DaimlerChrysler Quote #: Truck Financial Direct Purchase Money Loan and Security Agreement TFFF1757SI A
Exhibit 10.5
|
FORM
OF
|
Date:
|
|||
|
DaimlerChrysler
|
Quote
#:
|
|||
|
Truck
Financial
|
Direct
Purchase Money Loan and Security Agreement
|
TFFF1757SI
A
|
|
BORROWER:
|
CO-BORROWER
|
DEALER:
|
||
|
Name
|
Name
|
Name
|
||
|
Xxxxxxx
|
Xxxxxxx
|
Xxxxxxx
|
||
|
Xxxx
Xx Xxx Code
|
City
St Zip Code
|
City
St Zip Code
|
|
CREDITOR
|
,
and its successors,
transferees and assigns.
|
|
|
I
(meaning individually, collectively, and interchangeably, all, Borrowers
named above, jointly and severally) have entered into a direct loan
("Agreement") with Creditor to finance the purchase of the following
described equipment ("Equipment"). I acknowledge that I have accepted
delivery of the Equipment in good order without reservation of rights and
without implied warranty as to condition, merchantability, and suitability
for any purpose. I further acknowledge and certify that I have
entered into this Agreement with Creditor, and I intend to use the
purchased Equipment, primarily for business or commercial purposes, and
not for personal, family, household or agricultural purposes. As part of
the like-kind exchange program, the owner of the equipment has engaged MBF
Account Services LLC as a qualified intermediary. You are hereby notified
that the owner of the equipment has assigned to MBF Account Services LLC
its rights (but not obligations) for the sale of this
equipment.
|
||
|
DESCRIPTION
OF EQUIPMENT:
|
List
Payoff to:
|
|
|
New/Used
|
Make
|
Model
|
Serial
Number
|
Body
Type
|
Model
Year
|
Cash
Sale Price
|
|
TRADE-IN
& DOWNPAYMENT:
|
|||||
|
Make
|
Model
|
Serial
Number
|
Body-Type
|
Model-Year
|
Allowance
|
|
PAYMENT
TERMS: *** SEE ATTACHED PAYMENT SCHEDULE ADDENDUM ***
|
Payoff
Amount
|
|||||
|
My
loan is payable in (**) installment payments of (**) each, commencing on
(**) and continuing on the (**) day of each successive month thereafter,
which includes a final payment of the then unpaid principal and interest
in the estimated amount of (**) due on (**) (**except as otherwise stated
on the Payment Schedule Addendum attached hereto and made a part hereof).
The amount of my final payment may vary depending upon when Creditor
receives my periodic loan payments, and will include the unpaid principal
balance, interest and any other amounts owed as of the final payment due
date. The amount of Finance Charges and the Total of Payments disclosed
herein have been estimated based upon the assumption that Creditor will
receive all payments on the scheduled due dates. I understand that the
amount of Finance Charges and the Total of Payments that I will be
required to pay over the term of this Agreement may increase or decrease depending upon when Creditor actually receives my
payments.
|
Net
Trade-in Allowance
|
|||||
|
Cash
Downpayment
|
||||||
|
TOTAL
DOWNPAYMENT
|
||||||
|
TOTAL
OF PAYMENT CALCULATIONS:
|
||||||
| 1. Total Cash Sale Price | ||||||
| 2. Less Total Down Payment | ||||||
|
DISCLOSURES
REQUIRED UNDER ILLINOIS LAW:
|
3. Unpaid Balance of Sale Price |
(Subtract
Line 2
from
Line 1)
|
||||
|
UNLESS
YOU PROVIDE US WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR
AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT
OUR INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT,
PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY
CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION
WITH THE COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY US,
BUT ONLY AFTER PROVIDING US WITH EVIDENCE THAT YOU HAVE OBTAINED INSURANCE
AS REQUIRED BY OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR THE COLLATERAL,
YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING
INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION WITH THE
PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION
OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO
YOUR TOTAL OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE
MAY BE MORE THAN THE COST OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR
OWN.
