NationsBank
NationsBank, N.A. (South) Dated: September 1, 1996
FLOOR PLAN AGREEMENT
This Floor Plan Agreement is entered into by and between NationsBank, N.A
(South) (Bank) 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000 and Xxxx
& Xxxx, Inc. 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx Xxxxxxxx, Xxxxxxx 00000 (Borrower).
1. BACKGROUND. Borrower hereby requests Bank to extend to it a line of credit
(Line) to purchase inventory to be secured by Borrower's Collateral
described in paragraph 7 (Collateral). Bank agrees to extend the Line
subject to the terms of this Agreement.
2. THE LINE OF CREDIT. Bank extends to Borrower a Line in the amount of
$8,000,000.00 or such other amount as may be set by Bank from time to time.
Before maturity or demand, Borrower may borrow, repay and reborrow
hereunder at anytime, up to an aggregate amount outstanding at any one time
equal to the principal amount of Note, provided, however, that Borrower is
not in default of any provision of Note, Floor Plan Agreement, Security
Agreement or any other agreement or obligation between Borrower and Bank.
Any sums Bank may Advance in excess of the face amount of the Note shall
also be part of the principal amount the Borrower is obligated to pay Bank
and shall be subject to all the terms of the Note, Security Agreement, and
this Floor Plan Agreement. The Bank's records of the amounts borrowed from
time to time shall be conclusive proof thereof. Borrower acknowledges and
agrees that notwithstanding any provisions of any Note, Floor Plan
Agreement, Security Agreement or any other documents executed in connection
with a Note, Floor Plan Agreement and Security Agreement, the Bank has no
obligation to make any Advance, and that all Advances are at the sole
discretion of Bank.
3. NOTE. Debt under the Line shall be evidenced by Borrower's Floor Plan
Promissory Note (Note).
4. RATE. Debt under the Line shall bear interest as set forth in the Note.
5. DUE DATES.
(a) Unpaid principal and interest hereon shall be due and payable as set
forth in the Note, and as set forth below. Unless Borrower is in
default under the terms of any Security Agreement securing the Note,
this Floor Plan Agreement or any other agreement relating to this
Floor Plan Agreement, upon sale of inventory, Borrower will pay to
Bank at the earlier of Borrower's receipt of payment for that item of
inventory or three (3) business days after that item of inventory is
delivered to the customer or otherwise disposed of, cash in the amount
equal to the original amount advanced less any curtailment payments
made with respect to the item sold. If Borrower is in default at time
of sale, all proceeds of sale will immediately be remitted to Bank and
applied to debt hereunder.
(b) Curtailment payments based on the original amount Advanced with
respect to specific items of inventory shall be paid from time to time
by Borrower as provided for in Addendum "A" attached hereto and made a
part hereof for all purposes as if copied word for word herein.
-1-
6. USE OF LINE AND ADVANCES.
(a) The Advances under this Line shall be exclusively for the purpose of
purchasing inventory to be displayed and demonstrated in conjunction
with the sale of the inventory in the ordinary course of Borrower's
business unless otherwise agreed to in writing by Bank. Borrower
agrees not to use the inventory for any other purpose without the
prior written approval of Bank. The term "Advance" as used in this
Agreement shall mean the dollar amount loaned by Bank on a motor
vehicle financed under a floor plan line of credit and includes but is
not limited to any charge against, debit against, draft against, or
draw against the line of credit evidenced by a Note. Advances under
the Line (Advances) shall be made against and in payment of drafts
drawn on Bank, or in accordance with the written request of Borrower
executed by the person signing this Agreement on behalf of Borrower
or a person hereafter designated in writing by Borrower.
(b) Units of inventory which may be presented as Collateral as well as the
amount of outstanding debt permitted at any one time in connection
with the particular type of Collateral being financed shall be in
accordance with Addendum "B".
