EXHIBIT 10:19
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AMENDED AND RESTATED AGREEMENT FOR WHOLESALE FINANCING
This Amended and Restated Agreement for Wholesale Financing (“Agreement”) is made as of10 – 6, 1997 betweenDeutsche Financial Services Corporation(“DFS”) andFeatherlite Mfg., Inc., a Minnesota corporation (“Dealer”), having a principal place of business located at Highway 63 & 0, Cresco, Iowa 52136.
1.New Vantare Inventory Credit Facility. Subject to the terms of this Agreement, DFS may extend credit to Dealer for the purpose of financing completed motorcoaches manufactured by Dealer’s Vantare Division, located in Sanford, Florida (“Wholesale Facility”). The Wholesale Facility will be subject to the following terms:
| 1.1 | Eligible Inventory/Advance Rates. Subject to the maximum amount of the Wholesale Facility, DFS will finance completed motor Coaches manufactured by Dealer’s Vantare Division in an amount not to exceed one hundred percent (100%) of the actual cost to manufacture said motorcoach, less the amount of any deposit made by the prospective purchaser of a motor coach financed by DFS. |
| 1.2 | Inspection/Documentation. Prior to funding a completed unit, Dealer will provide an invoice for the completed unit containing details of all equipment and options. Upon receipt of the invoice, DFS will arrange a physical inspection of the completed unit to verify completion. The manufacturer’s statement of origin for both the chassis and the completed unit must be delivered to DFS prior to funding to be retained until funding of the retail sale of the unit. Upon funding, DFS may remit the portion of the advance allocated to the cost of the chassis directly to the manufacturer of the chassis. DFS must have a first perfected security interest in each motor coach financed and all proceeds thereof. |
| 1.3 | Curtailments. A curtailment payment of ten percent (10%) of the original principal balance for each completed unit will be due and payable on the 361st day after the date the unit was financed. The completed unit will be due and payable in full 540 days after the date the completed unit was originally financed. |
2.Used Inventory Credit Facility. Subject to the terms of this Agreement, DFS agrees to extend credit to Dealer for the purpose of financing used recreational vehicles (“Used Inventory Facility”). The term “used recreational vehicles” is defined as recreational vehicles which have been registered or titled in any state with the appropriate state authorities in accordance with applicable state law (“Used Vehicles”). Subject to the limitations contained in thisSection 2, Used Vehicles may consist of used motor coaches that were manufactured by or bear the trademark or tradename of Dealer’s Vantare Division or its predecessor, Vantare International, Inc. (“Vantare”). As provided below, the terms for financing for Used Vehicles consisting of Vantare units may have different financing terms. The Used Inventory Facility will be subject to the following terms:
| 2.1 | Qualifying Units. Used Vehicles for which Dealer may request a loan must be the current model year or no more than seven model years prior to the current model year, in good physical and mechanical condition, and subject to DFS’ approval. |
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| 2.2 | Advance. DFS, in its sole discretion, may loan to Dealer an amount up to (1) Eighty percent (80%) of the Base NADA average trade-in value, excluding the value of any added accessories, of Used Vehicles other than Vantare Used Vehicles; and (2) the applicable percentage of the original wholesale cost of Used Vehicles consisting of Vantare Used Vehicles in accordance with the schedule identified below, excluding the value of any added accessories: |
Number of Years Prior to Current Model Year | Applicable Percentage of Original Wholesale Cost | |
| 1 | 85% | |
| 2 | 72% | |
| 3 | 62% | |
| 4 | 52% | |
| 5 | 42% | |
| 6 | 35% | |
| 7 | 28% |
| 2.3 | Curtailment Payments.Dealer will pay DFS ten percent (10%) of the principal amount of DFS’ advance to Dealer for each Used Vehicle on the 361st day following the date the Used Vehicle is financed. The balance of the amount financed will be due in full on the 540th day after the Used Vehicle is financed. |
| 2.4 | Financing Period. DFS’ financing to Dealer shall be on terms not to exceed a 540 day maturity, provided, however, that the full amount of the loan balance will be due in full immediately upon the sale, transfer, rent, lease or other disposition of the Used Vehicle or upon the loss, theft or damage of the Used Vehicle. |
| 2.5 | Financing Procedures. Dealer represents that all Used Vehicles to be financed by DFS are free and clear of all liens and encumbrances. Dealer will forward to DFS a copy of the bill of sale, title showing the transfer of title by the previous owner to Dealer and all other documentation evidencing the acquisition of the Used Vehicle by Dealer. Dealer will provide to DFS a written request for financing of each Used Vehicle, with such supporting information as DFS may request, in form and substance satisfactory to DFS. Upon DFS’ receipt of such documents and if approved by DFS, DFS will forward the loan amount to Dealer. |
