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EXHIBIT 4.5
FORM OF
RECREATIONAL VEHICLE RETAIL SALES FINANCING AGREEMENT
THIS AGREEMENT, between NATIONSCREDIT ___________________, ("NationsCredit")
and the undersigned recreational vehicle dealer ("Dealer"), whose names and
addresses are set forth herein, sets forth the terms under which
NationsCredit may purchase Contracts (as hereinafter defined) from Dealer
and the rights and obligations between NationsCredit and Dealer with regard
to such Contracts.
1. SALE AND PURCHASE OF CONTRACTS
a. NationsCredit may, from time to time, purchase from Dealer such
Contracts (as hereinafter defined) offered by Dealer as shall be written
on forms satisfactory to NationsCredit and otherwise acceptable to
NationsCredit. All such purchases shall be at purchase prices to be
determined as provided in Paragraph (c) below. For purposes of this
Agreement, the term "Contract" shall mean any retail installment
contract, security agreement or other document providing for the payment
by a Buyer (as hereinafter defined) to Dealer of monies in connection
with a retail credit sale by Dealer to such Buyer and the term "Buyer"
shall mean any person (including an individual or another legal entity)
which purchases a recreational vehicle from Dealer, including any
co-purchaser.
b. To the extent permitted by applicable law, Dealer shall communicate to
NationsCredit or its designee all such credit information concerning a
Buyer (and any other person named by a Buyer in his credit application)
as Dealer may have, NationsCredit will make a decision as to whether
NationsCredit will purchase each Contract offered to it by Dealer if
documentation (including credit information) satisfactory to
NationsCredit has been received. If NationsCredit decides that
NationsCredit will purchase such a Contract after receipt of such
documentation, Dealer shall (i) execute an assignment of the Contract to
NationsCredit, (ii) deliver the original executed Contract (and
counterparts thereof), to NationsCredit, (iii) file and record all such
documents, and take all such action, as may be necessary, under the
Uniform Commercial Code and other applicable law, to convey to
NationsCredit (and to record such conveyance of) the Contract, to
perfect a valid and enforceable first priority security interest in
favor of NationsCredit in the recreational vehicle to which the Contract
relates and to comply with all related provisions of applicable motor
vehicle laws and (iv) if required by applicable law, send to the Buyer a
notice that such Dealer has assigned the Contract to NationsCredit.
c. NationsCredit shall only purchase Contracts which comply with the
criteria announced from time to time by NationsCredit with respect to
the amounts which NationsCredit will finance, the aggregate of which
amounts shall not exceed the "amount financed," as set forth in any
Contract. If NationsCredit determines to purchase any Contract, it will
do so at a price equal to such "amount financed." Such price shall be
paid to Dealer upon NationsCredit's receipt of satisfactory
documentation. In addition, NationsCredit shall credit to a
non-interest-earning accounting record established by NationsCredit in
respect of Dealer (the "Dealer Reserve Account") an amount equal to the
"finance charge" set forth in the Contract in excess of the amount of
NationsCredit's then applicable buy rate/sell rate. Dealer acknowledges
that the Dealer Reserve Account shall be and remain the sole property of
NationsCredit, and the Dealer shall have no vested interest therein
until such time as any amounts become payable to it as provided below.
Dealer further acknowledges that NationsCredit's right to charge the
Dealer Reserve Account is solely within NationsCredit's discretion. All
amounts so credited to the Dealer Reserve Account shall be held by
NationsCredit. The Dealer Reserve Account shall from time to time be
debited, and amounts held therein shall from time to time be paid, as
follow:
(i) at NationsCredit's discretion, the Dealer Reserve Account shall be
debited by an amount equal to the amount of any indebtdness of
Dealer to NationsCredit arising under this Agreement or otherwise;
(ii) upon prepayment of a Contract, the Dealer Reserve Account shall be
debited by an amount equal to the same percentage of the original
credit to the Dealer Reserve Account in respect of the Contract as
the amount of NationsCredit's finance charge refund under the
Contract to the Buyer bears to the original finance charge; and
debited by the full amount of any refunds NationsCredit must give
to the Buyer for unearned insurance premiums, charges for extended
warranty, mechanical breakdown protection, or similar items; and
(iii) to pay Dealer at such time or times as NationsCredit shall
determine, any then remaining balance of the Dealer Reserve
Account in excess of 3% of the total net outstanding balance of
Contracts purchased.
