Exhibit 10.22
AGREEMENT FOR WHOLESALE FINANCING
This Agreement for Wholesale Financing ("Agreement") is made as of October 31,
1996 between Deutsche Financial Services Corporation ("DFS") and Featherlite
Mfg., Inc., a Minnesota corporation ("Dealer"), having a principal place of
business located at Xxxxxxxx 00 & 0, Xxxxxx, Xxxx 00000 .
1. New Vantare Inventory Credit Facility. Subject to the terms of this
Agreement, DFS may extend credit to Dealer for the purpose of financing
completed motor coaches manufactured by Dealer's Vantare Division,
located in Sanford, Florida ("Wholesale Facility"). The Wholesale
Facility will be subject to the following terms:
1.1 Eligible Inventory/Advance Rates. Subject to the maximum amount
of the Wholesale Facility, DFS will finance completed motor
coaches manufactured by Dealer's Vantare Division in an amount
not to exceed the lesser of:
(1) $500,000 per completed unit, or
(2) the sum of (a) eighty percent (80%) of the
manufacturers invoice price (including freight) of
the chassis, PLUS (b) sixty percent (60%) of the
remainder of (i) the actual cost of manufacture of
said motor coach as reflected on Dealer's invoice for
such unit, LESS (ii) the manufacturer's invoice price
(including freight) for the chassis.
1.2 Inspection/Documentation. Prior to funding a completed unit,
Dealer will provide an invoice for the completed unit containing
details of all equipment and options. Upon receipt of the
invoice, DFS will arrange a physical inspection of the completed
unit to verify completion. The manufacturer's statement of origin
for both the chassis and the completed unit must be delivered to
DFS prior to funding to be retained until funding of the retail
sale of the unit. Upon funding, DFS may remit the portion of the
advance allocated to the cost of the chassis directly to the
manufacturer of the chassis. DFS must have a first perfected
security interest in each motor coach financed and all proceeds
thereof.
1.3 Curtailments. A curtailment payment of five percent (5%) of the
original principal balance for each completed unit will be due
and payable on the 90th and 180th day after the date the unit was
financed. The completed unit will be due and payable in full 365
days after the date the completed unit was originally financed.
2. Used Inventory Credit Facility. Subject to the terms of this Agreement,
DFS agrees to extend credit to Dealer for the purpose of financing used
recreational vehicles ("Used Inventory Facility"). The term "used
recreational vehicles" is defined as recreational vehicles which have
been registered or titled in any state with the appropriate state
authorities in accordance with applicable state law ("Used Vehicles").
Subject to the
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limitations contained in this Section 2, Used Vehicles may consist of
used motor coaches that were manufactured by or bear the trademark or
tradename of Dealer's Vantare Division or its predecessor, Vantare
International, Inc. ("Vantare"). As provided below, the terms for
financing for Used Vehicles consisting of Vantare units may have
different financing terms. The Used Inventory Facility will be subject
to the following terms:
2.1. Qualifying Units. Used Vehicles for which Dealer may request a
loan must be the current model year or no more than seven model
years prior to the current model year, in good physical and
mechanical condition, and subject to DFS' approval.
2.2 Advance. DFS, in its sole discretion, may loan to Dealer an
amount up to (1) Eighty percent (80%) of the Base NADA average
trade-in value, excluding the value of any added accessories, of
Used Vehicles other than Vantare Used Vehicles; and (2) the
applicable percentage of the original wholesale cost of Used
Vehicles consisting of Vantare Used Vehicles in accordance with
the schedule identified below, excluding the value of any added
accessories:
Number of Years Prior to Applicable Percentage of
Current Model Year Original Wholesale Cost
1 85%
2 72%
3 62%
4 52%
5 42%
6 35%
7 28%
2.3 Curtailment Payments. Dealer will pay DFS ten percent (10%) of
the principal amount of DFS' advance to Dealer for each Used
Vehicle on the ninetieth (90th) and one hundred eightieth (180th)
day following the date the Used Vehicle is financed. The balance
of the amount financed will be due in full on the 270th day after
the Used Vehicle is financed.
2.4 Financing Period. DFS' financing to Dealer shall be on terms not
to exceed a two hundred seventy (270) day maturity, provided,
however, that the full amount of the loan balance will be due in
full immediately upon the sale, transfer, rent, lease or other
disposition of the Used Vehicle or upon the loss, theft or damage
of the Used Vehicle.
2.5 Financing Procedures. Dealer represents that all Used Vehicles to
be financed by DFS are free and clear of all liens and
encumbrances. Dealer will forward to DFS a copy of the xxxx of
sale, title showing the transfer of title by the previous owner
to Dealer and all other documentation evidencing the acquisition
of the Used Vehicle by Dealer. Dealer will provide to DFS a
written request for financing of each Used Vehicle, with such
supporting information as DFS may
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request, in form and substance satisfactory to DFS. Upon DFS'
receipt of such documents and if approved by DFS, DFS will
forward the loan amount to Dealer.
