Exhibit 10.3.2a
Bombardier Capital Inc. INVENTORY SECURITY AGREEMENT
AND POWER OF ATTORNEY
1. Parties: The parties to this Agreement are Bombardier Capital Inc. ("BCI")
and the Dealer who has signed 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 schedule(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 terms 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 statements and
amendments thereto and all further writings as BCI shall request 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, nor 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.
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, covenants 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 owed 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 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 its 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.)
Location #1
0000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Location #2
0000 Xxxxxx xxx
Xxxxxxx, XX 00000
Location #3
Location #4
Effective as of the 23 day of July 1998.
DEALER: Big Daddy's Mobile Homes, Inc.
--------------------------------------
WITNESS: Type or print name of Dealer
(OR ATTEST)
By: /s/ E. Xxxxxx Xxxxx
-----------------------
/s/ Xxxxxx Xxxxxx
-----------------
Secretary Name: E. Xxxxxx Xxxxx
(SEAL)
Title: President
Accepted by: By:
BOMBARDIER CAPITAL INC.
Name:
By:
Title:
Title:
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.
------------------------------
Notary Public
ACKNOWLEDGMENT BY DEALER IF A CORPORATION
XXXXX XX Xxxxxxx
XXXXXX XX Xxxxxxxx
Xx this the 23 day of July____, 1998 before me personally appeared E.
Xxxxxx Xxxxx who acknowledged himself to be the President of Big Daddy's Mobile
Homes, Inc., 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 Hereto set my hand and Official Seal.
/s/ Xxxxxxx X. Xxxxx
--------------------
Notary Public
Bombardier Capital FIRST AMENDMENT TO
INVENTORY SECURITY AGREEMENT
AND POWER TO ATTORNEY
This First Amendment to Inventory Security Agreement and Power of Attorney
is made as of the 23 day of July, 1998, by and between Bombardier Capital Inc.
("BCI") and Big Daddy's Mobile Homes, Inc. ("Dealer").
WHEREAS, BCI and Dealer entered into a certain Inventory Security Agreement
and Power of Attorney dated as of 07-23-98 (the "ISA") under and pursuant to
which BCI provided certain financing to the Dealer for the purchase by Dealer of
inventory (as that term is defined in the ISA and incorporated herein by
reference);
WHEREAS, the ISA called for the Dealer to pay BCI certain sums in
connection with financing provided by BCI under and pursuant to the ISA;
WHEREAS, BCI and the Dealer wish to amend the ISA for the purpose of
further clarifying their existing agreement with respect to rates charged to the
Dealer by BCI under and pursuant to the ISA.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, BCI and the Dealer hereby agree
that the ISA is amended to add the following two paragraphs after the second of
the two paragraphs lettered b) in Section 3 of the ISA:
c) The specific interest rate(s) charged to Dealer are stated on individual
financial program letters, which letters may be obtained by the Dealer from
BCI representatives. The interest rates charged at any given time are
determined by the financial programs in force for the specific products
that Dealer purchases under this Agreement, and Dealer and BCI agree that
the rates charged may fluctuate over time and may vary depending on factors
such as the type and brand of Inventory purchased, time of year, age of the
Inventory, and/or payment habits of Dealer.
d) It is the intention of BCI to conform to all applicable laws governing
the rates of interest that may be charged. If the amount contracted for,
charged or received by BCI exceeds the maximum amount permitted by law, it
is agreed that such excess will be considered an error and canceled
immediately and, if already paid, shall be refunded to the Dealer or, at
BCI's option, applied to other outstanding liabilities of Dealer to BCI.
As hereby amended, the ISA is affirmed and ratified in all respects.
BCI: DEALER: Big Daddy's Mobile Homes, Inc.
By: By: /s/ E. Xxxxxx Xxxxx
-------------------- -----------------------
Title: Title: President
By:
Title:
Bombardier Capital Inc. MANUFACTURED HOUSING
ADDENDUM TO INVENTORY
SECURITY AGREEMENT AND
POWER OF ATTORNEY
This Manufactured Housing Addendum (this "Addendum" is made as of the date
stated below by and between Big Daddy's Mobile Homes, Inc. having its principal
place of business at 0000 Xxxxxx Xxxxxxx Xxxxxxx, XX 00000 ("Debtor") and
BOMBARDIER CAPITAL INC., having an office at Colchester, Vermont ("Secured
Party"). The parties intend that this addendum be an addendum to that certain
Inventory Security Agreement and Power of Attorney (the "ISA") either heretofore
or contemporaneously herewith signed by the parties hereto in consideration for
which Secured Party from time to time may grant extensions of credit to or on
behalf of Debtor so that Debtor may acquire Debtor's "Inventory" as that term is
defined in the ISA.
1. All capitalized terms not otherwise defined herein shall have the same
meanings as ascribed to those terms in the ISA. Except as amended by this
Addendum, the ISA remains unchanged and in full force and effect between
the parties in accordance with its terms. The ISA and this Addendum
together with any other amendments thereto constitute a singular agreement
between the parties.
2. Other than as part of a delivery and set-up service to a purchaser buying
Inventory in the ordinary course of Debtor's business, Debtor agrees never
to affix any Inventory to any real property in such a manner as o become a
"fixture" without first notifying Secured Party and obtaining Secured
Party's express written permission to do so.
