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EXHIBIT 10.27
BOMBARDIER CAPITAL GROUP FLOORPLAN
REPURCHASE
AGREEMENT
("Agreement")
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1. Recitals. The undersigned intends to sell at wholesale to retail dealers
or distributors various products which now or in the future may exist (the
"Merchandise"). Some dealers or distributors may require financial assistance in
order to make such purchases from us (each a "Buyer"). To induce Bombardier
Capital Group ("BCG") to finance the acquisition of Merchandise by any Buyer and
in consideration of the financing thereby enabling us to sell Merchandise to
such Buyers, we agree that, whenever a Buyer requests the shipment of
Merchandise from us and requests that BCG finance the Merchandise in accordance
with any plan of financing offered by BCG from time to time, we may deliver to
BCG a Wholesale Instrument describing the Merchandise requested to be financed
by BCG (any Merchandise so financed being the "Merchandise"). As used herein,
"Wholesale Instrument" shall mean a note, invoice, bill of sale, conditional
sales contract, chattel mortgage, lease, trust receipt, chattel paper or other
evidence of indebtedness or obligation of payment arising out of the sale or
delivery of Merchandise to a Buyer.
2. Warranties and Representations. Delivery of a Wholesale Instrument shall
evidence and warrant the following:
(a) That any transfer to the retail dealer or distributor of all right,
title, and interest in and to the Merchandise shall be contingent upon
BCG's financing the transaction;
(b) That our title to the Merchandise is free and clear of all liens and
encumbrances when transferred to the retail dealer or distributor,
except for liens in favor of BCG;
(c) That the Merchandise has been the subject of a bona fide order by the
dealer or distributor placed with us and accepted by us and that the
dealer or distributor has requested that the transaction be financed
by BCG;
(d) That the Merchandise is new, unused, and free of any defects; and
(e) That the Merchandise has been shipped to the purchasing dealer or
distributor no more than ten days prior to the Wholesale Instrument
date.
In the event we breach any of the foregoing warranties, we will immediately
upon demand pay to BCG, in cash, an amount equal to the outstanding balance owed
to BCG with respect to such Merchandise, plus the costs and expenses, if any,
incurred by BCG in the enforcement of this Agreement.
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3. Acceptance of Wholesale Instrument. This Agreement shall in no way bind
BCG to finance the acquisition of any Merchandise, but shall apply only to
acquisition transactions accepted by BCG. BCG's final acceptance of a
transaction shall be indicated only by BCG's issuance to us of a draft of or
other instrument in payment of our Wholesale Instrument less the amount of BCG's
discount charge (if any) under the applicable financing program.
4. Payment of Wholesale Instrument. The payment of a Wholesale Instrument
shall be according to such pricing program(s) ("Program") as accepted by us. Our
acceptance of any Program may or may not be evidenced by a separate agreement or
letter of understanding between BCG and us with respect to particular Programs,
but the terms of this Agreement shall prevail in the event of any conflict with
the terms of any Program.
5. Repurchase Obligations. If BCG pays the Wholesale Instrument (whether by
check, draft, notice of set off authorized hereunder, or any other means), we
will repurchase, within thirty (30) days of our receipt of the possession of
Merchandise or within ten (10) days of BCG repurchase demand, whichever date
occurs first, such Merchandise from BCG whenever and for whatever reason BCG or
we come into possession of the Merchandise on the following terms and
conditions:
(a) We will accept delivery of and repurchase the Merchandise, or any
portion of the Merchandise that may from time to time be
delivered, in a condition that is new, unused and as may have
normal wear and tear resulting from display or demonstration, at
such location(s) as you may reasonably designate;
(b) The price which we will pay to BCG will be an amount equal to the
total unpaid balance owed to BCG on the Merchandise plus any
reasonable expense, charges or penalties incurred by BCG in
connection with the storage or possession of the Merchandise
subsequent to repurchase demand, as well as all duties and
Canadian taxes (including the goods and services taxes) (the
"Repurchase Price"), excluding our wholesale cost for parts and
accessories installed by us to replace such parts and accessories
specifically identified and delivered pursuant to invoice and
financed by you; and,
(c) The Repurchase Price shall be payable to BCG in lawful money of
(i) the United States if the Merchandise was financed by
Bombardier Capital Inc., or (ii) of Canada if the Merchandise was
financed by Bombardier Credit Ltd.