3. Financing Terms and Statements of Transaction. Upon agreeing to finance a
particular item of inventory for Dealer, DFS will send Dealer a Statement
of Transaction identifying such inventory and the applicable financial
terms. Unless Dealer notifies DFS in writing of any objection within
fifteen (15) days after a Statement of Transaction is mailed to Dealer: (a)
the amount shown on such Statement of Transaction will be an account
stated; (b) Dealer will have agreed to all rates, charges and other terms
shown on such Statement of Transaction; (c) Dealer will have agreed that
DFS is financing the items of inventory referenced in such Statement of
Transaction at Dealer's request; and (d) such Statement of Transaction will
be incorporated herein by reference, will be made a part hereof as if
originally set forth herein, and will constitute an addendum hereto. If
Dealer objects to the terms of any Statement of Transaction, Dealer agrees
to pay DFS for such inventory in accordance with the most recent terms for
similar inventory to which Dealer has not objected (or, if there are no
prior terms, at the lesser of 16% per annum or at the maximum lawful
contract rate of interest permitted under applicable law), but Dealer
acknowledges that DFS may then elect to terminate Dealer's financing
program pursuant to Section 19, and cease making additional advances to
Dealer. However, such termination will not accelerate the maturities of
advances previously made, unless Dealer shall otherwise be in default of
this Agreement.
4. Grant of Security Interest. To secure payment of all of Dealer's current
and future debts to DFS, whether under this Agreement or any current or
future guaranty or other agreement, Dealer grants DFS a security interest
in all of Dealer's inventory, equipment, fixtures, accounts, contract
rights, chattel paper, security agreements, instruments, deposit accounts,
reserves, documents, and general intangibles; and all judgments, claims,
insurance policies, and payments owed or made to Dealer thereon; all
whether now owned or hereafter acquired, all attachments, accessories,
accessions, returns, repossessions, exchanges, substitutions and
replacements thereto, and all proceeds thereof. All such assets are
collectively referred to herein as the "Collateral". All of such terms for
which meanings are provided in the Uniform Commercial Code of the
applicable state are used herein with such meanings. All Collateral
financed by DFS, and all proceeds thereof, will be held in trust by Dealer
for DFS, with such proceeds being payable in accordance with Section 10.
5. Affirmative Warranties and Representation. Dealer warrants and represents
to DFS that: (a) Dealer has good title to all Collateral; (b) DFS' security
interest in the Collateral financed by DFS is not now and will not become
subordinate to the security interest, lien, encumbrance or claim of any
person; (c) Dealer will execute all documents DFS requests to perfect and
maintain DFS' security interest in the Collateral; (d) Dealer will deliver
to DFS immediately upon each request, and DFS may retain, each Certificate
of Title or Statement of Origin issued for Collateral financed by DFS; (e)
Dealer will at all times be duly organized, existing, in good standing,
qualified and licensed to do business in each state, county, or parish, in
which the nature of its business or property so requires; (f) Dealer has
the right and is duly authorized to enter into this Agreement; (g) Dealer's
execution of this Agreement does not constitute a breach of any agreement
to
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which Dealer is now or hereafter becomes bound; (h) there are and will be
no actions or proceedings pending or threatened against Dealer which might
result in any material adverse change in Dealer's financial or business
condition or which might in any way adversely affect any of Dealer's
assets; (i) Dealer will maintain the Collateral in good condition and
repair; (j) Dealer has duly filed and will duly file all tax returns
required by law; (k) Dealer has paid and will pay when due all taxes,
levies, assessments and governmental charges of any nature; (1) Dealer will
keep and maintain all of its books and records pertaining to the Collateral
at its principal place of business designated in this Agreement; (m) Dealer
will promptly supply DFS with such information concerning it or any
guarantor as DFS hereafter may reasonably request; (n) all Collateral will
be kept at Dealer's place of business of its Vantare Division at 0000
Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, and with respect to such other
locations, if any, of which Dealer has notified DFS in writing or as listed
on any current or future Exhibit "A" attached hereto which written
notice(s) to DFS and Exhibit A(s) are incorporated herein by reference; (o)
Dealer will give DFS thirty (30) days prior written notice of any change in
Dealer's identity, name, form of business organization, ownership,
management, principal place of business, Collateral locations or other
business locations, and before moving any books and records to any other
location; (p) Dealer will observe and perform all matters required by any
lease, license, concession or franchise forming part of the Collateral in
order to maintain all the rights of DFS thereunder; (q) Dealer will advise
DFS of the commencement of material legal proceedings against Dealer or any
guarantor; and (r) Dealer will comply with all applicable laws and will
conduct its business in a manner which preserves and protects the
Collateral and the earnings and incomes thereof.