| 3. | Financing Terms and Statements of Transaction.Upon agreeing to finance a particular item of inventory for Dealer, DFS will send Dealer a Statement of Transaction identifying such inventory and the applicable financial terms. Unless Dealer notifies DFS 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 DFS is financing the items of inventory referenced in such Statement of Transaction at Dealer’s request; and (d) such Statement of Transaction will be incorporated herein, and will constitute an addendum hereto. If Dealer objects to the terms of any Statement of Transaction, Dealer agrees to pay DFS 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 DFS may then elect to terminate Dealer’s financing program pursuant toSection 19,and cease making additional advances to Dealer. |
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However, such termination will not accelerate the maturities of advances previously made, unless Dealer shall otherwise be in default of this Agreement. Advances under the Wholesale Facility and the Used Inventory Facility will be made by DFS, at Dealer’s direction, by paper check, electronic transfer by Automated Clearing House “(ACH”), Fed Wire Funds Transfer (“Fed Wire”) or such other electronic means as DFS may announce from time to time (ACH, Fed Wire and such other electronic transfer are collectively referred to as “Electronic Transfers”). If Dealer does not request that an advance be made in a specific method of transfer, DFS may determine from time to time in its sole discretion what method of transfer to use. Dealer agrees to pay DFS’ fees for the transfer of funds to or from the Dealer. DFS may, from time to time, announce its fees for transfers of funds to or form Dealer, include the issuance of Electronic Transfers.
| 4. | Grand of Security Interest. To secure payment of all of Dealer’s current and future debts to DFS, whether under this Agreement or any current or future guaranty or other agreement, Dealer grants DFS a security interest in all of Dealer’s inventory, equipment, fixtures, accounts, contract rights, chattel paper, security agreements, instruments, deposit accounts, reserves, documents, and general intangibles; and all judgments, claims, insurance policies, and payments owed or made to Dealer thereon; all whether now owned or hereafter acquired, all attachments, accessories, accessions, returns, repossessions, exchanges, substitutions and replacements thereto, and all proceeds thereof. All such assets are collectively referred to herein as the “Collateral”. All of such terms for which meanings are provided in the Uniform Commercial Code of the applicable state are used herein with such meanings. All Collateral financed by DFS, and all proceeds thereof, will be held in trust by Dealer for DFS, with such proceeds being payable in accordance withSection 10. |
| 5. | Affirmative Warranties and Representations. Dealer warrants and represents to DFS that: (a) Dealer has good title to all Collateral; (b) DFS’ security interest in the Collateral financed by DFS is not now and will not become subordinate to the security interest, lien, encumbrance or claim of any person; (c) Dealer will execute all documents DFS requests to perfect and maintain DFS; security interest in the Collateral; (d) Dealer will deliver to DFS immediately upon each request, and DFS may retain, each Certificate of Title or Statement of Origin issued for Collateral financed by DFS; (e) Dealer will at all times be duly organized, existing, in good standing, qualified and licensed to do business in each state, county, or parish, in which the nature of its business or property so requires; (f) Dealer has the right and is duly authorized to enter into this Agreement; (g) Dealer’s execution of this Agreement does not constitute a breach of any agreement to which Dealer is now or hereafter becomes bounty; (h) there are and will be no actions or proceedings pending or threatened against Dealer which might result in any material adverse change in Dealer’s financial or business condition or which might in any way adversely affect any of Dealer’s assets; (i) Dealer will maintain the Collateral in good condition and repair; (j) Dealer has duly filed and will duly file all tax returns required by law; (k) Dealer has paid and will pay with due all taxes, levies, assessments and governmental charges of any nature; (l) Dealer will keep and maintain all of its books and records pertaining to the Collateral at its principal place of business designated in this Agreement; (m) Dealer will promptly supply DFS with such information concerning it or any guarantor as DFS hereafter may reasonably request; (n) all Collateral will be kept at either (1) Dealer’s place of business of its Vantare Division at 1550 Dogler Place, Sanford, Florida 32771, (2) Featherlite Manufacturing, Inc., Highway 63 & 9, Cresco, Iowa, and (3) Featherlite/Vantare Service Center, 37 Blaise Church Road, Mocksville, North Carolina, and with respect to permanent locations for the display of inventory for sale, as listed on any current or futureExhibit “A” attached hereto which written notice(s) to DFS and Exhibit A(s) are incorporated herein by reference; (o) Dealer will give DFS |
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thirty (30) days prior written notice of any change in Dealer’s identity, name, form of business organization, ownership, management, principal place of business, Collateral locations or other business locations, and before moving any books and records to any other location; (p) Dealer will observe and perform all matters required by any lease, license, concession or franchise forming part of the Collateral in order to maintain all the rights of DFS thereunder; (q) Dealer will advise DFS of the commencement of material legal proceedings against Dealer or any guarantor; and ® Dealer will comply with all applicable laws and will conduct its business in a manner which preserves and protects the Collateral and the earnings and incomes thereof.
