Exhibit 10.1
XXXX DEERE INVENTORY SECURITY AGREEMENT
CREDIT AND POWER OF ATTORNEY
TO: DEERE CREDIT, INC. ("Secured Party"), which has its principal place of
business at 0000 00xx Xxxxxx, Xxxx Xxx Xxxxxx, Xxxx 00000-0000 as of the date
set forth in the final paragraph of this Agreement.
The undersigned entity or person ("Debtor") intends to engage or is engaged in
the business of buying, selling and generally dealing in goods of various types
at retail and, from time to time, may desire Secured Party to finance the
acquisition of such goods from manufacturers or other suppliers acceptable to
Secured Party.
Therefore, the parties agree as follows:
1. DEFINITION OF COLLATERAL The term "Collateral," as used herein, shall mean:
1.1 Inventory. All Inventory or goods of whatever description held for sale,
rent or lease by Debtor, now or hereafter owned, or now or hereafter in the
possession, custody or control of Debtor, wherever located, together with all
attachments, accessories, additions and substitutions, including all returns and
repossessions (hereinafter called "Inventory");
1.2 Rights Against Suppliers. All of Debtor's rights to any rebates, discounts,
credits, factory holdbacks and incentive payments which may become due to Debtor
by the manufacturer or distributor with respect to any of the Inventory;
1.3 Equipment and Fixtures. All of Debtor's equipment, fixtures, accounts,
contract rights, chattel paper, instruments, documents and general intangibles,
whether now owned or hereafter acquired;
1.4 Proceeds. All proceeds from the above-described Collateral, including, but
not limited to, insurance proceeds payable by reason of loss or damage to any of
the Inventory, equipment and fixtures, cash, goods, instruments, accounts,
chattel paper, contract rights, and replacement Inventory.
2. APPLICATION FOR CREDIT.
2.1 Request. Debtor may request financing from Secured Party for the purchase of
goods from any supplier and, if Secured Party elects, in its sole discretion, to
make such financing available, it shall be made in such amounts and upon such
conditions as Secured Party may determine. Debtor agrees that Secured Party may,
at any time and without notice, elect not to finance Inventory if the supplier
is in default of its obligations to Secured Party or Secured Party is otherwise
reasonably insecure.
2.2 Execution of Documents. As part of an application for such financing, Debtor
shall execute and deliver to Secured Party any and all additional writing that
Secured Party deems necessary or desirable to accomplish the purposes of this
Agreement, including, but not limited to Financing Statements and any amendments
thereto.
2.3 General Terms. Debtor and Secured Party agree that the financial terms of
any advance by Secured Party hereunder, such as finance charge rates, other
fees, maturities and curtailments, are not fully set forth because such terms
depend, in part, upon supplier incentives or discounts, general economic
conditions, governmental and quasi-governmental actions, Debtor's volume and
outstanding indebtedness with Secured Party and other market factors. This
Agreement provides the general terms only of Secured Party's financing program
with Debtor. Debtor shall be deemed to have accepted the specific terms of each
financing transaction hereunder unless Debtor notifies Secured Party in writing
of any objection within fifteen (15) days of receipt of Secured Party's
confirmation. If Debtor timely objects to the terms of any extension of credit
(other than the initial credit transaction which cannot be protested), and
mutually agreeable terms cannot be negotiated, Debtor agrees to pay Secured
Party for such financing on the same terms and conditions as the immediately
preceding extension of credit for like Inventory from the same supplier, to
which Debtor has not objected. In this event, Debtor acknowledges that Secured
Party may then elect to suspend or terminate this Agreement. Termination for
this reason alone will not be deemed default of this Agreement, and prior
extensions of credit shall not be accelerated, unless Debtor is otherwise in
default under this Agreement. Without limiting the generality of the remainder
of this Section 2.3, the parties acknowledge that the interest rate applicable
to all notes funded under this Agreement has been determined based upon a number
of factors, including, without limitation, market conditions, usage of the
available credit facility and credit quality of Debtor. Debtor expressly agrees
that if Secured Party determines that any of these factors has changed, Secured
Party may, in the exercise of its discretion, adjust the interest rate, either
upwards or downwards, for all existing and future notes upon the delivery of
written notice to Debtor. This interest rate adjustment shall be effective
thirty (30) days subsequent to the date of such written notice.