(c) Bank may reject as Collateral hereunder any item of inventory which is
received by Borrower in damaged condition. Bank has no obligation to
inspect inventory for damage before paying drafts. If Bank has paid a
draft on damaged inventory, Borrower shall direct the manufacturer to
refund all payments directly to Bank. If the manufacturer fails to
make the refund within thirty (30) days, Borrower shall reduce the
debt outstanding under the Line by the amount Advanced against the
damaged item.
(d) Borrower will submit or cause to be submitted to Bank invoices or
bills of sale representing the actual cost to Borrower of the
inventory. Bank may advance an amount equal to Borrower's cost (not to
exceed NADA wholesale value in the case of used motor vehicles) or
such part of the cost thereof as Bank elects at its sole discretion.
The Advance may be disbursed to Borrower or the manufacturer or others
from whom Borrower purchases inventory. Presentation of drafts or
other requests for payment by manufacturers or others from whom
Borrower purchases inventory shall constitute requests by Borrower
that Bank lend Borrower the amount of such drafts or other requests
for payment pursuant to this Agreement.
(e) A fee in the amount of $2.50 shall be paid by Borrower for each unit
of inventory presented as Collateral to obtain Advances. The fee shall
be paid monthly by Borrower.
7. COLLATERAL Borrower hereby grants to Bank a security interest in all of its
inventory of:
_X_ New Motor Vehicles (now existing or hereafter acquired)
_X_ Used Motor Vehicles (now existing or hereafter acquired)
including all parts and accessories added to vehicles, now existing or
hereafter acquired by Borrower, including any such goods as may be leased
or held for leasing, together with any and all accounts and proceeds
arising from the sale, lease or disposition of said property and all
returned, refused and repossessed goods, all monies received from
manufacturers by way of credits, refunds or otherwise with respect to
Collateral, and all proceeds thereof (Collateral) to secure all debt of
Borrower to Bank under any and all present and future Advances of whatever
kind and further including but not limited to the Line and all other debt
and other obligations of Borrower to Bank of any nature now existing or
hereafter arising, including but not limited to debt arising directly
between Borrower and Bank or acquired outright, conditionally or as
Collateral security from another by Bank, absolute or contingent, joint or
several, secured or unsecured, due or not due, contractual or tortious,
-2-
liquidated or unliquidated, arising under the operation of law or
otherwise, direct or indirect, whether incurred directly or as part of a
partnership, association or other group, or whether incurred as principal,
surety, indorser, accommodation party or otherwise. Borrower will execute
and deliver any documents, instruments or agreements required by Bank to
evidence debt hereunder, grant, perfect and preserve the security interest,
and otherwise carry out the terms of this Agreement. The security interest
herein described is also evidenced by a Security Agreement between Borrower
and Bank, and in the event of any conflict between the terms hereof and the
terms thereof, the terms hereof will apply.
8. IDENTIFICATION OF COLLATERAL. Without limiting the foregoing general grant
of a security interest, as set forth in the Security Agreement, Collateral
subject to the security interest granted herein shall include but not be
limited to (i) inventory listed on invoices submitted to Bank by
manufacturers attached to drafts submitted by manufacturers for payment,
which drafts Bank pays; and/or (ii) inventory in Borrower's possession set
out on a list submitted by Borrower as Collateral for Advances directly to
Borrower.
9. TITLE DOCUMENTS. Title documents consisting of manufacturers' certificate
of origin, manufacturers' statement of origin, certificates of title and/or
any and all other title documents for each item of inventory shall be in
the possession of Borrower unless otherwise directed by Bank. In the event
Bank does require possession of title documents, Borrower shall deliver all
such documents to Bank immediately upon demand.
10. PAYMENT OF DRAFTS. From time to time Bank may make Advances hereunder by
direct payment to manufacturers or others, in which event, invoices
submitted by Manufacturers along with drafts paid by Bank shall serve as
evidence of Advances under the Line. Borrower authorizes Bank to pay all
drafts or invoices upon presentation by the manufacturer or others
supplying inventory to Borrower.
