1
EXHIBIT 10.32
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement ("Agreement") is entered into this 28th
day of May, 1999 ("Effective Date"), by and between CANA CAPITAL CORPORATION, a
Florida corporation ("CCC"), and Bikers Dream, Inc. ("Dealer").
W I T N E S S E T H:
WHEREAS, Dealer owns and operates a retail Biker's Dream(R) dealership
located at ________________________________________, and engages in the business
of purchasing new and used motorcycles for resale from such location; and
WHEREAS, Dealer has requested CCC to provide floor plan financing to
Dealer subject to the terms and conditions of this Agreement; and
WHEREAS, CCC is willing to extend floor plan financing to Dealer subject
to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the extension of credit to Dealer evidenced hereby, and for other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings:
(a) "Advance" means an extension of credit hereunder.
(b) "Affiliate" means any person that (i) directly or indirectly
controls, is controlled by or is under common control with Dealer, (ii) directly
or indirectly owns 5% or more of Dealer, (iii) is a director, partner, manager,
or officer of Dealer or an affiliate of Dealer, or (iv) any natural person
related to Dealer or an affiliate of dealer.
(c) "Agreement" shall mean this Agreement, the Program Letters, and
any Transaction Statements issued by CCC from time to time.
(d) "Collateral" means the following property or interests in
property of Dealer, whether now or hereafter existing, owned, licensed, leased,
consigned, acquired, or arising and wherever located: (i) inventory, accounts,
chattel paper, documents, equipment, fixtures, furniture, furnishings,
receivables, machinery, general intangibles and instruments (including without
limitation and whether or not included in the foregoing, Seller Credits,
Manufacturer's Statements or Certificates of Origin, deposit accounts, and
certificates of deposit) and all books, records, disks, and tapes relating to
the foregoing, (ii) all accessions, accessories, substitutions,
2
and replacements to or of the foregoing, and (iii) all proceeds and products of
the foregoing.
(e) "Indebtedness" means all present and future indebtedness and
obligations of Dealer to CCC or to any person CCC directly or indirectly
controls, is controlled by, or is under common control with CCC (a "CCC
Affiliate"), whether or not arising under this Agreement, of whatever kind, now
due or to become due, absolute or contingent, and whether joint, several or
joint and several, including, without limitation, any indebtedness and
obligations arising under guaranty agreements.
(f) "Prime Inventory" means inventory which has been financed in
whole or in part by an Advance, whether or not such Advance is outstanding.
(g) "Prime Rate" shall mean for any calendar month the highest
"prime rate" published in the "Money Rates" column of the Wall Street Journal on
the first business day of such month.
(h) "Program Letter" means each written agreement entitled "Program
Letter," as from time to time amended, between CCC and Dealer with respect to
this Agreement.
(i) "Seller Credits" means all of Dealer's rights to any price
protection payments, rebates, discounts, credits, factory holdbacks, incentive
payments, and other amounts which at any time are due Dealer from a Seller with
respect to, or in connection with, any inventory acquired from such Seller.
(j) "Transaction Statement" means a statement which, at CCC's
option, may be issued by CCC to Dealer from time to time which identifies the
Prime Inventory financed and/ or the Advance made and the terms and conditions
of repayment thereof.
The terms "accessions," "account," "chattel paper," "deposit account,"
"document," "equipment," "fixture," and "inventory" shall have the respective
meanings set forth in the Florida Uniform Commercial Code.
All other terms defined herein shall have the meanings set forth herein.
2. Advances and Approvals.
(a) Dealer may from time to time apply to CCC, directly or in the
manner provided in subparagraph (b) immediately below, for an Advance under this
Agreement; provided, however, that any such Advance (i) for new motorcycles
shall not exceed 100% percent of the purchase price stated on the manufacturer's
invoices to Dealer, and (ii) in the case of used motorcycles, shall not exceed,
for Harley-Davidson, 130% of clean trade-in, for all others, 100% of clean
trade-in, of such motorcycles' loan value. In any event, the aggregate unpaid
balance of all Advances to Dealer shall not exceed the sum of
$__________________, or such different
2
3
amount as CCC shall establish from time to time in writing.