6. Negative Covenants. Dealer will not at any time (without DFS' prior written
consent): (a) other than in the ordinary course of its business, sell,
lease or otherwise dispose of or transfer any of its assets; (b) rent,
lease, demonstrate, consign, or use any Collateral financed by DFS; or (c)
merge or consolidate with another entity.
7. Insurance. Dealer will immediately notify DFS of any loss, theft or damage
to any Collateral. Dealer will keep the Collateral insured for its full
insurable value under an "all risk" property insurance policy with a
company acceptable to DFS, naming DFS as a lender loss-payee or mortgagee
and containing standard lender's loss payable and termination provisions.
Dealer will provide DFS with written evidence of such property insurance
coverage and lender's loss-payee or mortgagee endorsement.
8. Financial Statements. Dealer will deliver to DFS: (a) within ninety (90)
days after the end of each of Dealer's fiscal years, a reasonably detailed
balance sheet as of the last day of such fiscal year and a reasonably
detailed income statement covering Dealer's operations for such fiscal
year, in a form satisfactory to DFS; (b) within forty-five (45) days after
the end of each of Dealer's fiscal quarters, a reasonably detailed balance
sheet as of the last day of such quarter and an income statement covering
Dealer's operations for such quarter, in a form satisfactory to DFS; and
(c) within ten (10) days after request therefor by DFS, any other report
requested by DFS relating to the Collateral or the financial condition of
Dealer. Dealer warrants and represents to DFS that all financial statements
and information relating to Dealer or any guarantor which have been or may
hereafter be delivered by Dealer or any guarantor are true and correct and
have been and
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will be prepared in accordance with generally accepted accounting
principles consistently applied and, with respect to such previously
delivered statements or information, there has been no material adverse
change in the financial or business condition of Dealer or any guarantor
since the submission to DFS, either as of the date of delivery, or, if
different, the date specified therein, and Dealer acknowledges DFS'
reliance thereon.
9. Reviews. Dealer grants DFS an irrevocable license to enter Dealer's
business locations during normal business hours without notice to Dealer
to: (a) account for and inspect all Collateral; (b) verify Dealer's
compliance with this Agreement; and (c) examine and copy Dealer's books and
records related to the Collateral. Dealer may temporarily maintain up to
two (2) motor coaches financed by DFS, whether new motor coaches or Used
Vehicles, as demonstration units at locations other than Dealer's place of
business in Sanford, Florida. If DFS conducts an inspection of Dealer's
Collateral, Dealer must identify the locations where the demonstration
units are located and such units must be returned to the Sanford, Florida
location within forty-five (45) days of the inspection (subject to
verification of return by DFS).
10. Payment Terms. Dealer will immediately pay DFS the principal indebtedness
owed DFS on each item of Collateral financed by DFS (as shown on the
Statement of Transaction identifying such Collateral) on the earliest
occurrence of any of the following events: (a) when such Collateral is
lost, stolen or damaged; (b) for Collateral financed under Pay-As-Sold
("PAS") terms (as shown on the Statement of Transaction identifying such
Collateral), when such Collateral is sold, transferred, rented, leased,
otherwise disposed of or matured; (c) in strict accordance with any
curtailment schedule for such Collateral (as shown on the Statement of
Transaction identifying such Collateral); (d) for Collateral financed under
Scheduled Payment Program ("SPP") terms (as shown on the Statement of
Transaction identifying such Collateral), in strict accordance with the
installment payment schedule; and (e) when otherwise required under the
terms of any financing program agreed to in writing by the parties.
Regardless of the SPP terms pertaining to any Collateral financed by DFS,
if DFS determines that the current outstanding debt which Dealer owes to
DFS exceeds the aggregate wholesale invoice price of such Collateral in
Dealer's possession, Dealer will immediately upon demand pay DFS the
difference between such outstanding debt and the aggregate wholesale
invoice price of such Collateral. If Dealer from time to time is required
to make immediate payment to DFS of any past due obligation discovered
during any Collateral audit, or at any other time, Dealer agrees that
acceptance of such payment by DFS shall not be construed to have waived or
amended the terms of its financing program. The proceeds of any Collateral
received by Dealer will be held by Dealer in trust for DFS' benefit, for
application as provided in this Agreement. Dealer will send all payments to
DFS' branch office(s) responsible for Dealer's account. DFS may apply: (i)
payments to reduce finance charges first and then principal, regardless of
Dealer's instructions; and (ii) principal payments to the oldest (earliest)
invoice for Collateral financed by DFS, but, in any event, all principal
payments will first be applied to such Collateral which is sold, lost,
stolen, damaged, rented, leased, or otherwise disposed of or unaccounted
for. Any third party discount, rebate, bonus or credit granted to Dealer
for any Collateral will not reduce the debt Dealer owes DFS until DFS has
received payment therefor in cash. Dealer will: (1) pay DFS even if any
Collateral is defective or fails to conform to any
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warranties extended by any third party; (2) not assert against DFS any
claim or defense Dealer has against any third party; and (3) indemnify and
hold DFS harmless against all claims and defenses asserted by any buyer of
the Collateral relating to the condition of, or any representations
regarding, any of the Collateral. Dealer waives all rights of offset and
counterclaims Dealer may have against DFS.