|
A. Physical Damage Insurance | |||||
| B. Credit Life/Disability Insurance | ||||||
| C. Non-Trucking Liability Insurance | ||||||
| D. Guaranteed Auto Protection Insurance | ||||||
| E. Insurance Tax (if applicable) | ||||||
| F. Registration/License/Title Fees | ||||||
| G. Federal Excise Tax | ||||||
| H. Sales Tax | ||||||
| I. Documentation Fee | ||||||
| J. Origination Fee | ||||||
| K. Other ( ) | ||||||
| L. Other ( ) | ||||||
| M. Other ( ) | ||||||
| N. Business Service Fee ( ) | ||||||
|
4.
|
Total
Itemized Charges
|
|||||
|
5.
|
Amount
Financed (Add line 3 and
line 4)
|
|||||
|
I
(we) acknowledge receipt of a completed copy of the Agreement, which I
have read and accepted, including the Terms and Conditions on the reverse
side or following pages which are made a part hereof.
|
6.
|
Finance Charge
*e
|
||||
|
7.
|
Total
of Payments
(Add line
5
and line 6) *e
|
|||||
|
*e means
estimate
|
||||||
|
Borrower:
|
Co-Borrower:
|
||||
|
Signature:
X
|
Signature:
X
|
||||
|
Title:
|
Title:
|
||||
|
GUARANTY
|
|||||
|
I
(we) hereby, jointly, severally and unconditionally guarantee payment of
all Indebtedness under this Agreement, and all extensions, substitutions
and refinancings thereof, and agree to the Agreement's terms and
conditions. I (we) waive any rights that I (we) may have to require
Creditor to first exhaust its remedies against the Borrower(s), the
Collateral, or any other guarantor, before collecting under this
Guaranty.
|
|||||
|
Guarantor
Name:
|
Guarantor
Name:
|
||||
|
Signature:
X
|
Signature:
X
|
||||
|
Date:
|
||||
|
DaimlerChrysler
|
Direct
Purchase Money Loan and Security Agreement
|
Quote
No.:
|
||
|
Truck
Financial
|
TFFF1757SI
A
|
|
1. Interest/Late Payment: I promise to pay
to the order of Creditor the Amount Financed together with daily simple
interest thereon at the rate of 6.00% per annum, from the date of this
Agreement until all of my obligations under this Agreement are fully paid
and satisfied. Interest will be computed on the basis of the actual number
of days elapsed in a 365 day year, or a 366 day year if a leap year. If I
fail to make any payment within ten (10) days of the due date, I agree to
pay Creditor a late payment fee in an amount equal to 5% of the delinquent
payment, or such lesser amount as may be limited by law.
2. Additional Charges: I agree to pay a
charge of $25, or such lesser amount as may be limited by law, for each
check, draft or similar instrument presented to Creditor that is returned
or dishonored for any reason.
3. Prepayment: I may prepay the then unpaid
principal balance, plus accrued interest and other amounts then owing
under this Agreement, in full at any time without penalty.
4. Grant of Security Interest: In order to
secure the prompt and punctual payment and satisfaction of my Indebtedness
(as defined herein), I am granting Creditor a security interest in the
Equipment, and in all accessions, replacements and additions to the
Equipment, and in all leases and chattel paper of the Equipment, and in
all lease payments, rentals, and rights thereto, and in all proceeds
derived from the Equipment, including insurance proceeds and refunds of
insurance premiums. If Creditor permits me to allow others to use or lease
the Equipment, I agree to stamp any agreement between me and my lessee
with language approved by Creditor and to provide and update Creditor with
all current contact information of user or lessee. I also agree that
collateral securing other loans, credit sales and leases that I may have
with Creditor or any affiliate of Creditor, whether now or in the future,
additionally will secure my Indebtedness under this Agreement. The
Equipment, all leases and chattel paper of the Equipment, all lease
payments, rentals, and rights thereto, proceeds, and my additional
collateral securing other loans, credit sales, and leases with Creditor or
any affiliate of Creditor, are individually, collectively and
interchangeably referred to under this Agreement as my "Collateral." For
purposes of this Agreement, the term "Indebtedness" means: (1) my
indebtedness under my loan and under this Agreement for payment of
principal, interest, late charges, returned check fees, liquidated damages
and any other amounts due hereunder; (2) my indebtedness under any other
loans, leases or other obligations that I may now and in the future owe to
Creditor or any affiliate of Creditor; (3) all additional funds that
Creditor or any affiliate of Creditor may advance on my behalf as provided
in this Agreement; and (4) Creditor's costs and expenses incurred in
enforcing Creditor's rights under this Agreement, and in protecting and
preserving the Collateral, including reimbursement of Creditor's
reasonable attorney's fees, court costs, and collection expenses. I
authorize Creditor to perfect its security interest in the Collateral. I
agree to reimburse Creditor for all filing costs and perfection expenses,
as well as for all costs of amending, continuing and terminating such
filings.