(b) Whenever any person from whom Dealer purchases or may purchase
inventory or who advises CCC that it has sold, or may sell, inventory to Dealer
(a "Seller") requests, whether in writing or by electronic transmission, that
CCC finance, or confirm that it will finance (an "Approval"), the acquisition of
inventory by Dealer from such Seller, such request shall constitute an
application by Dealer for an Advance equal to the purchase price of such
inventory (or such lesser amount actually financed by CCC) as set forth on the
manufacturer's invoice. Dealer shall be obligated for all obligations incurred
by CCC on account of the issuance of each Approval. Whenever CCC makes such an
Advance, it may be paid directly by CCC to such Seller, except CCC may offset
any amount owed by such Seller to CCC, including without limitation any
discount, payment, or other benefit owed by such Seller to CCC ("CCC's Offset"),
all of which shall be the exclusive property of CCC.
(c) Each and every Advance or Approval shall be made in the sole and
absolute discretion of CCC, and nothing herein shall be construed to create a
legal obligation on the part of CCC to issue any Approval or make any Advance.
If CCC decides in its sole and absolute discretion to issue an Approval or make
an Advance, the Approval or Advance may be in the amount requested or a lesser
amount, and made upon such conditions as may CCC determine.
(d) Any manufacturer's invoice received by CCC from a Seller
pertaining to inventory shipped or to be shipped to Dealer, shall be presumptive
evidence that CCC has financed the acquisition of such inventory for Dealer and
that the amount of such invoice is the original principal amount of Dealer's
obligation to CCC on account of such inventory.
(e) CCC shall furnish to Dealer a Transaction Statement with respect
to each Advance made hereunder, which Transaction Statement shall be deemed
accepted by Dealer with respect to the indebtedness described therein unless
Dealer notifies CCC in writing within five (5) calendar days after receipt
thereof.
(f) Dealer will execute from time to time as requested by CCC such
other documents (including trust receipts) as may be reasonably necessary to
confirm Dealer's indebtedness to CCC or to perfect (or to continue perfection
of) CCC's security interest in the Collateral.
3. Grant and Perfection of Security Interest.
(a) Dealer hereby grants to CCC a first priority security interest
in all of the Collateral as security for all Indebtedness. Dealer shall provide
CCC from time to time for so long as any Indebtedness is outstanding such
financing statements, certificates of origin or title, and other documents in
form and substance satisfactory to CCC to establish and maintain a first
priority perfected security interest in the Collateral.
3
4
4. Representations and Warranties of Dealer.
Dealer represents and warrants to CCC that at the time of execution of
this Agreement and at the time of each Approval and each Advance, unless Dealer
has given written notice to the contrary to CCC prior to such Approval or
Advance, that:
(a) Dealer is an S-Corporation in good standing in the state of
Pennsylvania, and does not conduct business under any fictitious name or trade
name or from any location except as listed in paragraph 22 below.
(b) Dealer has all necessary authority to enter into and perform
this Agreement and the transactions contemplated herein.
(c) Except with respect to the obligations of Dealer set forth in
this Agreement, Dealer has full right, title, and interest in and to the
Collateral, free and clear of all liens, encumbrances, and security interests
whatsoever.
(d) The execution of this Agreement by Dealer and the performance of
its obligations hereunder does not conflict with, or cause or give rise to a
breach of, or constitute an event of default under any agreement or contract to
which Dealer is a party or by which any of its assets or securities may be
bound.
(e) All information supplied by Dealer to CCC, including any
financial, credit or accounting statements or application for credit, in
connection with the Agreement is true, correct and complete.
5. Deliveries by Dealer. Prior to acceptance of this Agreement by CCC,
Dealer shall execute and deliver (as the case may be) to CCC the following:
(a) A certified copy of the Articles of Incorporation of Dealer (or
similar organizational document), together with a copy of Dealer's bylaws (or
similar governing instrument) certified by an authorized officer of Dealer to be
true and correct, and in full force and effect as of the date hereof.