11. Calculation of Charges. Dealer will pay finance charges to DFS on the
outstanding principal debt which Dealer owes DFS for each item of
Collateral financed by DFS at the rate(s) shown on the Statement of
Transaction identifying such Collateral, unless Dealer objects thereto as
provided in Section 3. The finance charges attributable to the rate shown
on the Statement of Transaction will: (a) be computed based on a 360 day
year; (b) be calculated by multiplying the Daily Charge (as defined below)
by the actual number of days in the applicable billing period; and (c)
accrue from the invoice date of the Collateral identified on such Statement
of Transaction until DFS receives full payment in good funds of the
principal debt Dealer owes DFS for each item of such Collateral in
accordance with DFS' payment recognition policy and DFS applies such
payment to Dealer's principal debt in accordance with the terms of this
Agreement. The "Daily Charge" is the product of the Daily Rate (as defined
below) multiplied by the Average Daily Balance (as defined below). The
"Daily Rate" is the quotient of the annual rate shown on the Statement of
Transaction divided by 360, or the monthly rate shown on the Statement of
Transaction divided by 30. The "Average Daily Balance" is the quotient of
(i) the sum of the outstanding principal debt owed DFS on each day of a
billing period for each item of Collateral identified on a Statement of
Transaction, divided by (ii) the actual number of days in such billing
period. Dealer will also pay DFS $100 for each check returned unpaid for
insufficient funds (an "NSF check") (such $100 payment repays DFS'
estimated administrative costs; it does not waive the default caused by the
NSF check). The annual percentage rate of the finance charges relating to
any item of Collateral financed by DFS will be calculated from the invoice
date of such Collateral, regardless of any period during which any finance
charge subsidy shall be paid or payable by any third party. Dealer
acknowledges that DFS intends to strictly conform to the applicable usury
laws governing this Agreement. Regardless of any provision contained herein
or in any other document executed or delivered in connection herewith or
therewith, DFS shall never be deemed to have contracted for, charged or be
entitled to receive, collect or apply as interest on this Agreement
(whether termed interest herein or deemed to be interest by judicial
determination or operation of law), any amount in excess of the maximum
amount allowed by applicable law, and, if DFS ever receives, collects or
applies as interest any such excess, such amount which would be excessive
interest will be applied first to the reduction of the unpaid principal
balances of advances under this Agreement, and, second, any remaining
excess will be paid to Dealer. In determining whether or not the interest
paid or payable under any specific contingency exceeds the highest lawful
rate, Dealer and DFS shall, to the maximum extent permitted under
applicable law: (A) characterize any non-principal payment (other than
payments which are expressly designated as interest payments hereunder) as
an expense or fee rather than as interest; (B) exclude voluntary
pre-payments and the effect thereof; and (C) spread the total amount of
interest throughout the entire term of this Agreement so that the interest
rate is uniform throughout such term.
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12. Billing Statement. DFS will send Dealer a monthly billing statement
identifying all charges due on Dealer's account with DFS. The charges
specified on each billing statement will be: (a) due and payable in full
immediately on receipt; and (b) an account stated, unless DFS receives
Dealer's written objection thereto within 15 days after it is mailed to
Dealer. If DFS does not receive, by the 25th day of any given month,
payment of all charges accrued to Dealer's account with DFS during the
immediately preceding month, Dealer will (to the extent allowed by law) pay
DFS a late fee ("Late Fee") equal to the greater of $5 or 5% of the amount
of such finance charges (payment of the Late Fee does not waive the default
caused by the late payment). DFS may adjust the billing statement at any
time to conform to applicable law and this Agreement.
13. Financial Covenants/Minimum Utilization Covenant.
13.1 Financial Covenants. Dealer will at all times maintain:
(a) a Tangible Net Worth and Subordinated Debt in the combined amount of
not less than FOURTEEN MILLION DOLLARS ($14,000,000.00);
(b) a ratio of Debt minus Subordinated Debt to Tangible Net Worth and
Subordinated Debt of not more than TWO AND ONE HALF to ONE (2.5:1); and
(c) a ratio of Current Tangible Assets to current liabilities of not less
than ONE AND SEVENTY-FIVE HUNDREDTHS to ONE (1.75:1).
