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EXHIBIT 4.4
FORM OF
MARINE RETAIL SALES FINANCING AGREEMENT
THIS AGREEMENT, between NATIONSCREDIT ______________________________________,
("NationsCredit") and the undersigned marine product dealer ("Dealer"), whose
names and addresses are set forth herein, sets forth the terms under which
NationsCredit may purchase Contracts (as hereinafter defined) from Dealer and
the rights and obligations between NationsCredit and Dealer with regard to such
Contracts.
1. SALE AND PURCHASE OF CONTRACTS.
a. NationsCredit may, from time to time, purchase from Dealer such
Contracts (as hereinafter defined) offered by Dealer as shall be
written on forms satisfactory to NationsCredit and otherwise
acceptable to NationsCredit. All such purchases shall be at purchase
prices to be determined as provided in Paragraph (c) below. For
purposes of this Agreement, the term "Contract" shall mean any retail
installment contract, security agreement or other document providing
for the payment by a Buyer (as hereinafter defined) to Dealer of
monies in connection with a retail credit sale by Dealer to such Buyer
and the term "Buyer" shall mean any person (including an individual or
another legal entity) which purchases a marine product from Dealer,
including any co-purchaser.
b. To the extent permitted by applicable law, Dealer shall communicate to
NationsCredit or its designee all such credit information concerning a
Buyer (and any other person named by a Buyer in his credit application)
as Dealer may have. NationsCredit will make a decision as to whether
NationsCredit will purchase each Contract offered to it by Dealer if
documentation (including credit information) satisfactory to
NationsCredit has been received. If NationsCredit decides that
NationsCredit will purchase such a Contract after receipt of such
documentation, Dealer shall (i) execute an assignment of the Contract
to NationsCredit, (ii) deliver the original executed Contract (and
counterparts thereof), to NationsCredit, (iii) file and record all
such documents, and take all such action, as may be necessary, under
the Uniform Commercial Code and other applicable law, to convey to
NationsCredit (and to record such conveyance of) the Contract, and to
perfect a valid and enforceable first priority security interest in
favor of NationsCredit in the marine product to which the Contract
relates and (iv) if required by applicable law, send to the Buyer a
notice that such Dealer has assigned the Contract to NationsCredit.
c. NationsCredit shall only purchase Contracts which comply with the
criteria announced from time to time by NationsCredit with respect to
the amounts which NationsCredit will finance, the aggregate of which
amounts shall not exceed the "amount financed," as set forth in any
Contract. If NationsCredit determines to purchase any Contract, it
will do so at a price equal to such "amount financed." Such price
shall be paid to Dealer upon NationsCredit's receipt of satisfactory
documentation. In addition, NationsCredit shall credit to a
non-interest-earning accounting record established by NationsCredit in
respect of Dealer (the "Dealer Reserve Account") an amount equal to
the "finance charge" set forth in the Contract in excess of the amount
of NationsCredit's then applicable buy rate/sell rate. Dealer hereby
grants a security interest in favor of NationsCredit in all amounts
credited to the Dealer Reserve Account to secure all obligations of
Dealer to NationsCredit. All amounts so credited to the Dealer Reserve
Account shall be held by NationsCredit. The Dealer Reserve Account
shall from time to time be debited, and amounts held therein shall
from time to time be paid, as follows:
(i) at NationsCredit's discretion, the Dealer Reserve Account
shall be debited by an amount equal to the amount of any
indebtedness of Dealer to NationsCredit arising under this
Agreement or otherwise;
(ii) upon prepayment of a Contract, the Dealer Reserve Account
shall be debited by an amount equal to the same percentage of
the original credit to the Dealer Reserve Account in respect
of the Contract as the amount of NationsCredit's finance
charge refund under the Contract to the Buyer bears to the
original finance charge; and debited by the full amount of any
refunds NationsCredit must give to the Buyer for unearned
insurance premiums, charges for extended warranty, mechanical
breakdown protection, or similar items; and
(iii) to pay Dealer at such time or times as NationsCredit shall
determine, any then remaining balance of the Dealer Reserve
Account in excess of $__________.