2.4 Credit Verification. Debtor agrees Secured Party may verify any information
provided by Debtor with Debtor's references, other third parties, and through
credit reporting agencies, and Debtor agrees that Secured Party may provide to
any third party any credit, financial or other information on Debtor that
Secured Party may possess.
3. SELECTION OF INVENTORY; DISCLAIMER OF WARRANTY. Debtor has selected both the
Inventory and the supplier from whom debtor acquired the Inventory and Debtor
assumes all responsibility and risk for the existence, character, quality,
condition and value of the Inventory. This is an agreement regarding the
extension of credit and not the provision of goods and services. Debtor
irrevocably waives any claims against Secured Party with respect to the
Inventory whether for breach of warranty or otherwise and shall not assert
against Secured Party any claim or defense Debtor may have against any supplier
of Inventory to Debtor. Any such claims shall not alter, diminish or otherwise
impair Debtor's liabilities or obligations to Secured party.
4. GRANT OF SECURITY INTEREST. Debtor grants to Secured Party a security
interest in all Collateral of Debtor. The security interest granted under this
Agreement or under any other present or future agreement between Debtor and
secured Party or any of Secured Party's affiliates or subsidiaries, shall secure
the payment and performance of all debts, liabilities and obligations of Debtor
to Secured Party, its affiliates and subsidiaries, whether presently existing or
hereafter arising or created.
5. PAYMENT OF DEBTS DUE FROM SUPPLIER. Debtor assigns to Secured Party and
agrees to pay the amounts described in Paragraph 1.2 to Secured party, as soon
as the same are received, for application to Debtor's obligations hereunder.
Debtor authorizes Secured Party to collect any such amounts directly from the
manufacturer, supplier or distributor, and, upon request of Secured Party, to so
instruct the manufacturer or distributor to make payments directly to Secured
Party.
6. DOCUMENTS OF TITLE. Debtor shall promptly deliver to Secured Party any
Certificate of Title, Certificate of Origin, or manufacturer's Statement of
Origin issued for each item of Inventory, or cause any manufacturer or supplier
of Inventory or other third party which may hold such Certificate, or Statement
to deliver same to Secured party. Secured Party shall have the right to hold
such documents until such items of Inventory are sold and to have its lien or
security interest noted thereon.
7. OBLIGATIONS OF DEBTOR. Debtor shall have the following obligations to Secured
Party:
7.1 Use and location. Debtor will only display and sell Inventory to buyers in
the ordinary course of business. L Debtor shall not use (except for incidental
demonstration for sale), rent, lease, transfer or dispose of Inventory except as
provided herein, nor permit, without the written consent of Secured Party, the
Collateral to be subject to any lien, encumbrance or security interest except
that granted herein. All Inventory shall be located at the address(es) listed in
Paragraph 20. Secured Party may examine the Inventory and Debtor's books and
records regarding the Inventory, at any time.
7.2 Documents. Debtor will execute all documents Secured Party requests to
evidence a credit extension and to perfect Secured Party's Inventory purchase
money security interest, or otherwise assist Secured Party to obtain any
necessary subordination agreements, waivers, or releases to ensure Secured Party
has the first priority, purchase money security interest in the Inventory.
7.3 Condition. Debtor shall keep all Inventory in good order, repair and
operating condition, and shall immediately notify Secured Party of any loss,
theft, or damage to the Inventory.
7.4 Taxes. Debtor shall pay immediately all taxes, expenses, assessments and
charges that may now or hereafter be levied or assessed against the Collateral.
If Debtor fails to pay such taxes, fees or charges, Secured party may, but shall
not be obligated to, do so on Debtor's behalf and demand from Debtor repayment
of all such amounts plus interest at the highest contract rate allowed by law.