(b) A Certificate of Good Standing (or similar certificate) of
Dealer issued by the Secretary of State of the state of Dealer's organization.
(c) A copy of the resolutions of the Board of Directors (or similar
managing body) of Dealer authorizing the execution, delivery, and performance of
this Agreement and the transactions contemplated hereby, and certified by a duly
authorized officer or agent of Dealer to be true, correct, and in full force and
effect as of the date hereof.
(d) A revolving line of credit promissory note in favor of CCC
evidencing the
4
5
aggregate amount of Advances authorized hereunder.
(e) Releases of any existing liens or encumbrances on the
Collateral, except for the security interest of CCC created hereby.
6. Covenants of Dealer.
(a) Until sold at retail in the ordinary course of business pursuant
to the terms hereof, Dealer shall own all Prime Inventory free and clear of all
liens, security interests, claims, and other encumbrances, other than the
security interest granted to CCC herein, whether arising by agreement or
operation of law ("Liens").
(b) Dealer shall (i) keep all Collateral only at the locations
described in paragraph 22 below, and keep all tangible Collateral in good order,
repair, and operating condition and insured as required herein; (ii) promptly
file all tax returns required by federal, state or local law, and promptly pay
all taxes, fees, and other governmental charges for which is Dealer is liable,
including without limitation, all governmental charges against the Collateral;
(iii) permit CCC, without notice, to inspect the Collateral during normal
business hours and at any other time CCC deems desirable; (iv) keep complete and
accurate records of its business, including inventory and sales, and permit CCC
to inspect and copy such records upon request; (v) furnish CCC with such
additional information regarding the Collateral and Dealer's business and
financial condition as CCC may from time to time reasonably request; and (vi)
immediately notify CCC of any material adverse change in Dealer's prospects,
business, operations or conditions (financial or otherwise) or in the
Collateral.
(c) Dealer shall not (i) use (except for demonstration for sale),
rent, lease, sell, transfer, consign or dispose of any or all of the Collateral
except for sales of inventory at retail in the ordinary course of Dealer's
business; (ii) sell inventory to an affiliate; (iii) engage in any other
material transaction not in the ordinary course of Dealer's business; (iv)
change its business in any material manner or enter into any reorganization,
consolidation, merger, or sell all, or substantially all, of its assets without
the prior written consent of CCC; (v) change its name or conduct business under
a fictitious name or trade name, other than described in paragraph 22 below; or
(vi) finance on a secured basis with any third party the acquisition of
inventory of the same brand as any inventory financed or to be financed by CCC
without the prior written consent of CCC.
(d) Dealer shall hold IN TRUST (and separate and apart from Dealer's
other funds) for the benefit of CCC all proceeds from the sale of any of the
Prime Inventory financed by an Advance until complete payment of all
Indebtedness due CCC with respect to the Prime Inventory sold.
(e) Dealer shall furnish to CCC the following information regarding
its business and financial condition:
5
6
(i) As soon as available, and in any event within 120 days
after the end of each fiscal year of Dealer, audited financial statements of
Dealer, including an audited balance sheet and audited statements of income and
cash flow, certified by the independent accountants of Dealer in accordance with
generally accepted accounting principals consistently applied and fairly
presenting the financial condition, cash flows, and results of operations of
Dealer for the period indicated in such statements; and
(ii) Within 45 days after the end of each fiscal quarter,
unaudited balance sheets and statements of income and cash flow showing the
financial conditions and results of operations of Dealer as of the end of such
fiscal quarter, and certified by the chief financial officer of Dealer as fairly
representing the financial portion, cash flows, and results of operations of
Dealer for the period indicated in such statements.
(f) Dealer will use any Advances received directly from CCC only for
the acquisition of Prime Inventory in the ordinary course of business.