| 6. | Negative Covenants. Dealer will not at any time (without DFS’ prior written consent): (a) other than in the ordinary course of its business, sell, lease, or otherwise dispose of or transfer any of its assets; (b) rent, lease, consign, or use any Collateral financed by DFS; or (c) merge or consolidate with another entity. |
7.Insurance. Dealer will immediately notify DFS of any loss, theft or damage to any Collateral. Dealer will keep the Collateral insured for its full insurable value under an “all risk” property insurance policy with a company acceptable to DFS, naming DFS as a lender loss-payee or mortgagee and containing standard lender’s loss payable and termination provisions. Dealer will provide DFS with written evidence of such property insurance coverage and lender’s loss-payee or mortgagee endorsement.
8.Financial Statements. Dealer will deliver to DFS: (a) within ninety (90) days after the end of each of Dealer’s fiscal years, a reasonably detailed balance sheet as of the last day of such fiscal year and a reasonably detailed income statement covering Dealer’s operations for such fiscal year, in a form satisfactory to DFS; (b) within forty-five (45) days after the end of each of Dealer’s fiscal quarters, a reasonably detailed balance sheet as of the last day of such quarter and an income statement covering Dealer’s operations for such quarter, in a form satisfactory to DFS; and (c) within ten (10) days after request therefore by DFS, any other report requested by DFS relating to the Collateral or the financial condition of Dealer. Dealer warrants and represents to DFS that all financial statements and information relating to Dealer or any guarantor which have been or may hereafter be delivered by Dealer or any guarantor are true and correct and have been and will be prepared in accordance with generally accepted accounting principles consistently applied and, with respect to such previously delivered statements or information, there has been no material adverse change in the financial or business condition of Dealer or any guarantor since the submission to therein, and Dealer acknowledges DFS’ reliance thereon.
9.Reviews/Demonstration Units. Dealer grants DFS 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 cop Dealer’s books and records related to the Collateral. Dealer may temporarily maintain motor coaches financed by DFS, whether new motor coaches or Used Vehicles, as demonstration units at locations other than locations identified inSection 5 (n) above. If DFS conducts an inspection of Dealer’s Collateral, Dealer must identify the locations where the demonstration units are located and allow DFS to physically inspect the demonstration units.