7.5 Payment. Debtor's payments are due upon receipt of its monthly billing
statement. Payment of the Late Fee will not waive the default caused by the
failure to make such payment. Debtor shall pay Secured Party promptly when due
the amount of any extension of credit according to the terms of any floorplan
note or any other writing evidencing such extension of credit, including, but
not limited to, all accrued and unpaid interest, any required curtailments,
maturities and additional charges and fees as required in any Addendum, Terms
Schedule or other written supplement to this Agreement, all without regard to
any manufacturer or distributor rebates, credits, holdbacks or discounts.
Notwithstanding the foregoing, Debtor agrees to pay Secured Party the amount of
any extension of credit on each item of inventory financed hereunder immediately
upon the sale thereof or removal from the location listed in Paragraph 20 except
for the purposes of incidental demonstration.
Secured Party may apply payments received from Debtor toward the payment of any
obligations of Debtor in such order of application as Secured party may
determine. Secured party may apply payments to finance charges first, then to
principal, regardless of Debtor's instructions and it may apply payments to the
oldest (earliest) Inventory floorplan notes. All principal stolen, lost,
damaged, rented, leased or otherwise missing.
If Secured Party determines that the aggregate outstanding credit owed by Debtor
exceeds the aggregate wholesale invoice price of the Inventory in Debtor's
possession, Debtor shall immediately upon demand pay Secured Party the
difference between the two amounts. Acceptance by Secured party of past due
amounts shall not be construed as a waiver of default or an amendment to the
terms of this Agreement. Any supplier or third party discount, rebate, bonus, or
credit paid to Secured Party will not reduce Debtor's obligations to Secured
Party until such payment becomes Secured Party's cash.
7.6 Finance Charge Calculation. All payments are due upon Debtor's receipt of
Secured Party's monthly or other billing statement. Debtor agrees to pay Secured
Party finance charges on the outstanding principal indebtedness owing for each
item of Inventory at the rate(s) provided in the Terms Schedule in effect on the
applicable floorplan note (or other evidence of debt) created related to such
Inventory, unless Debtor objects thereto as provided in Section 2.3. Finance
charges at the stated rate shall be computed based on a 360 day year and
calculated by multiplying the Daily Charge (defined below) by the actual number
of days in the applicable billing period. Such finance charges shall accrue from
the floorplan note date for the Inventory until Secured Party receives the
entire principal amount. The "Daily Charge" is the product of the Daily Rate
(defined below) multiplied by the Ending Daily Balance (defined below). The
"Daily Rate" is the quotient of the annual rate provided in the Terms Schedule
divided by 360. The "Ending Daily Balance' is the outstanding principal balance
owed at the end of each day on each floorplan note during a billing period.
Notwithstanding the above, Debtor acknowledges that Secured Party intends to
strictly comply with all applicable usury laws governing this Agreement. Should
such law other than Iowa apply and the usury rate be less than that billed, any
excess finance charges paid shall be deemed payment on the unpaid principal on
the applicable floorplan note. If an overpayment of principal results, it may be
applied to principal on any other floorplan note, and if none, refunded to
Debtor.
7.7 Additional Charges. If Secured party does not receive by the 20th day of any
given month payment of all amounts listed on the monthly billing statement,
Debtor will, to the maximum extent permitted by applicable law, pay Secured
Party a late fee in the amount equal to the greater of $25.00 or 5% of the
amount of such delinquent payments (the "Late Fee"). To the extent permitted by
applicable law, Debtor agrees to pay Secured party $100 for each check returned
unpaid for insufficient funds to cover administrative costs. In addition, Debtor
shall pay the following additional fees to Secured Party:
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8. INSURANCE. Debtor shall keep the Inventory insured with an insurance company
acceptable to Secured Party for full value against all insurable risks with
Secured Party as the loss payee, and will notify Secured Party in writing ten
(10) days before changing or canceling such insurance. Debtor shall provide
Secured Party with written evidence of such coverage and loss payable and
lender's clauses. If Debtor should fail to obtain such insurance, Secured Party
may, but shall not be obligated to, do so on Debtor's behalf and demand from
Debtor repayment for all expenditures together with interest at the highest
contract rate allowed by law.
