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EXHIBIT 10.30
MANUFACTURER'S FINANCING AGREEMENT
MANUFACTURED HOUSING
AGREEMENT between Deere Credit, Inc., a Delaware corporation, with offices
located at 1415 28th St., West Des Moines, Iowa 5O265-1450 ("Creditor"), and
Bellcrest Homes, Inc., a Georgia corporation, with offices located at 206
Magnolia Street, Millen, GA 30442 and any of its subsidiary corporations which
produce manufactured housing ("Manufacturer").
In consideration of Creditor's extension of lines of credit to Manufacturer's
independent or Manufacturer-owned dealers to finance Manufacturer's products
sold or distributed at wholesale, the parties agree as follows:
1. Definitions.
1.1 "Goods" shall mean all products manufactured, sold or distributed
by Manufacturer or its subsidiaries.
1.2 "Dealer(s)" shall mean any person, firm or corporation which buys
or acquires Goods at wholesale from Manufacturer and sells such
Goods at retail.
1.3 "Wholesale Instrument" shall mean a note, chattel paper or other
evidence of indebtedness or obligation arising out of the
acquisition of Goods by Dealers from Manufacturer.
2. Purchase of Wholesale Instruments. Creditor may, from time to time,
finance the acquisition of Goods by Dealers by purchasing, otherwise
acquiring or entering into Wholesale Instruments with a Dealer if the
Dealer's creditworthiness and financial responsibility are acceptable
to Creditor. Such financing by Creditor shall be in accordance with
Creditor's plan or plans of wholesale financing in effect from time to
time, and shall be limited to enabling Dealers to purchase and acquire
Goods from Manufacturer. If Manufacturer requests that Creditor extend
such financing to a Dealer, Manufacturer warrants that, to its
knowledge the financing will be used for such purpose.
3. Payment to Manufacturer. When the Creditor's wholesale financing plan
calls for payment directly to Manufacturer, such payment shall be made
following the receipt by Creditor of a copy of the Manufacturer's
invoice to the Dealer and the original of the Manufacturer's
Certificate(s) of Origin for the unit of Goods being financed.
4. Repurchase by Manufacturer.
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4.1 After Repossession. If Creditor or Manufacturer repossesses or
comes into possession of any unit of Goods covered by any
Wholesale Instrument, Manufacturer will, upon demand of Creditor,
promptly repurchase such Goods, wherever located from Creditor if
the conditions set forth in Section 4.2 are met. On the Wholesale
Instrument for each repurchased unit of Goods, Manufacturer shall
pay Creditor the total unpaid balance (excluding unpaid finance
charges, but including freight and delivery charges if financed
by Creditor), less the amount of any curtailment or final
maturity which was not waived or extended with the approval of
Manufacturer and which is past due from Dealer 30 days or more as
of the date Creditor notifies Manufacturer of a default by Dealer
("Repurchase Price"). Creditor shall be responsible for handling
any repossession or foreclosure proceedings. Manufacturer hereby
grants Creditor a security interest in, and shall not assert any
superior interest in or title to, such Goods until the Repurchase
Price has been paid in full, which shall be done within 30 days
following receipt by Manufacturer of a statement showing the
amount owed. Creditor agrees to store all repossessed Goods
within a reasonable distance of Dealer's principal or satellite
location as specified in the individual Dealer's Inventory
Security Agreement.
In the event Manufacturer fails to pay the Repurchase Price in
full within said 30 days, Manufacturer shall be liable for and
shall also pay Creditor all accrued and unpaid finance charges
under Dealer's current financing terms with Creditor on each
Wholesale Instrument on the Goods from the date on which Creditor
notified Manufacturer to repurchase the Goods to the date the
Repurchase Price is paid in full. Upon receipt by Creditor of the
full Repurchase Price and any finance charges due as provided
herein for any Goods repossessed, Creditor agrees to transfer to
Manufacturer any and all rights that Creditor may have in and to
the Goods as a secured creditor under the Uniform Commercial Code
and will return Manufacturer's Certificate of Origin.
4.2 Conditions for Repurchase.
4.2.1 Creditor has paid Manufacturer for the Goods on behalf of
Dealer;
4.2.2 Creditor has determined that Dealer is in default and is
ceasing all wholesale
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financing of Goods with Dealer and its principals;
4.2.3 Creditor has taken actual or constructive physical
possession of the Goods unless Manufacturer has agreed to
do so;
4.2.4 Title to the Goods has never passed from Dealer to a retail
purchaser; and
4.2.5 The Goods have not been rented and are otherwise in new and
unused condition, except for normal wear and tear
incidental to storage, display, and incidental
demonstration.