7. Payment by Dealer to CCC.
(a) Dealer shall immediately pay to CCC the amount of any Advance
made to finance the acquisition of any item of Prime Inventory upon the earlier
of (i) the sale of such item, in which event Dealer shall hold the entire sale
proceeds therefrom IN TRUST for CCC until paid to CCC, in the same form as
received, separate and apart from Dealer's other funds and property, (ii) the
"Due in Full Date" with respect to such Advance, which date shall be 365 days
after such Advance was made unless otherwise provided for in the Agreement, or
(iii) the date such item has been damaged or destroyed, is returned to a Seller,
or is otherwise removed from the locations described in paragraph 22 below
without CCC's prior written consent. An Advance made to finance the acquisition
of a number of items of inventory shall be allocated among such items in
proportion to Seller's respective invoice prices therefor at the time of sale to
Dealer.
(b) CCC, in its sole and absolute discretion, may by written notice
to Dealer authorize Dealer to pay CCC on a scheduled liquidation program in
whole or in part or discontinue any such program at any time. While a scheduled
liquidation program is in effect, payments on Advances shall be applied on
Advances in the order billed.
(c) Anything in this Agreement to the contrary notwithstanding,
Dealer shall, at CCC's request, immediately pay to CCC the amount necessary to
reduce the sum of outstanding Approvals with respect to inventory received by
Dealer, Advances, and accrued Charges to an amount which does not exceed the
aggregate invoice price of Prime Inventory in Dealer's possession.
(d) Dealer shall pay all Indebtedness, fees, charges and interest
(collectively, "Charges") with respect to each Advance in accordance with the
terms of this Agreement. Dealer shall pay CCC its customary Charge for any check
or item which is returned to CCC. All
6
7
Charges shall be paid by Dealer monthly within 10 calendar days after the month
in which such Charges accrue, and interest on each Advance and principal
Indebtedness related thereto shall be computed each calendar month on the sum of
the daily balances thereof during such month divided by 30 and, in the case
where a monthly rate of interest is provided for, multiplied by the monthly rate
provided for in the Agreement; or, in the case where an annual rate of interest
on an Advance shall begin to accrue on the earlier of (i) the ship date referred
to in the Seller's Invoice; or (ii) the date such Advance is entered by CCC as a
receivable on its books, or (iii) the date CCC makes such Advance ( the "Start
Date"). For the purpose of computing Charges, (i) any payment received by CCC
shall be deemed credited 3 business days thereafter; provided, however, if CCC
has furnished Dealer a form of remittance to be completed and returned with
payments, such payment shall not be deemed credited until the completed
remittance with respect to such payment is received by CCC; (ii) any payment
received by CCC after noon where payment is to be made shall be deemed received
by CCC on the next business day, and (iii) Charges not paid when due, at the
option of CCC, shall become principal Indebtedness and shall bear interest at
the highest interest rate allowable by law from time to time after the due date
thereof (the "Default Rate").
(e) Dealer and CCC agree that the terms of any Advance made by CCC
under the Agreement, including but not limited to the due date, curtailments,
Due In Full Date, and the amount of Charges may vary from time to time and can
not always be agreed upon in advance because such terms depend, in part, upon
the availability and/or the amount of a fee paid by Seller to CCC for financing
of inventory hereunder and other incentives provided by Sellers or buying
groups, CCC's floor planning volume with certain Sellers or with Dealer, and
other economic factors which vary from time to time. Accordingly, Dealer agrees
to pay each Advance and related Charges in accordance with this Agreement.
Dealer agrees that the terms and conditions stated in each Transaction Statement
shall be accepted as to the Advance identified therein if not objected to in
writing by Dealer within five (5) business days after the date of such
statement. If Dealer objects, then where applicable the Advance shall be subject
to the terms and conditions of the most recently accepted Transaction Statement
related to an Advance covering the same model of Prime Inventory, and, if there
is no such previously accepted Transaction Statement, Dealer agrees that in
addition to any other right or remedy CCC may have under this Agreement, the
disputed Advance shall be due and payable within 15 days after the date of such
Advance and interest shall accrue thereon at the rate of 18% per annum.
(f) All payments shall be made at such place as CCC shall from time
to time designate, and unless otherwise provided in the Agreement or if Dealer
is in default, all payments and other amounts received by CCC pursuant to the
Agreement, including without limitation insurance proceeds and proceeds of
Seller Credits, shall be applied to Indebtedness, whether or not due, in such
order as CCC in its sole and absolute discretion shall determine.