10.Payment Terms. Dealer will immediately pay DFS the principal indebtedness owed DFS on each item of Collateral financed by DFS (as shown on the Statement of Transaction identifying such Collateral) on the earliest occurrence of any of the following events: (a) when such Collateral is lost, stolen or damaged; (b) for Collateral financed under Pay-As-Sold (“PAS”) terms (as shown on the Statement of Transaction identifying such Collateral), when such Collateral is sold, transferred, rented, leased, otherwise disposed of or matured; (c) in strict accordance with any curtailment schedule for such Collateral (as shown on the
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Statement of Transaction identifying such Collateral: (d) for Collateral financed under Schedule Payment Program (“SPP”) terms (as shown on the Statement of Transaction identifying such Collateral), in strict accordance with the installment payment schedule; and (e) when otherwise required under the terms of any financing program agreed to in writing by the parties. Regardless of the SPP terms pertaining to any Collateral financed by DFS, if DFS determines that the current outstanding debt which Dealer owes to DFS exceeds the aggregate wholesale invoice price of such Collateral in Dealer’s possession, Dealer will immediately upon demand pay DFS the difference between such outstanding debt and the aggregate wholesale invoice price of such Collateral. If Dealer from time to time is required to make immediate payment to DFS of any past due obligation discovered during any Collateral audit, or at any other time, Dealer agrees that acceptance of such payment by DFS shall not be construed to have waived or amended the terms of its financing program. The proceeds of any Collateral received by Dealer will be held by Dealer in trust for DFS’ benefits, for application as provided in this Agreement. Dealer will send all payments to DFS’ branch office(s) responsible for Dealer’s account. DFS 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 Collateral financed by DFS, but, in any event, all principal payments will first be applied to such Collateral 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 Collateral will not reduce the debt Dealer owes DFS until DFS has received payment therefore in cash. Dealer will: (1) pay DFS even if any Collateral is defective or fails to conform to any warranties extended by any third party; (2) not assert against DFS any claim or defense Dealer has against any third party; and (3) indemnify and hold DFS harmless against all claims and defenses asserted by any buyer of the Collateral relating to the condition of, or any representations regarding, any of the Collateral. Dealer waives all rights of offset and counterclaims Dealer may have against DFS.
11.Calculation of Charges. Dealer will pay finance charges to DFS on the outstanding principal debt which Dealer owes DFS for each item of Collateral financed by DFS at the rate(s) when on the Statement of Transaction identifying such Collateral, unless Dealer objects thereto as provided inSection 3. 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 Collateral identified on such Statement of Transaction until DFS receives full payment in good funds of the principal debt Dealer owes DFS for each item of such Collateral in accordance with DFS’ payment recognition policy and DFS applies such payment to Dealer’s principal debt in accordance with the terms of this Agreement. 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 DFS on each day of a billing period for each item of Collateral identified on a Statement of Transaction, divided by (ii) the actual number of days in such billing period. Dealer will also pay DFS $100 for each check returned unpaid for insufficient funds (anNSF Check”) (such $100 payment repays DFS’ estimated administrative costs; it does not waive the default caused by the NSF Check). The annual percentage rate of the finance charges relating to any item of Collateral financed by DFS will be calculated from the invoice date of such Collateral, regardless of any period during which any finance charge subsidy shall be paid or payable by any third party. Dealer acknowledges that DFS intends to strictly conform to the applicable usury lows governing this Agreement. Regardless of any provision contained herein or in any other document executed or delivered in connection herewith or therewith, DFS shall never be deemed to have contracted for, charged or be entitled to receive, collect or apply as interest on this Agreement (Whether term interest herein or deemed to be interest by judicial determination or operation of law), any amount in excess of the maximum amount allowed by applicable law, and, if DFS ever receives, collects or applies as interest any such excess, such amount which would be excessive interest will be
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applied first to the reduction of the unpaid principal balances of advances under this Agreement, and, second, any remaining excess will be paid to Dealer. In determining whether or not the interest paid or payable under any specific contingency exceeds the highest lawful rate, Dealer and DFS shall, to the maximum extent permitted under applicable law: (A) characterize any non-principal payment (other then payments which are expressly designated as interest payments hereunder) as an expense or fee rather than as interest; (B) exclude voluntary pre-payments and the effect thereof; and (C) spread the total amount of interest throughout the entire term of this Agreement so that the interest rate is uniform throughout such term.
12.Billing Statement.DFS will send Dealer a monthly billing statement identifying all charges due on Dealer’s account with DFS. The charges specified on each billing statement will be : (a) due and payable in full immediately on receipt; and (b) an account stated, unless DFS receives Dealer’s written objection thereto within 15 days after it is mailed to Dealer. If DFS does not receive, by the 25th day of any given month, payment of all charges accrued to Dealer’s account with DFS during the immediately preceding month, Dealer will (to the extent allowed by law) pay DFS a late fee (“Late Fee”) equal to the greater of $5 or 5% of the amount of such finance charges (payment of the Late Fee does not waive the default caused by the late payment). DFS may adjust the billing statement at any time to conform to applicable law and this Agreement.
| 13. | Financial Covenants/Minimum Utilization Covenant. |
| 13.1 | Financial Covenants. Dealer will at all times maintain: |
(a) a Tangible Net Worth and Subordinated Debt in the combined amount of not less than Fourteen Million Dollars ($14,000,000.00);
(b) a ratio of Debt minus Subordinated Debt to Tangible Net Worth and Subordinated Debt of not more than two and one half to one (2.5:1); and
(c) a ratio of Current Tangible Assets to current liabilities of not less than one and one half to one (1.50:1).