3. Debtor agrees to notify Secured Party in writing of the exact address
(including a complete e legal description) of any real estate upon which
Debtor places any Inventory, regardless of the manner of affixation. Debtor
further agrees to notify in writing (with a copy to Secured Party) any
owner or encumbrancer of real estate upon which debtor places any Inventory
of the existence of Secured Party's security interest in Debtor's
Inventory. In the event Debtor, or any legal entity all or a majority of
which is owned or controlled by Debtor, is the owner or encumbrancer of
such real estate, Debtor, for him-, her-, or itself, and/or on behalf of
such other entity and, in the capacity of owner or encumbrancer, hereby
consents to Secured Party's security interest in such Inventory and
disclaims any interest in such Inventory as fixtures.
4. Debtor agrees to execute and deliver to Secured Party at any time or from
time to time any instrument, document, financing statement, continuation
statement, assignment, manufacturer's statement or certificate of origin or
of title and any certificate of title issued by any state or political
subdivision evidencing that title to a particular item of Inventory is held
in the name of Debtor (collectively, "Title Documents"), or any other
writing which secured party may deem necessary or desirable to perfect
secured Party's security interest in the Inventory, and t pay all
recordation costs and taxes incident to filing or recording any such
instrument, document, statement, assignment, lien on title documents, or
other such writing.
5. Debtor, for its own convenience, hereby requests, authorizes and empowers
Secured Party, or any employee, agent or representative of Secured Party's
designation, for and on behalf and in the name of Debtor, and as Debtor's
lawful attorney-in-fact, to execute, deliver and record any financing
statements, continuation statements and the like giving notice of Inventory
floorplan financing done or to be done under this Addendum and the ISA.
IN WITNESS WHEREOF, the parties have caused this Addendum to be duly signed
on FEBRUARY 11, 1998.
ACCEPTED BY: (Seal)
BOMBARDIER CAPITAL INC. Augusta Housing Center, Inc.
----------------------- ----------------------------
By: By: /s/ E. Xxxxxx Xxxxx
--------------------- -----------------------
(Signature) (and Title if Debtor
is a corporation)
Title: E. Xxxxxx Xxxxx - President
Attest: Witness: /s/ Xxxxxx Xxxxxx
--------------------- --------------------------
(Signature)(Secretary if Debtor
is a corporation)
(If a corporation, Debtor's corporate seal must be affixed, and its Secretary
must sign on line marked "Witness")
ACKNOWLEDGEMENT FOR INDIVIDUAL DEBTOR
STATE OF ________________________: CITY/COUNTY OF ___________________:TO WIT:
I HEREBY CERTIFY that on this ________ day of _____________, 19_____,
before me, the subscriber, a Notary Public in and for the State and City/County
aforesaid, personally appeared ____________________________________ known to me
or satisfactorily proven to be the person executing the foregoing Addendum as
Debtor, who acknowledged that (s)he has executed the foregoing Addendum in
his/her individual capacity and that the same is he/her act and deed.
My Commission Expires on_______________ ____________________________________
Notary Public
ACKNOWLEDGEMENT FOR PARTNERSHIP OR CORPORATE DEBTOR
STATE OF GEORGIA: CITY/COUNTY OF RICHMOND: TO WIT:
I HEREBY CERTIFY that on this 11th day of February, 1997, before me, the
subscriber, a Notary Public in and for the State and city/County aforesaid,
personally appeared E. Xxxxxx Xxxxx known to me or satisfactorily proven to be
the person executing the foregoing Addendum on behalf of the Debtor, who
acknowledged that (s)he is a President of the Debtor, ( ) a partnership (X) a
corporation, and that, as such President, (s)he is duly authorized to execute
and has executed the foregoing Addendum on behalf of the debtor for the purpose
therein set forth by signing the name of the Debtor and that the same is the at
and deed of the Debtor.
My commission Expires on June 10, 2000. /s/Xxxxxxx X. Xxxxx
--------------------------------------- -------------------
Notary Public
Exhibit 10.3.2aa
Bombardier Capital Inc. INVENTORY SECURITY AGREEMENT
AND POWER OF ATTORNEY
1. Parties: The parties to this Agreement are Bombardier Capital Inc. ("BCI")
and the Dealer who has signed 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 schedule(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 terms 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 statements and
amendments thereto and all further writings as BCI shall request 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, nor 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.
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, covenants 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 owed 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 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 its 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.)
Location #1
0000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Location #2
Location #3
Location #4
Effective as of the 6 day of February 19 98
DEALER: Augusta Housing Center, Inc.
------------------------------------
WITNESS: Type or print name of Dealer
(OR ATTEST)
By: /s/ E. Xxxxxx Xxxxx
-----------------------
/s/ Xxxxxx Xxxxxx (SEAL)
----------------- ------
Secretary Name: E. Xxxxxx Xxxxx
Title: President
Accepted by: By:
BOMBARDIER CAPITAL INC.
Name:
By /s/ X. Xxxxxx
----------------
Title:
Title: Credit Manager
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.
--------------------------------
Notary Public
ACKNOWLEDGMENT BY DEALER IF A CORPORATION
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXX
Xx this the 4 day of January, 1995 before me personally appeared E. Xxxxxx
Xxxxx who acknowledged himself to be the President of Augusta Housing Center, 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 Hereto set my hand and Official Seal.