For purposes of this paragraph: (i) "Tangible Net Worth" means the book
value of Dealer's assets less liabilities, excluding from such assets all
Intangibles; (ii) "Intangibles" means and includes general intangibles (as
that term is defined in the Uniform Commercial Code); accounts receivable
and advances due from officers, directors, employees, stockholders and
affiliates; leasehold improvements net of depreciation; licenses; good
will; prepaid expenses; escrow deposits; covenants not to compete; the
excess of cost over book value of acquired assets; franchise fees;
organizational costs; finance reserves held for recourse obligations;
capitalized research and development costs; and such other similar items as
DFS may from time to time determine in DFS' sole discretion; (iii) "Debt"
means all of Dealer's liabilities and indebtedness for borrowed money of
any kind and nature whatsoever, whether direct or indirect, absolute or
contingent, and including obligations under capitalized leases, guaranties
or with respect to which Dealer has pledged assets to secure performance,
whether or not direct recourse liability has been assumed by Dealer; (iv)
"Subordinated Debt" means all of Dealer's Debt which is subordinated to the
payment of Dealer's liabilities to DFS by an agreement in form and
substance satisfactory to DFS; and (v) "Current Tangible Assets" means
Dealer's current assets less, to the extent otherwise included therein, all
Intangibles. The foregoing terms will be determined in accordance with
generally accepted accounting principles consistently applied, and, if
applicable, on a consolidated basis.
13.2 Minimum Utilization Covenant. Dealer will at all times maintain an
average daily outstanding loan balance of FIVE HUNDRED THOUSAND DOLLARS
($500.000.00).
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If Dealer fails to maintain such balance for any month, the interest rate
charged to Dealer for such month shall be increased by one percent (1%).
14. Default. Dealer will be in default under this Agreement if: (a) Dealer
breaches any terms, warranties or representations contained herein, in any
Statement of Transaction to which Dealer has not objected as provided in
Section 3, or in any other agreement between DFS and Dealer; (b) any
guarantor of Dealer's debts to DFS breaches any terms, warranties or
representations contained in any guaranty or other agreement between the
guarantor and DFS; (c) any representation, statement, report or certificate
made or delivered by Dealer or any guarantor to DFS is not accurate when
made; (d) Dealer fails to pay any portion of Dealer's debts to DFS when due
and payable hereunder or under any other agreement between DFS and Dealer;
(e) Dealer abandons any Collateral; (f) Dealer or any guarantor is or
becomes in default in the payment of any debt owed to any third party; (g)
a money judgment issues against Dealer or any guarantor; (h) an attachment,
sale or seizure issues or is executed against any assets of Dealer or of
any guarantor; (i) the undersigned dies while Dealer's business is operated
as a sole proprietorship, any general partner dies while Dealer's business
is operated as a general or limited partnership, or any member dies while
Dealer's business is operated as a limited liability company, as
applicable; (j) any guarantor dies; (k) Dealer or any guarantor shall cease
existence as a corporation, partnership, limited liability company or
trust, as applicable; (l) Dealer or any guarantor ceases or suspends
business; (m) Dealer, any guarantor or any member while Dealer's business
is operated as a limited liability company, as applicable, makes a general
assignment for the benefit of creditors; (n) Dealer, any guarantor or any
member while Dealer's business is operated as a limited liability company,
as applicable, becomes insolvent or voluntarily or involuntarily becomes
subject to the Federal Bankruptcy Code, any state insolvency law or any
similar law; (a) any receiver is appointed for any assets of Dealer, any
guarantor or any member while Dealer's business is operated as a limited
liability company, as applicable; (p) any guaranty of Dealer's debts to DFS
is terminated; (q) Dealer loses any franchise, permission, license or right
to sell or deal in any Collateral which DFS finances; or (r) Dealer or any
guarantor misrepresents Dealer's or such guarantor's financial condition or
organizational structure.
15. Rights of DFS Upon Default. In the event of a default:
(a) DFS may at any time at DFS' election, without notice or demand to
Dealer, do any one or more of the following: declare all or any part
of the debt Dealer owes DFS immediately due and payable, together with
all costs and expenses of DFS' collection activity, including, without
limitation, all reasonable attorneys' fees; exercise any or all rights
under applicable law (including, without limitation, the right to
possess, transfer and dispose of the Collateral); and/or cease
extending any additional credit to Dealer (DFS' right to cease
extending credit shall not be construed to limit the discretionary
nature of this credit facility).
(b) Dealer will segregate and keep the Collateral in trust for DFS, and in
good order and repair, and will not sell, rent, lease, consign,
otherwise dispose of or use any Collateral, nor further encumber any
Collateral.
(c) Upon DFS' oral or written demand, Dealer will immediately deliver the
Collateral to DFS, in good order and repair, at a place specified by
DFS, together
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with all related documents; or DFS may, in DFS' sole discretion and
without notice of demand to Dealer, take immediate possession of the
Collateral together with all related documents.
(d) DFS may, without notice, apply a default finance charge to Dealer's
outstanding principal indebtedness equal to the default rate specified
in Dealer's financing program with DFS, if any, or if there is none so
specified, at the lesser of 3% per annum above the rate in effect
immediately prior to the default, or the highest lawful contract rate
of interest permitted under applicable law.