9. DEBTOR'S RECORDS AND FINANCIAL INFORMATION. Debtor shall keep accurate and
complete records of the Collateral that may be examined by Secured Party upon
request. Debtor agrees to provide within 90 days of the end of Debtor's fiscal
year Financial Statements and shall provide management prepared Financial
Statements within 45 days of the end of each fiscal quarter of Debtor. For the
purposes of this Section 9, Financial Statements shall include, without
limitation, reasonably detailed balance sheets and reasonably detailed income
statements, all prepared in accordance with generally accepted statements, all
prepared in accordance with generally accepted accounting principles,
consistently applied. Debtor grants Secured Party an irrevocable license and
right to occupy Dealer's business locations during normal business hours without
notice to verify the Inventory, examine Debtor's books and records relating to
the Inventory and Collateral, and to verify Debtor's compliance with this
Agreement. Debtor shall give Secured Party at least 45 days prior written notice
of any change in Debtor's identity, name, location, form of business
organization, ownership, and additional business locations.
10. POWER OF ATTORNEY. Debtor hereby grants a Power of Attorney to Secured Party
(which may be exercised by any agents or employees of Secured Party) under which
Secured Party may execute, on behalf of Debtor, any trust receipts, floorplan
notes, chattel paper, financing statements and amendments thereto, or other
writing in connection with this Agreement as attorney-in-fact for Debtor. Debtor
hereby directs Secured Party to sign all floorplan notes on Debtor's behalf.
Secured Party agrees to furnish Debtor a copy of such notes upon written request
of Debtor. Debtor shall call any errors in such floorplan notes to Secured
Party's attention within fifteen (15) days of Debtor's receipt of such note or
receipt of Debtor's monthly statement. Secured Party will sign a corrected note
in replacement of any incorrect note. Under this Power of Attorney, Secured
Party is authorized to execute any such writings manually or by affixing a
mechanical facsimile or printed signature. Upon Debtor's request, Secured Party
will furnish Debtor with a copy of each writing executed under the Power of
Attorney.
11. EVENTS OF DEFAULT. The following events shall constitute a default under
this Agreement:
11.1 Failure to Pay. Any failure by Debtor to pay any portion of its debts to
Secured Party when due and payable hereunder.
11.2 Breach. Any breach or failure of Debtor to observe or perform any of its
other terms, obligations, representations, warranties, covenants or undertakings
hereunder.
11.3 Misrepresentation. Any misrepresentation by Debtor to Secured Party in
connection with the business and financial condition or organizational structure
of Debtor or any misrepresentation relating to the Collateral.
11.4 Death or Dissolution. Death or dissolution of Debtor or of any guarantor or
surety for Debtor" obligations hereunder.
11.5 Termination of Guaranty. The termination by any guarantor or surety of a
guaranty or suretyship with respect to Debtor.
11.6 Insolvency Proceedings. Debtor or any guarantor or surety; (a) makes an
assignment for the benefit of creditors; (b) files or has filed against it a
petition in bankruptcy or for the appointment of a receiver.
11.7 Judgments/Attachment. Any other creditor, customer or tax authority obtains
a judgment or lien against Debtor or any guarantor, or any attachment, sale or
seizure issues or is executed against any assets of Debtor or any guarantor.
11.8 Collateral Impairment/Sale Out of Trust. Any material reduction in the
value of the collateral or any act of Debtor which imperils the prospect of full
performance or satisfaction of Debtor's obligations hereunder; any sale, lease,
rental, or other transfer of any Inventory by Debtor without informing Secured
Party and promptly paying off the applicable floorplan note and any other
charges.
11.9 Fraudulent Acts. Debtor has concealed, removed, transferred or permitted to
be concealed, removed or transferred, any part of its assets, so as to hinder,
delay or defraud any of its creditors or in such manner as would be fraudulent
under any bankruptcy, insolvency, fraudulent conveyance or similar law.