4.3 Additional Costs.
Manufacturer agrees to pay Creditor $100 per section per unit of
Goods for its direct repossession costs, including its storage
costs. After Creditor's repossession and tender of the Goods to
Manufacturer, Manufacturer shall be fully responsible for all
costs and expenses associated with the possession, relocation,
care, maintenance, and ongoing storage of each unit of Goods.
5. Remarketing by Manufacturer.
In the event the Conditions for Repurchase are not met, but Creditor
has obtained possession of Goods, Manufacturer agrees to assist
Creditor in selling such Goods. Manufacturer agrees to use its best
efforts to remarket the Goods through its Dealer organization or other
commercially reasonable methods.
6. Payment and Term Changes. Creditor, in its sole discretion, may renew,
extend or modify the time or amount of payment of Wholesale
Instruments and may also amend the Terms and Conditions of its
financing arrangements with the Dealer. Except as specifically set
forth in this Agreement, no such renewal, extension modification or
amendment shall affect the liability of Manufacturer hereunder.
7. No Waiver by Creditor. The failure to exercise any right hereunder by
Creditor shall not operate as a waiver of such right. All remedies
contained in this Agreement shall be cumulative and alterative, and
shall be in addition to all other remedies available to Creditor by
agreement or law.
8. Manufacturer's Warranties and Representations. Manufacturer warrants
and represents to Creditor:
(a) that it is a corporation duly existing, qualified and in good
standing to do business in all jurisdictions where necessary;
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(b) that each of its invoices represents a bona fide order by Dealer,
and all invoices shall be true and accurate and shall comply with
all applicable rules and standards, including the
Truth-In-Invoicing Practice Statement of the Manufactured Housing
Institute;
(c) that the Dealer will have title to the Goods which are the
subject of a Wholesale Instrument free and clear of all claims of
Manufacturer's creditors;
(d) that Manufacturer has shipped to Dealer Goods which are the
subject of a Wholesale Instrument no earlier than ten (10) days
prior to, nor later than, the date on which Manufacturer submits
a copy of the invoice on such Goods to Creditor for payment, and
that such Goods will be received by Dealer in good and salable
condition free of material defects; and
(e) that Goods which are the subject of a Wholesale Instrument comply
with all state, federal and local laws and regulations in the
jurisdictions in which such Goods are to be offered for sale by
Dealer.
9. Manufacturer's Covenants. Manufacturer covenants and agrees:
(a) to promptly notify Creditor if a Dealer materially defaults under
Manufacturer's Dealer Agreement or is discontinued as one of
Manufacturer's authorized Dealers;
(b) to promptly notify Creditor, to the best of its knowledge and
information; (i) if there is a change in control of a Dealer or a
change of a principal owner or senior officer of the Dealer; (ii)
if a Dealer files for bankruptcy or other protection from
creditors, or has material litigation or investigations commenced
against it;
(c) to provide Creditor with its price lists and literature regarding
the Goods;
(d) to honor all its warranties on the Goods and to pay Dealer's
warranty claims on the Goods within a reason- able period of
time;
(e) to promptly notify Creditor of any material change in
Manufacturer's financial condition, principal officers,
directors, or control, and to provide annual audited financial
statements to Creditor within 90 days of the end of its calendar
or fiscal year;
(f) to indemnify and hold harmless Creditor from any claim, lawsuit,
judgment, court order, or other dispute, arising from the Goods
or the sale of the Goods from Manufacturer to a Dealer, and from
any matter alleging defects in or misrepresentation of the Goods.
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(g) not to issue more than one Certificate of Origin to any unit of
Goods, except upon the request of Creditor or after
Manufacturer's repurchase of the Goods.
10. Breach of Warranties or Representations. In the event of breach by
Manufacturer of any warranties or representations contained in this
Agreement, upon demand by Creditor, Manufacturer will pay Creditor on
the Wholesale Instrument for each unit of Goods directly or indirectly
affected by such breach, an amount equal to the total unpaid balance
of the Wholesale Instrument (including unpaid finance charges), plus
all costs and expenses (including attorneys' fees) reasonably incurred
by Creditor as a result of the breach.
11. Notice of Assignment of Dealer Funds. Creditor has obtained or intends
to obtain from each Dealer an assignment of Dealer's funds of whatever
nature owing, now or in the future, from Manufacturer to Dealer, as
security for any amounts Dealer may owe, now or in the future, to
Creditor under the terms of Dealer's Inventory Security Agreement.
Manufacturer hereby acknowledges this assignment and agrees to honor
Creditor's claims to Dealer's funds upon notice from Creditor.