11. ATTORNEY-IN-FACT. Borrower hereby irrevocably appoints Bank its
attorney-in-fact, to execute, deliver and file from time to time, in the
name of Borrower or Bank, any trust receipts, security agreements,
promissory notes, financing statements, continuation statements and
amendments thereto, and any and all other documents and instruments that
Bank may require in connection with evidencing and securing debt under this
Agreement and carrying out the provisions hereof, which appointment shall
be deemed to be a power coupled with an interest.
12. QUALITY OF INVENTORY. Borrower shall be responsible for the quantity,
quality, condition and value of the inventory selected by Borrower and
financed under this Agreement. Bank shall have no liability of any nature
because of the failure of any inventory to conform to Borrower's
specifications, and any dispute between the manufacturer or others and
Borrower with respect to such inventory shall not affect Borrower's
obligation to Bank to pay amounts Advanced hereunder.
13. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
Borrower is a:
(i) _X_ corporation duly organized, existing and in good standing
under the laws of the State of Georgia , that it is licensed
to do business and in good standing in each state in which
the property owned by it or the business transacted by it
requires it to be licensed as a foreign corporation.
(ii) ___ limited liability company, duly organized, and in good
standing under the laws of the State of _________.
-3-
(iii) ___ partnership composed of________________________________
_______________________________________________________
_______________________________________________________
(iv) ___ sole proprietorship owned by __________________________
_______________________________________________________
(b) Borrower is not in default with respect to any agreement between it
and Bank on this date.
(c) All Collateral is owned by Borrower free and clear of any security
interests or encumbrances except those granted pursuant hereto.
(d) Borrower is not in default under any agreement with any other party,
and the execution and performance of this Agreement will not be a
default under any agreement with any other party by which Borrower
or any of Borrower's property is bound.
(e) Borrower does not do financing of any motor vehicle inventory with any
other source or purchase inventory from any seller on credit except as
set out below:
None.
Borrower shall notify Bank immediately in the event it buys inventory
of motor vehicles on credit or enters into any such inventory
financing arrangement with any other source, giving the name and
address of the Bank or seller and details of the purchase or loan.
(f) Borrower and Guarantor shall promptly notify Bank in writing of (i)
any condition, event or act which comes to Borrower's or Guarantor's
attention that would or might materially adversely affect Borrower's
or Guarantor's financial condition or operations, the Collateral, or
Bank's rights under the Guaranty or any Loan Documents, (ii) any
litigation filed by or against Borrower or Guarantor, (iii) any event
that has occurred that would constitute an event of default under any
Loan Documents, including but not limited to any Guaranty.
(g) All financial and other information heretofore submitted by Borrower
is true, complete, and correct and reflects all direct, indirect, and
contingent liabilities.
(h) There has been no material adverse change in the Borrower's financial
condition and operations since the date of Borrowers most recent
financial statements heretofore submitted.
(i) Borrower has and will maintain, at all times, all franchise,
distributor agreements, licenses, permits, and other rights that are
necessary to the conduct of our business.
14. COVENANTS. While the Line is in effect, and thereafter while Borrower is
indebted to Bank, Borrower will:
(a) _X_ Provide Bank within twenty (20) days of each month's end, a
company prepared financial statement (including the
thirteenth (13) month statement including all adjustments to
net worth) in accordance with requirements of the
franchise(s) for which Borrower is a dealer.
-4-
___ Provide within sixty (60) days after Borrower's fiscal
year-end a financial statement compiled by a Certified
Public Accountant acceptable to the Bank.
_X_ Provide within one-hundred-twenty (120) days after
Borrower's fiscal year-end a financial statement audited by
a Certified Public Accountant acceptable to the Bank.
___ Provide within one-hundred-fifty (150) days of Borrower's
fiscal year-end audited financial statements prepared by a
Certified Public Accountant acceptable to the Bank.
In submitting such statements to Bank an authorized officer of Borrower
will certify such statements to be true and accurate, continuing compliance
with all terms and conditions contained herein and that no material
violation or default exists with any material agreement.