11.10 Loss of Right to Sell. Debtor has voluntarily or involuntarily given up or
lost any franchise, permission, license or right to sell or deal in any product
line of Inventory that represents a significant portion of Debtor's sales
volume.
11.11 Insecurity. Secured Party shall, in good faith, deem itself insecure with
respect to any of the Collateral or repayment of any of the amounts described
herein.
12. REMEDIES. In the event of a default, as defined in Paragraph 11:
12.1 Acceleration. Secured Party shall have, in addition to any and all rights
under the Uniform Commercial Code, the option to terminate this Agreement
immediately and to declare any and all indebtedness or liabilities of Debtor to
Secured Party immediately due and payable without notice or demand.
12.2 Default Finance Charge. Secured party may impose a default finance charge
to all of Debtor's outstanding principal indebtedness equal to that default
rate, if any, specified in the Terms Schedule, or if there is none specified, at
the lesser of 16% per annum on each outstanding floorplan note, or the highest
lawful contract rate of interest permitted under applicable law.
12.3 Assembly of Collateral. Debtor shall, if Secured Party so requests,
assemble the Inventory and deliver it to Secured Party, in good order and repair
at Debtor's expense, at a place designated by Secured Party.
12.4 Repossession and Sale. Secured Party shall also have the right to take
immediate and exclusive possession of all Collateral or any part thereof,
wherever it may be found, and also may enter any of the premises of Debtor, with
or without process of law, without force, wherever the said Collateral may be or
supposed to be and take possession of, and remove, sell, and dispose of, said
Collateral, or any part thereof, at public auction or private sale. Secured
Party reserves the right to bid and become the purchaser at any such sale.
Debtor acknowledges that a manufacturer's repurchase agreement may exist as to
the Collateral, and Debtor hereby agrees that, without limiting other methods of
disposition, commercially reasonable foreclosure sale under the uniform
Commercial Code. Debtor hereby specifically waives any right to judicial
proceedings prior to Secured Party's exercise of this right of "self-help"
repossession.
12.5 Commercial Sale. Dealer agrees that Secured Party may, at its option,
either (i) conduct a private sale of any or all of the Collateral, (ii)
liquidate the Collateral to any supplier of Inventory or (iii) liquidate the
Collateral at a public sale. Without limiting the methodology of disposing of
the Collateral and without excluding other methods of conducting a private sale,
Debtor agrees that a private sale is a commercially reasonable sale under the
Uniform Commercial Code if Secured Party requests bids from at least three (3)
dealers, distributors or suppliers of Inventory of that type and any sale occurs
in whole or in parcels within 180 days after Secured Party obtained possession
and authority (if needed) to sell the Inventory and the sale is made to the
highest bidder making a written cash offer. Debtor agrees that any resale of
Inventory to the supplier of inventory (commonly called a Manufacturer's
Repurchase) under any agreement between the supplier and Secured Party is a
Uniform Commercial Code and no requests for bids shall be required. 12.6 Costs
and Expenses. Debtor shall pay all costs incurred by Secured party in the
collection of any indebtedness or liabilities owed Secured Party by Debtor and
the enforcement of any obligations of Debtor to Secured party, including the
costs of repossession, reasonable attorney's fees and other legal expenses, and
reasonable costs of maintenance, possession and sale of the Collateral.
12.7 Notice. Any notification of collateral disposition shall be deemed
reasonably and properly given if mailed at least ten (10) days before such
disposition, postage prepaid, addressed to Debtor.
12.8 Application of Proceeds. Any proceeds of the Collateral may be applied by
Secured Party to the payment of the reasonable expenses of retaking, holding,
preparing for sale, selling and the like, including reasonable attorney's fees
and legal expenses, and any balance of such proceeds may be applied by Secured
Party toward the satisfaction of Debtor's indebtedness or liabilities in such
order of application as Secured Party may in its sole discretion determine. Any
surplus shall be paid to Debtor, and Debtor agrees to pay any deficiency
immediately upon demand.