Notwithstanding anything to the contrary set forth herein, Dealer shall be
responsible for Dealer's proportionate share of any unearned finance
charges, insurance premiums and/or charges for extended warranty,
mechanical breakdown or comparable programs, whether or not the amount of
the Dealer Reserve Account is sufficient to cover such share and whether or
not this Agreement has theretofore been terminated.
2. INSURANCE
Dealer will provide NationsCredit or its agent with written evidence that
there is insurance acceptable to NationsCredit covering each marine product
which is the subject of a Contract purchased by NationsCredit hereunder
(together with all related accessories and equipment, a "Boat"), against
fire and theft at the time the Contract is purchased by NationsCredit and
that NationsCredit is named as the loss payee. If such written evidence is
provided to NationsCredit or its agent, NationsCredit will assume
responsibility for Buyer's compliance with insurance requirements
thereafter.
3. PAYMENTS FROM BUYER
After purchase of a Contract by NationsCredit, Dealer shall forward to
NationsCredit any payments on the Contract received by Dealer. In the event
such payment is made by check or other instrument payable to Dealer, Dealer
shall endorse such check or other instrument to NationsCredit. Dealer shall
not make any payment in respect of any Contract on behalf of any Buyer
without the prior written consent of NationsCredit.
4. DEALER'S REPRESENTATIONS AND WARRANTIES
As to each Contract sold by Dealer to NationsCredit, Dealer warrants and
represents that, as of the time of such sale:
a. Dealer will have satisfied all requirements of the Federal Truth in
Lending Act, the Federal Equal Credit Opportunity Act and all other
federal, state, local and other laws, regulations or rules including,
but not limited to, consumer protection laws, regulations or rules
applicable to the extension of credit or otherwise applicable to the
Contract;
b. Dealer will have the right to make such sales;
c. Dealer will have received the down payment specified in the Contract
and will not have made a loan to the Buyer, or assisted the Buyer in
obtaining a loan from any third party, to be used as a part or all of
such down payment or any other payment on a Contract, except (in any
such case) as may be specifically indicated on the face of the
Contract;
d. The Boat sold under the Contract will have been actually delivered to
Buyer and will be free from all liens and encumbrances except those in
favor of NationsCredit;
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e. The Contract will be valid and enforceable according to its terms; and
f. All owners of the Boat will have signed the Contract either as Buyers
or as parties agreeing to the security interest in favor of Dealer or
its assignee;
provided, however, that the foregoing warranties and representations shall
not be deemed to constitute warranties or representations as to any act or
omission of Dealer in accordance with any written instruction of
NationsCredit.
5. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS
a. If any Dealer representation, warranty or covenant made in connection
with a Contract is breached or is untrue, or if Dealer has failed to
perform any obligation it may have under a Contract or this Agreement,
or if the Buyer asserts any claim arising out of the purchase of a
Boat from Dealer under a Contract sold to NationsCredit, then Dealer
shall promptly pay NationsCredit any or all of the following amounts
at the election of NationsCredit: (i) the unpaid balance, as
determined by NationsCredit, of all Contracts affected by such breach
or misrepresentation or claim; (ii) Dealer's portion of any unearned
finance charges; (iii) all losses and expenses incurred by
NationsCredit as a result of such breach or misrepresentation or
claim; and (iv) all out-of-pocket expenses (including, but not limited
to, attorney's fees and costs) paid or incurred by NationsCredit in
connection with the collection of any amount due under any such
Contract. If Dealer breaches this Agreement in any other respect,
Dealer shall reimburse NationsCredit for all losses and expenses
incurred by NationsCredit as a result of such breach. In addition,
Dealer shall indemnify and hold NationsCredit harmless for all losses
or expenses, including reasonable attorneys' fees and legal costs,
suffered or incurred by NationsCredit in any judicial, administrative,
or any other proceeding because of any claim or defense asserted
against NationsCredit as a result of any act or omission on the part
of Dealer, including, at the election of NationsCredit, the unpaid
balance of the Contract, as determined by NationsCredit.
b. Notwithstanding anything to the contrary set forth herein, Dealer
hereby guarantees to NationsCredit the payment in full of all amounts
owing to NationsCredit from time to time under any Contract purchased
by NationsCredit from Dealer in respect of which the Buyer was, at the
time of such purchase, an officer, director, partner or employee of
Dealer (or a member of the immediate family of any such person
associated with the Dealership.)