All of DFS' rights and remedies are cumulative. DFS' failure to
exercise any of DFS' rights or remedies hereunder will not waive any
of DFS' rights or remedies as to any past, current or future default.
16. Sale of Collateral. Dealer agrees that if DFS conducts a private sale of
any Collateral by requesting bids from 10 or more dealers or distributors
in that type of Collateral, any sale by DFS of such Collateral in bulk or
in parcels within 120 days of: (a) DFS' taking possession and control of
such Collateral; or (b) when DFS is otherwise authorized to sell such
Collateral; whichever occurs last, to the bidder submitting the highest
cash bid therefor, is a commercially reasonable sale of such Collateral
under the Uniform Commercial Code. Dealer agrees that the purchase of any
Collateral by a Vendor, as provided in any agreement between DFS and the
Vendor, is a commercially reasonable disposition and private sale of such
Collateral under the Uniform Commercial Code, and no request for bids shall
be required. Dealer further agrees that 7 or more days prior written notice
will be commercially reasonable notice of any public or private sale
(including any sale to a Vendor). Dealer irrevocably waives any requirement
that DFS retain possession and not dispose of any Collateral until after an
arbitration hearing, arbitration award, confirmation, trial or final
judgment. If DFS disposes of any such Collateral other than as herein
contemplated, the commercial reasonableness of such disposition will be
determined in accordance with the laws of the state governing this
Agreement.
17. Power of Attorney. Dealer grants DFS an irrevocable power of attorney to:
execute or endorse on Dealer's behalf any checks, financing statements,
instruments, Certificates of Title and Statements of Origin pertaining to
the Collateral; supply any omitted information and correct errors in any
documents between DFS and Dealer; initiate and settle any insurance claim
pertaining to the Collateral; and do anything to preserve and protect the
Collateral and DFS' rights and interest therein.
18. Information. DFS may provide to any third party any credit, financial or
other information on Dealer that DFS may from time to time possess. DFS may
obtain from any Vendor any credit, financial or other information regarding
Dealer that such Vendor may from time to time possess.
19. Termination/Right of First Refusal. Dealer may not terminate this Agreement
prior to the third anniversary of the date of this Agreement; provided,
however, that Dealer may terminate this Agreement prior to such date if:
(i) Dealer is provided with a written offer
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for floorplan financing from another financial institution which sets forth
reasonably detailed terms for the proposed floorplan credit facility; (ii)
Dealer delivers a copy of said proposal to DFS and allows DFS thirty (30)
days to determine whether to match the proposed floorplan financing
program; and (iii) DFS elects not to offer the same floorplan financing
program to Dealer. DFS may terminate this Agreement at any time. If DFS
elects to terminate this Agreement, Dealer agrees that if Dealer: (a) is
not in default hereunder, 30 days prior notice of termination is reasonable
and sufficient (although this provision shall not be construed to mean that
shorter periods may not, in particular circumstances, also be reasonable
and sufficient); or (b) is in default hereunder, no prior notice of
termination is required. Dealer will not be relieved from any obligation to
DFS arising out of DFS' advances or commitments made before the effective
termination date of this Agreement. It is understood that Dealer may elect
to terminate this Agreement in its entirety only, no section or lending
facility may be terminated singly. DFS will retain all of its rights,
interests and remedies hereunder until Dealer has paid all of Dealer's
debts to DFS. All waivers set forth within this Agreement will survive any
termination of this Agreement.
20. Binding Effect. Dealer cannot assign its interest in this Agreement without
DFS' prior written consent, although DFS may assign or participate DFS'
interest, in whole or in part, without Dealer's consent. This Agreement
will protect and bind DFS' and Dealer's respective heirs, representatives,
successors and assigns.
21. Notices. Except as otherwise stated herein, all notices, arbitration
claims, responses, requests and documents will be sufficiently given or
served if mailed or delivered: (a) to Dealer at Dealer's principal place of
business specified above; and (b) to DFS at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000, Attention: General Counsel, or such other
address as the parties may hereafter specify in writing.
22. NO ORAL AGREEMENTS. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES
TO EXTEND OR RENEW SUCH DEBTS ARE NOT ENFORCEABLE. TO PROTECT DEALER AND
DFS FROM MISUNDERSTANDING OR DISAPPOINTMENT, ALL AGREEMENTS COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, EXCEPT AS SPECIFICALLY
PROVIDED HEREIN OR AS THE PARTIES MAY LATER AGREE IN WRITING TO MODIFY IT.
THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
23. Other Waivers. Dealer irrevocably waives notice of: DPS' acceptance of this
Agreement, presentment, demand, protest, nonpayment, nonperformance, and
dishonor. Dealer and DFS irrevocably waive all rights to claim any punitive
and/or exemplary damages.