_X_ As to Guarantors, provide the Bank a copy of each
Guarantor's personal financial statement within thirty (30)
days of calendar year-end in a manner and form acceptable to
the Bank. Additionally, each Guarantor shall provide the
Bank a copy of each Guarantor's federal income tax return
within thirty (30) days of filing each return.
(b) Not merge into or consolidate with any other person, firm, corporation
or limited liability company nor sell any substantial part of its
assets to any person, firm, corporation or limited liability company
except in the ordinary course of business;
(c) Not sell or enter into any agreement to sell or deal in new motor
vehicles manufactured by any manufacturer for whom it is not now a
Retailer or Wholesaler, unless approved by Bank in writing;
(d) Keep all Collateral and inventory insured, by insurers acceptable to
Bank, at all times in an amount at least equal to the amount of debt
to Bank under the Line with deductible amount satisfactory to Bank,
and the insurance policy to contain loss payable clauses to Bank as
its interest may appear. Borrower will deliver original policies or,
if permitted by Bank, certificates of insurance to Bank;
(e) Permit Bank to enter upon the property of Borrower at any time to
examine all Collateral and to examine Borrower's books in connection
therewith.
(f) At time of execution of this Floor Plan Agreement deliver to Bank such
Landlord Waiver and/or Mortgagee Waiver and Estoppel Agreements duly
executed by the appropriate parties in such form that is satisfactory
to Bank and Borrower will thereafter furnish to Bank current executed
copies of the above instruments upon written request of Bank;
(g) Not allow any material change in ownership or management nor enter
into any management agreement pursuant to which any third party
assumes the management of Borrower in anticipation of a sale of
Borrower's business or any material part of its assets without Bank's
prior written approval;
(h) Operate business in compliance with all environmental protection laws
and regulations including applicable local, state, or federal law,
regulations, or rule of common law;
(i) Not allow any liens or encumbrances on any of Borrower's assets or
property without the written consent of Bank;
(j) See Addendum "C" for additional covenants which are a part of this
Agreement for all purposes as if they were copied word for word
herein.
-5-
15. EVENTS OF DEFAULT.
The following are events of default hereunder: (a) the failure to pay or
perform any obligation, liability, indebtedness or covenant of any Borrower
or Guarantor to Bank, or to any affiliate of Bank, whether under this Floor
Plan Agreement, Security Agreement, Note or any other agreement or
instrument now or hereafter existing, as and when due (whether upon demand,
at maturity or by acceleration); (b) the failure to pay or perform any
other obligation, liability or indebtedness of any Borrower or Guarantor
whether to Bank or some other party, the collateral for which constitutes
an encumbrance on the collateral for this Floor Plan Agreement; (c) death
of any Borrower or Guarantor (if an individual), or a proceeding being
filed or commenced against any Borrower or Guarantor for dissolution or
liquidation, or any Borrower or Guarantor voluntarily or involuntarily
terminating or dissolving or being terminated or dissolved; (d) insolvency
of, business failure of, the appointment of a custodian, trustee,
liquidator or receiver for or for any of the property of, or an assignment
for the benefit of creditors by, or the filing of a petition under
bankruptcy, insolvency or debtor's relief law or for any adjustment of
indebtedness, composition or extension by or against any Borrower or
Guarantor; (e) any lien or additional security interest being placed upon
any of the Collateral which is security for this Floor Plan Agreement; (f)
acquisition at any time or from time to time of title to the whole of or
any part of the Collateral which is security for this Floor Plan Agreement
by any person, partnership, corporation or other entity; (g) Bank
determining that any representation or warranty made by any Borrower or
Guarantor to Bank is, or was, untrue or materially misleading; (h) failure
of any Borrower or Guarantor to timely deliver such financial statements,
including tax returns, and other statements of condition or other
information as Bank shall request from time to time; (i) entry of a
judgment against any Borrower or Guarantor which Bank deems to be of a
material nature, in Bank's sole discretion; (j) the seizure or forfeiture
of, or the issuance of any writ of possession, garnishment or attachment,
or any turnover order for any property of any Borrower or Guarantor; (k)
Bank reasonably deeming itself insecure for any reason; (l) the
determination by Bank that a material adverse change has occurred in the
financial condition of any Borrower or Guarantor; (m) the failure to comply
with any law regulating the operation of Borrower's business; (n) Guarantor
undertakes to terminate or revoke any guaranty of payment of this Note or
defaults in the performance of or disputes any of his obligations as
Guarantor; (o) the inability of the Borrower or Guarantor to pay debts as
they mature owing to Bank or any other party.