6. DEALER LIABILITY
Dealer liability under the retail program will be on a non-recourse basis.
7. BOOKS AND RECORDS
Dealer agrees to maintain complete and accurate books and records in
accordance with generally accepted accounting principles concerning the
sale of each Boat, including but not limited to records of all other
transactions affecting the Boat. Dealer will, upon request by
NationsCredit, promptly deliver any such books and records or furnish a
copy thereof or abstracts therefrom to NationsCredit or its agent.
NationsCredit's representatives may from time to time inspect Dealer's
books and records. Dealer shall furnish to NationsCredit such information
concerning Dealer's financial and business affairs as NationsCredit may
request.
8. AGENCY
Neither this Agreement nor any action pursuant hereto shall make Dealer the
agent, representative or employee of NationsCredit for any purpose. Dealer
is not granted any express or implied right to bind NationsCredit in any
manner whatsoever. Wherever in this Agreement reference is made to an agent
of NationsCredit, such reference is intended to mean any third party that
NationsCredit may from time to time appoint to fulfill any of its
obligations under this Agreement.
9. FAILURE TO EXERCISE REMEDIES
The exercise of any right or remedy available to NationsCredit shall not
operate as a waiver of any other right or remedy. The failure of
NationsCredit to exercise or a delay by NationsCredit in exercising any
right or remedy shall not operate as a waiver of such right or any other
right. All of NationsCredit's rights and remedies shall be cumulative and
may be exercised singularly or concurrently.
10. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
parties to this Agreement and their respective successors and assigns,
provided, however, that this Agreement and all rights and obligations under
this Agreement may not be assigned or transferred by Dealer without
NationsCredit's prior written consent and any purported assignment or
transfer without such consent shall be void and without effect. Any
obligation of NationsCredit, or any function to be performed by
NationsCredit, under this Agreement may, at the sole option of
NationsCredit, be delegated to, and performed by, an agent of
NationsCredit, which agent shall have such power and authority as
NationsCredit shall delegate to it. Any right or remedy granted to
NationsCredit under this Agreement may be assigned to an agent of
NationsCredit.
11. TERMINATION
NationsCredit or Dealer may terminate this Agreement upon written notice to
the other party, such termination to be effective on the date set out in
such notice. The termination of this Agreement shall not release
NationsCredit or Dealer from any obligations incurred with regard to any
Contracts purchased prior to the effective date of such notice, and all
such obligations shall remain in full force and effect until fully
satisfied in accordance with the terms and conditions of this Agreement.
12. VALIDITY, COMPLETE AGREEMENT, AMENDMENTS
Any invalidity, in whole or in part, of any provision of this Agreement
shall not affect the validity of any other provision hereof. This Agreement
constitutes the complete understanding between the parties and supersedes
all prior oral, written or implied discussions or understandings with
respect to the subject matter hereof between the parties. No alteration,
amendment or modification of any of the terms and provisions hereof shall
be valid unless made pursuant to an instrument in writing signed by both of
said parties.
13. NOTICE
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed duly given
if and when personally delivered or mailed by registered or certified mail,
return receipt requested, postage prepaid, to the address of the party
shown below. Either party may change the address to which each such notice
or communication shall be sent by giving written notice of such address
in the manner provided herein to the other party.
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14. GENDER, NUMBER, PARAGRAPH HEADINGS
Unless the context of this Agreement otherwise requires, the masculine,
feminine or neuter gender each shall include the other genders, and the
singular shall include the plural. The paragraph headings contained in this
Agreement are for convenience of reference only and shall not limit or
define the text hereof.
NATIONSCREDIT
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DEALER
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PRINTED NAME AND TITLE PRINTED NAME AND TITLE
DATE: BY DATE: BY
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AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
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STREET ADDRESS OF DEALER
NATIONSCREDIT COMMERCIAL CORP.
0000 XXXXXXX XXXXX XXXXXXX, XXXXX 000
XXXXXXX, XX 00000 ---------------------------------------
CITY AND STATE
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(INSERT BRANCH ADDRESS STAMP ABOVE)