Notwithstanding anything to the contrary set forth herein, Dealer shall be
responsible for Dealer's proportionate share of any unearned finance
charges, insurance premiums and/or charges for extended warranty, mechanical
breakdown or comparable programs, whether or not the amount of the Dealer
Reserve Account is sufficient to cover such share and whether or not this
Agreement has theretofore been terminated.
2. INSURANCE
Dealer will provide NationsCredit or its agent with written evidence that
there is insurance acceptable to NationsCredit covering each recreational
vehicle which is the subject of a Contract purchased by NationsCredit
hereunder (together with all related accessories and equipment, a
"Vehicle"), against fire, theft and collision at the time the Contract is
purchased by NationsCredit and that NationsCredit is named as the loss
payee. If such written evidence is provided to NationsCredit or its agent,
NationsCredit will assume responsibility for Buyer's compliance with
insurance requirements thereafter.
3. PAYMENTS FROM BUYER
After purchase of a Contract by NationsCredit, Dealer shall forward to
NationsCredit any payments on the Contract received by Dealer. In the event
such payment is made by check or other instrument payable to Dealer, Dealer
shall endorse such check or other instrument to NationsCredit. Dealer shall
not make any payment in respect of any Contract on behalf of any Buyer
without the prior written consent of NationsCredit.
4. DEALER'S REPRESENTATIONS AND WARRANTIES
As to each Contract sold by Dealer to NationsCredit, Dealer warrants and
represents that, as of the time of such sale:
a. Dealer will have satisfied all requirements of the Federal Truth in
Lending Act, the Federal Equal Credit Opportunity Act and all other
federal, state, local and other laws, regulations or rules including,
but not limited to, consumer protection laws, regulations or rules
applicable to the extension of credit or otherwise applicable to the
Contract;
b. Dealer will have the right to make such sales;
c. Dealer will have received the down payment specified in the Contract and
will not have made a loan to the Buyer, or assisted the Buyer in
obtaining a loan from any third party, to be used as a part or all of
such down payment or any other payment on a Contract, except (in any
such case) as may be specifically indicated on the face of the Contract;
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d. the Vehicle sold under the Contract will have been actually delivered
to Buyer and will be free from all liens and encumbrances except those
in favor of NationsCredit.
e. the Contract will be valid and enforceable according to its terms;
and
f. all registered owners of the Vehicle will have signed the Contract
either as Buyers or as parties agreeing to the security interest in
favor of Dealer or its assignee.
5. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS
a. If any Dealer representation, warranty or covenant made in connection
with a Contract is breached or is untrue, or if Dealer has failed to
perform any obligation it may have under a Contract or this Agreement,
or if Buyer asserts any claim arising out of the purchase of a Vehicle
from Dealer under a Contract sold to NationsCredit, then Dealer shall
promptly pay NationsCredit any or all of the following amounts at the
election of NationsCredit: (i) the unpaid balance, as determined by
NationsCredit, of all Contracts affected by such breach or
misrepresentation or claim; (ii) Dealer's portion of any unearned
finance charges; (iii) all losses and expenses incurred by
NationsCredit as a result of such breach or misrepresentation or
claim; and (iv) all out-of-pocket expenses (including, but not
limited to, attorneys' fees and costs) paid or incurred by
NationsCredit in connection with the collection of any amount due
under any such Contract. If Dealer breaches this Agreement in any
other respect, Dealer shall reimburse NationsCredit for all losses
and expenses incurred by NationsCredit as a result of such breach. In
addition, Dealer shall indemnify and hold NationsCredit harmless for
all losses or expenses, including reasonable attorneys' fees and
legal costs, suffered or incurred by NationsCredit in any judicial,
administrative, or any other proceeding because of any claim or
defense asserted against NationsCredit as a result of any act or
omission on the part of Dealer, including, at the election of
NationsCredit, the unpaid balance of the Contract, as determined by
NationsCredit.
b. Notwithstanding anything to the contrary set forth herein, Dealer
hereby guarantees to NationsCredit the payment in full of all amounts
owing to NationsCredit from time to time under any Contract purchased
by NationsCredit from Dealer in respect of which the Buyer was, at
the time of such purchase, an officer, director, partner or employee
of Dealer (or a member of the immediate family of any such person
associated with the Dealership.)