16. REMEDIES. Upon the occurrence of any default hereunder, Bank shall have all
of the remedies of a creditor and, to the extent applicable, of a secured
party, under all applicable law. Without limiting the generality of the
foregoing, Bank may, at its option and without notice or demand: (a)
declare any liability accelerated and due and payable at once; and (b) take
possession of any Collateral wherever located, and sell, resell, assign,
transfer and deliver all or any part of said Collateral of Borrower or
Guarantor at any public or private sale or otherwise dispose of any or all
of the Collateral in its then condition, for cash or on credit or for
future delivery, and in connection therewith Bank may impose reasonable
conditions upon any such sale. Bank, unless prohibited by law the
provisions of which cannot be waived, may purchase all or any part of said
Collateral to be sold, free from and discharge of all trusts, claims,
rights or redemption and equities of the Borrower or Guarantor whatsoever;
Borrower and Guarantor acknowledge and agree that the sale of any
Collateral through any nationally recognized broker - dealer, investment
banker or any other method common in the securities industry shall be
deemed a commercially reasonable sale under the Uniform Commercial Code or
any other equivalent statute or federal law, and expressly waives notice
thereof except as provided herein; and (c) set-off against any or all
liabilities of Borrower or Guarantor all money owed by Bank in any capacity
to Borrower or Guarantor whether or not due, and also set-off against all
other Liabilities of Borrower or Guarantor to Bank all money owed by Bank
in any capacity to any Borrower or Guarantor, and Bank shall be deemed to
have exercised such right of set-off and to have made a charge against any
such money immediately upon the occurrence of such default although made or
entered on the books subsequent thereto.
-6-
17. ATTORNEY FEES, COST AND EXPENSES. Borrower and/or Guarantor shall pay all
costs of collection and attorney's fees equal to the greater of (a) fifteen
percent (15%) of the first $500.00 of any Liability due and ten percent
(10%) on the excess of $500.00 Liability due and unpaid if Bank proceeds to
collect such Liability through the services of an attorney at law, whether
through the initiation of legal proceedings or otherwise, plus reasonable
attorney's fees incurred in appellate proceedings, or (b) reasonable
attorney's fees, including reasonable attorney's fees in connection with
any suit, mediation or arbitration proceeding, out of court payment
agreement, trial, appeal, bankruptcy proceedings or otherwise, incurred or
paid by Bank in enforcing the payment of any Liability or enforcing or
preserving any right or interest of Bank hereunder, including the
collection, preservation, sale or delivery of any Collateral from time to
time pledged to Bank, and after deducting such fees, costs and expenses
from the proceeds of sale or collection, Bank may apply any residue to pay
any of the Liabilities and Guarantor shall continue to be liable for any
deficiency with interest at the rate specified in any instrument evidencing
the Liability or, at the Bank's option, equal to the highest lawful rate,
which shall remain a liability.
18. PRESERVATION OF PROPERTY. Bank shall not be bound to take any steps
necessary to preserve any rights in any of the property of Borrower and/or
Guarantor pledged to Bank to secure Borrower's and/or Guarantor's
obligations against prior parties who may be liable in connection
therewith, and Borrower and/or Guarantor hereby agree to take any such
steps. Bank, nevertheless, at any time, may (a) take any action it deems
appropriate for the care or preservation of such property or of any rights
of Borrower and/or Guarantor or Bank therein, (b) demand, xxx for, collect
or receive any money or property at any time due, payable or receivable on
account of or in exchange for any property of Borrower and/or Guarantor,
(c) compromise and settle with any person liable on such property, or (d)
extend the time of payment or otherwise change the terms thereof as to any
party liable thereon, all without notice to, without incurring
responsibility to, and without affecting any of the obligations or
liabilities of Borrower and/or Guarantor.