/s/Xxxxx X. Xxxx
----------------
Notary Public
Bombardier Capital FIRST AMENDMENT TO
INVENTORY SECURITY AGREEMENT
AND POWER TO ATTORNEY
This First Amendment to Inventory Security Agreement and Power of Attorney
is made as of the 4 day of January, 1995, by and between Bombardier Capital Inc.
("BCI") and Augusta Housing Center, Inc. ("Dealer").
WHEREAS, BCI and Dealer entered into a certain Inventory Security Agreement
and Power of Attorney dated as of 1-4-95 (the "ISA") under and pursuant to which
BCI provided certain financing to the Dealer for the purchase by Dealer of
inventory (as that term is defined in the ISA and incorporated herein by
reference);
WHEREAS, the ISA called for the Dealer to pay BCI certain sums in
connection with financing provided by BCI under and pursuant to the ISA;
WHEREAS, BCI and the Dealer wish to amend the ISA for the purpose of
further clarifying their existing agreement with respect to rates charged to the
Dealer by BCI under and pursuant to the ISA.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, BCI and the Dealer hereby agree
that the ISA is amended to add the following two paragraphs after the second of
the two paragraphs lettered b) in Section 3 of the ISA:
c) The specific interest rate(s) charged to Dealer are stated on individual
financial program letters, which letters may be obtained by the Dealer from
BCI representatives. The interest rates charged at any given time are
determined by the financial programs in force for the specific products
that Dealer purchases under this Agreement, and Dealer and BCI agree that
the rates charged may fluctuate over time and may vary depending on factors
such as the type and brand of Inventory purchased, time of year, age of the
Inventory, and/or payment habits of Dealer.
d) It is the intention of BCI to conform to all applicable laws governing
the rates of interest that may be charged. If the amount contracted for,
charged or received by BCI exceeds the maximum amount permitted by law, it
is agreed that such excess will be considered an error and canceled
immediately and, if already paid, shall be refunded to the Dealer or, at
BCI's option, applied to other outstanding liabilities of Dealer to BCI.
As hereby amended, the ISA is affirmed and ratified in all respects.
BCI: DEALER: Apple Homes Corporation
By: By: /s/ E. Xxxxxx Xxxxx
--------------------- -----------------------
Title:Credit Mgr. Title: President
By:
Title:
Exhibit 10.3.2bb
Bombardier Capital Inc. INVENTORY SECURITY AGREEMENT
AND POWER OF ATTORNEY
1. Parties: The parties to this Agreement are Bombardier Capital Inc. ("BCI")
and the Dealer who has signed 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 schedule(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 terms 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 statements and
amendments thereto and all further writings as BCI shall request 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, nor 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.
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, covenants 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 owed 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 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 its 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.)
Location #1
000 Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Location #2
Location #3
Location #4
Effective as of the 23 day of JULY 1998
DEALER: Apple Homes. Inc.
-------------------------
WITNESS: Type or print name of Dealer
(OR ATTEST)
By: /s/ E. Xxxxxx Xxxxx
-----------------------
/s/ Xxxxxx Xxxxxx (SEAL)
----------------- ------
Secretary Name: E. Xxxxxx Xxxxx
Title: President
Accepted by: By:
BOMBARDIER CAPITAL INC.
Name:
By /s/ X. Xxxxxx
----------------
Title:
Title: Credit Manager
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.
-------------------------------------
Notary Public
ACKNOWLEDGMENT BY DEALER IF A CORPORATION
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXX
Xx this the 6 day of February, 1998 before me personally appeared E. Xxxxxx
Xxxxx who acknowledged himself to be the President of Apple Homes Corporation, 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 Hereto set my hand and Official Seal.
/s/Xxxxxxx X. Xxxxx
-------------------
Notary Public
Bombardier Capital FIRST AMENDMENT TO
INVENTORY SECURITY AGREEMENT
AND POWER TO ATTORNEY
This First Amendment to Inventory Security Agreement and Power of Attorney
is made as of the 6 day of February, 1998, by and between Bombardier Capital
Inc. ("BCI") and Apple Homes Corporation ("Dealer").
WHEREAS, BCI and Dealer entered into a certain Inventory Security Agreement
and Power of Attorney dated as of 2-6-98 (the "ISA") under and pursuant to which
BCI provided certain financing to the Dealer for the purchase by Dealer of
inventory (as that term is defined in the ISA and incorporated herein by
reference);
WHEREAS, the ISA called for the Dealer to pay BCI certain sums in
connection with financing provided by BCI under and pursuant to the ISA;
WHEREAS, BCI and the Dealer wish to amend the ISA for the purpose of
further clarifying their existing agreement with respect to rates charged to the
Dealer by BCI under and pursuant to the ISA.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, BCI and the Dealer hereby agree
that the ISA is amended to add the following two paragraphs after the second of
the two paragraphs lettered b) in Section 3 of the ISA:
c) The specific interest rate(s) charged to Dealer are stated on individual
financial program letters, which letters may be obtained by the Dealer from
BCI representatives. The interest rates charged at any given time are
determined by the financial programs in force for the specific products
that Dealer purchases under this Agreement, and Dealer and BCI agree that
the rates charged may fluctuate over time and may vary depending on factors
such as the type and brand of Inventory purchased, time of year, age of the
Inventory, and/or payment habits of Dealer.
d) It is the intention of BCI to conform to all applicable laws governing
the rates of interest that may be charged. If the amount contracted for,
charged or received by BCI exceeds the maximum amount permitted by law, it
is agreed that such excess will be considered an error and canceled
immediately and, if already paid, shall be refunded to the Dealer or, at
BCI's option, applied to other outstanding liabilities of Dealer to BCI.
