Exhibit 99.1
Form # 1290
INVENTORY SECURITY AGREEMENT
[LOGO of BOMBARDIER] AND POWER OF ATTORNEY
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1. Parties: The parties to this Agreement are Bombardier Capital Inc.
("BCI") and the Dealer who has singed at the end of this Agreement
("Dealer").
2. Advances: At Dealer's request, BCI, at its option, will advance funds
for the acquisition of Dealer's Inventory ("Inventory"), or for such
other purpose satisfactory to BCI, secured, in whole part, by a security
interest in the Collateral described in Paragraph 4 below. In each case,
BCI will send Dealer a schedule or schedules as described in Paragraph 3
below. If Dealer does not agree with the schedules(s), it must
immediately notify BCI in writing of any objections. Dealer's failure to
notify BCI of its objections within seven (7) days shall constitute an
acceptance of the schedule(s).
3. Payment: Dealer shall repay BCI in accordance with either or a
combination of the following Plans, which shall be chosen at the sole
discretion of BCI:
a) Pay As Sold Plan: BCI shall deliver to Dealer a schedule or
schedules listing each item of Inventory on which BCI has advanced
funds and the amount of the advance. Immediately upon the sale of
each item of Inventory, Dealer will pay to BCI the total amount due
on that item. Dealer will pay to BCI the total amount due on unsold
Inventory within the period established from time to time by BCI or
upon demand by BCI, whichever first occurs and will pay such
curtailments as BCI may require.
b) Scheduled Payment Plan: BCI shall deliver to Dealer a schedule or
schedules listing the repayment items for the Inventory on which it
has advanced funds and the amount of the advance. Dealer will
thereafter pay to BCI the payment due, when due or upon demand by
BCI, whichever comes first, as shown on the schedule(s) BCI supplies
Dealer.
Under either Plan, Dealer agrees that:
a) Dealer will pay BCI financing and service charges, insurance charges
(if any), and late charges according to and upon receipt of the
billing statements which BCI delivers to Dealer and within the time
specified by BCI.
b) BCI, at its discretion, may at any time and without notice to Dealer
apply or reapply any monies received from Dealer in payment of any
Dealer's obligations or liabilities to BCI, in such order of
application as BCI may determine.
4. Collateral:
a) In order to secure repayment to BCI of all extensions of credit made
by BCI under this Agreement, and to secure payment of all other
debts or liabilities and performance of all obligations of Dealer to
BCI, whether now existing or hereafter existing, Dealer agrees that
BCI shall have and hereby grants to BCI a security interest in all
of the rights, titles and interests (whether now existing or
hereafter arising or acquired from time to time) of the Dealer in,
to and under all Inventory, including but not limited to, all goods
manufactured and/or sold by any manufacturer, distributor or seller,
which inventory is owned by Dealer or in which Dealer has an
interest, the purchase of which was financed or floorplanned by BCI
for the Dealer of whatever kind or nature, wherever located, and all
returns, repossessions, exchanges, substitutions, replacements,
attachments, parts, accessories and accessions thereto and thereof,
and all other goods used or intended to be used in conjunction
therewith and all proceeds and products thereof, and documents
relating thereto (the "Collateral").
b) Dealer shall execute and deliver such financing statement and
amendments thereto and all further writings as BCI shall rquest to
accomplish the purpose of this Agreement and Dealer shall bear all
the costs of recording and perfection.
5. Dealer's Duties: Dealer agrees:
a) That upon purchase of each item of Inventory, Dealer shall deliver
to BCI upon request, the Certificate of Title or Certificate of
Origin issued for same, if any, and BCI shall have the right to have
its lien, encumbrance or security interest noted thereon and/or
retain such Certificate of Origin.
b) To sell and deliver inventory only in the ordinary course of
business and not to use, rent or dispose of Collateral except as
herein provided, not permit any encumbrance upon the Collateral
without BCI's prior written consent.
c) To keep all Collateral in good order, repair and operating condition
and to pay all transportation and storage charges on the Collateral.
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d) To pay immediately all taxes, expenses, assessments and charges
which may now or hereafter be levied or assessed against the
Collateral.
e) To hold any funds and proceeds payable to BCI, in the same form
as received, IN TRUST for BCI, separate and apart from Dealer's
funds and goods. BCI shall apply all amounts so received from
Dealer toward the payment of and liabilities of Dealer, in such
order of application as BCI may determine.
f) To reimburse BCI for BCI's expense and cost incurred in connection
with inspections of the Collateral, and its collection and
administration costs.
g) That for purposes of determining the rate of charge hereunder, any
other language herein to the contrary notwithstanding, charges
shall be deemed to have been accrued and accruing from the date of
purchase of each item of Inventory and shall be determined on an
annualized basis (without regard to any "free-flooring" period).
h) Dealer agrees to keep all Collateral insured against risks covered
by standard forms of fire, theft and extended coverage insurance
and such other risks as may be required by BCI, in such amounts and
under such policies issued by such insurance company or companies
as are satisfactory to BCI. BCI shall be named either as a co-
insured or under a loss payable clause, to the extent its interest
may appear. Should Dealer fail to procure such insurance upon
request, BCI may, but is not obligated to, procure the same and
collect the cost thereof from Dealer.
i) To keep all of the Collateral only at its place(s) of business
referred to in Section 13 and to permit BCI to inspect the
Collateral during Dealer's business hours and at other reasonable
times and to inspect and make copies of Dealer's books and records.
j) Dealer shall at all times keep full and accurate records of its
business and Dealer shall upon demand, furnish BCI all such
information regarding Dealer's business and financial condition
as BCI may reasonably request.
k) That BCI may hold any sums or monies belonging to the Dealer which
come into the possession of BCI and may apply all or a portion of
said sums or monies to any outstanding indebtedness, liabilities
or obligations of the Dealer.