13. PRIOR ACTS NOT A WAIVER. Secured Party shall have the right at all times to
enforce the terms and provisions of this Agreement in strict accordance with the
terms thereof, notwithstanding the prior failure of Secured Party to take such
action.
14. ASSIGNMENT. Secured Party may assign this Agreement but Debtor may not
assign this Agreement without the prior written consent of Secured Party.
15. AMENDMENT. This Agreement and the Terms Schedule attached hereto may not be
amended except through a written instrument. Debtor agrees that Secured Party
may notify Debtor of amendments to this Agreement. These amendments shall apply
to any transactions financed by Secured Party after the date of the amendment
without the execution of the amendment by Debtor, but such amendments shall not
apply to transactions financed by Secured Party prior to the date of such
amendment without Debtor executing and delivering such amendment. Debtor agrees
that in addition to the remedies described in Section 12, upon the occurrence of
an Event of Default, Secured Party shall have the right to adjust the interest
rate for all transactions, including those entered into prior to the date of the
adjustment. If Debtor previously signed any Inventory Security Agreement
regarding the Collateral with Secured Party, this Agreement will amend and
supplement such prior agreement. If this Agreement conflicts with the terms of
any prior agreement, the terms of this Agreement shall govern.
16. CHOICE OF LAW. This Agreement is deemed to have been entered into and to be
performed at Secured Party's office in West Des Moines, Iowa. The validity,
enforceability and interpretation of this Agreement and any promissory notes
taken, charges made and sums paid in connection herewith shall be governed by
the laws of the State of Iowa. If any provision of this Agreement or its
application is deemed invalid or unenforceable, the remainder of this Agreement
will not be affected and will remain binding and enforceable.
17. TERMINATION. Either Secured Party or Debtor may terminate this Agreement by
sending thirty (30) days written notice to the other, but termination of this
Agreement does not end debtor's obligations to Secured party for those
obligations which accrued prior to the effective date of the termination;
provided however, no notice of termination to Debtor will be required if Debtor
is in default of this Agreement.
18. BINDING ARBITRATION. Except for any action to recover, repossess or replevy
any collateral hereunder, and any action to recover any deficiency due Secured
Party following the disposition of such collateral, all actions, disputes,
claims and controversies under common law, statutory law or equity of any type
or nature whatsoever (including, without limitation, all torts, all contract
actions, whether regarding express terms or implied terms, such as implied
covenants of good faith, fair dealing, 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 or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between Secured
Party and Debtor; or (c) any other relationship, transaction or dealing between
Secured Party and Debtor (collectively the "Disputes"), will be subject to and
resolved by binding arbitration.
18.1 Any dispute arising out of or relating to this Agreement, or the breach,
termination or validity thereof, shall be determined by arbitration in the
Division of the Federal Judicial District of Secured Party's office in
accordance with the provisions of this Section 18 and the Commercial Arbitration
Rules ("Rules") of the American Arbitration Association ("AAA") in effect on the
date of this Agreement by a single arbitrator who (I) has the qualification sand
experience set forth in paragraph 18.2 of this Section 18 and (ii) is selected
as provided in paragraph 18.3 of this Section 18; provided, however, that, if
the dispute involves more than $1 million, three arbitrators having such
qualifications and experience shall be appointed, each of whom shall be selected
in the same manner as set forth herein for the selection of a single arbitrator.
