ford Motor Company from time to time installment sale contracts and other title
retention or security instruments necessary or appropriate in connection with
the installment sale by Ford Motor Company of merchandise to the undersigned
dealer and generally to perform all acts and to do all things necessary or
appropriate in discharge of the power hereby conferred, including the making of
affidavits and the acknowledging of instruments, as fully done by the
undersigned dealer, and each of the said attorneys hereby is further authorized
and empowered in the discharge of the power hereby conferred to execute any
instruments by means of either a manual, imprinted or other facsimile signature
or by completing a printed form to which an imprinted or other facsimile
signature is then affixed.
This Power of Attorney is executed by the undersigned dealer to induce Ford
Motor Company to sell on an installment basis merchandise to be acquired by the
undersigned dealer and recognizes that documents evidencing such sales are
produced at places other than the undersigned dealer's place of business, and
that it is impractical for the undersigned dealer to execute the installment
sale contract and other title retention or security instruments necessary or
appropriate in connection with such sales without unduly delaying the delivery
of such merchandise to the undersigned dealer. Accordingly, this Power of
Attorney may be revoked by the undersigned dealer only by notice in writing
addressed to Ford Motor Company, Dearborn, Michigan by registered mail, return
receipt requested, stating an effective date on or after the receipt thereof by
Ford Motor Company.
Dated this 28 day of November, 1990
Witness or Attest: SHAKERS, INC.
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(DEALER'S EXACT BUSINESS NAME)
Secretary /s/ [Xxxx Xxxxxx] By: /s/ [Signature] Title President
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State of Connecticut
ss.
County of New Haven
On this 28 day of November, 1990, before me, the undersigned Notary Public,
personally appeared Xxxxxx Xxxxxx (PERSON SIGNING FOR DEALER) who acknowledged
himself to be the President (TITLE) of Shakers, Inc. (DEALER'S NAME), the
grantor of the foregoing Power of Attorney, and that he, being authorized so to
do, executed the foregoing Power of Attorney for the purposes therein contained,
by signing the name of the said grantor by himself in the capacity indicated.
IN WITNESS WHEREOF I have hereunto set my hand and official seal.
/s/ [Xxxxxxx Xxxxxx]
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NOTARY PUBLIC
NOTARY'S
My commission expires March 31, 1991 SEAL
CERTIFIED COPY OF RESOLUTION OF BOARD OF DIRECTORS
The undersigned hereby certifies that he is the Secretary of SHAKERS, INC.
(DEALER'S EXACT CORPORATE NAME) of 000 XXXXX XXXX XXXXXX XXXXXXXXX, XX. 00000
(DEALER'S ADDRESS) and that the following is a true, correct and complete copy
of resolutions adopted by the board of directors of the said corporation at a
meeting duly called and held on [ILLEGIBLE], 19[ILLEGIBLE], at which a quorum
was present and voting, and that said resolutions are unchanged and are now in
full force and effect.
RESOLVED, That the officers of this corporation be, and each hereby is,
authorized and empowered to execute and deliver on behalf of this corporation
the Wholesale Installment Sale and Security Agreement to Ford Motor Company of
Dearborn, Michigan in such form and upon such terms and conditions as the said
Ford Motor Company may require, and to execute and deliver from time to time
Installment Sale Contracts, promissory notes or other evidences of indebtedness,
bearing such rate of interest as the said Ford Motor Company or its assignee may
require from time to time, and trust receipts, chattel mortgages and other title
retention or security instrumentS as, and in such form as, the said Ford Motor
Company or its assignee may require, evidencing any financing extended by the
said Ford Motor Company or its assignee to this corporation under the terms of
the Installment Sale Contract.
FURTHER RESOLVED, That Xxxxx X. Xxxxxxx, Xxxxx X. XxXxxxxx, and Xxxxxxxxx X.