8. Insurance. Dealer shall assume all risk of loss, damage to, or
destruction of Collateral so long as any Indebtedness is outstanding from time
to time. Dealer shall keep all tangible Collateral insured for its full
replacement value against all insurable risks under policies
7
8
delivered to CCC and issued by insurers satisfactory to CCC with loss payable to
CCC. All such policies shall be subject to cancellation or change only upon 20
days written notice to CCC. CCC is authorized, but not required, to act as
attorney-in-fact for Dealer in adjusting and settling any insurance claim under
any such policy and in endorsing any checks or drafts drawn by insurers. Dealer
shall promptly remit to CCC, in the form received, together with all necessary
endorsements, all proceeds of such insurance which Dealer may receive on account
of the Collateral. CCC, at its election, shall either apply any proceeds of
insurance it may receive toward payment of Indebtedness or pay such proceeds to
Dealer.
9. Power of Attorney. Dealer authorizes CCC to execute or endorse on
behalf of Dealer any instruments, chattel paper, certificate of title,
manufacturer statements of origin, financing statements and amendments thereto,
or other writings with respect to the Collateral evidencing financing under this
Agreement, or evidencing or perfecting the security interest granted hereby, as
attorney-in-fact for Dealer. This power of attorney and the other powers of
attorney granted herein are irrevocable and coupled with an interest.
10. Credit Information. Dealer authorizes CCC to investigate or make
inquires of former or current creditors of Dealer or other persons and provide
to any creditors or other persons throughout the terms of this Agreement.
11. Default. The occurrence of one or more of any of the following events
shall constitute a material default by Dealer (a "Default"): (a) Dealer shall
fail to pay any Indebtedness when due or any remittance for Indebtedness is
dishonored when first presented for payment; (b) any representation made to CCC
by Dealer or by guarantor, surety, issuer of a letter of credit or any person
other than Dealer primarily or secondarily liable with respect to any
Indebtedness (a "Guarantor") shall not be true when made or Dealer or any
Guarantor shall breach any warranty or agreement to or with CCC; (c) Dealer or
any Guarantor shall die, become insolvent or generally fail to pay its debts as
they become due or, if a business, shall cease to do business as a going
concern; (d) any guaranty, letter or credit, or other obligation of a Guarantor
to CCC with respect to any Indebtedness or Collateral shall terminate or not be
renewed prior to its stated expiration or maturity; (e) Dealer or any Guarantor
shall make an assignment for the benefit of creditors, or commerce a proceeding
under any bankruptcy, reorganization, arrangement, insolvency, receivership,
dissolution, dissolution or liquidation statute or similar law of any
jurisdiction, or any such proceeding shall be commenced against Dealer or
Guaranty or any of their respective assets (an "Automatic Default"); (f) a
material adverse change shall occur in the business, operations or condition
(financial or otherwise) of Dealer or any Guarantor or with respect to the
Collateral; (g) any debt for borrowed money of, or guaranteed by, Dealer or any
Guarantor becomes due by acceleration or otherwise prior to its due date by
reason of a default; or (h) CCC, in good faith, and with a reasonable basis
therefore, determines the prospect of payment of any Indebtedness is impaired or
deems itself insecure.
12. CCC's Rights and Remedies Upon Default. Upon the occurrence of a
Default, CCC shall have all rights and remedies of a secured party under the
Florida Uniform Commercial
8
9
Code and other applicable law and all rights and remedies set forth in this
Agreement, and may terminate this Agreement and any outstanding Approvals
immediately and/or declare any and all Indebtedness immediately due and payable
without notice or demand. Dealer waives notice of intent to accelerate, and
acceleration of, the Indebtedness, all of which shall accrue interest at the
Default Rate until paid in full. CCC may enter any premises of Dealer, with or
without process of law, without force, to search for, take possession of, and
remove the Collateral, or any part thereof. If CCC requests, Dealer shall cease
disposition of and shall assemble the Collateral and make it available to CCC,
at Dealer's expense, at a convenient place or places designated by CCC. CCC may
take possession of the Collateral or any part thereof on Dealer's premises and
cause it to remain there at Dealer's expense, pending sale or other disposition.