The arbitrator(s) shall base their award on this Agreement and applicable law
and judicial precedent and shall accompany their award. The arbitration shall be
governed by the substantive laws of the State of Iowa applicable to contrac6ts
made and to be performed therein and by the arbitration laws of the United
States (Title 0, U.S. Code), and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
18.2 Every person nominated or recommended to serve as an arbitrator hereunder
shall be a lawyer with excellent academic and professional credentials and be a
partner in (or counsel to) a highly respected law firm who has had experience as
an arbitrator and at least 20 years experience as a practicing attorney
specializing in corporate, commercial and financial matters, with expertise in
interpreting contracts in the field of law involved in the subject controversy
18.3 The arbitrator shall be selected as provided in this Section 18 and
otherwise I accordance with the AAA's Commercial Arbitration Rules in effect on
the date of this Agreement, except that each party shall be entitled to strike
on a peremptory basis any or all of the names of potential arbitrators on the
list submitted to the parties by the AAA as being qualified in accordance with
the criteria set forth in paragraph 18.2 hereof. In the event the parties cannot
agree on a mutually acceptable arbitrator from the list submitted by the AAA,
the Regional Vice President of the AAA, under the supervision of the AAA's
national department of case administration, shall submit to both parties a
second list containing the names of three lawyers meeting the foregoing
qualifications, each of whom shall be a member of the AAA's Commercial Finance
Disputes Arbitration Panel, and each party shall be entitled to strike one of
such names on a peremptory basis, indicating its order of preference with
respect to the remaining names, and the selection of the arbitrator shall be
made by such Regional Vice President from among such name(s) which have not been
so stricken by either party in accordance with their designated order of mutual
preference.
18.4 Each party will, upon the written request of the other party, provide the
other with copies of documents relevant to the issues raised by any claim or
counterclaim. Other discovery may be ordered by the arbitrator. Any dispute
regarding discovery, including disputes as to the need therefor or the relevance
or scope thereof, shall be determined by the arbitrator, which determination
shall be conclusive. All expenses and fees of the arbitrator and expenses for
hearing facilities, stenographers and other expenses of the arbitration shall be
borne equally by both parties unless they agree otherwise, or unless the
arbitrator in the award assesses such expenses against one of the parties other
than equally. Each party shall bear its own counsel fees and the expenses of its
witnesses except to the extent otherwise provided in the Agreement. Any attorney
who serves as an arbitrator shall be required to agree to do so for a fee based
on his or her current hourly rate for handling commercial matters. The
arbitration proceedings conducted pursuant hereto shall be confidential. Neither
party shall disclose any information about the evidence adduced by the other in
the arbitration proceedings or about documents produced by the other in
connection with the proceeding except in the course of a judicial, regulatory or
arbitration proceeding or as may be requested by governmental authority. Before
making any disclosure permitted by the preceding sentence, the party intending
to make such disclosure shall give the other party reasonable written notice of
the intended disclosure and afford the other party opportunity to protect its
interests. The arbitrator(s), expert witnesses and stenographic reporters shall
sign appropriate nondisclosure agreements in order to effectuate this agreement
of the parties as to confidentiality. The arbitrator(s) shall set forth their
findings of fact and conclusions of law and shall render an award based thereon.
Upon application to the court for an order confirming, modifying or vacating the
award, the court shall have the power to review (a) whether the findings of fact
rendered by the arbitrator(s) are supported by substantial evidence and (b)
whether, as a matter of law based on such findings of fact, the award should be
affirmed, modified or vacated. Upon such determination, judgment shall be
entered in favor of either party consistent herewith.
18.5 Nothing herein will be construed to prevent Secured Party's or Debtor's use
of bankruptcy, receivership, injunction, repossession, replevin, claim and
delivery, sequestration, seizure, attachment, foreclosure, dation 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 Secured Party's or Debtor's right to compel arbitration of
any Dispute. If either Secured party or Debtor brings any other action for
judicial relief with respect to any Dispute, 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. 18.6 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 with respect to such Dispute. ; Except as
otherwise stated herein, all notices, arbitration claims, responses, requests
and documents will be sufficiently given or served if mailed or delivered: (i)
to Debtor's principal place of business specified herein; and (ii) to Secured
Party, 0000 00xx Xx., Xxxx Xxx Xxxxxx, Xxxx 00000-0000, Attention: Director,
Wholesale Credit, or such other address as the parties may specify from time to
time in writing. No arbitration hereunder will include, by consolidation,
joinder or otherwise, any third party other than a guarantor of the
indebtedness, unless such third party agrees to arbitrate pursuant to the
arbitration provisions contained herein and the Rules. 19. If Section 18 of this
Agreement or its application is invalid or unenforceable, any legal proceeding
with respect to any Dispute will be tried in a court of competent jurisdiction
by a judge without a jury. Debtor and Secured party waive any right to a jury
trial in any such proceeding.