As hereby amended, the ISA is affirmed and ratified in all respects.
BCI: DEALER: Apple Homes Corporation
By: By: /s/ E. Xxxxxx Xxxxx
---------------------- -----------------------
Title:Credit Mgr. Title: President
By:
Bombardier Capital Inc. MANUFACTURED HOUSING
ADDENDUM TO INVENTORY
SECURITY AGREEMENT AND
POWER OF ATTORNEY
This Manufactured Housing Addendum (this "Addendum" is made as of the date
stated below by and between Apple Homes, Inc. having its principal place of
business at 000 Xxxxxx Xxxx Xx Xxxxxxxxxx, XX 00000 ("Debtor") and BOMBARDIER
CAPITAL INC., having an office at Colchester, Vermont ("Secured Party"). The
parties intend that this addendum be an addendum to that certain Inventory
Security Agreement and Power of Attorney (the "ISA") either heretofore or
contemporaneously herewith signed by the parties hereto in consideration for
which Secured Party from time to time may grant extensions of credit to or on
behalf of Debtor so that Debtor may acquire Debtor's "Inventory" as that term is
defined in the ISA.
1. All capitalized terms not otherwise defined herein shall have the same
meanings as ascribed to those terms in the ISA. Except as amended by this
Addendum, the ISA remains unchanged and in full force and effect between
the parties in accordance with its terms. The ISA and this Addendum
together with any other amendments thereto constitute a singular agreement
between the parties.
2. Other than as part of a delivery and set-up service to a purchaser buying
Inventory in the ordinary course of Debtor's business, Debtor agrees never
to affix any Inventory to any real property in such a manner as o become a
"fixture" without first notifying Secured Party and obtaining Secured
Party's express written permission to do so.
3. Debtor agrees to notify Secured Party in writing of the exact address
(including a complete e legal description) of any real estate upon which
Debtor places any Inventory, regardless of the manner of affixation. Debtor
further agrees to notify in writing (with a copy to Secured Party) any
owner or encumbrances of real estate upon which debtor places any Inventory
of the existence of Secured Party's security interest in Debtor's
Inventory. In the event Debtor, or any legal entity all or a majority of
which is owned or controlled by Debtor, is the owner or encumbrancer of
such real estate, Debtor, for him-, her-, or itself, and/or on behalf of
such other entity and, in the capacity of owner or encumbrancer, hereby
consents to Secured Party's security interest in such Inventory and
disclaims any interest in such Inventory as fixtures.
4. Debtor agrees to execute and deliver to Secured Party at any time or from
time to time any instrument, document, financing statement, continuation
statement, assignment, manufacturer's statement or certificate of origin or
of title and any certificate of title issued by any state or political
subdivision evidencing that title to a particular item of Inventory is held
in the name of Debtor (collectively, "Title Documents"), or any other
writing which secured party may deem necessary or desirable to perfect
secured Party's security interest in the Inventory, and to pay all
recordation costs and taxes incident to filing or of recording any such
instrument, document, statement, assignment, lien on title documents, or
other such writing.
5. Debtor, for its own convenience, hereby requests, authorizes and empowers
Secured Party, or any employee, agent or representative of Secured Party's
designation, for and on behalf and in the name of Debtor, and as Debtor's
lawful attorney-in-fact, to execute, deliver and record any financing
statements, continuation statements and the like giving notice of Inventory
floorplan financing done or to be done under this Addendum and the ISA.
IN WITNESS WHEREOF, the parties have caused this Addendum to be duly signed
on JULY 23, 1998.
ACCEPTED BY: (Seal)
BOMBARDIER CAPITAL INC. Apple Homes Homes, Inc.
By: By: /s/ E. Xxxxxx Xxxxx
------------------------ -----------------------
(Signature) (and Title if
Debtor is a corporation)
Title: E. Xxxxxx Xxxxx - President
Attest: Witness: /s/ Xxxxxx Xxxxxx
------------------------ --------------------------
(Signature)(Secretary if Debtor
is a corporation)
(If a corporation, Debtor's corporate seal must be affixed, and its Secretary
must sign on line marked "Witness")
ACKNOWLEDGEMENT FOR INDIVIDUAL DEBTOR
STATE OF ________________________: CITY/COUNTY OF ___________________:TO WIT:
I HEREBY CERTIFY that on this ________ day of _____________, 19_____,
before me, the subscriber, a Notary Public in and for the State and City/County
aforesaid, personally appeared ____________________________________ known to me
or satisfactorily proven to be the person executing the foregoing Addendum as
Debtor, who acknowledged that (s)he has executed the foregoing Addendum in
his/her individual capacity and that the same is he/her act and deed.
My Commission Expires on_______________ __________________________________
Notary Public
ACKNOWLEDGEMENT FOR PARTNERSHIP OR CORPORATE DEBTOR
STATE OF GEORGIA: CITY/COUNTY OF RICHMOND: TO WIT:
I HEREBY CERTIFY that on this 23rd day of July, 1998, before me, the
subscriber, a Notary Public in and for the State and city/County aforesaid,
personally appeared E. Xxxxxx Xxxxx known to me or satisfactorily proven to be
the person executing the foregoing Addendum on behalf of the Debtor, who
acknowledged that (s)he is a President of the Debtor, ( ) a partnership (X) a
corporation, and that , as such President, (s)he is duly authorized to execute
and has executed the foregoing Addendum on behalf of the debtor for the purpose
therein set forth by signing the name of the Debtor and that the same is the act
and deed of the Debtor.