6. Power of Attorney: Dealer grants to BCI:
a) A power of attorney under which BCI may a) execute on behalf of
Dealer any notes, chattel paper, UCC financing statements,
amendments thereto and continuations thereof (or similar statements
of notice, registration, amendment or continuation under the laws
of any jurisdiction), or other writing in connection with this
Agreement or the Collateral as BCI may require for the purpose of
protecting, maintaining or enforcing the Collateral or the security
interest granted to BCI in the Collateral and b) adjust, make,
pursue, settle and collect any insurance claim in connection with
this Agreement, as attorney-in-fact for Dealer.
7. Default: The following shall constitute default under this Agreement:
a) Any breach or failure of Dealer to observe or perform any of its
obligations, convenants or undertakings hereunder.
b) Misrepresentation by Dealer to BCI in connection with the business
and financial condition of Dealer or relating to Collateral.
c) Death or dissolution of Dealer, or if any action or proceedings to
dissolve Dealer be instituted.
d) Dealer becoming insolvent or making an assignment for the benefit
of creditors, or if a Petition in Bankruptcy is filed by or against
Dealer, or a complaint in equity or other proceedings for the
appointment of a receiver for Dealer is filed, or if proceedings
for reorganization or for composition with creditors under any law
be instituted by or against Dealer, or if any or all of the goods
of Dealer shall be attached.
e) BCI in good xxxxx xxxxx itself insecure.
8. Remedies: If Dealer defaults, BCI can, at its option and without
notice, demand immediate payment of all obligations under this Agreement
and any other indebtedness owed to BCI. BCI shall have all the rights
and remedies of a secured party under the Uniform Commercial Code in
effect in the jurisdiction where the Collateral is kept including, but
not limited to, the right to enter any of Dealer's premises with or
without legal process, but without force, and to take possession and
remove the Collateral. At BCI's request and to the extent Dealer may
lawfully do so, Dealer will assemble, prepare for removal and make
available to BCI at a place to be designated by BCI which is reasonably
convenient to both parties such items of Collateral as BCI may deem
sufficient to cover all of Dealer's obligations to BCI. Dealer agrees
that private sale of any item financed by BCI at the amount owned to BCI
on that item, less a reasonable restocking charge shall be a
commercially reasonable method of disposition. Five (5) days written
notice of public sale date or the date after which a private sale may
occur shall be a reasonable notice. BCI shall not be chargeable with
responsibility for the accuracy or validity of
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any document or for the existence or value of any Collateral.
Dealer further agrees to pay reasonable attorney's fees and legal
expenses incurred by BCI in enforcing this Agreement after default
by Dealer. To the extent not prohibited by law, Dealer waives all
valuation and exemption laws and releases all right of appeal after
payment in full.
9. Time and Acknowledgement: Time is of the essence in the performance
of Dealer's duties, but the failure of BCI to enforce it rights
under this Agreement shall not be deemed a waiver of BCI's rights
under this Agreement. Dealer will not assert against BCI any claim
or defense Dealer may have against any seller of goods to Dealer.
Dealer acknowledges receipt of a copy of this Agreement.
10. Assignment: This Agreement may be assigned by BCI but Dealer may
not assign this Agreement without the prior written consent of BCI.
11. Modification: This Agreement may not be modified, altered or
amended in any manner whatsoever, except by a further agreement
in writing signed by both Dealer and BCI.
12. Governing Law: The validity, enforceability and interpretation of
this Agreement shall be governed by the laws of the State of
New York.
13. Dealer Business and Warehouse Addresses:
(Attach a schedule if more space required)
SECTION A.
Effective as of the day of , 19 .
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DEALER:
WITNESS: ------------------------------
(OR ATTEST) Type or print name of Dealer.
By:
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(SEAL) Name:
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Secretary Title:
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SECTION C.
Accepted By:
BOMBARDIER CAPITAL INC.
By
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Title
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SECTION B
ACKNOWLEDGMENT BY DEALER IF INDIVIDUAL(S) OR PARTNERSHIP
STATE OF
COUNTY OF
On this the ____________________ day of ____________________, 19_______,
before me personally appeared ______________________________________ known to me
to be the person(s) whose name(s) is (are) subscribed to the foregoing Inventory
Security Agreement and Power of Attorney and acknowledged that he (they)
voluntarily executed the same for the purposes therein contained.
In Witness Whereof I Hereunto set my hand and Official Seal.
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Notary Public
ACKNOWLEDGMENT BY DEALER IF A CORPORATION
STATE OF
COUNTY OF
On this the ____________________ day of ____________________, 19_______,
before me personally appeared ______________________________________ who
acknowledged himself to be the ___________________________ of _________________,
a corporation, and that he, being authorized by the Board of Directors,
voluntarily executed the foregoing Inventory Security Agreement and Power of
Attorney for the purposes therein contained, by signing the name of the
corporation by himself.
In Witness Whereof I Hereunto set my hand and Official Seal.
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Notary Public
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