For purposes of this paragraph: (i) “Tangible Net Worth” means the book value of Dealer’s assets less liabilities, excluding from such assets all Intangibles; (ii) “Intangibles” means and includes general intangibles (as that term is defined in the Uniform Commercial Code); accounts receivable and advances due from officers, directors, employees, stockholders and affiliates; leasehold improvements net of depreciation; licenses; good will; prepaid expenses; escrow deposits; covenants not to compete; the excess of cost over book value of acquired assets; franchise fees; organizational costs; finance reserves held for recourse obligations; capitalized research and development costs; and such other similar items as DFS may from time to time determine in DFS’ sole discretion; (iii) “Debt” means all of Dealer’s liabilities and indebtedness for borrowed money of any kind and nature whatsoever, whether direct or indirect, absolute or contingent, and including obligations under capitalized leases, guaranties or with respect to which Dealer has pledged assets to secure performance, whether or not direct recourse liability has been assumed by Dealer; (iv) “Subordinated Debt” means all of Dealer’s Debt which is subordinated to the payment of Dealer’s liabilities to DFS by an agreement in form and substance satisfactory to DFS; and (v) “Current Tangible Assets” means Dealer’s current assets less, to the extent otherwise included therein, all Intangibles. The foregoing terms will be determined in accordance with generally accepted accounting principles consistently applied, and, if applicable, on a consolidated basis.
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| 13.2 | Minimum Utilization Covenant. Dealer will at all times maintain an average daily outstanding loan balance of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00). If Dealer fails to maintain such balance for any month, the interest rate charged to Dealer for such month shall be increased by one percent (1%). |
14.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 inSection 3, or in any other agreement between DFS and Dealer; (b) any guarantor of Dealer’s debts to DFS breaches any terms, warranties or representations contained in any guaranty or other agreement between the guarantor and DFS; (c) any representation, statement, report or certificate made or delivered by Dealer or any guarantor to DFS is not accurate when made; (d) Dealer fails to pay any portion of Dealer’s debts to DFS when due and payable hereunder or under any other agreement between DFS 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, any general partner dies while Dealer’s business is operated as a general or limited partnership, or any member dies while Dealer’s business is operated as a limited liability company, as applicable; (j) any guarantor dies; (k) Dealer or any guarantor shall cease existence as a corporation, partnership, limited liability company or trust, as applicable; (1) Dealer or any guarantor ceases or suspends business; (m) Dealer, any guarantor or any member while Dealer’s business is operated as a limited liability company, as applicable, makes a general assignment for the benefit of creditors; (n) Dealer, any guarantor or any member while Dealer’s business is operated as a limited liability company, as applicable, become 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 assets of Dealer, any guarantor or any member while Dealer’s business is operated as a limited liability company, as applicable; (p) any guaranty of Dealer’s debts to DFS is terminated; (q) Dealer loses any franchise, permission, license or right to sell or deal in any Collateral which DFS finances; or ® Dealer or any guarantor misrepresents Dealer’s or such guarantor’s financial condition or organizational structure.
15.Rights of DFS Upon Default. In the event of a default:
| (a) | DFS may at any time at DFS’ election, without notice or demand to Dealer, do any one or more of the following: declare all or any part of the debt Dealer owes DFS immediately due and payable, together with all costs and expenses of DFS’ 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 (DFS’ right to cease extending credit shall not be construed to limit the discretionary nature of this credit facility). |
| (b) | Dealer will segregate and keep the Collateral in trust for DFS, and in good order and repair, and will not sell, rent, lease, consign, otherwise dispose of or use any Collateral, nor further encumber any Collateral. |
| (c) | Upon DFS’ oral or written demand, Dealer will immediately deliver the Collateral to DFS, in good order and repair, at a place specified by DFS, together with all related documents; or DFS may, in DFS’ sole discretion and without notice or demand to Dealer, take immediate possession of the Collateral together with all related documents. |
| (d) | DFS 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 DFS, if any, or if there is none so specified, at |
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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.