5. Covenants: I agree: (1) not to sell,
lease, transfer or assign the Collateral without Creditor's prior written
consent; (2) not to allow any other security interest or lien to be placed
on or to attach to the Collateral; (3) not to make any material changes or
alterations to the Equipment without Creditor's prior written consent
(including replacements, additions, accessories or substitutions); (4) not
to remove the Equipment from the state in which I reside or have my
principal offices, other than in the ordinary course of business, for a
period in excess of sixty (60) consecutive days, without first obtaining
Creditor's prior written consent; (5) not to re-title the Equipment in
another state without first notifying Creditor; and (6) if I am a business
entity, not to change my name or form or state of organization without
first notifying Creditor at least thirty (30) days in advance of such
change. I further agree: (a) that anything that may be attached to the
Equipment will become an accession to the Equipment, and will become part
of the Collateral; (b) to make all necessary repairs to, and not to
abandon the Equipment; (c) to abide by all laws and rules and regulations
with respect to the use and operation of the Equipment, and to obtain all
necessary permits and licenses in those jurisdictions where required; (d)
to pay all taxes and assessments levied against the Equipment and to
furnish Creditor with proof of such payments; and (e) to permit Creditor
to inspect the Equipment at reasonable times.
6. Insurance: I agree to keep the Equipment
continuously insured, by an insurance company and with deductible approved
by Creditor, against comprehensive and collision damage, and any other
hazards Creditor may specify from time to time. Such insurance coverage
shall be for the greater of either the full value of the Equipment or the
sum of the obligations arising under this Agreement. I agree to provide
Creditor with written proof of a paid insurance policy, and subsequent
renewals, showing Creditor as a loss payee and additional insured under my
insurance policy, which will require at least thirty (30) days advance
written notice to Creditor before such insurance may lapse, be reduced,
canceled or terminated for any reason. I assign to Creditor all proceeds
from insurance policies covering the Equipment, including, but not limited
to, refunds of unearned premiums of any credit life, credit disability,
property or other insurance financed by Creditor under this Agreement, and
direct said insurance companies to pay such amounts directly to Creditor.
Creditor may apply any insurance proceeds and returned premiums received
to the unpaid balance of my then Indebtedness. Should I fail to purchase
and maintain adequate insurance on the Equipment, as determined by
Creditor (at Creditor's sole discretion), then Creditor may (at Creditor's
sole option, and without any responsibility or liability to do so)
purchase such insurance as Creditor deems necessary to protect its
interest. I agree to immediately reimburse Creditor for the expense of
said insurance, together with interest thereon at the rate of 18% per
annum, or such lesser rate as may be limited by law, from the date of each
advance until Creditor is repaid. I authorize Creditor to release to third
parties any information necessary to facilitate insurance and tax
monitoring and insurance placement. If there is a total loss on any item
of Equipment, I agree to immediately pay to Creditor the unpaid principal
balance plus accrued interest and any other amounts then due and owing on
such item of Equipment. All insurance policies financed under this
Agreement, unless a shorter period is specified in the policy, end upon
the original due date of the last payment due under this Agreement. If I
am due any insurance refund, I will seek same from insurance company.
