ASSIGNMENT OF RIGHTS UNDER
INVENTORY FINANCING PAYMENT AGREEMENT
This Assignment of Rights Under Inventory Financing Payment Agreement
("Assignment") is executed as of the 24 day of May, 1996 by Atlanta Toyota, Inc.
("Dealer") in favor of World Omni Financial Corp. ("WOFC").
Dealer entered into an Inventory Financing Payment Agreement with Fidelity
Warranty Services, Inc. ("FWS") and WOFC pursuant to which Dealer is entitled to
receive certain payments from FWS and/or WOFC. Dealer has also entered into a
Wholesale Floor Plan Financing Agreement and has executed one or more Demand
Promissory Notes in favor of WOFC pursuant to which WOFC provides financing to
Dealer to enable Dealer to acquire motor vehicle inventory for Dealer's motor
vehicle dealership.
In consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency which is hereby
acknowledged, Dealer hereby grants, bargains, sells, assigns, transfers and sets
over unto WOFC and its assigns, all of Dealer's right, title and interest in and
to Dealer's right to receive (a) JM&A Rate Reduction Payments from FWS under the
Inventory Financing Payment Agreement, and (b) WOFC's Rate Reduction Payments
from WOFC under the Inventory Financing Payment Agreement. The JM&A Rate
Reduction Payments and WOFC Rate Reduction Payments received by WOFC are to be
applied as payments on the above described Demand Promissory Notes.
IN WITNESS WHEREOF, Dealer has executed this Assignment as of the day and
year first written above.
Witnesses: Dealer
/s/ Lauren Dowling Atlanta Toyota, Inc.
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/s/ Eric S. Kahn By: /s/ Carl Spielvogel
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Name: Carl Spielvogel
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Title: President
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STATE OF NEW YORK
COUNTY OF NEW YORK
THE FOREGOING instrument was acknowledged before me this 24 day of May,
1996, by Carl Spielvogel, as an authorized representative of Atlanta Toyota a
Texas corporation, on behalf of said corporation, who is personally known to me,
and who did/did not take an oath.
/s/ Eleanor McKenna
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Notary Public
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Print Name
My Commission expires:
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Exhibit 10.5.11
INVENTORY FINANCING PAYMENT AGREEMENT
This Inventory Financing Payment Agreement ("Agreement") is entered into as
of the day and year written below by and between the undersigned Dealer
("Dealer"), Fidelity Warranty Services, Inc. ("FWS") and World Omni Financial
Corp. ("WOFC").
Dealer has executed one or more Demand Promissory Notes (collectively the
"Note") in favor of World Omni Financial Corp. ("WOFC") to enable Dealer to
obtain financing for the acquisition of motor vehicle inventory in connection
with Dealer's business as a motor vehicle dealer. In connection with its sale
and lease of new and used motor vehicles, Dealer desires to sell or to continue
to sell motor vehicle mechanical failure service contracts ("Service
Contracts"), maintenance contracts for motor vehicles which are leased ("Lease
Care Contracts"), maintenance contracts for motor vehicles which are purchased
("Car Care Contracts"), and guaranteed auto protection policies ("GAP
Contracts", and the Service Contracts, Lease Care Contracts, Car Care Contracts
and GAP Contracts shall hereinafter be collectively referred to as the "JM&A
Products") that have been issued by Fidelity Warranty Services, Inc. ("FWS")
and/or marketed by Jim Moran & Associates, Inc. In addition, Dealer desires to
sell motor vehicle retail installment sale contracts ("Contracts") and/or
closed-end motor vehicle lease agreements ("Leases") to WOFC, and/or an
affiliate or designee of WOFC, and to obtain motor vehicle wholesale floorplan
financing from WOFC ("Floorplan"), (collectively, Contracts, Leases and
Floorplan hereinafter referred to as "WOFC Products", and collectively the JM&A
Products and WOFC Products shall hereinafter be referred to as the "Products").
FWS and WOFC have instituted a Rate Assistance Program (the "Program") pursuant
to which FWS and/or WOFC will pay to Dealer monthly an amount of money based on
Dealer's monthly interest payments on the Note and on the market penetration
obtained by Dealer in its sale of the JM&A Products and/or WOFC Products
respectively. Dealer desires to participate in the Program in accordance with
the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants set forth herein, Dealer, FWS and WOFC agree as follows:
1. FWS agrees to pay to Dealer for any calendar month an amount of money
equal to the difference between (i) Dealer's monthly interest payment on the
Note calculated in accordance with the applicable interest rate thereon (the
"Note Rate") and (ii) what Dealer's monthly interest payment on the Note would
have been if the Note Rate were reduced in accordance with the JM&A Interest
Rate Schedule attached to this Agreement. When computing the amount represented
by clause (ii) above, the Note Rate shall be reduced in accordance with the JM&A
Interest Rate Schedule based on Dealer's sales of the JM&A Products in the prior
month.
2. WOFC agrees to pay to Dealer for any calendar month an amount of money
equal to the difference between (i) Dealer's monthly interest payment on the
Note calculated in accordance with the applicable interest rate thereon (the
"Note Rate") and (ii) what Dealer's monthly interest payment on the Note would
have been if the Note Rate were reduced in accordance with the WOFC Interest
Rate Schedule attached to this Agreement. When computing the amount represented
by clause (ii) above, the Note Rate shall be reduced in accordance with the WOFC
Interest Rate Schedule based on Dealer's sales of the WOFC Products in the prior
month.