All of DFS’ rights and remedies are cumulative. DFS’ failure to exercise any of DFS’ rights or remedies hereunder will not waive any of DFS’ rights or remedies as to any past, current or future default.
16.Sale of Collateral. Dealer agrees that if DFS 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 DFS of such Collateral in bulk or in parcels within 120 days of: (a) DFS’ taking possession and control of such Collateral; or (b) when DFS is otherwise authorized to sell such Collateral; whichever occurs last, to the bidder submitting the highest cash bid therefore, is a commercially reasonable sale of such Collateral under the Uniform Commercial Code. Dealer agrees that the purchase of any Collateral by a Vendor, as provided in any agreement between DFS and the Vendor, is a commercially reasonable disposition and private sale of such Collateral under the Uniform Commercial Code, and no request for bids shall 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 a Vendor). Dealer irrevocably waives any requirement that DFS retain possession and not dispose of any Collateral until after an arbitration hearing, arbitration award, confirmation, trial or final judgment, the commercial reasonableness of such disposition will be determined in accordance with the laws of the state governing this Agreement.
17.Power of Attorney. Dealer grants DFS an irrevocable power of attorney to: execute or endorse on Dealer’s behalf any checks, 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 DFS and Dealer; initiate and settle any insurance claim pertaining to the Collateral; and do anything to preserve and protect the Collateral and DFS’ rights and interest therein.
18.Information. DFS may provide to any third party any credit, financial or other information on Dealer that DFS may from time to time possess. DFS may obtain from any Vendor any credit, financial or other information regarding Dealer that such Vendor may from time to time possess.
19.Termination/Right of First Refusal. Dealer may not terminate this Agreement prior to October 31, 1999;provided, however, that Dealer may terminate this Agreement prior to such date if: (i) Dealer is provided with a written offer for floor plan financing from another financial institution which sets forth reasonably detailed terms for the proposed floor plan credit facility; (ii) Dealer delivers a copy of said proposal to DFS and allows DFS thirty (30) days to determine whether to match the proposed floor plan financing program; and (iii) DFS elects not to offer the same floor plan financing program to Dealer. DFS may terminate this Agreement at any time. If DFS elects to terminate 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 shall 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 DFS arising out of DFS’ advances or commitments made before the effective termination date of this Agreement. It is understood that Dealer may elect to terminate this Agreement in its entirety only, no section or lending facility may be terminated singly. DFS will retain all of its rights, interests and remedies hereunder until Dealer has paid all of Dealer’s debts to DFS. All waiver set forth within this Agreement will survive any termination of this Agreement.
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20.Binding Effect. Dealer cannot assign its interest in this Agreement without DFS’ prior written consent, although DFS may assign or participate DFS’ interest, in whole or in part, without Dealer’s consent. This Agreement will protect and bind DRFS’ and Dealer’s respective heirs, representatives, successors and assigns.
21.Notices. Except as otherwise stated herein, all notices, arbitration claims, responses, requests and documents will be sufficiently given or served if mailed or delivered: (a) to Dealer at Dealer’s principal place of business specified above; and (b) to DFS at 655 Maryville Centre Drive, St. Louis, Missouri 63141-5832, Attention: General Counsel, or such other address as the parties may hereafter specify in writing.
22. NO ORAL AGREEMENTS. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBTS ARE NOT ENFORCEABLE. TO PROTECT DEALER AND DFS FROM MISUNDERSTANDING OR DISAPPOINTMENT, ALL AGREEMENTS COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, EXCEPT AS SPECIFICALLY PROVIDED HEREIN OR AS THE PARTIES MAY LATER AGREE IN WRITING TO MODIFY IT. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
23.Other Waivers. Dealer irrevocably waives notice of: DFS’ acceptance of this Agreement, presentment, demand, protest, nonpayment, nonperformance, and dishonor. Dealer and DFS irrevocably waive all rights to claim any punitive and/or exemplary damages.
24.Severability. 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.
25.Supplement. If Dealer and DFS have heretofore executed other agreements in connection with all or any part of the Collateral, the Agreement shall supplement each and every other agreement previously executed by and between Dealer and DFS, and in that event this Agreement shall neither be deemed a novation nor a termination of such previously executed agreement nor shall execution of this Agreement be deemed a satisfaction of any obligation secured by such previously executed agreement.