THIS CONTRACT CONTAINS BINDING ARBITRATION AND JURY WAIVER PROVISIONS.
LOCATION. Debtor Business and Storage Addresses:
000 X. Xxxxxx Xx.
Xxxxxxx, XX 00000
To include any and all locations.
Secured Party Business Address:
Deere Credit, Inc.
0000 00xx Xxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000-0000
21. MEDIA NEUTRALITY. Nothing in this Agreement shall be construed to require
the use of any particular medium of communication. A communication by any
commercially acceptable means is sufficient, provided that a communication
required to be "in writing" or "written" must be in some form other than oral.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed by
their proper officers/agents as of the 28th day of September, 1999.
Apple Homes Corporation
(Debtor)
ATTEST: /s/ Xxxxx X. Xxxxxxx BY: /s/ E. Xxxxxx Xxxxx
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(or Witness) Secretary or Witness E. Xxxxxx Xxxxx
TITLE: President
(Corporate Seal), if applicable
ACCEPTED: DEERE CREDIT, INC.
(Secured Party)
BY: /s/ Xxx Xxxxxxxxx
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TITLE: Credit Analyst/Xxx Xxxxxxxxx
DATE: 5 October 1999
TERMS SCHEDULE
INVENTORY SECURITY AGREEMENT and POWER OF ATTORNEY
MANUFACTURED HOUSING
The below listed terms have been established for financing your new inventory.
Interest charges are computed as provided in your Inventory Security Agreement
in which these terms are incorporated by reference.
Prime Rate will be the "base rate" quoted by Citibank, New York, on the 15th day
of the month prior to the month for which charges are billed; however, the
minimum Prime Rate used to determine the interest rate is 6.0%. All charges are
due upon receipt of the billing statement and are past due on the 21st of the
month.
The interest rates being offered are based on an average minimum monthly
receivable balance of $1,750,000.
When special programs are offered in relation to a specific manufacturer's
product, the interest rate charged will be the lower of the manufacturer's
program rate or the rate stated below.
Any notice of program or Terms Schedule changes will be given as provided in the
Inventory Security Agreement.
The Interest rate
Is as follows: 1-365 days.........................Prime Rate plus 1.75%
366 days until paid in full........Prime Rate plus 3.75%
Flat Charges: A monthly flat charge per manufacturer's program schedule.
Curtailments: The curtailment and maturity schedule varies by product
based on the program negotiated with each manufacturer.
The programs currently in effect for the manufacturers
you have chosen are attached.
Default Finance
Charge: As provided in your Inventory Security Agreement.
Apple Homes Corporation DEERE CREDIT, INC.
(Debtor) (Secured Party)
By: /s/ E. Xxxxxx Xxxxx [CORPORATE SEAL]
----------------------
E. Xxxxxx Xxxxx
Title: President
Date: 9/28/99
Attachment 1
This financing statement covers the following types (or items) of property:
All types of inventory consisting of, but not limited to, recreational vehicles
and manufactured homes and equipment (and proceeds thereof) which are held for
sale, rental or lease by debtor, now or hereafter acquired, including but not
limited to: recreational vehicles, manufactured homes, mobile homes, modular
homes, motor homes, micro -mini motor homes, mini-motor homes, park models,
vans, van conversions, van campers, travel trailers, fifth wheel trailers, truck
campers, camping trailers, tent trailers, tow vehicles, and the like; as well as
parts, accessories and all other equipment used or intended to be used in
conjunction with any of the foregoing: all equipment, fixtures, accounts,
contract rights, documents, instruments, accounts receivable, general
intangibles, chattel paper and books and records, presently existing or
hereafter arising: all such property returned to or repossessed by or on behalf
of debtor, including such of the same as may be after acquired property: all
present and future accessions to substitutions for, and proceeds of the
foregoing: all reserves of any type description, or origin established at any
time by secured party.
