1
EXHIBIT 10.28
AGREEMENT FOR WHOLESALE FINANCING
(SECURITY AGREEMENT - ARBITRATION)
This Agreement for Wholesale Financing ("Agreement") is made as of 28th July
1994 between ITT Commercial Finance Corp. ("ITT") and M & M Properties, Inc., a
[ ] SOLE PROPRIETORSHIP, [ ] PARTNERSHIP, [X] CORPORATION (check applicable
term)("Dealer"), having a principal place of business located 000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
1. INVENTORY CREDIT LINE. In the course of Dealer's business, Dealer acquires
inventory which is manufactured or sold by Skyjack, Inc. ("Vendor") or any of
its subsidiaries or affiliated companies, and/or which bears a trademark or
trade name of Vendor or any of its subsidiaries or affiliated companies
("Inventory"). Subject to the terms of this Agreement, ITT, in its sole
discretion, may extend credit to Dealer from time to time to purchase Inventory
from Vendor. ITT may combine all of ITT's advances to Dealer or on Dealer's
behalf, whether under this Agreement or any other agreement, to make one debt
owed by Dealer. ITT's decision to advance funds on any Inventory will not be
binding until the funds are actually advanced. ITT may, at any time and without
notice to Dealer, elect not to finance any Inventory if Vendor is in default of
its obligations to ITT, or with respect to which ITT reasonably feels insecure.
2. STATEMENTS OF TRANSACTION. Dealer and ITT agree that certain financial terms
of any advance made by ITT under this Agreement, whether regarding finance
charges, other fees, maturities, curtailments or other financial terms, are not
set forth herein because such terms depend, in part, upon the availability from
time to time of Vendor subsidies, prevailing economic conditions, and other
economic factors which may vary over time. It is therefore in ITT's and Dealer's
best interest to set forth in this Agreement only the general terms of Dealer's
financing arrangement with ITT. Upon agreeing to finance a particular item of
Inventory for Dealer, ITT will send Dealer a Statement of Transaction, and any
amendment thereto ("Statement of Transaction"), identifying such Inventory and
the applicable financial terms. Unless Dealer notifies ITT in writing of any
objection within fifteen (15) days after a Statement of Transaction is mailed to
Dealer: (a) the amount shown on such Statement of Transaction will be an account
stated; (b) Dealer will have agreed to all rates, charges and other terms shown
on such Statement of Transaction; (c) Dealer will have agreed that the items of
Inventory referenced in such Statement of Transaction are being financed by ITT
at Dealer's request; and (d) such Statement of Transaction will be incorporated
herein by reference, will be made a part hereof as if originally set forth
herein, and will constitute an addendum hereto. If Dealer objects to the terms
of any Statement of Transaction, Dealer will pay ITT for such Inventory in
accordance with the most recent terms for similar Inventory to which Dealer has
not objected (or, if there are no prior terms, at the lesser of 16% per annum or
at the maximum lawful contract rate of interest permitted under applicable law),
but Dealer acknowledges that ITT may then elect to terminate Dealer's financing
program pursuant to Section 12, and cease making additional advances to Dealer.
Any termination for that reason, however, will not accelerate the maturities of
advances previously made, unless Dealer shall otherwise be in default of this
Agreement.
3. SECURITY INTEREST. To secure payment of all Dealer's current and future debts
to ITT, whether under this Agreement or any current or future guaranty or other
agreement, Dealer grants ITT a security interest in all of Dealer's inventory
and equipment manufactured or sold by Vendor or any of its subsidiaries or
affiliated companies, and/or bearing any trademark or trade name of Vendor or
any of its subsidiaries or affiliated companies, whether now owned or hereafter
acquired by Dealer, and all accounts, contract rights, chattel paper, documents,
general intangibles and instruments arising from such inventory and equipment,
and all attachments, accessories, accessions, substitutions and replacements
thereto and all proceeds thereof. All such assets are as defined in the Uniform
Commercial Code and referred to herein as the "Collateral." All Collateral
financed by ITT, and all proceeds thereof, will be held in trust by Dealer for
ITT, with such proceeds being payable in accordance with Section 7.