Creditor does not require me to have credit life insurance.
UNLESS
OTHERWISE SPECIFIED HEREIN, THE INSURANCE AFFORDED UNDER THIS AGREEMENT
DOES NOT COVER LIABILITY FOR INJURY TO PERSON OR DAMAGES TO PROPERTY OR
OTHERS. NO PUBLIC LIABILITY INSURANCE IS ISSUED WITH THIS
TRANSACTION.
7.
Default and Acceleration: Creditor
has the right at its sole option to insist on immediate payment in full of
all Indebtedness that I may owe to Creditor upon the occurrence of any one
or more of the following events: (1) if I fail to make any payment under
this Agreement when due; or (2) if I am in default under any other
provision of this Agreement; or (3) if I am in default under any other
loan, lease, extension of credit, or obligation that I may then owe to
Creditor or any affiliate of Creditor; or (4) If I, without Creditor's
consent, (a) make a significant change in the management, ownership or
control; or (b) merge, transfer, acquire or consolidate with any other
entity; or (5) if I should become insolvent, or the subject of a
bankruptcy or other relief from creditors; or (6) if any of the Equipment
is seized
under process of law; or (7) if any guaranty of my obligations under this
Agreement is withdrawn or becomes unenforceable for any reason; or (8) if
Creditor reasonably believes itself to be Insecure in the repayment of
this Agreement. After default and acceleration, I agree to continue to pay
Creditor interest on the then unpaid balance of my Indebtedness at the
rate of eighteen (18%) percent per annum, or such lesser rate as may be
limited by law.
|
8. Default Remedies: Should I default under
this Agreement, and Creditor elects to accelerate payment of my
Indebtedness, Creditor may exercise all of the rights and remedies
available to secured creditors generally under the Uniform Commercial Code
in effect in the state where the Collateral is then located. I agree to
turn over and deliver the Collateral to Creditor at my expense, at the
time and at the location Creditor may demand of me. Alternatively,
Creditor may enter any premises or other place where the Collateral may be
located, and take possession of the Collateral, and all other property
then located on or in the Collateral, provided that Creditor is able to do
so without breach of the peace. Creditor may then sell the Collateral
without warranty at public or private sale, and apply the sale proceeds to
the satisfaction of my Indebtedness. Creditor has no obligation to
clean-up, repair, or prepare the Collateral for sale. I hereby agree that
Creditor may advertise and sell repossessed Collateral through xxx.xxxxxxxxxxxxxxxxxx.xxx or other
internet websites through which equipment or motor vehicles similar to the
Collateral is sold and that such disposition shall be deemed in conformity
with reasonable commercial practice among dealers of the type of property
that was the subject of the disposition. Any requirement that Creditor
notify me of the sale or other disposition of the Collateral will be
satisfied if Creditor sends me a written communication at least ten (10)
days in advance of the date on which a public sale is scheduled, or within
ten (10) days in advance of the time after which a private sale or other
disposition may take place. Furthermore, upon default Creditor may cancel
any insurance financed under this Agreement and apply the refunded premium
to my outstanding balance. I authorize Creditor to notify anyone using
equipment to pay Creditor directly for my Indebtedness.
9. Waivers: I and all Guarantors each waive
presentment, notice, and demand for payment, and agree that our liability
under this Agreement shall be joint and several with each other. We
further agree that discharge or release of any party, or Collateral, or
any extension of time for payment, or any delay in enforcing Creditor's
rights, will not cause Creditor to lose any of its rights. I expressly
waive any right to a jury trial in any dispute regarding or arising out of
this Agreement, the sale of the Equipment, or my relationship with
Creditor or Dealer.
10. Collection/Attorney's Fees and Expenses:
If Creditor sues me, or if Creditor refers my loan to an attorney for
collection, I agree to pay Creditor reasonable attorney's fees. I further
agree to reimburse Creditor for its court costs and collection expenses
incurred in enforcing Creditor's rights under this Agreement.