24. Severability. If any provision of this Agreement or its application is
invalid or unenforceable, the remainder of this Agreement will not be
impaired or affected and will remain binding and enforceable.
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25. Supplement. If Dealer and DFS have heretofore executed other agreements in
connection with all or any part of the Collateral, this Agreement shall
supplement each and every other agreement previously executed by and
between Dealer and DFS, and in that event this Agreement shall neither be
deemed a novation nor a termination of such previously executed agreement
nor shall execution of this Agreement be deemed a satisfaction of any
obligation secured by such previously executed agreement.
26. Receipt of Agreement. Dealer acknowledges that it has received a true and
complete copy of this Agreement. Dealer acknowledges that it has read and
understood this Agreement. Notwithstanding anything herein to the contrary:
(a) DFS may rely on any facsimile copy, electronic data transmission or
electronic data storage of this Agreement, any Statement of Transaction,
billing statement, invoice from a Vendor, financial statements or other
reports, and (b) such facsimile copy, electronic data transmission or
electronic data storage will be deemed an original, and the best evidence
thereof for all purposes, including, without limitation, under this
Agreement or any other agreement between DFS and Dealer, and for all
evidentiary purposes before any arbitrator, court or other adjudicatory
authority.
27. Miscellaneous. Time is of the essence regarding Dealer's performance of its
obligations to DFS notwithstanding any course of dealing or custom on DFS'
part to grant extensions of time. Dealer's liability under this Agreement
is direct and unconditional and will not be affected by the release or
nonperfection of any security interest granted hereunder. DFS will have the
right to refrain from or postpone enforcement of this Agreement or any
other agreements between DFS and Dealer without prejudice and the failure
to strictly enforce these agreements will not be construed as having
created a course of dealing between DFS and Dealer contrary to the specific
terms of the agreements or as having modified, released or waived the same.
The express terms of this Agreement will not be modified by any course of
dealing, usage of trade, or custom of trade which may deviate from the
terms hereof. If Dealer fails to pay any taxes, fees or other obligations
which may impair DFS' interest in the Collateral, or fails to keep the
Collateral insured, DFS may, but shall not be required to, pay such taxes,
fees or obligations and pay the cost to insure the Collateral, and the
amounts paid will be: (a) an additional debt owed by Dealer to DFS, which
shall be subject to finance charges as provided herein; and (b) due and
payable immediately in full. Dealer agrees to pay all of DFS' reasonable
attorneys' fees and expenses incurred by DFS in enforcing DFS' rights
hereunder. This is an agreement regarding the extension of credit, and not
the provision of goods or services. The Section titles used in this
Agreement are for convenience only and do not define or limit the contents
of any Section.
28. BINDING ARBITRATION.
28.1 Arbitrable Claims. Except as otherwise specified below, all actions,
disputes, claims and controversies under common law, statutory law or
in equity of any type or nature whatsoever (including, without
limitation, all torts, whether regarding negligence, breach of
fiduciary duty, restraint of trade, fraud, conversion, duress,
interference, wrongful replevin, wrongful sequestration, fraud in the
inducement, usury or any other tort, all contract actions, whether
regarding express or implied terms, such as implied covenants of good
faith, fair dealing,
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and the commercial reasonableness of any Collateral disposition, or
any other contract claim, all claims of deceptive trade practices or
lender liability, and all claims questioning the reasonableness or
lawfulness of any act), whether arising before or after the date of
this Agreement, and whether directly or indirectly relating to: (a)
this Agreement and/or any amendments and addenda hereto, or the
breach, invalidity or termination hereof; (b) any previous or
subsequent agreement between DFS and Dealer; (c) any act committed by
DFS or by any parent company, subsidiary or affiliated company of DFS
(the "DFS Companies"), or by any employee, agent, officer or director
of a DFS Company whether or not arising within the scope and course of
employment or other contractual representation of the DFS Companies
provided that such act arises under a relationship, transaction or
dealing between DFS and Dealer; and/or (d) any other relationship,
transaction or dealing between DFS and Dealer (collectively the
disputes), will be subject to and resolved by binding arbitration.
28.2 Administrative Body. All arbitration hereunder will be conducted in
accordance with the Commercial Arbitration Rules of The American
Arbitration Association ("AAA"). If the AAA is dissolved, disbanded or
becomes subject to any state or federal bankruptcy or insolvency
proceeding, the parties will remain subject to binding arbitration
which will be conducted by a mutually agreeable arbitral forum. The
parties agree that all arbitrator(s) selected will be attorneys with
at least five (5) years secured transactions experience. The
arbitrator(s) will decide if any inconsistency exists between the
rules of any applicable arbitral forum and the arbitration provisions
contained herein. If such inconsistency exists, the arbitration
provisions contained herein will control and supersede such rules. The
site of all arbitration proceedings will be in the Division of the
Federal Judicial District in which AAA maintains a regional office
that is closest to Dealer.