4. LOCATION OF COLLATERAL. Dealer represents that all Collateral will be kept at
Dealer's principal place of business listed above, and, if any, the following
other locations 0000 Xxxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000. Dealer will
give ITT at least 30 days prior written notice of any change in Dealer's
identity, name, form of business organization, ownership, principal place of
business, Collateral locations or other business locations.
5. REPRESENTATIONS AND WARRANTIES. Dealer will: (a) only exhibit and sell
Inventory financed by ITT to buyers in the ordinary course of business; (b) keep
and maintain the Inventory in good order and operating condition; (c) execute
all documents ITT requests to perfect ITT's security interest in the Collateral;
(d) deliver to ITT immediately upon each request, and ITT may retain, each
Certificate of Title or Statement of Origin issued for Inventory financed by
ITT; and (e) immediately provide ITT with copies of Dealer's annual financial
statements upon their completion (which in no event will exceed 120 days after
the end of Dealer's fiscal year), and all other information regarding Dealer
that ITT requests from time to time. All financial information Dealer delivers
to ITT will accurately represent Dealer's financial condition either as of the
date of delivery, or, if different, the date specified therein, and Dealer
acknowledges ITT's reliance thereon.
6. INSURANCE; INSPECTIONS. Dealer will: (a) pay all taxes and fees assessed
against Dealer or the Collateral when due; (b) immediately notify ITT of any
loss, theft or damage to any Collateral; (c) keep the Inventory insured for its
full insurable value under a property insurance policy with a company acceptable
to ITT, naming ITT as a loss-payee and containing standard lender's loss payable
and termination provisions; and (d) provide ITT with written evidence of such
insurance coverage and loss-payee and lender's clauses. If Dealer fails to pay
any taxes, fees or other obligations which may impair ITT's interest in the
Collateral, or fails to keep the Inventory insured, ITT may pay such taxes, fees
or obligations and pay the cost to insure the Inventory, and the amounts paid
will be: (i) an additional debt owned by Dealer to ITT; and (ii) due and payable
immediately in full. Dealer grants ITT an irrevocable license to enter Dealer's
business locations during normal business hours without notice to Dealer to: (A)
account for and inspect all Collateral; (B) verify Dealer's compliance with this
Agreement; and (C) examine and copy Dealer's books and records related to the
Collateral.
CFM1-AWF-IND(A) 1/7133Z(9/93)
2
7. Payment. Dealer will immediately pay ITT the principal indebtedness owed ITT
on each item of Inventory financed by ITT on the earliest occurrence of any of
the following events: (a) when such Inventory is lost, stolen, or damaged; (b)
when such Inventory is sold, transferred, rented, leased, or otherwise disposed
of; provided, however, if any item of Inventory is sold and Dealer does not
receive payment for each item at the time of sale, Dealer will pay ITT the full
amount of the principal balance owed ITT on such item of Inventory within thirty
(30) days immediately following the sale date of such item of Inventory or
immediately upon Dealer's receipt of payment for such item of Inventory,
whichever occurs first; (c) in strict accordance with any curtailment schedule
for such Inventory (as shown on the Statement of Transaction identifying such
Inventory); (d) when any item of Inventory matures (as shown on the Statement of
Transaction identifying such Inventory). If Dealer from time to time is
required to make immediate payment to ITT of any past due obligation discovered
during any Inventory audit, or at any other time, Dealer agrees that acceptance
of such payment by ITT will not be construed to have waived or amended the terms
of its financing program. Dealer will send all payments to ITT's branch
office(s) responsible for Dealer's account. ITT may apply: (i) payments to
reduce finance charges first and then principal, regardless of Dealer's
instructions; and (ii) principal payments to the oldest (earliest) invoice for
Inventory financed by ITT, but, in any event, all principal payments will first
be applied to such Inventory which is sold, lost, stolen, damaged, rented,
leased, or otherwise disposed of or unaccounted for. Any third party discount,
rebate, bonus or credit granted to Dealer for any Inventory will not reduce the
debt Dealer owes ITT until ITT has received payment therefor in cash. Dealer
will: (i) pay ITT even if any Inventory is defective or fails to conform to any
warranties extended by any third party; (ii) not assert against ITT any claim or
defense Dealer has against any third party; and (iii) indemnify and hold ITT
harmless against all claims and defenses asserted by any buyer of the Inventory
relating to the condition of, or any representations regarding, any of the
Inventory. Dealer waives all rights of offset Dealer may have against ITT.