6. ORIGINATION FEE
a. For all motorized units, the dealer proceeds will be reduced by $100.
b. For all non-motorized units, the dealer proceeds will be reduced by
$80.
7. BOOKS AND RECORDS
Dealer agrees to maintain complete and accurate books and records in
accordance with generally accepted accounting principles concerning the
sale of each Vehicle, including but not limited to records of all other
transactions affecting the Vehicle. Dealer will, upon request by
NationsCredit, promptly deliver any such books and records or furnish a
copy thereof or abstracts therefrom to NationsCredit or its agent.
NationsCredit's representatives may from time to time inspect Dealer's
books and records. Dealer shall furnish to NationsCredit such information
concerning Dealer's financial and business affairs as NationsCredit may
request.
8. AGENCY
Neither this Agreement nor any action pursuant hereto shall make Dealer
the agent, representative or employee of NationsCredit for any purpose.
Dealer is not granted any express or implied right to bind NationsCredit
in any manner whatsoever. Wherever in this Agreement reference is made to
an agent of NationsCredit, such reference is intended to mean any third
party that NationsCredit may from time to time appoint to fulfill any of
its obligations under this Agreement.
9. FAILURE TO EXERCISE REMEDIES
The exercise of any right or remedy available to NationsCredit shall not
operate as a waiver of any other right or remedy. The failure of
NationsCredit to exercise or a delay by NationsCredit in exercising any
right or remedy shall not operate as a waiver of such right or any other
right. All of NationsCredit's rights and remedies shall be cumulative and
may be exercised singularly or concurrently.
10. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
parties to this Agreement and their respective successors and assigns,
provided, however, that this Agreement and all rights and obligations
under this Agreement may not be assigned or transferred by Dealer without
NationsCredit's prior written consent and any purported assignment or
transfer without such consent shall be void and without effect. Any
obligation of NationsCredit, or any function to be performed by
NationsCredit, under this Agreement may, at the sole option of
NationsCredit, be delegated to, and performed by, an agent of
NationsCredit, which agent shall have such power and authority as
NationsCredit shall delegate to it.
11. TERMINATION
NationsCredit or Dealer may terminate this Agreement upon written notice
to the other party, such termination to be effective on the date set out
in such notice. The termination of this Agreement shall not release
NationsCredit or Dealer from any obligations incurred with regard to any
Contracts purchased prior to the effective date of such notice, and all
such obligations shall remain in full force and effect until fully
satisfied in accordance with the terms and conditions of this Agreement.
12. VALIDITY, COMPLETE AGREEMENT, AMENDMENTS
Any invalidity, in whole or in part, or any provision of this Agreement
shall not affect the validity of any other provision hereof. This
Agreement constitutes the complete understanding between the parties and
supersedes all prior oral, written or implied discussions or
understandings with respect to the subject matter hereof between the
parties. No alteration, amendment or modification of any of the terms and
provisions hereof shall be valid unless made pursuant to an instrument in
writing signed by both of said parties.
13. NOTICE
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed duly
given if and when personally delivered or mailed by registered or
certified mail, return receipt requested, postage prepaid, to the address
of the party shown below. Either party may change the address to which
each such notice or communication shall be sent by giving written notice
of such address in the manner provided herein to the other party.
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14. GENDER, NUMBER, PARAGRAPH HEADINGS
Unless the context of this Agreement otherwise requires, the masculine,
feminine or neuter gender each shall include the other genders, and the
singular shall include the plural. The paragraph headings contained in
this Agreement are for convenience of reference only and shall not limit
or define the text hereof.
NATIONSCREDIT
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DEALER
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PRINTED NAME AND TITLE PRINTED NAME AND TITLE
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DATE: BY DATE: BY:
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AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
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STREET ADDRESS OF DEALER
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CITY AND STATE
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(INSERT BRANCH ADDRESS STAMP ABOVE)