28.3 Discovery. Discovery permitted in any arbitration proceeding commenced
hereunder is limited as follows. No later than thirty (30) days after
the filing of a claim for arbitration, the parties will exchange
detailed statements setting forth the facts supporting the claim(s)
and all defenses to be raised during the arbitration, and a list of
all exhibits and witnesses. No later than twenty-one (21) days prior
to the arbitration hearing, the parties will exchange a final list of
all exhibits and all witnesses, including any designation of any
expert witness(es) together with a summary of their testimony; a copy
of all documents and a detailed description of any property to be
introduced at the hearing. Under no circumstances will the use of
interrogatories, requests for admission, requests for the production
of documents or the taking of depositions be permitted. However, in
the event of the designation of any expert witness(es), the following
will occur: (a) all information and documents relied upon by the
expert witness(es) will be delivered to the opposing party, (b) the
opposing party will be permitted to depose the expert witness(es), (c)
the opposing party will be permitted to designate rebuttal expert
witness(es), and (d) the arbitration hearing will be continued to the
earliest possible date that enables the foregoing limited discovery to
be accomplished.
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28.4 Exemplary or Punitive Damages. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
28.5 Confidentiality of Awards. All arbitration proceedings, including
testimony or evidence at hearings, will be kept confidential, although
any award or order rendered by the arbitrator(s) pursuant to the terms
of this Agreement may be entered as a judgment or order in any state
or federal court and may be confirmed within the federal judicial
district which includes the residence of the party against whom such
award or order was entered. This Agreement concerns transactions
involving commerce among the several states. The Federal Arbitration
Act, Title 9 U.S.C. Sections 1 et seq., as amended ("FAA") will govern
all arbitration(s) and confirmation proceedings hereunder.
28.6 Prejudgment and Provisional Remedies. Nothing herein will be construed
to prevent DFS' or Dealer's use of bankruptcy, receivership,
injunction, repossession, repletion, claim and delivery,
sequestration, seizure, attachment, foreclosure, dation and/or any
other prejudgment or provisional action or remedy relating to any
Collateral for any current or future debt owed by either party to the
other. Any such action or remedy will not waive DFS' or Dealer's right
to compel arbitration of any Dispute.
28.7 Attorneys' Fees. If either Dealer or DFS brings any other action for
judicial relief with respect to any Dispute (other than those set
forth in Section 28.6), the party bringing such action will be liable
for and immediately pay all of the other party's costs and expenses
(including attorneys' fees) incurred to stay or dismiss such action
and remove or refer such Dispute to arbitration. If either Dealer or
DFS brings or appeals an action to vacate or modify an arbitration
award and such party does not prevail, such party will pay all costs
and expenses, including attorneys' fees, incurred by the other party
in defending such action. Additionally, if Dealer sues DFS or
institutes any arbitration claim or counterclaim against DFS in which
DFS is the prevailing party, Dealer will pay all costs and expenses
(including attorneys' fees) incurred by DFS in the course of defending
such action or proceeding.
28.8 Limitations. Any arbitration proceeding must be instituted: (a) with
respect to any Dispute for the collection of any debt owed by either
party to the other, within two (2) years after the date the last
payment was received by the instituting party; and (b) with respect to
any other Dispute, within two (2) years after the date the incident
giving rise thereto occurred, whether or not any damage was sustained
or capable of ascertainment or either party knew of such incident.
Failure to institute an arbitration proceeding within such period will
constitute an absolute bar and waiver to the institution of any
proceeding, whether arbitration or a court proceeding, with respect to
such Dispute.
28.9 Survival After Termination. The agreement to arbitrate will survive
the termination of this Agreement.
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29. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS AGREEMENT IS
FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL PROCEEDING WITH RESPECT
TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE WITHOUT A JURY. DEALER AND DFS WAIVE ANY RIGHT TO A JURY TRIAL IN ANY
SUCH PROCEEDING.
30. Governing Law. Dealer acknowledges and agrees that this and all other
agreements between Dealer and DFS have been substantially negotiated, and
will be substantially performed, in the state of FLORIDA. Accordingly,
Dealer agrees that all Disputes will be governed by, and construed in
accordance with, the laws of such state, except to the extent inconsistent
with the provisions of the FAA which shall control and govern all
arbitration proceedings hereunder.
IN WITNESS WHEREOF, Dealer and DFS have executed this Agreement as of the
date first set forth hereinabove.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
DEUTSCHE FINANCIAL SERVICES FEATHERLITE MFG., INC.
CORPORATION
By: /s/ Xxxxx X'Xxxx By: /s/ Xxxxxx Xxxxxxx
Print Name: Xxxxx X'Xxxx Print Name: Xxxxxx Xxxxxxx
Title: Credit Manager Title: President
ATTEST:
/s/ Xxxx Xxxxx
(Assistant) Secretary
Print Name: Xxxx Xxxxx
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