3. The amount of money FWS is obligated to pay Dealer pursuant to
paragraph 1 for any monthly period shall hereinafter be referred to as a "JM&A
Rate Reduction Payment". The JM&A Rate Reduction Payment calculated for any
calendar month shall be payable within thirty (30) days after the last day of
such month.
4. The amount of money WOFC is obligated to pay Dealer pursuant to
paragraph 2 for any monthly period shall hereinafter be referred to as a "WOFC
Rate Reduction Payment". The WOFC Rate Reduction Payment calculated for any
calendar month shall be payable within thirty (30) days after the last day of
such month.
5. The JM&A Rate Reduction Payment and the WOFC Rate Reduction Payment
shall be calculated for each month commencing with the first calendar month that
begins after the execution of this Agreement. Therefore, all sales of the JM&A
Products and/or WOFC Products by Dealer in the month in which this Agreement is
executed shall be considered for purposes of calculating the JM&A Rate Reduction
Payment and the WOFC Rate Reduction Payment for the next month. Notwithstanding
anything to the contrary, any Dealer who executes this Agreement during the
month of August, 1995 and who had Floorplan from WOFC in July, 1995 shall
receive a JM&A Rate Reduction Payment and/or WOFC Rate Reduction Payment for all
sales of the JM&A Products and/or WOFC Products which occurred during July,
1995.
6. The JM&A Interest Rate Schedule may be amended from time to time in
FWS' absolute and sole discretion. In the event FWS amends the JM&A Interest
Rate Schedule, FWS shall give Dealer thirty (30) days notice of such amendment.
Any amended JM&A Interest Rate Schedule shall become effective for the first
month that begins after such thirty day notice period has expired. The JM&A
Rate Reduction Payment calculated for such month shall be payable within thirty
(30) days after the last day of such month.
7. The WOFC Interest Rate Schedule may be amended from time to time in
WOFC'S absolute and sole discretion. In the event WOFC amends the WOFC Interest
Rate Schedule, WOFC shall give Dealer thirty (30) days notice of such amendment.
Any amendment WOFC Interest Rate Schedule shall become effective for the first
month that begins after such thirty day notice period has expired. The WOFC
Rate Reduction Payment calculated for such
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month shall be payable within thirty (30) days after the last day of such month.
8. Dealer acknowledges that it is not required to sell any of the
Products in order to obtain Floorplan from WOFC, and that it is not required to
obtain Floorplan from WOFC to sell any of the Products. Dealer may terminate
its sale of any or all of the Products or its Floorplan from WOFC at any time;
provided, however, that if Dealer does not both sell any of the Products and
obtain its Floorplan from WOFC, Dealer shall not be entitled to receive either
JM&A Rate Reduction Payments and/or WOFC Rate Reduction Payments, and this
Agreement shall immediately be terminated. Dealer desires to both sell one or
more of the Products and obtain Floorplan from WOFC in order to obtain the
benefits of this Agreement.
9. Dealer acknowledges that it is entering into this Agreement
voluntarily and without duress and that it was not coerced, intimidated or in
any way required by any person, whether explicitly or implicitly, to sell one or
more of the Products or to obtain Floorplan from WOFC or both. Dealer
acknowledges that the Products are available from a number of other companies
and the Dealer's decision to sell Products and obtain Floorplan from FWS, WOFC
and/or Jim Moran & Associates, Inc. is based on Dealer's separate review and
evaluation.
10. Dealer acknowledges that FWS may discontinue the JM&A Interest Rate
Reduction Program described herein in any time in FWS' absolute and sole
discretion and that WOFC may discontinue the WOFC Interest Rate Reduction
Program described herein at any time in WOFC's absolute and sole discretion. In
the event that FWS discontinues the FWS Interest Rate Reduction Program and WOFC
discontinues the WOFC Interest Rate Reduction Program, then this Agreement shall
be considered to be automatically terminated.
11. This Agreement shall be governed by the laws of the State of Florida.
Dealer, FWS and WOFC hereby agree that any dispute, controversy or claim arising
out of or relating to this Agreement shall be subject to a mandatory mediation
period of thirty (30) days during which time the parties shall (i) appoint a
mutually acceptable mediator with whom they shall cooperate, and (ii) use their
good faith efforts to resolve the dispute. The costs and expenses of the
mediator shall be borne equally by the parties. Should the process of mediation
fail to settle the dispute, the dispute shall be submitted to arbitration in
accordance with the Arbitration Rules of the American Arbitration Association
then in effect and the award rendered by the arbitrator shall be binding as
between the parties, and judgment on such award may be entered in any court
having competent jurisdiction.
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This Inventory Financing Payment Agreement shall be effective as of the 24
day of May, 96.
FIDELITY WARRANTY DEALER
SERVICES, INC. Atlanta Toyota, Inc.
By: By: /s/ Carl Spielvogel
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Name: Name: Carl Spielvogel
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Title: Title: President
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WORLD OMNI FINANCIAL CORP.
By:
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Name:
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Title:
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