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EXHIBIT 10.28
INVENTORY REPURCHASE AGREEMENT
AGREEMENT between NATIONSCREDIT COMMERCIAL CORPORATION (herein called "NCC") and
BELLCREST HOMES, INC., herein called "Seller", a Corporation of Georgia.
1. In consideration of the mutual promises contained herein, the parties
agree as follows:
a) "Inventory" means merchandise sold by Seller and financed by NCC
under the terms of a Financing Agreement extended by Dealer in
favor of NCC or more specifically identified as:
BELLCREST PRODUCTS
b) "Dealer" means any individual, partnership, firm, corporation, or
other business entity that buys Inventory from Seller.
c) "Financing Agreement" means the written agreement and all related
documentation including without limitation any note, chattel
mortgage, security agreement, financing statement, or other
writing pursuant to which NCC has executed inventory financing.
2. NCC from time to time will purchase or otherwise acquire invoices
acceptable to NCC and arising out of the sale by Seller by Inventory
to Dealers. Such invoices shall be purchased or otherwise acquired
under the plans and at terms and rates of NCC in effect from time to
time.
3. The Seller warrants that its invoices when presented represent a
bonafide order by the Dealer, and its titles as shown are clear and
free of all liens and encumbrances, and Dealer named has requested the
Inventory to be financed by NCC. In the event that the purported sale
from Seller to Dealer is not a bonafide sale of Inventory, or if the
Inventory, at the time of delivery to Dealer, is subject to a lien in
favor of Seller or anyone claiming under or through Seller, Seller
shall repurchase from NCC, upon demand, the invoice(s) purchased or
otherwise acquired from Seller by NCC for an amount equal to the then
unpaid balance plus costs and expenses incurred by NCC in respect
thereto, and any accrued and unpaid charges of NCC.
4. If NCC shall repossess or otherwise come into the possession of any
inventory which is covered by a Financing Agreement, Seller agrees to
repurchase from NCC, upon demand, such repossessed Inventory under the
following terms and conditions.
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(a) This Agreement shall be binding as provided for one hundred
percent (100%) of the Seller's invoice plus freight if approved
and financed by NCC.
(b) In the event that the Dealer defaults in payment of his
"Financing Agreement" with NCC, upon written notice from NCC to
Seller that it has possession of the Inventory, the Seller will
accept delivery from NCC from any point of repossession where the
Seller's Inventory may be safely removed.
(c) The repurchase price shall first be determined on the basis of
the Seller's invoice price plus freight if financed by NCC,
excluding interest, finance and insurance charges.
Additionally, if NCC is legally restrained from obtaining
possession of the inventory because of bankruptcy or other legal
action, the repurchase limitation period shall be extended until
any order is removed plus sixty (60) days.
The repurchase price is further determined by the length of time
between the date of delivery of the inventory and the postmark
date of NCC's written request to Seller to repurchase, as set
forth in the schedule directly below.
Inventory
0 days through 365 days 100.0%
366 days through 395 days 98.0%
396 days through 425 days 96.0%
426 days through 455 days 94.0%
456 days through 485 days 92.0%
486 days through 509 days 90.0%
510 days and over 0.0%
* A 30 day grace period shall be added at 395 days, 425 days, 455
days, 485 days, and 509 days to collect money due.
(d) The Inventory must be in new and unused condition except for any
wear that is reasonable necessary or incidental to displaying it
for sale or storing it. Seller will not be required to repurchase
under this Agreement, any Inventory: (a) that has been refinanced
by NCC, (b) where title thereto has been transferred or assigned
to others by the Dealer, (c) where the Inventory has been paid
for by the Dealer directly to Seller.
(e) On Inventory repurchased, in addition to the repurchase price,
Seller will, (a) pay NCC interest
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at the then prevailing Dealer rate, provided payment is not made
to NCC within thirty (30) days from the date NCC provides Seller
with written notification of possession and request to
repurchase, (b) reimburse NCC for reasonable costs and expenses
in connection with any repossession, not to exceed $100.00 for
each product repossessed regardless of the number of products
repossessed. All claims for repossession costs must be supported
by receipts from NCC.
(f) If any specifically standard or accessory items listed on the
invoice and supplied by the Seller, are missing from the product
or the product is damaged, the repurchase price, in turn, will be
adjusted and reduced accordingly by the Seller's cost for such
items missing, or the Manufacturer's cost to repair the damage to
the product.
5. Upon repurchasing any repossessed inventory under the terms of this
Agreement, as a condition to payment of the repurchase price, NCC will
convey to Seller all of its rights as a secured party in possession as
outlined in the applicable section of the Uniform Commercial Code,
free and clear of all liens and encumbrances. NCC agrees to defend and
indemnify Seller against any and all third party claims arising out of
a lien or encumbrance alleged to be superior to that of NCC.
6. If Seller, for any reason, fails to pay NCC as required by this
Agreement, NCC shall have the right to set off obligation, if any, of
NCC to Seller against obligations of Seller to NCC.
7. If not prohibited by the Law of jurisdiction in which enforcement is
sought, Seller shall pay court costs and a reasonable Attorney's fee
in the event NCC is required to enforce its rights hereunder against
Seller through legal proceedings.
8. NCC may assign this Agreement, but Seller may not assign this
Agreement without prior written consent of NCC. This Agreement shall
inure to the benefit of, and bind the respective parties thereto,
their successors and assigns, and shall be governed by the Law of the
State where Seller is located.
9. This Agreement shall continue in force and effect until terminated by
either party by notice to the other party, which notice, if given
orally, shall be confirmed promptly in writing. Such termination shall
not affect the rights and obligations of the parties as to any
transactions entered into prior to the receipt of such notice of
termination, including without limitation,
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transactions which will not be completed until after the effective
date of termination.
THIS AGREEMENT SHALL BECOME EFFECTIVE AS OF JANUARY 4, 1994.
NATIONSCREDIT COMMERCIAL CORPORATION BELLCREST HOMES. INC.
By:_________________________________ By:______________________
Title:______________________________ Title:___________________
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