My commission Expires on June 10, 2000. /s/Xxxxxxx X. Xxxxx
--------------------------------------- -------------------
Notary Public
Exhibit 10.3.2cc
Bombardier Capital Inc. INVENTORY SECURITY AGREEMENT
AND POWER OF ATTORNEY
1. Parties: The parties to this Agreement are Bombardier Capital Inc. ("BCI")
and the Dealer who has signed 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 schedule(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 terms 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 statements and
amendments thereto and all further writings as BCI shall request 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, nor 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.
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, covenants 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 owed 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 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 its 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.)
Location #1
000 Xxxxx Xxxx
Xxxxxxxxxx, XX
Location #2
Location #3
Location #4
Effective as of the 6 day of February 1998
DEALER: Apple Homes Corp.
-------------------------
WITNESS: Type or print name of Dealer
(OR ATTEST)
By: /s/ E. Xxxxxx Xxxxx
-----------------------
/s/ Xxxxxx Xxxxxx (SEAL)
----------------- ------
Secretary Name: E. Xxxxxx Xxxxx
Title: President
Accepted by: By:
BOMBARDIER CAPITAL INC. --------------------------
Name:
By /s/ X. Xxxxxx
----------------
Title:
Title: Credit Manager
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.
-----------------------------------
Notary Public
ACKNOWLEDGMENT BY DEALER IF A CORPORATION
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXX
Xx this the 6 day of February, 1998 before me personally appeared E. Xxxxxx
Xxxxx who acknowledged himself to be the President of Apple Homes Corporation, 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 Hereto set my hand and Official Seal.
/s/Xxxxxxx X. Xxxxx
-------------------
Notary Public
Bombardier Capital FIRST AMENDMENT TO
INVENTORY SECURITY AGREEMENT
AND POWER TO ATTORNEY
This First Amendment to Inventory Security Agreement and Power of Attorney
is made as of the 6 day of February, 1998, by and between Bombardier Capital
Inc. ("BCI") and Apple Homes Corporation ("Dealer").
WHEREAS, BCI and Dealer entered into a certain Inventory Security Agreement
and Power of Attorney dated as of 2-6-98 (the "ISA") under and pursuant to which
BCI provided certain financing to the Dealer for the purchase by Dealer of
inventory (as that term is defined in the ISA and incorporated herein by
reference);
WHEREAS, the ISA called for the Dealer to pay BCI certain sums in
connection with financing provided by BCI under and pursuant to the ISA;
WHEREAS, BCI and the Dealer wish to amend the ISA for the purpose of
further clarifying their existing agreement with respect to rates charged to the
Dealer by BCI under and pursuant to the ISA.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, BCI and the Dealer hereby agree
that the ISA is amended to add the following two paragraphs after the second of
the two paragraphs lettered b) in Section 3 of the ISA:
c) The specific interest rate(s) charged to Dealer are stated on individual
financial program letters, which letters may be obtained by the Dealer from
BCI representatives. The interest rates charged at any given time are
determined by the financial programs in force for the specific products
that Dealer purchases under this Agreement, and Dealer and BCI agree that
the rates charged may fluctuate over time and may vary depending on factors
such as the type and brand of Inventory purchased, time of year, age of the
Inventory, and/or payment habits of Dealer.
d) It is the intention of BCI to conform to all applicable laws governing
the rates of interest that may be charged. If the amount contracted for,
charged or received by BCI exceeds the maximum amount permitted by law, it
is agreed that such excess will be considered an error and canceled
immediately and, if already paid, shall be refunded to the Dealer or, at
BCI's option, applied to other outstanding liabilities of Dealer to BCI.
As hereby amended, the ISA is affirmed and ratified in all respects.
BCI: DEALER: Apple Homes Corporation
By: By: /s/ E. Xxxxxx Xxxxx
----------------------- -----------------------
Title:Credit Mgr. Title: President
By:
Title:
Bombardier Capital Inc. MANUFACTURED HOUSING
ADDENDUM TO INVENTORY
SECURITY AGREEMENT AND
POWER OF ATTORNEY
This Manufactured Housing Addendum (this "Addendum" is made as of the date
stated below by and between Apple Homes Corp. having its principal place of
business at 000 Xxxxx Xx., Xxxxxxxxxx, XX ("Debtor") and BOMBARDIER CAPITAL
INC., having an office at Colchester, Vermont ("Secured Party"). The parties
intend that this addendum be an addendum to that certain Inventory Security
Agreement and Power of Attorney (the "ISA") either heretofore or
contemporaneously herewith signed by the parties hereto in consideration for
which Secured Party from time to time may grant extensions of credit to or on
behalf of Debtor so that Debtor may acquire Debtor's "Inventory" as that term is
defined in the ISA.
1. All capitalized terms not otherwise defined herein shall have the same
meanings as ascribed to those terms in the ISA. Except as amended by this
Addendum, the ISA remains unchanged and in full force and effect between
the parties in accordance with its terms. The ISA and this Addendum
together with any other amendments thereto constitute a singular agreement
between the parties.