8. Finance Charges. Dealer will pay ITT finance charges on the outstanding
principal debt Dealer owes ITT for each item of Inventory financed by ITT at the
rate(s) shown on the Statement of Transaction identifying such Inventory, unless
Dealer objects thereto as provided in Section 2. The finance charges
attributable to the rate shown on the Statement of Transaction will: (a) be
computed based on a 360 day year; (b) be calculated by multiplying the Daily
Charge (as defined below) by the actual number of days in the applicable billing
period; and (c) accrue from the invoice date of the Inventory identified on such
Statement of Transaction until ITT receives full payment of the principal debt
Dealer owes ITT for each item of such Inventory. The "Daily Charge" is the
product of the Daily Rate (as defined below) multiplied by the Average Daily
Balance (as defined below). The "Daily Rate" is the quotient of the annual rate
shown on the Statement of Transaction divided by 360, or the monthly rate shown
on the Statement of Transaction divided by 30. The "Average Daily Balance" is
the quotient of (i) the sum of the outstanding principal debt owed ITT on each
day of a billing period for each item of Inventory identified on a Statement of
Transaction, divided by (ii) the actual number of days in such billing period.
Dealer will also pay ITT $100 for each check returned unpaid for insufficient
funds (an "NFS check") (such $100 payment repays ITT's estimated administrative
costs; it does not waive the default caused by the NSF check). Dealer
acknowledges that ITT intends to strictly conform to the applicable usury laws
governing this Agreement and understands that Dealer is not obligated to pay any
finance charges billed to Dealer's account exceeding the amount allowed by such
usury laws, and any such excess finance charges Dealer pays will be applied to
reduce Dealer's principal debt owed to ITT. The annual percentage rate of the
finance charges relating to any item of Inventory financed by ITT will be
calculated from the invoice date of such Inventory, regardless of any period
during which any finance charge subsidy will be paid or payable by any third
party. ITT will send Dealer a monthly billing statement identifying all charges
due on Dealer's account with ITT. The charges specified on each billing
statement will be: (A) due and payable in full immediately on receipt, and (B)
an account stated, unless ITT receives Dealer's written objection thereto within
15 days after it is mailed to Dealer. If ITT does not receive, by the 25th day
of any given month, payment of all charges accrued to Dealer's account with ITT
during the immediately preceding month, Dealer will (to the extent allowed by
law) pay ITT a late fee ("Late Fee") equal to the greater of $5 or 5% of the
amount of such finance charges (such Late Fee repays ITT's estimated
administrative costs; it does not waive the default caused by the late payment).
ITT may adjust the billing statement at any time to conform to applicable law
and this Agreement.