Xxxxxxx, all of Dearborn, Michigan, and each of them and any other officer or
employee of the said Ford Motor Company be and each of them hereby is
constituted and appointed an attorney-in-fact of this corporation for the
purposes set forth in the Power of Attorney presented to this board of directors
this date, with full power of substitution, and the officers of this corporation
are, and each of them hereby is, authorized and empowered to execute a formal
Power of Attorney in such form.
FURTHER RESOLVED, That the officers of this corporation be, and each hereby is,
authorized and empowered to do all other things and to execute all other
instruments and documents necessary or appropriate in the premises.
IN WITNESS WHEREOF I have hereunto set my hand and affixed the corporate seal of
the said corporation this 20th day of November, 19__.
Secretary /s/ [Xxxx Xxxxxx]
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SECRETARY CORPORATE
SEAL
[LOGO] FORD
AUTOMOTIVE
INSTALLMENT SALE CONTRACT
The Dealer identified below ("Dealer") hereby purchases the merchandise
described below (the "Merchandise") from Ford Motor Company ("Ford"), as of the
purchase date set forth below (the "Purchase Date"), on a deferred payment basis
for the purchase price set forth below (the "Purchase Price"), subject to the
terms and conditions set forth HEREIN.
1. Ford shall have a purchase money security interest in each item of the
Merchandise and in the proceeds, in whatever form, of any sale or other
disposition thereof, until the Purchase Price, together with all interest
and other charges relating to the financing of the Merchandise, have been
fully paid.
2. Dealer promises to pay the Purchase Price for each item of the Merchandise
to Ford in two installments of principal, as follows:
(a) the first installment of principal shall be in an amount equal
to 90% of the Purchase Price and shall be payable on the first
day of the third month following the month of the Purchase
Date for the item of the Merchandise; and
(b) the second installment of principal shall be in an amount
equal to 10% of the Purchase Price and shall be payable on the
first day of the fifth month following the month of the
Purchase Date for the item of the Merchandise.
Notwithstanding the foregoing, the first installment shall be payable no
later than the date on which such item is sold, leased or placed in use by
Dealer and the second installment of principal shall be payable no later
than the first day of the second month following the month in which such
sale, lease or use date occurs.
3. Dealer also promises to pay, upon demand, interest on the unpaid balance
of the Purchase Price and service and insurance flat charges with respect
to the Merchandise at the rates and charges, respectively, established by
Ford or its assignee hereof from time to time for Dealer.
4. Ford, in its sole discretion, may extend the first installment of
principal due hereunder with respect to any item of the Merchandise on a
month-to-month basis, and the failure of Ford to demand the same when due
shall be deemed to be a one month extension of such installment. Any
extension of the first installment of principal to the first day of a
succeeding month shall automatically extend the due date for the second
installment to the first day of the second month following the extended
due date for the first installment. Any such extension, however, shall not
obligate Ford to grant an extension in the future or waive its right to
demand payment when due, and nothing herein shall be deemed a waiver of
Dealer's obligation, hereby confirmed, to pay the first installment of
principal on the date on which the item of the Merchandise is sold, leased
or placed in use by Dealer and the second installment of principal on the
first day of the second month following the month in which the item of the
Merchandise is sold, leased or placed in use by Dealer notwithstanding
that demand therefore has not been made.
5. Dealer and Ford agree that all the provisions of the "Wholesale
Installment Sales and Security Agreement" between Dealer and Ford are
incorporated herein by reference.
6. Ford may assign this Installment Sale Contract. If a financial institution
is identified below as the "Assignee of Contract", Ford, for value
received, hereby sells, assigns and transfers such financial institution,
without recourse, all of Ford's right, title and interest in and to this
Contract and the Merchandise covered hereby.
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VEHICLE IDENTIFICATION NUMBER YEAR MAKE SERIES BODY PURCHASE PURCHASE
STYLE PRICE DATE
(1) (2) (3) (4) (5) (6) (7)
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Ford Motor Company
By: By:
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ATTORNEY-IN-FACT
Assignee of Contract:
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