12. Notices. All written notices sent hereunder shall be sent by
facsimile, overnight courier, or certified mail, postage prepaid, and
addressed as follows:
If to Manufacturer: If to Creditor:
Bellcrest Homes, Inc. Deere Credit, Inc.
206 Magnolia St. 1415 28th Street
P.O. Box 630 West Des Moines, IA 50265-1450
Millen, GA 30442 Attention: Manager, Wholesale
Attention: G. Hiller Spann Fax Number: 515-222-4554
Fax Number: 912-982-2992
13. Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors or assigns of the parties hereto. Creditor
may assign this Agreement, in whole or in part, to any of its
subsidiary or affiliated companies and, upon such assignment, such
subsidiary or affiliated company shall be entitled to all of the
benefits of this Agreement and the obligations of the Manufacturer
contained in this Agreement.
14. Amendment. This Agreement may not be modified, altered or amended
except in writing executed by the parties hereto.
15. Choice of Law. The validity, enforceability and interpretation of this
Agreement and any Amendments and Addenda hereto shall be governed by
the laws of the State of Iowa, the place of business of the Creditor.
16. Termination. Either party hereto may cancel this Agreement at any
time, upon thirty (30) days' notice in writing. The
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termination of this Agreement shall in no manner affect the
obligations of Manufacturer as to Wholesale Instruments purchased,
otherwise acquired or entered into by Creditor prior to the effective
date of termination.
17. Effective Date/Entire Agreement. This Agreement shall be effective as
of the date stated below and shall as of that date supersede any prior
Manufacturer's Financing Agreement-Manufactured Housing between
Creditor and Manufacturer. This Agreement constitutes the entire
agreement of the parties and no oral statements or other
understandings are enforceable unless provided for herein in writing.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized officers or representatives as of the 1st day of June,
1994.
ATTEST:
Bellcrest Homes, Inc.
(Manufacturer)
By:_______________________
Title:____________________ By:___________________________
Title:________________________
DEERE CREDIT, INC. (Creditor)
By:___________________________
Title:________________________
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ADDENDUM TO MANUFACTURER'S FINANCING AGREEMENT
MANUFACTURED HOUSING
This is an Addendum to the Manufacturer's Financing Agreement-Manufactured
Housing (the "Agreement") between Deere Credit, Inc. ("Creditor") and Bellcrest
Homes, Inc. ("Manufacturer") dated June 1, 1994. In consideration of Creditor
discounting all invoices payable to Manufacturer pursuant to the Agreement by
0%, Creditor agrees to offer participating Dealers of Manufacturer special terms
on Goods covered by a Wholesale Instrument as follows:
I. Rates:
Rate Period Applicable Rate
(Measured from date of Wholesale Instrument)
NEGOTIATED BETWEEN CREDITOR AND DEALER
II. Flat Charges:
a) _______ % per month on the lowest outstanding
balance (other than $0) of each Wholesale
Instrument outstanding during the month.
b) $_________________ per month per unit of Goods
covered by any Wholesale Instrument outstanding
during the month.
NEGOTIATED BETWEEN CREDITOR AND DEALER.
III. Curtailment schedule on each unit of Goods covered by a
Wholesale Instrument:
Curtailment Due Date Curtailment Percent
(Measured from date of Wholesale Instrument)
180th Day From Invoice 2% of Original Invoice
Each 30 Days Thereafter 2% of Original Invoice
365th Day From Invoice Payment Due In Full
If any of the above Curtailment Due Dates arise during the month(s) of
________________________________, the above Curtailment Percents shall
not apply; in such months the Curtailment Percent shall be _______%.
IV. Payment to Manufacturer: Payment to Manufacturer by
Creditor pursuant to Section 3 of the Agreement shall be
within 10 days following the receipt by Creditor of a
copy of the Manufacturer's invoice to the Dealer and the
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original of the Manufacturer's Certificate(s) of Origin
for the unit of Goods being financed.
Agreed to this 1st day of June, 1994.
ATTEST Bellcrest Homes, Inc.
(manufacturer)
By:_____________________ By:___________________________
Title:__________________ Title:________________________
DEERE CREDIT, INC. (Creditor)
By:___________________________
Title: Manager, Market Development
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ADDENDUM TO MANUFACTURER'S FINANCING AGREEMENT
MANUFACTURED HOUSING
Reference Definition #4 Section 4.1:
Manufacturer shall deduct the wholesale cost of any damages or
shortages from any unit repurchased. Normal wear does not constitute
damage.
Agreed to this 1st day of June, 1994.
Bellcrest Homes, Inc.
ATTEST (Manufacturer)
By:_____________________ By:___________________________
Title:__________________ Title: President
DEERE CREDIT, INC. (Creditor)
By:___________________________
Title: Manager, Market Development
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