9. Events of Default. Dealer will be in default under this Agreement if: (a)
Dealer breaches any terms, warranties or representations contained herein, in
any Statement of Transaction to which Dealer has not objected as provided in
Section 2, or in any other agreement between ITT and Dealer; (b) any guarantor
of Dealer's debts to ITT breaches any terms, warranties or representations
contained in any guaranty or other agreement between the guarantor and ITT; (c)
any representation, statement, report, or certificate made or delivered by
Dealer or any guarantor to ITT is not accurate when made; (d) Dealer fails to
pay any portion of Dealer's debts to ITT when due and payable hereunder or under
any other agreement between ITT and Dealer; (e) Dealer abandons any Collateral;
(f) Dealer or any guarantor is or becomes in default in the payment of any debt
owed to any third party; (g) a money judgment issues against Dealer or any
guarantor; (h) an attachment, sale or seizure issues or is executed against any
assets of Dealer or of any guarantor; (i) the undersigned dies while Dealer's
business is operated as a sole proprietorship or any general partner dies while
Dealer's business is operated as a general or limited partnership: (j) any
guarantor dies; (k) Dealer or any guarantor ceases existence as a corporation,
partnership or trust; (l) Dealer or any guarantor ceases or suspends business;
(m) Dealer or any guarantor makes a general assignment for the benefit of
creditors; (n) Dealer or any guarantor becomes insolvent or voluntarily or
involuntarily becomes subject to the Federal Bankruptcy Code, any state
insolvency law or any similar law; (o) any receiver is appointed for any of
Dealer's or any guarantor's assets; (p) any guaranty of Dealer's debts to ITT is
terminated; (q) Dealer or any guarantor misrepresents Dealer's or such
guarantor's financial condition or organizational structure; or (r) any of the
Collateral becomes subject to any lien, claim, encumbrance or security interest
prior or superior to ITT's. In the event of a default:
(i) ITT may at any time at ITT's election, without notice or demand to
Dealer, do any one or more of the following: declare all of any part
of the debt Dealer owes ITT immediately due and payable, together with
all costs and expenses of ITT's collection activity, including,
without limitation, all reasonable attorney's fees; exercise any or
all rights under applicable law including, without limitation, the
right to possess, transfer and dispose of the Collateral); and/or
cease extending any additional credit to Dealer (ITT's right to cease
extending credit will not be construed to limit the discretionary
nature of this credit facility).
(ii) Dealer will segregate and keep the Collateral in trust for ITT, and in
good order and repair, and will not exhibit, sell, rent, lease,
further encumber, otherwise dispose of or use any Collateral.
(iii) Upon ITT's oral or written demand, Dealer will immediately deliver
the Collateral to ITT, in good order and repair, at a place specified
by ITT, together with all related documents; or ITT may, in ITT's sole
discretion and without notice or demand to Dealer, take immediate
possession of the Collateral together with all related documents.
3
(iv) ITT may, without notice, apply a default finance charge to Dealer's
outstanding principal indebtedness equal to the default rate specified
in Dealer's financing program with ITT, if any, or if there is none so
specified, at the lesser of 3% per annum above the rate in effect
immediately prior to the default, or the highest lawful contract rate
of interest permitted under applicable law.
(v) Dealer grants ITT an irrevocable power of attorney to: execute or
endorse on Dealer's behalf any checks, drafts or other forms of
exchange received as payment on any Collateral for deposit in ITT's
account; execute financing statements, instruments, Certificates of
Title and Statements of Origin pertaining to the Collateral; supply
any omitted information and correct errors in any documents between
ITT and Dealer; sell, assign, transfer, negotiate, demand, collect,
receive, settle, extend, or renew any amounts due on any of the
Collateral; do anything Dealer is obligated to do hereunder; initiate
and settle any insurance claim pertaining to the Collateral; and do
anything to preserve and protect the Collateral and ITT's rights and
interests therein.
All ITT's rights and remedies are cumulative. ITT's failure to exercise any of
ITT's rights or remedies hereunder will not waive any of ITT's rights or
remedies as to any past, current or future default.