19. TERMINATION. The Line may be terminated at any time by either party with or
without cause upon 30 days' notice in writing to the other. Upon the
occurrence of a default hereunder, Bank shall have the right to terminate
the Line and to mature all debt outstanding hereunder, including principal
and interest, without notice to any person or lapse of time. Termination of
the Line hereunder shall not affect the obligations of Borrower with
respect to any debt incurred prior to termination. All such obligations
shall continue in full force and effect until all debt under the Line is
paid in full.
20. OVERLINE DEBT. In the event debt outstanding under the Line should for any
reason exceed the amount of the Line allowed hereunder, all such debt shall
be payable on demand, but if no demand is made, no later than such time as
may be specified by Bank at the time of the approval of the temporary
overline. The overline debt shall bear interest at the rate specified for
debt under the Line, and shall be governed by all the terms and conditions
of this Agreement and the other Loan Documents and shall be secured by all
Collateral for the Line, and all items of inventory financed by the
overline debt shall secure all debt under the Line including the overline
and be governed by all terms of the Security Agreement, Floor Plan
Agreement and Note. Bank shall have no obligation to permit any overline at
any time but in its sole discretion may do so.
21. REVIEW OF LINE. Bank may, at its option, from time to time review the
credit for performance, pricing, amount of Line, and Borrower's financial
condition.
22. CHANGE IN TERMS. Bank may at its discretion amend or modify any term or
provision of this Floor Plan Agreement, Security Agreement or any other
agreements pertaining to this Agreement, with any change to be effective 15
days after mailing of notice to Borrower.
23. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be
binding upon each party's respective successors, heirs, executors,
administrators, personal representatives and assigns if
-7-
applicable. Neither this Floor Plan Agreement nor any interest in it may be
assigned by Borrower without Bank's prior written approval.
24. WAIVER (a) Bank may consent to or waive any action or any failure to act by
Borrower with respect to any obligation of Borrower hereunder. Any consent
or waiver on the part of Bank shall be binding upon Bank only when in
writing and signed by an officer of Bank, and no failure to take action
with respect to any default shall constitute a waiver thereof. No waiver of
any default shall be a waiver of any other or future default of that or any
other nature; (b) Bank shall not be required to proceed first against
Borrower, or any other person, firm or corporation, whether primarily or
secondarily liable, or against any collateral held by it, before resorting
to Guarantor for payment, and Guarantor shall not be entitled to assert as
a defense the enforceability of the Guaranty any defense of Borrower
with respect to any Liabilities or Obligations.
25. GOVERNING LAW. This Floor Plan Agreement shall be deemed to have been made
in the State of Georgia at the address indicated above, and shall be
governed by, and construed in accordance with, the laws of the State of
Georgia, and is performable in the State of Georgia.
26. MEDIATION, BINDING ARBITRATION. The parties will attempt in good faith to
resolve any controversy or claim arising out of or relating to this
Agreement by participating in mediation and/or binding arbitration. Each
party agrees that each will bear their respective expenses related to
either mediation or arbitration. The parties further agree if the matter
has not been resolved pursuant to mediation within thirty (30) days of
notice to mediate given by either party, the controversy shall be settled
by arbitration and shall be governed by the United States Arbitration Act,
9 U.S.C. ss.1-16, and judgment upon the award rendered by the Arbitrator
may be entered by any court having jurisdiction thereof.