Dealer agrees that the sale of inventory by CCC to a person who is liable to CCC
under a guaranty, endorsement, repurchase agreement or the like shall not be
deemed to be a transfer subject to Florida Statutes Section 679.504(5) or any
other applicable law , and Dealer waives any provision of such laws to that
effect. Dealer agrees that repurchases of inventory by a Seller pursuant to a
repurchasing agreement with CCC shall be a commercially reasonable method of
disposition. Dealer shall be liable to CCC for any deficiency resulting from
CCC's disposition, including without limitation, a repurchase by a Seller,
regardless of any subsequent disposition thereof. Dealer is not a beneficiary
of, and has no right to require CCC to enforce, any repurchase agreement. Any
notice of a disposition shall be deemed reasonably and properly given if given
to Dealer at least 10 calendar days before such disposition. If Dealer fails to
perform any of its obligations under this Agreement, CCC may perform the same in
any form or manner which CCC, in its sole and absolute discretion, deems
necessary or desirable, and all monies paid by CCC in connection therewith shall
be additional Indebtedness and shall be immediately due and payable without
notice together with interest payable on demand at the Default Rate. All of
CCC's rights and remedies shall be cumulative. At CCC's request, or without
request in the event of an Automatic Default, Dealer shall pay all Seller
Credits to CCC as soon as the same are received for application to Indebtedness.
Dealer authorizes CCC to collect such amounts directly from Seller and, upon
request of CCC, shall instruct Seller to pay CCC directly.
13. Dealer's Claims Against Sellers. Dealer shall not assert against CCC
any claim or defense Dealer may have against any Seller, whether for breach or
warranty, misrepresentation, failure to ship, lack of authority, or otherwise,
including without limitation claims or defenses based upon charge backs, credit
memos, rebates, price protection payments, or returns. Any such claims or
defense or other claims or defense Dealer might have against Seller shall not
affect Dealer's liabilities or obligations to CCC.
14. Notices. All notices to be given under the Agreement shall be in
writing and shall be delivered either personally, by deposit with a reputable
overnight courier with charges prepaid, or by deposit in the United States mail,
first-class postage prepaid or provided for, and addressed to Dealer or CCC, as
the case may be, at the address described on the signature page hereto, at such
other address designated by such party by notice to the other. Any notice,
including but not limited to any Transaction Statement, shall be deemed to have
been given upon delivery in the case of personal delivery, one business day
after deposit with an overnight courier, or two (2)
9
10
calendar days after deposit in the United States Mail. Notwithstanding anything
to the contrary herein, CCC shall be permitted to send any Transaction Statement
to Dealer by facsimile.
15. Term and Termination. Unless sooner terminated as provided herein or
by at least 30 calendar days prior written notice from either party to the
other, the term of this Agreement shall be one year and from year to year
thereafter; provided, however, CCC may terminate the Agreement immediately by
notice to Dealer in the whole or only with respect to certain product lines if
Dealer shall lose or relinquish any right to sell or deal in any product line of
Prime Inventory or if Dealer fails to pay an Advance due to an objection to the
terms of any Transaction Statement and CCC determines that the Transaction
Statement does not contain a bona fide error. Upon termination of this
Agreement, all Indebtedness (or, if this Agreement is terminated only with
respect to certain product lines, the Indebtedness relative to such product
lines) shall become immediately due and payable without notice or demand. Upon
any termination, Dealer shall remain fully liable to CCC for all Indebtedness
and Charges arising prior to or after termination, and all of CCC's rights and
remedies and its security interest shall continue until all Indebtedness is paid
and all obligations of Dealer are performed in full. If CCC makes Advances in
reliance on a repurchase agreement from a Seller, it may cease making such
Advances if it has any concern as to whether such repurchase agreement will
cover future Advances or be performed by such Seller. No provision of this
Agreement shall be construed to obligate CCC to make any Advances.