10. DISPOSITION OF COLLATERAL. Dealer agrees that if ITT conducts a private sale
of any Collateral by requesting bids from 10 or more dealers or distributors in
that type of Collateral, any sale by ITT of such Collateral in bulk or in
parcels within 120 days of: (a) ITT's taking possession and control of such
Collateral; or (b) when ITT is otherwise authorized to sell such Collateral;
whichever occurs last, to the bidder submitting the highest cash bid therefor,
is a commercially reasonable sale of such Collateral under the Uniform
Commercial Code. Dealer agrees that the purchase of any Collateral by Vendor, as
provided in any agreement between ITT and Vendor, is a commercially reasonable
disposition and private sale of such Collateral under the Uniform Commercial
Code, and no request for bids will be required. Dealer further agrees that 7 or
more days prior written notice will be commercially reasonable notice of any
public or private sale (including any sale to Vendor). If ITT disposes of any
such Collateral other than as herein contemplated, the commercial reasonableness
of such disposition will be determined in accordance with the laws of the state
governing this Agreement.
11. POWER OF ATTORNEY; CREDIT INFORMATION. Dealer grants ITT an irrevocable
power of attorney to do anything necessary to preserve and protect the
Collateral and ITT's rights and interest therein. ITT may provide to any third
party any credit, financial or other information on Dealer that ITT may from
time to time possess.
12. MISCELLANEOUS. Time is of the essence. This Agreement is deemed to have been
entered into at the ITT branch office executing this Agreement. Either party may
terminate this Agreement at any time by written notice received by the other
party. If ITT terminates this Agreement, Dealer agrees that if Dealer: (a) is
not in default hereunder, 30 days prior notice of termination is reasonable and
sufficient (although this provision will not be construed to mean that shorter
periods may not, in particular circumstances, also be reasonable and
sufficient); or (b) is in default hereunder, no prior notice of termination is
required. Dealer will not be relieved from any obligation to ITT arising out of
ITT's advances or commitments made before the effective termination date of
this Agreement. ITT will retain all of its rights, interests and remedies
hereunder until Dealer has paid all Dealer's debt to ITT. Dealer cannot assign
Dealer's interest in this Agreement without ITT's prior written consent,
although ITT may assign or participate ITT's interest, in whole or in part,
without Dealer's consent. This Agreement will protect and bind ITT's and
Dealer's respective heirs, representatives, successors and assigns. All
agreements or commitments to extend or renew credit or refrain from enforcing
payment of a debt must be in writing. Any oral or other amendment or waiver
claimed to be made to this Agreement that is not evidenced by a written
document executed by ITT and Dealer (except for each Statement of Transaction
that Dealer does not object to in the manner stated in Section 2) will be null,
void and have no force or effect whatsoever. If any provision of this Agreement
or its application is invalid or unenforceable, the remainder of this Agreement
will not be impaired or affected and will remain binding and enforceable. If
Dealer previously executed any security agreement with ITT, this Agreement will
only amend and supplement such agreement. If the terms hereof conflict with the
terms of any such prior security agreement, the terms of this Agreement will
govern. Dealer agrees to pay all of ITT's reasonable attorneys' fees and
expenses incurred by ITT in enforcing ITT's rights hereunder.
13. BINDING ARBITRATION. Except as otherwise specified below, all actions,
disputes, claims and controversies under common law, statutory law or in equity
of any type or nature whatsoever (including, without limitation, all torts,
whether regarding negligence, breach of fiduciary duty, restraint of trade,
fraud, conversion, duress, interference, wrongful replevin, wrongful
sequestration, fraud in the inducement, or any other tort, all contract actions,
whether regarding express or implied terms, such as implied covenants of good
faith, fair dealing, and the commercial reasonableness of any Collateral
disposition, or any other contract claim, all claims of deceptive trade
practices or lender liability, and all claims questioning the reasonableness or
lawfulness of any act), whether arising before or after the date of this
Agreement, and whether directly or indirectly relating to: (a) this Agreement
and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between ITT and
Dealer; and/or (c) any other relationship, transaction or dealing between ITT
and Dealer (collectively the "Disputes"), will be subject to and resolved by
binding arbitration.