27. ADDITIONAL TERMS. (a) As used herein, the singular number shall include the
plural (e.g. "Note" means Note or Notes); or (b) In the event that there
are any written terms that may differ between this Floor Plan Agreement and
any other agreements, documents, or negotiations in existence prior to the
execution of this Floor Plan Agreement, Bank and Borrower agree that the
terms of this Floor Plan Agreement shall control and be the final
agreement.
28. MERGER. The terms of any commitment letter issued by Bank to Borrower
for this Line are incorporated herein by reference, except to the extent
that such terms are inconsistent with the terms of this Floor Plan
Agreement, Security Agreement or Note. Any such inconsistent terms are of
no effect. This Floor Plan Agreement supersedes any Floor Plan Agreements
heretofore executed by and between Bank and Borrower, and all outstanding
Floor Plan Agreement indebtedness is hereafter subject to all of the
terms and provisions of this Floor Plan Agreement, and the outstanding
principal balance of all such Floor Plan indebtedness are added to the
principal balance of this Floor Plan Agreement.
29. NOTICES. Any notice or other communication required or permitted hereunder
or under any Note or Security Agreement shall be in writing and shall be
delivered personally, sent by facsimile transmission or by first-class,
certified, registered or express mail, or by courier, with postage and
other charges prepaid. Any such notice shall be deemed given when so
delivered personally, by courier or by facsimile
-8-
transmission, or, if mailed, five (5) days after the date of deposit in the
United States mail, as follows:
If to Borrower, to:
Xxxx & Xxxx, Inc.
0000 Xxxxxxxxx Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Xx.
Facsimile #__________________________________
If Bank, to:
NationsBank, N.A. (South)
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Either Bank or Borrower may, by notice given in accordance with this
provision, designate another address or person for receipt of notices
hereunder.
30. FLOOR PLAN COLLATERAL AND/OR INVENTORY INSPECTION. Floor Plan inventory
inspections will be conducted by Secured Party from time to time at the
sole discretion of Secured Party. Debtor agrees to pay in full any item or
unit of Collateral that is not located at Debtor's premises or accounted
for by Debtor to Secured Party. Debtor shall make payment to Secured Party
(Bank) immediately upon notice of demand being given to Debtor pursuant to
paragraph 29 (NOTICES) of the Floor Plan Agreement.
31. FINAL AGREEMENT. THIS FLOOR PLAN AGREEMENT, FLOOR PLAN PROMISSORY NOTE,
SECURITY AGREEMENT AND ANY OTHER AGREEMENTS EXECUTED IN CONJUNCTION WITH
THIS FLOOR PLAN REVOLVING LINE OF CREDIT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the undersigned has caused this Floor Plan Agreement to
be executed under seal on the 9th day of November, 1996.
Xxxx & Xxxx, Inc.
NationsBank, N.A. (South) Borrower
Bank
By By /s/ Xxxxxxx X. Xxxx Xx.
-------------------------- -------------------------
Xxxxx X. Xxxxxx, Vice President Xxxxxxx X. Xxxx Xx., President
(Name and Title) (Name and Title)
-9-
ADDENDUM "A"
This Addendum "A" to the Floor Plan Agreement shall be and is incorporated by
reference for all purposes as part of the Floor Plan Agreement dated September
1, 1996 between Bank and Borrower.
Curtailments. Curtailment payments based upon the original amount advanced with
respect to specific items of Collateral shall be paid on the following types of
units of Collateral based upon either a dollar or percentage amount as billed to
Borrower and payment is due when billed. The Curtailment payment is to be
applied against the original amount advanced for a unit of Collateral. The
Curtailment payment based upon either a dollar or percentage amount is
calculated on the original amount advanced for the unit and not the outstanding
unpaid balance from time to time.
Unit Type Curtailment Amount Curtailment Date Final Payoff Date
New 10% of original Due 90 days 15 months from
amount financed. prior to maturity. date financed.
Demonstrators 2% of original Due monthly 15 months from
amount financed. beginning in the date financed.
month the vehicle
reached 5,000 miles.
Dated: 11/9/96
Xxxx & Xxxx, Inc.