26.Receipt of Agreement. Dealer acknowledges that it has received a true and complete copy of this Agreement. Dealer acknowledges that it has read and understood this Agreement. Notwithstanding anything herein to the contrary: (a) DFS may rely on any facsimile copy, electronic data transmission or electronic data storage of this Agreement, any Statement of Transaction, billing statement, invoice from a Vendor, financial statements or other reports, and (b) such facsimile copy, electronic data transmission or electronic data storage will be deemed an original, and the best evidence thereof for all purposes, including, without limitation, under this Agreement or any other agreement between DFS and Dealer, and for all evidentiary purposes before any arbitrator, court or other adjudicatory authority.
27.Miscellaneous. Time is of the essence regarding Dealer’s performance of its obligations to DFS notwithstanding any course of dealing or custom on DFS’ part to unconditional and will not be affected by the release or nonperfection of any security interest granted hereunder. DFS will have the right to refrain from or postpone enforcement of this Agreement or any other agreements between DFS and Dealer without prejudice and the failure to strictly enforce these agreements will not be construed as having created a course of dealing between DFS and Dealer contrary to the specific terms of the agreements or as having modified, released or waived the same. The express terms of this Agreement will not be modified by any course of dealing, usage of trade, or custom of trade which may deviate from
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the terms hereof. If Dealer fails to pay any taxes, fees or other obligations which may impair DFS’ interest in the Collateral, or fails to keep the Collateral insured, DFS may, but shall not be required to, pay such taxes, fees or obligations and pay the cost to insure the Collateral, and the amounts paid will be: (a) an additional debt owed by Dealer to DFS, which shall be subject to finance charges as provided herein; and (b) due and payable immediately in full. Dealer agrees to pay all of DFS’ reasonable attorney’s fees and expenses incurred by DFS in enforcing DFS’ rights hereunder. This is an agreement regarding the extension of credit, and not the provision of goods or services. The Section titles used in this Agreement are for convenience only and do not define or limit the contents of any Section. DFS may, from time to time, announce in writing to Dealer its policies and procedures regarding its administration of this facility; any subsequent use by Dealer of this facility following any such announcement shall constitute Dealer’s acceptance of such revised policies and procedures.
| 28. | BINDING ARBITRATION. |
28.1Arbitral Claims. Except as otherwise specified below, all actions, disputes, claims and controversies under common law, statutory law or in equity of any type of nature whatsoever (including, without limitation, all torts, whether regarding negligence, breach of fiduciary duty, restraint of trade, fraud, conversion, duress, interference, wrongful relpevin, wrongful sequestration, fraud in the inducement, usury 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 DFS and Dealer; (c) any act committed by DFS or by any parent company, subsidiary or affiliated company of DFS (the “DFS Companies”), or by any employee, agent, officer or director of a DFS Company whether or not arising within the scope and course of employment or other contractual representation of the DFS Companies provided that such act arises under a relationship, transaction or dealing between DFS and Dealer; and/or (d) any other relationship, transaction or dealing between DFS and Dealer (collectively the “Disputes”), will be subject to and resolved by binding arbitration.
28.2Administrative Body. All arbitration hereunder will be conducted in accordance with the Commercial Arbitration Rules of The American Arbitration Association (“AAA”). If the AAA is dissolved, disbanded or becomes subject to any state or federal bankruptcy or insolvency proceeding, the parties will remain subject to binding arbitration which will be conducted by a mutually agreeable arbitral forum. The parties agree that all arbitrator(s) selected will be attorneys with at lease five (5) years secured transactions experience. The arbitrator(s) will decide if any inconsistency exists between the rules of any applicable arbitral forum and the arbitration provisions contained herein. If such inconsistency exists, the arbitration provisions contained herein will control and supersede such rules. The site of all arbitration proceedings will be in the Division of the Federal Judicial District in which AAA maintains a regional office that is closest to Dealer.