13.1 All arbitration hereunder will be pursuant to either: (a) the Code of
Procedure in effect from time to time ("Code") of the National Arbitration Forum
("NAF"), currently located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000; or (b) the Commercial Arbitration Rules ("Rules") in effect from time to
time of the American Arbitration Association ("AAA"), currently located at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000. The party first filing any
claim for arbitration will designate which arbitration procedures are to be
applied for all Disputes between Dealer and ITT, although if either the NAF or
AAA is dissolved, the procedures of the remaining arbitration body must be used.
A copy of the Code, Rules and any fee schedule of the NAF or AAA may be obtained
by contacting the NAF or AAA, as applicable. The parties agree that all
arbitrators selected will be attorneys. The arbitrator(s) will decide if any
inconsistency exists between the Code, or Rules, as applicable, and the
arbitration provisions contained herein. If any such inconsistency exists, the
arbitration provisions contained herein will control and supersede the Code, or
Rules, as applicable. The site of all arbitration participatory hearings will be
in the Division of the Federal Judicial District of ITT's branch office closest
to Dealer at the time of the filing of the claim for arbitration. The laws of
the State of Alabama will govern this Agreement; provided, however, that the
Federal Arbitration Act ("FAA"), to the extent inconsistent, will supersede the
laws of such state and govern. This Agreement concerns transactions involving
commerce among the several states. All arbitration proceedings, including
testimony or evidence at hearings, will be kept
4
confidential, although any award or order rendered by the arbitrator(s) or
director of arbitration pursuant to the terms of this Agreement may be entered
as a judgment or order and enforced by either party in any state or federal
court having competent jurisdiction.
13.2 Nothing herein will be construed to prevent ITT's or Dealer's use of
bankruptcy, receivership, injunction, repossession, replevin, claim and
delivery, sequestration, seizure, attachment, foreclosure, dation and/or any
other prejudgment or provisional action or remedy relating to any Collateral
for any current or future debt owed by either party to the other. Any such
action or remedy will not waive ITT's or Dealer's right to compel arbitration of
any Dispute. If either Dealer or ITT brings any other action for judicial
relief with respect to any Dispute, the party bringing such action will be
liable for and immediately pay all of the other party's costs and expenses
(including attorney's fees) incurred to stay or dismiss such action and remove
or refer such Dispute to arbitration. If either Dealer or ITT brings or
appeals an action to vacate or modify an arbitration award and such party does
not prevail, such party will pay all costs and expenses, including attorneys'
fees, incurred by the other party in defending such action.
13.3 Any arbitration proceeding must be instituted: (a) with respect to any
Dispute for the collection of any debt owed by either party to the other,
within two (2) years after the date the last payment was received by the
instituting party; and (b) with respect to any other Dispute, within two (2)
years after the date the incident giving rise thereto occurred, whether or not
any damage was sustained or capable of ascertainment or either party knew of
such incident. Failure to institute an arbitration proceeding within such
period will constitute an absolute bar and waiver to the institution of any
proceeding with respect to such Dispute. Except as otherwise stated herein, all
notices, arbitration claims, responses, requests and documents will be
sufficiently given or served if mailed or delivered: (i) to Dealer at Dealer's
principal place of business specified above; and (ii) to ITT at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: General Counsel, or such other
address as the parties may specify from time to time in writing. No
arbitration hereunder will include, by consolidation, joinder or otherwise, any
third party, unless such third party agrees to arbitrate pursuant to the
arbitration provisions contained herein and the Code, or Rules, as applicable.
14. IF SECTION 13 OF THIS AGREEMENT OR ITS APPLICATION IS INVALID OR
UNENFORCEABLE, ANY LEGAL PROCEEDING WITH RESPECT TO ANY DISPUTE WILL BE TRIED
IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT A JURY. DEALER AND ITT
WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
THIS CONTRACT CONTAINS BINDING ARBITRATION AND JURY WAIVER PROVISIONS.