11. Savings Clause: It is Creditor's
intent to fully comply with all laws and regulations limiting imposition
and collection of interest and other fees and charges in connection with
my loan. Should I be called upon, or should I ever pay interest or other
fees and charges to Creditor in excess of the amount(s) and rate(s)
permitted, I agree that Creditor may cure such violation by crediting any
excess amount that I have paid against my then outstanding Indebtedness
under this Agreement.
12. No Agency Relationship; No Right to Assert
Claims and Defenses: I fully understand and unconditionally agree
that neither Dealer, the Equipment manufacturer and distributor, nor their
employees, are Creditor's partners, agents, or representatives, and have
no right to commit, bind or obligate Creditor in any way. My obligations
to Creditor under this Agreement are absolute, unconditional and
non-cancelable with no right of offset, counterclaim or defense against
Creditor or any assignee, the Dealer, the Equipment manufacturer,
distributor, or their employees.
13. Representations and Warranties: I
represent and warrant to Creditor that: (1) my correct legal name and
state of residence or organization are listed on page 1 of this Agreement,
and I am property authorized, licensed and in good standing to conduct
business in each applicable jurisdiction; (2) none of the preprinted
provisions of this Agreement have been altered, modified, or stricken by
me or by anyone else; (3) I or my authorized representative properly
executed this Agreement in my name and my signature on this Agreement, or
that of my authorized representative, is genuine; (4) the amount of the
cash downpayment reflected in this Agreement was paid by me to the Dealer
in cash prior to the time this Agreement was signed; (5) any trade-in
allowance, rebate or incentive payment reflected in this Agreement is bona
fide and was applied to the Cash Sale Price of the Equipment; and (6) I
have and intend to license, title, and register the Equipment in the
proper state or jurisdiction.
14. Power of Attorney: To the extent
permitted by law, I hereby appoint Creditor as my attorney-in-fact. My
grant of this power of attorney is coupled with an interest and is
irrevocable until all obligations I owe under this Agreement are paid in
full. As my attorney-in-fact, Creditor can: (a) sign on my behalf all
Certificates of Ownership, Registration cards, applications, affidavits or
any other documents required to register and properly perfect Creditor's
security interest in the Equipment; (b) transfer my entire interest in the
Equipment as part of a repossession and sale; (c) act on my behalf in
insurance matters relating to the Equipment, including, but not limited
to, the power to endorse insurance proceeds checks or drafts on my behalf
and cancel any credit life, credit disability, guaranteed automotive
protection coverage, extended warranty or other optional insurance
financed under this Agreement and apply the refunded premium or cost to my
outstanding balance if I am in default.
15. Governing Law: This Agreement shall be
deemed received and accepted by Creditor in Lisle, Illinois on the date of
funding. Furthermore this Agreement and my credit financing of the
Equipment shall be governed and construed under the laws of the State of
Illinois irrespective of the conflict of laws principles of that
state.
16. Miscellaneous: In this Agreement, the
words "I", "me", "my", "we", "us" and "our" individually, collectively and
interchangeably mean each person or entity signing this Agreement as a
Borrower, Co-Borrower or Guarantor, their successors and assigns, and all
other persons that may be or become obligated under this Agreement. All
schedules executed in connection with this Agreement are part of this
Agreement. This Agreement and any such schedules constitute the entire
agreement between the parties. No modification or amendment of this
Agreement shall be effective unless in writing signed by all parties. All
provisions of this Agreement that are prohibited by applicable law shall
be ineffective solely to the extent of such prohibition without
invalidating the other provisions of this Agreement. Any waiver of
Creditor's rights and remedies under this Agreement shall be effective
only if specifically agreed by Creditor in writing.
17. Authorization to Share Information:
Creditor may collect non-public information from Borrower and any
guarantor which may consist of information on credit applications or other
forms, information regarding transactions with Creditor, affiliates or
others and information that Creditor receives from consumer or credit
reporting agencies and other outside sources during the time period that a
line of credit is in effect or that any balance is due to Creditor under
any lease or loan agreement ("Information"). Borrower and guarantors agree
that Creditor may disclose any of the Information to any affiliate,
assigns or agents of Creditor.
|