------------------------------------
Borrower
By: /s/ Xxxxxxx X. Xxxx, Xx.
-------------------------------
Xxxxxxx X. Xxxx, Xx., President
(Name and Title)
Approved: NationsBank, N.A. (South)
By:
-------------------------------
Xxxxx X. Xxxxxx, Vice President
(Name and Title)
ADDENDUM "B"
This Addendum "B" to the Floor Plan Agreement shall be and is incorporated by
reference for all purposes as part of the Floor Plan Agreement dated September
1, 1996 between Bank and Borrower.
Floor Plan Sublimits. The following sublimits represent the amount of
outstandings permitted at any one time in connection with the particular type of
Collateral being financed; notwithstanding, the Bank, in it's sole discretion,
may advance from time to time amounts in excess of the sublimit amounts below:
Unit Type Sublimit Amount
--------- ---------------
New $8,000,000.00
Dated: 11/9/96
Xxxx & Xxxx, Inc.
------------------------------------
Borrower
By: /s/ Xxxxxxx X. Xxxx, Xx.
-------------------------------
Xxxxxxx X. Xxxx, Xx., President
(Name and Title)
Approved: NationsBank, N.A. (South)
By:
-------------------------------
Xxxxx X. Xxxxxx, Vice President
(Name and Title)
ADDENDUM "C"
This Addendum "C" to the Floor Plan Agreement shall be and is incorporated by
reference for all purposes as part of the Floor Plan Agreement dated September
1, 1996 between Bank and Borrower.
As used herein, the following defined terms shall have the following meanings:
Working Capital - Current assets minus current liabilities.
Current Assets - Current assets (inclusive of LIFO reserve for new and used
vehicles) less amounts due from officers, stockholders, insiders,
affiliates and employees included as current assets, all computed in
accordance with generally accepted accounting principles.
Current Liabilities - Current liabilities less amounts included as current
liabilities due to officers, stockholders, insiders, affiliates and
employees, which have been expressly subordinated in payment to the Bank
all computed in accordance with generally accepted accounting principles.
Tangible Net Worth - Stated net worth less intangible assets, less
leasehold improvements, less amounts due from officers/affiliates, plus 70%
times LIFO Reserve (new vehicles only), plus Accounts Payable or Notes
Payable to officers/affiliates formally subordination to the Bank.
Inventory Trust Position - Cash, plus contracts in transit, plus accounts
receivable - vehicles (excluding any receivable from finance activities),
new and used inventories (inclusive of LIFO reserves for new and used
vehicles) less new and used Floor Plan liabilities.
Total Liabilities - Total liabilities less amounts payable to officers,
stockholders, insiders, affiliates and employees that are expressly
subordinated in payment to the Bank, all computed in accordance with
generally accepted accounting principles.
Additional Covenants. While the Line is effect, and thereafter while Borrower is
indebted to Bank, Borrower will: (Xxxx xxxxx for applicable covenant)
|_| (1) Maintain Working Capital of not less than $ N/A at all times.
|X| (2) Maintain a ratio of current assets to current liabilities of not less
than 2 to 1.0 at all times.
|_| (3) Maintain Tangible Net Worth of not less than $ N/A at all times.
|X| (4) Not permit the ratio of total liabilities to Tangible Net Worth to
exceed 1.3 to 1.0 at all times.
|_| (5) Maintain a minimum Inventory Trust Position of not less than $ N/A at
all times.
|_| (6) Provide to Bank within N/A days of each month end a monthly
Certificate of Compliance in the form attached hereto as "Exhibit
A-1", signed by a duly authorized representative of Borrower or
Borrower.
|X| (7) Provide to Bank within 120 days of each fiscal year end financial
statements audited by a Certified Public Accountant acceptable to
Bank, to include a balance sheet, operating statement, cash flow
statement and net worth reconciliation. Such audit shall include an
unqualified opinion from such auditor.
|X| (8) Other: (If additional space is needed, attach additional pages to this
Addendum)