16. Submission to Jurisdiction; Waiver of Bond. Dealer hereby expressly
consents to jurisdiction of any local, state, or federal court located within
the state of Florida, and waives any objection which Dealer may have based on
improper venue or forum non conveniens to the conduct of any action or
proceeding in any such court and waives personal service of any and all process
upon it, and consents that all such service of process be made by mail or
messenger directed to it in the same manner as provided for notice to Dealer
herein. Nothing contained in this section shall affect the right of CCC to serve
legal process in any other manner permitted by law or affect the right of CCC to
bring any action or proceeding against Dealer or its property in the courts of
any other jurisdiction. Dealer waives, to the extent permitted by law, any bond
or surety or security upon such bond which might, but for this waiver, be
required of CCC.
17. Governing Law. This agreement shall be construed in all respects in
accordance with, and governed by, the internal laws of the state of Florida.
18. Jury Waiver. Each of the parties hereto waives any right to a trial by
jury on any claim, demand, action, cause of action or counterclaim arising under
or in any way related to this Agreement and the transactions contemplated
herein.
19. Savings Provisions. In no event, whether by reason of acceleration of
the maturity of the Indebtedness or otherwise, shall Charges contracted for,
charged, received, paid or agreed to be paid to CCC exceed the maximum amount
permissible under applicable law. If, from any circumstances whatsoever, Charges
would otherwise be payable to CCC in excess of the
10
11
maximum lawful amount, the charges shall be reduced to the maximum amount
permitted under applicable law; and, if from any circumstance, CCC shall have
received anything of value deemed interest by applicable law in excess of the
maximum lawful amount, an amount equal to any excess of interest shall be
applied to the reduction of the principal amount of Indebtedness and not to the
payment of Charges, or if such excessive interest exceeds the unpaid balance of
the principal amount of Indebtedness, such excess shall be refunded to Dealer.
20. Limitation of Remedies and Damages. CCC and Dealer agree that in the
event there is any dispute relating or arising in connection with this
Agreement, the aggrieved party shall not be entitled to punitive or
consequential damages in connection with any action arising under or in any way
related to this Agreement.
21. Miscellaneous.
(a) Time is of the essence in the performance of Dealer's
obligations under this Agreement. Any waiver by CCC of a default shall only be
effective if in a writing signed by CCC and any waiver of a Default in a
particular instance or of a particular Default shall not be a waiver of the
other Defaults or of the same kind of Default at another time. No modification
of the Agreement shall bind CCC unless in writing signed by CCC.
(b) This Agreement shall insure to the benefit of CCC and its
successors and assigns and may be assigned by CCC in whole or in part.
References to CCC shall be deemed to refer to CCC and its successors and
assigns. Dealer may not assign this Agreement without the prior written consent
of CCC. This Agreement shall be binding upon the parties hereto and their
respective heirs, personal representative, successors and assigns.
(c) In the event any legal action is brought by any party hereto to
enforce any of the terms and conditions of this Agreement, then the prevailing
party shall be entitled to recover its costs and reasonable attorneys' fees.
22. Business Locations and Trade Names. The following set forth all of
Dealer's locations and all fictitious names or trade names under which Dealer is
doing business at such location:
11
12
23. Effectiveness. This Agreement shall not become a contract until
accepted by CCC in Florida by execution hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Effective Date.
Signed and sealed in the presence of:
BIKERS DREAM, INC., CANA CAPITAL CORPORATION,
a California corporation a Florida corporation
----------------------------------- ----------------------------------------
Printed: Printed
--------------------------- ---------------------------------
Its:
------------------------------------
----------------------------------- Address: 0000 Xxxxxxx Xxxxxx Xxxxx
Printed: Xxxxxxxxxxxx, Xxxxxxx 00000
---------------------------
As to Cana Capital Corporation
" CCC"
---------------------------------------,
a
---------------------------------------
Printed: Printed
--------------------------- ---------------------------------
Its:
------------------------------------
-----------------------------------
Printed: Address:
--------------------------- --------------------------------
"DEALER"
12