28.3Discovery. Discovery permitted in any arbitration proceeding commenced hereunder is limited as follows. No later than thirty (30) days after the filing of a claim for arbitration, the parties will exchange detailed statements setting forth the facts supporting the claim(s) and all defenses to be raised during the arbitration, and a list of all exhibits and witnesses. No later than twenty-one (21) days prior to the arbitration hearing, the parties will exchange a final list of all exhibits and all witnesses, including any designation of any expert witness(es) together with a
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summary of their testimony; a copy of all documents and a detailed description of any property to be introduced at the hearing. Under no circumstances will the use of interrogatories, requests for admission, and requests for the production of documents or the taking of depositions be permitted. However, in the event of the designation of any expert witness(es), the following will occur: (a) all information and documents relied upon by the expert witness(es) will be delivered to the opposing party, (b) the opposing party will be permitted to depose the expert witness(es), (c) the opposing party will be permitted to designate rebuttal expert witness(es), and (d) the arbitration hearing will be continued to the earliest possible date that enables the foregoing limited discovery to be accomplished.
28.4Exemplary or Punitive Damages.The Arbitrator(s) will not have the authority to award exemplary or punitive damages.
28.5Confidentiality of Awards. All arbitration proceedings, including testimony or evidence at hearings, will be kept confidential, although any award or order rendered by the arbitrator(s) pursuant to the terms of this Agreement may be entered as a judgment or order in any state or federal court and may be confirmed within the federal judicial district which includes the residence of the party against whom such award or order was entered. This Agreement concerns transactions involving commerce among the several states. The Federal Arbitration Act, Title 9 U.S.C. Sections 1 et seq., as amended (“FAA”) will govern all arbitration(s) and confirmation proceedings hereunder.
28.6Prejudgment and Provisional Remedies. Nothing herein will be construed to prevent DFS’ 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 DFS’ or Dealer’s right to compel arbitration of any Dispute.
28.7Attorneys’ Fees. If either Dealer or DFS brings any other action for judicial relief with respect to any Dispute (other than those set forth inSection 28.6), the party bringing such action will be liable for and immediately pay all of the other party’s costs and expenses (including attorneys’ fees) incurred to stay or dismiss such action and remove or refer such Dispute to arbitration. If either Dealer or DFS 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. Additionally if Dealer sues DFS or institutes any arbitration claim or counterclaim against DFS in which DFS is the prevailing party, Dealer will pay all costs and expenses (including attorneys’ fees) incurred by DFS in the course of defining such action or proceeding.
28.8Limitations.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, whether arbitration or a court proceeding, with respect to such Dispute.
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| 28.9 | Survival After Termination. The agreement to arbitrate will survive the termination of this Agreement. |
29. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS AGREEMENT IS FOUND TO BE NOT SUBJECT TO ARBITRATION, 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 DFS WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
30.Governing Law.Dealer acknowledges and agrees that this and all other agreements between Dealer and DFS have been substantially negotiated, and will be substantially performed, in the state of FLORIDA. Accordingly, Dealer agrees that all Disputes will be governed by, and construed in accordance with, the laws of such state, except to the extent inconsistent with the provisions of the FAA which shall control and govern all arbitration proceedings hereunder.
31.No Novation. This Agreement is entered into to re-evidence Dealer’s existing indebtedness under that certain Agreement for Wholesale Financing dated October 31, 1996 (the “Existing Agreement”) and to incorporate changes to which the parties have agreed. This Agreement is not entered into in substitution for the Existing Agreement or in payment of the obligations of Dealer under the Existing Agreement. This Agreement is in no way intended to be a novation of the Dealer’s indebtedness which was evidenced by the Existing Agreement.
IN WITNESS WHEREOF, Dealer and DFS have executed this Agreement as of the date first set forth hereinabove.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE WAIVER PROVISIONS.
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: | ||
FEATHERLITE MFG., INC | ||
By: | \s\ T J Clement | |
Print Name: | Tracy J. Clement | |
Title: | Vice President | |
Attested by: | Gary Ihrke, Secretary | |
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
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obtain financing from Deutsche Financial Services Corporation (“DFS”) 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 DFS 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 therefore; from time to tie to supplement or amend any such agreements; and from time to time to pledge, assign, mortgage, grant security interests, and otherwise transfer, to DFS as collateral security for any obligations of this corporation to DFS, 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 WEREOF, I have executed and affixed the seal of the corporation on the date stated below.
| October 6, 1997 | Gary Ihrke, Secretary, Featherlite Mfg Inc |
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