2. Other than as part of a delivery and set-up service to a purchaser buying
Inventory in the ordinary course of Debtor's business, Debtor agrees never
to affix any Inventory to any real property in such a manner as o become a
"fixture" without first notifying Secured Party and obtaining Secured
Party's express written permission to do so.
3. Debtor agrees to notify Secured Party in writing of the exact address
(including a complete e legal description) of any real estate upon which
Debtor places any Inventory, regardless of the manner of affixation. Debtor
further agrees to notify in writing (with a copy to Secured Party) any
owner or encumbrances of real estate upon which debtor places any Inventory
of the existence of Secured Party's security interest in Debtor's
Inventory. In the event Debtor, or any legal entity all or a majority of
which is owned or controlled by Debtor, is the owner or encumbrancer of
such real estate, Debtor, for him-, her-, or itself, and/or on behalf of
such other entity and, in the capacity of owner or encumbrancer, hereby
consents to Secured Party's security interest in such Inventory and
disclaims any interest in such Inventory as fixtures.
4. Debtor agrees to execute and deliver to Secured Party at any time or from
time to time any instrument, document, financing statement, continuation
statement, assignment, manufacturer's statement or certificate of origin or
of title and any certificate of title issued by any state or political
subdivision evidencing that title to a particular item of Inventory is held
in the name of Debtor (collectively, "Title Documents"), or any other
writing which secured party may deem necessary or desirable to perfect
secured Party's security interest in the Inventory, and to pay all
recordation costs and taxes incident to filing or of recording any such
instrument, document, statement, assignment, lien on title documents, or
other such writing.
5. Debtor, for its own convenience, hereby requests, authorizes and empowers
Secured Party, or any employee, agent or representative of Secured Party's
designation, for and on behalf and in the name of Debtor, and as Debtor's
lawful attorney-in-fact, to execute, deliver and record any financing
statements, continuation statements and the like giving notice of Inventory
floorplan financing done or to be done under this Addendum and the ISA.
IN WITNESS WHEREOF, the parties have caused this Addendum to be duly signed
on JULY 23, 1998.
ACCEPTED BY: (Seal)
BOMBARDIER CAPITAL INC. Xxxxx-Xxxxxx, Inc.
By: By: /s/ E. Xxxxxx Xxxxx
--------------------------- -----------------------
(Signature) (and Title if Debtor
is a corporation)
Title: E. Xxxxxx Xxxxx - President
Attest: Witness: /s/ Xxxxxx Xxxxxx
--------------------------- --------------------------
(Signature)(Secretary if Debtor
is a corporation)
(If a corporation, Debtor's corporate seal must be affixed, and its Secretary
must sign on line marked "Witness")
ACKNOWLEDGEMENT FOR INDIVIDUAL DEBTOR
STATE OF ________________________: CITY/COUNTY OF ___________________:TO WIT:
I HEREBY CERTIFY that on this ________ day of _____________, 19_____,
before me, the subscriber, a Notary Public in and for the State and City/County
aforesaid, personally appeared ____________________________________ known to me
or satisfactorily proven to be the person executing the foregoing Addendum as
Debtor, who acknowledged that (s)he has executed the foregoing Addendum in
his/her individual capacity and that the same is he/her act and deed.
My Commission Expires on_______________ ________________________________
Notary Public
ACKNOWLEDGEMENT FOR PARTNERSHIP OR CORPORATE DEBTOR
STATE OF GEORGIA: CITY/COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 23rd day of July, 1998, before me, the
subscriber, a Notary Public in and for the State and city/County aforesaid,
personally appeared E. Xxxxxx Xxxxx known to me or satisfactorily proven to be
the person executing the foregoing Addendum on behalf of the Debtor, who
acknowledged that (s)he is a President of the Debtor, ( ) a partnership (X) a
corporation, and that , as such President, (s)he is duly authorized to execute
and has executed the foregoing Addendum on behalf of the debtor for the purpose
therein set forth by signing the name of the Debtor and that the same is the act
and deed of the Debtor.
My commission Expires on June 10, 2000. /s/Xxxxxxx X. Xxxxx
--------------------------------------- -------------------
Notary Public
Exhibit 10.3.2dd
Bombardier Capital Inc. INVENTORY SECURITY AGREEMENT
AND POWER OF ATTORNEY
1. Parties: The parties to this Agreement are Bombardier Capital Inc. ("BCI")
and the Dealer who has signed 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 schedule(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 terms 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 statements and
amendments thereto and all further writings as BCI shall request 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, nor 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.
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, covenants 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 owed 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 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 its 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.)
Location #1
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Location #2
00000 XX Xxxxxxx 0
Xxxxx, XX 00000
Location #3
Location #4
Effective as of the 6 day of February 1998
DEALER: Xxxxx-Xxxxxx, Inc..
---------------------------
WITNESS: Type or print name of Dealer
(OR ATTEST)
By: /s/ E. Xxxxxx Xxxxx
-----------------------
/s/ Xxxxxx Xxxxxx (SEAL)
----------------- ------
Secretary Name: E. Xxxxxx Xxxxx
Title: President
Accepted by: By:
BOMBARDIER CAPITAL INC.
Name:
By /s/ X. Xxxxxx
----------------
Title:
Title: Credit Manager
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.