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(d) Our obligation to repurchase Merchandise shall terminate on the
540th day after the date of our invoice on such Merchandise,
Time Between Time Between
Date of Date of
Invoice Invoice and
and Date of Date of Your
Your Request % of Original Request for % of Original
for Repurchase Invoice Amount Repurchase Invoice Amount
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0-180 days 100% 361-390 days 86%
181-210 days 98% 391-420 days 84%
211-240 days 96% 421-450 days 82%
241-270 days 94% 451-480 days 80%
271-300 days 92% 481-510 days 78%
301-330 days 90% 511-540 days 76%
331-360 days 88%
We acknowledge that the above-mentioned time periods are calibrated to
reflect payment due dates from Buyers and that administrative delays can arise
with respect to collection of such payments from the respective Buyers.
Accordingly, BCG shall have thirty (30) days after the expiration of each stated
time period during which to demand a repurchase from us, and, if a demand is
made during the thirty (30) days, then the repurchase percentage of the original
invoice amount, if applicable, will be the rate as stated in the expired period.
In the event no obligations arise hereunder to repurchase the Merchandise,
we shall, at your request, provide remarketing services with respect to such
Merchandise you repossess.
In the event we default in the payment of the Repurchase Price when due,
interest shall immediately commence accruing on the unpaid portion of the
Repurchase Price at the rate of eighteen percent (18%) per annum until fully
paid. Merchandise repossessed or in the possession of BCG may be sold or
disposed of by BCG, its agents or affiliates, without prior repurchase demand.
6. Bailment and Transfer of Repurchased Merchandise. Until such time as BCG
has received the repurchase payment any Merchandise or portion thereof is held
by us solely as bailee for BCG and is subject to the superior possessory right
of BCG. Immediately upon demand we shall surrender possession of any Merchandise
pursuant to the instructions of BCG. Contemporaneous to full and final payment
to BCG of the Repurchase Price, the bailment shall terminate and BCG shall
thereby transfer to us all of its right, title, and interest in and to the
Merchandise.
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7. Set Off and Extensions. Upon notice to us, BCG may deduct, set off,
withhold, or apply any sums or payments due from us to BCG against any sums due
from BCG to us. If BCG is entitled to a set off under the terms of this
Agreement at the time BCG receives a Wholesale Instrument from us, or before
such Wholesale Instrument falls due, then, to the extent of such entitlement,
BCG's notice of set off delivered to us shall constitute an instrument in
payment for all purposes of this Agreement. BCG may extend the time for payment
of, modify, restructure, or defer the obligations of any Buyer without notice to
us and without altering our obligations hereunder.
8. Waiver. We waive notice of non-payment, protest and dishonor of any
Wholesale Instrument, and all other notices we might otherwise be entitled by
law. We waive any rights we may have to require BCG to proceed against the
dealer or distributor or to pursue any other remedy in BCG's power. BCG's delay
in failure to exercise any rights granted hereunder shall not operate as a
waiver of those rights. Any delay by BCG in repossessing Merchandise that is
subject to this Agreement shall not waive or modify our obligations hereunder,
so long as BCG pursues repossession in good faith. In the event BCG is unable to
enforce its security interest in any Merchandise as a result of bankruptcy
proceedings or other litigation, mediation or arbitration affecting the
Merchandise, any expiration of our repurchase obligations shall be stayed
effective the commencement date of such bankruptcy proceedings or other
litigation, mediation or arbitration.
9. Financial Statements. We will deliver to you our financial statement for
the fiscal year then most recently ended not later than twenty (20) days after
the preparation of such financial statement, but in no event later than one
hundred twenty (120) days after the expiration of each of our fiscal years. In
addition, as BCG may reasonably request from time to time, we will promptly
deliver to BCG interim financial statements. All of our financial statements
shall be prepared in accordance with generally accepted accounting principles.
10. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of BCG and the undersigned. All of BCG's
obligations hereunder may be performed by any of BCG's subsidiary and/or
affiliated companies, and all of the promises we make hereunder shall inure
jointly and severally to BCG and each of BCG's subsidiary and/or affiliated
companies as the same may exist from time to time. If BCG finances the
acquisition of any Merchandise sold or shipped to a Buyer by any subsidiary,
affiliated company and/or distributor of ours, we agree that all of our promises
and obligations shall remain in force as if such Merchandise had been sold or
shipped by us.
11. Termination. We may terminate this Agreement by notice to the other
party, the termination to be effective thirty days after the date of delivery
thereof, but the termination shall in no manner terminate our liability with
respect to financial transactions entered into by BCG with any Buyer prior to
the
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effective date of termination, including, without limitation, transactions which
will not be completed until after the effective date of termination.
12. Louisiana. With respect to transactions financed by BCG for Buyers
located in the State of Louisiana, upon BCG's payment for each item of
Merchandise, we hereby assign and grant to BCG without warranty or recourse, any
vendor's privilege and lien on that item granted under Louisiana law to the
fullest extent as if BCG had actually sold the Merchandise to the dealer or
distributor; provided, however, that nothing contained in this Agreement shall
be deemed a representation or warranty by us that any valid or enforceable
vendor's lien or privilege exists under Louisiana law.
13. Miscellaneous. We do not intend to enter into a joint venture with BCG
and nothing contained in this Agreement shall be construed to establish a joint
venture between BCG and us. We agree that any repurchase by us of Merchandise
pursuant to this Agreement does not constitute a purchase of the debt owed by
any Buyer to BCG.
14. Merger Clause and Modification. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof. No course of
dealing, course of performance or trade usage, and no parol evidence of any
nature shall be used to supplement or modify the terms of this Agreement. If at
any time one or more provisions of this Agreement becomes invalid, illegal or
unenforceable in whole or in part in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired. This Agreement may not be modified except by written agreement
signed by all parties hereto. We agree to provide to BCG such further writings,
certificates or other documentation as BCG may reasonably request in order to
fulfill the intent of this Agreement.
15. Notices. All notices or repurchase demands required or permitted to be
delivered hereunder shall be in writing, and shall be deemed received three (3)
days after mailed postage prepaid, certified mail, return receipt requested, to
the business addresses for the parties as written below.
16. Counterparts and Headings. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and such counterparts
shall together constitute but one and the same agreement. The section headings
in this Agreement are inserted for convenience of reference only and shall not
limit or otherwise effect the meaning of any provision thereof.
Notice of the acceptance of this Agreement is hereby waived.
IN WITNESS WHEREOF, we have caused this Agreement to be executed by our
undersigned agents, duly authorized.
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Date:___________________________ BELLCREST HOMES, INC.
By:_____________________________ By:___________________
Title:__________________________ Title:________________
(If a Corporation, two authorized Address:______________
officers must sign). ______________________
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CERTIFICATE OF CORPORATE SECRETARY
The undersigned, Secretary of Bellcrest Homes, Inc. (the "Corporation")
hereby certifies to Bombardier Capital Group, its successors and assigns, that
the foregoing FLOORPLAN REPURCHASE AGREEMENT was approved, and executed thereof
by Glinn H. Spann and Richard S. Kluttz acting on behalf of the Corporation was
authorized, by resolution of the board of directors of the Corporation duly
adopted at a valid meeting of the board of directors of the Corporation held on
April 22, 1987, which resolution has not been amended or revoked and remains in
full force and effect. I further certify that the signatures appearing above are
in fact the signatures of the persons so authorized. In witness whereof, I have
subscribed my name and attached the seal of the Corporation hereto this 10th day
of August, 1993.
______________________________
Secretary
ACCEPTED:
By: BOMBARDIER CAPITAL INC. By: BOMBARDIER CREDIT LTD.
By:______________________________ By:___________________________
Name:____________________________ Name:_________________________
Title:___________________________ Title:________________________
Attn: Manufacturing Accounts Attn: Manufacturing Accounts
Region Region
Seven Burlington Square 5571 Saint Joseph Street
P.O. Box 5309 Valcourt, Quebec
Burlington, Vermont Canada JOE 2L0
U.S.A. 05402-5309
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