ITT COMMERCIAL FINANCE CORP. M & M Properties, Inc. (Dealer's Name)
----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxx XxXxxxx
--------------------------------------- -------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxxx Print Name: Xxxxx XxXxxxx
------------------------------- -----------------------------
Title: Branch Manager Title: President
------------------------------------ -----------------------------------
ATTEST:
/s/ Xxxx Xxxxxxxxx ([Assistant] Secretary)
----------------------------------
Print Name: Xxxx Xxxxxxxxx
------------------------------
SECRETARY'S CERTIFICATE OF RESOLUTION
I certify that I am the Secretary or Assistant Secretary of the
corporation named below, and that the following completely and accurately sets
forth certain resolutions of the Board of Directors of the corporation adopted
at a special meeting thereof held on due notice (and with shareholder approval,
if required by law), at which meeting there was present a quorum authorized to
transact the business described below, and that the proceedings of the meeting
were in accordance with the certificate of incorporation, charter and by-laws
of the corporation, and that they have not been revoked, annulled or amended in
any manner whatsoever.
Upon motion duly made and seconded, the following resolution was
unanimously adopted after full discussion:
"RESOLVED, That the several officers, directors, and agents of this
corporation, or any one or more of them, are hereby authorized and empowered on
behalf of this corporation: to obtain financing from ITT Commercial Finance
Corp. ("ITT") in such amounts and on such terms as such officers, directors or
agents deem proper; to enter into financing, security, pledge and other
agreements with ITT relating to the terms upon which such financing may be
obtained and security and/or other credit support is to be furnished by this
corporation therefor; from time to time to supplement or amend any such
agreements; and from time to time to pledge, assign, mortgage, grant security
interests, and otherwise transfer, to ITT as collateral security for any
obligations of this corporation to ITT, whenever and however arising, any
assets of this corporation, whether now owned or hereafter acquired; the Board
of Directors hereby ratifying, approving and confirming all that any of said
officers, directors or agents have done or may do with respect to the
foregoing."
IN WITNESS WHEREOF, I have executed and affixed the seal of the
corporation on the date stated below.
Dated: 7-28, 1994 /s/ Xxxx Xxxxxxxxx ([Assistant] Secretary)
------------ ----------------------
M & M Properties, Inc. (Corporate Name)
----------------------
(SEAL)
5
AMENDMENT TO AGREEMENT FOR WHOLESALE FINANCING
(SECURITY INTEREST)
THIS AMENDMENT IS HEREBY MADE TO THE AGREEMENT FOR WHOLESALE FINANCING EXECUTED
ON THE 28 DAY OF JULY, 1994, ("AGREEMENT") BY AND BETWEEN ITT COMMERCIAL FINANCE
CORP. ("ITT") AND M & M Properties, Inc., 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000 ("DEALER").
For good and valuable consideration, ITT and Dealer agree that the first
sentence of Section 3 of the Agreement is hereby deleted in its entirety and is
restated as follows:
"To secure payment of all Dealer's current and future debts to ITT,
whether under this Agreement or any current or future guaranty or
other agreement, Dealer grants ITT a security interest in all of
Dealer's inventory and equipment financed by ITT which is manufactured
or sold by Vendor or any of its subsidiaries or affiliated companies,
and/or bearing any trademark or trade name of Vendor or any of its
subsidiaries or affiliated companies, whether now owned or hereafter
acquired by Dealer, and all accounts, contract rights, chattel paper,
documents, general intangibles and instruments arising from such
inventory and equipment, and all attachments, accessories, accessions,
substitutions and replacements thereto and all proceeds thereof."
All other terms of the Agreement, to the extent consistent with the foregoing,
are hereby ratified and will continue to be in full force and effect.
IN WITNESS WHEREOF, the duly authorized representatives of ITT and Dealer have
executed this Amendment on this 28 day of July, 1994.
M & M Properties, Inc. (Dealer)
--------------------------------
By: /s/ Xxxxx XxXxxxx
-----------------------------
Title: President, Xxxxx XxXxxxx
--------------------------
ITT COMMERCIAL FINANCE CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Branch Manager
--------------------------
CMF3-AMT AWF-IND(A) 09/93