-------------------------------------
Notary Public
ACKNOWLEDGMENT BY DEALER IF A CORPORATION
STATE OF GEORGIA
COUNTY OF XxXxxxxx
On this the 7 day of August, 1996 before me personally appeared E. Xxxxxx
Xxxxx who acknowledged himself to be the President of Xxxxx-Xxxxxx, Inc., 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 Hereto set my hand and Official Seal.
/s/Xxxxxxx X. Xxxxx
-------------------
Notary Public
Bombardier Capital FIRST AMENDMENT TO
INVENTORY SECURITY AGREEMENT
AND POWER TO ATTORNEY
This First Amendment to Inventory Security Agreement and Power of Attorney
is made as of the 7 day of August, 1996, by and between Bombardier Capital Inc.
("BCI") and Xxxxx-Xxxxxx, Inc. ("Dealer").
WHEREAS, BCI and Dealer entered into a certain Inventory Security Agreement
and Power of Attorney dated as of 8-7-96 (the "ISA") under and pursuant to which
BCI provided certain financing to the Dealer for the purchase by Dealer of
inventory (as that term is defined in the ISA and incorporated herein by
reference);
WHEREAS, the ISA called for the Dealer to pay BCI certain sums in
connection with financing provided by BCI under and pursuant to the ISA;
WHEREAS, BCI and the Dealer wish to amend the ISA for the purpose of
further clarifying their existing agreement with respect to rates charged to the
Dealer by BCI under and pursuant to the ISA.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, BCI and the Dealer hereby agree
that the ISA is amended to add the following two paragraphs after the second of
the two paragraphs lettered b) in Section 3 of the ISA:
c) The specific interest rate(s) charged to Dealer are stated on individual
financial program letters, which letters may be obtained by the Dealer from
BCI representatives. The interest rates charged at any given time are
determined by the financial programs in force for the specific products
that Dealer purchases under this Agreement, and Dealer and BCI agree that
the rates charged may fluctuate over time and may vary depending on factors
such as the type and brand of Inventory purchased, time of year, age of the
Inventory, and/or payment habits of Dealer.
d) It is the intention of BCI to conform to all applicable laws governing
the rates of interest that may be charged. If the amount contracted for,
charged or received by BCI exceeds the maximum amount permitted by law, it
is agreed that such excess will be considered an error and canceled
immediately and, if already paid, shall be refunded to the Dealer or, at
BCI's option, applied to other outstanding liabilities of Dealer to BCI.
As hereby amended, the ISA is affirmed and ratified in all respects.
BCI: DEALER: Xxxxx-Xxxxxx, Inc.
By: By: /s/ E. Xxxxxx Xxxxx
------------------------- -----------------------
Title:Credit Mgr. Title: President
Bombardier Capital Inc. MANUFACTURED HOUSING
ADDENDUM TO INVENTORY
SECURITY AGREEMENT AND
POWER OF ATTORNEY
This Manufactured Housing Addendum (this "Addendum" is made as of the date
stated below by and between Xxxx-Xxxxxx, Inc.. having its principal place of
business at 000 X Xxxx Xxxxxx, Xxxxxxx, XX 00000 ("Debtor") and BOMBARDIER
CAPITAL INC., having an office at Colchester, Vermont ("Secured Party"). The
parties intend that this addendum be an addendum to that certain Inventory
Security Agreement and Power of Attorney (the "ISA") either heretofore or
contemporaneously herewith signed by the parties hereto in consideration for
which Secured Party from time to time may grant extensions of credit to or on
behalf of Debtor so that Debtor may acquire Debtor's "Inventory" as that term is
defined in the ISA.
1. All capitalized terms not otherwise defined herein shall have the same
meanings as ascribed to those terms in the ISA. Except as amended by this
Addendum, the ISA remains unchanged and in full force and effect between
the parties in accordance with its terms. The ISA and this Addendum
together with any other amendments thereto constitute a singular agreement
between the parties.
2. Other than as part of a delivery and set-up service to a purchaser buying
Inventory in the ordinary course of Debtor's business, Debtor agrees never
to affix any Inventory to any real property in such a manner as o become a
"fixture" without first notifying Secured Party and obtaining Secured
Party's express written permission to do so.
3. Debtor agrees to notify Secured Party in writing of the exact address
(including a complete e legal description) of any real estate upon which
Debtor places any Inventory, regardless of the manner of affixation. Debtor
further agrees to notify in writing (with a copy to Secured Party) any
owner or encumbrances of real estate upon which debtor places any Inventory
of the existence of Secured Party's security interest in Debtor's
Inventory. In the event Debtor, or any legal entity all or a majority of
which is owned or controlled by Debtor, is the owner or encumbrancer of
such real estate, Debtor, for him-, her-, or itself, and/or on behalf of
such other entity and, in the capacity of owner or encumbrancer, hereby
consents to Secured Party's security interest in such Inventory and
disclaims any interest in such Inventory as fixtures.
4. Debtor agrees to execute and deliver to Secured Party at any time or from
time to time any instrument, document, financing statement, continuation
statement, assignment, manufacturer's statement or certificate of origin or
of title and any certificate of title issued by any state or political
subdivision evidencing that title to a particular item of Inventory is held
in the name of Debtor (collectively, "Title Documents"), or any other
writing which secured party may deem necessary or desirable to perfect
secured Party's security interest in the Inventory, and to pay all
recordation costs and taxes incident to filing or of recording any such
instrument, document, statement, assignment, lien on title documents, or
other such writing.
5. Debtor, for its own convenience, hereby requests, authorizes and empowers
Secured Party, or any employee, agent or representative of Secured Party's
designation, for and on behalf and in the name of Debtor, and as Debtor's
lawful attorney-in-fact, to execute, deliver and record any financing
statements, continuation statements and the like giving notice of Inventory
floorplan financing done or to be done under this Addendum and the ISA.
IN WITNESS WHEREOF, the parties have caused this Addendum to be duly signed
on July 23, 1998
ACCEPTED BY: (Seal)
BOMBARDIER CAPITAL INC. Xxxxx-Xxxxxx, Inc.
By: By: /s/ E. Xxxxxx Xxxxx
--------------------------- -----------------------
(Signature) (and Title if Debtor is a
corporation)
Title: E. Xxxxxx Xxxxx - President
Attest: Witness: /s/ Xxxxxx Xxxxxx
--------------------------- --------------------------
(Signature)(Secretary if Debtor is a
corporation)
(If a corporation, Debtor's corporate seal must be affixed, and its Secretary
must sign on line marked "Witness")
ACKNOWLEDGEMENT FOR INDIVIDUAL DEBTOR
STATE OF ________________________: CITY/COUNTY OF ___________________:TO WIT:
I HEREBY CERTIFY that on this ________ day of _____________, 19_____,
before me, the subscriber, a Notary Public in and for the State and City/County
aforesaid, personally appeared ____________________________________ known to me
or satisfactorily proven to be the person executing the foregoing Addendum as
Debtor, who acknowledged that (s)he has executed the foregoing Addendum in
his/her individual capacity and that the same is he/her act and deed.
My Commission Expires on_______________ __________________________________
Notary Public
Exhibit 10.3.2e
Bombardier Capital Inc. INVENTORY SECURITY AGREEMENT
AND POWER OF ATTORNEY
1. Parties: The parties to this Agreement are Bombardier Capital Inc. ("BCI")
and the Dealer who has signed 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 schedule(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 terms 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"). Dealer shall execute and deliver such financing
statements and amendments thereto and all further writings as BCI
shall request 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, nor 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.
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, covenants 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 owed 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 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 its 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.)
Location #1
000 Xxxxx Xxxx
Xxxxxxxxxx, XX
Location #2
Location #3
Location #4
Effective as of the 6 day of February 1998
DEALER: Augusta Housing Center, Inc.
------------------------------------
WITNESS: Type or print name of Dealer
(OR ATTEST)
By: /s/ E. Xxxxxx Xxxxx
-----------------------
/s/ Xxxxxx Xxxxxx (SEAL)
----------------- ------
Secretary Name: E. Xxxxxx Xxxxx
Title: President
Accepted by: By:
BOMBARDIER CAPITAL INC.
Name:
By /s/ X. Xxxxxx
----------------
Title:
Title: Credit Manager
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.
-----------------------------------
Notary Public
ACKNOWLEDGMENT BY DEALER IF A CORPORATION
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXX
Xx this the 6 day of February, 1998 before me personally appeared E. Xxxxxx
Xxxxx who acknowledged himself to be the President of Apple Homes Corporation, 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 Hereto set my hand and Official Seal.
/s/Xxxxxxx X. Xxxxx
-------------------
Notary Public
Bombardier Capital FIRST AMENDMENT TO
INVENTORY SECURITY AGREEMENT
AND POWER TO ATTORNEY
This First Amendment to Inventory Security Agreement and Power of Attorney
is made as of the 6 day of February, 1998, by and between Bombardier Capital
Inc. ("BCI") and Apple Homes Corporation ("Dealer").
WHEREAS, BCI and Dealer entered into a certain Inventory Security Agreement
and Power of Attorney dated as of 2-6-98 (the "ISA") under and pursuant to which
BCI provided certain financing to the Dealer for the purchase by Dealer of
inventory (as that term is defined in the ISA and incorporated herein by
reference);
WHEREAS, the ISA called for the Dealer to pay BCI certain sums in
connection with financing provided by BCI under and pursuant to the ISA;
WHEREAS, BCI and the Dealer wish to amend the ISA for the purpose of
further clarifying their existing agreement with respect to rates charged to the
Dealer by BCI under and pursuant to the ISA.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, BCI and the Dealer hereby agree
that the ISA is amended to add the following two paragraphs after the second of
the two paragraphs lettered b) in Section 3 of the ISA:
c) The specific interest rate(s) charged to Dealer are stated on individual
financial program letters, which letters may be obtained by the Dealer from
BCI representatives. The interest rates charged at any given time are
determined by the financial programs in force for the specific products
that Dealer purchases under this Agreement, and Dealer and BCI agree that
the rates charged may fluctuate over time and may vary depending on factors
such as the type and brand of Inventory purchased, time of year, age of the
Inventory, and/or payment habits of Dealer.
d) It is the intention of BCI to conform to all applicable laws governing
the rates of interest that may be charged. If the amount contracted for,
charged or received by BCI exceeds the maximum amount permitted by law, it
is agreed that such excess will be considered an error and canceled
immediately and, if already paid, shall be refunded to the Dealer or, at
BCI's option, applied to other outstanding liabilities of Dealer to BCI.
As hereby amended, the ISA is affirmed and ratified in all respects.
BCI: DEALER: Apple Homes Corporation
By: By: /s/ E. Xxxxxx Xxxxx
---------------------------- -----------------------
Title:Credit Mgr. Title: President
By:
Title:
