[LOGO] FORD MOTOR COMPANY
AUTOMOTIVE WHOLESALE PLAN
APPLICATION FOR WHOLESALE FINANCING
AND SECURITY AGREEMENT
Date: August 2nd, 1984
To: Ford Motor Credit Company (hereinafter called "Ford Credit")
The undersigned Family Ford, Inc. (hereafter
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(DEALER'S EXACT BUSINESS NAME)
called "Dealer") of 1200 Wolcott Street Waterbury, Connecticut 06705
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(STREET AND NUMBER) (CITY) (STATE) (ZIP CODE)
hereby requests Ford Credit to establish and maintain for Dealer a wholesale
line of credit to finance new and used automobiles, trucks, truck-tractors,
trailers, semi-trailers, buses, mobile homes, motor homes, other vehicles and
other merchandise (hereinafter called the "Merchandise") for Dealer under the
terms of the Ford Credit Wholesale Plan as set forth in the April, 1979 edition
of the Ford Credit Dealer Manual entitled "Automotive Finance Plans for Ford
Motor Company Dealers" or any subsequent edition thereof (hereinafter called the
"Plan") and in connection therewith to make advances to or on behalf of Dealer,
purchase installment sale contracts evidencing the sale of Merchandise to Dealer
by the manufacturer, distributor or other seller thereof, or otherwise extend
credit to Dealer. In consideration thereof Dealer hereby agrees as follows:
1. Advances by Ford Credit
Ford Credit at all times shall have the right in its sole discretion to
determine the extent to which, the terms and conditions on which, and the period
for which it will make such advances, purchase such contracts or otherwise
extend credit to Dealer (hereinafter called an "Advance" (individually) or
"Advances" (collectively)), under the Plan or otherwise. Ford Credit may, at any
time and from time to time, in its sole discretion, establish, rescind or change
limits or the extent to which financing accommodations under the Plan will be
made available to Dealer. In connection with the purchase of any such contract
and/or other extension of credit, Ford Credit may pay to any manufacturer,
distributor or other seller of the Merchandise the invoice or contract amount
therefor and be fully protected in relying in good faith upon any invoice,
contract or other advice from such manufacturer, distributor or seller that the
Merchandise described therein has been ordered or shipped to Dealer and that the
amount therefor is correctly stated. Any such payment made by Ford Credit to
such manufacturer, distributor or seller, and any loan or other extension of
credit made by Ford Credit directly to Dealer with respect to Merchandise of any
type held by Dealer for sale, shall be an Advance made by Ford Credit hereunder
and, except with respect to any Advance that is a purchase of an installment
sale contract, shall be repayable by Dealer in accordance with the terms hereof.
All rights of Ford Credit and obligations of Dealer with respect to Advances
hereunder that constitute the purchase by Ford Credit of an installment sale
contract shall be pursuant to the provisions of such contract.
From time to time Ford Credit shall furnish statements to Dealer of Advances
made by Ford Credit hereunder. Dealer shall review the same promptly upon
receipt and advise Ford Credit in writing of any discrepancy therein. If Dealer
shall fail to advise Ford Credit of any discrepancy in any such statement within
ten calendar days following the receipt thereof by Dealer, such statement shall
be deemed to be conclusive evidence of Advances made by Ford Credit hereunder
unless Dealer or Ford Credit establishes by a preponderance of evidence that
such Advances were not made or were made in different amounts than as set forth
in such statement.
2. Interest and Service and Insurance Flat Charges
Each Advance made by Ford Credit hereunder shall bear interest at the rates
established by Ford Credit from time to time for Dealer, except that any amount
not paid when due hereunder shall bear interest at a rate that is 4 percentage
points higher than the current pre-default rate up to the maximum contract rate
permitted by the law of the state where Dealer maintains its business as set out
above. In addition to interest, the financing of Merchandise under the Plan
shall be subject to service and insurance flat charges established by Ford
Credit from time to time for Dealer.
Ford Credit shall advise Dealer in writing from time to time of any change in
the interest rate and service and insurance flat charges applicable to Dealer
and the effective date of such change. Such change shall not become effective,
however, if Dealer elects to terminate this Agreement and pay to Ford Credit the
full unpaid balance outstanding under Dealer's wholesale line of credit and all
other amounts due or to become due hereunder in good funds within ten calendar
days after the receipt of such notice by Dealer.
3. Payments by Dealer
The aggregate amount outstanding from time to time of all Advances made by Ford
Credit hereunder shall constitute a single obligation of Dealer, notwithstanding
Advances are made from time to time. Unless otherwise provided in the promissory
note, installment sale contract, security agreement or other instrument
evidencing the same from time to time, Dealer shall pay to Ford Credit, upon
demand, the unpaid balance (or so much thereof as may be demanded) of all
Advances plus Ford Credit's interest and flat charges with respect thereto, and
in any event, without demand, the unpaid balance of the Advance made by Ford
Credit hereunder with respect to an item of the Merchandise at or before the
date on which the same is sold, leased or placed in use by Dealer. Dealer also
shall pay to Ford Credit, upon demand, the full amount of any rebate, refund or
other credit received by Dealer with respect to the Merchandise.
If the promissory note, instalment sale contract, security agreement or other
instrument evidencing an Advance or Advances is payable in one or more
instalments, Ford Credit may from time to time in its sole discretion, extend
any instalment due thereunder on a month-to-month basis, and, except as provided
below or in any instalment sale contract. Ford Credit's failure to demand any
such instalment when due shall be deemed to be a one month extension of the
same. Any such extension, however, shall not obligate Ford Credit to grant an
extension in the future or waive Ford Credit's right to demand payment when due.
Following the sale, lease or use date of an item of the Merchandise, no
instalment shall be deemed extended without Ford Credit's specific written
consent, and Dealer agrees to pay the same, as required, without demand.
4. Ford Credit's Security Interest
As security for all Advances now or hereafter made by Ford Credit hereunder, and
for the observance and performance of all other obligations of Dealer to Ford
Credit in connection with the wholesale financing of Merchandise for Dealer,
Dealer hereby grants to Ford Credit a security interest in the Merchandise now
owned or hereafter acquired by Dealer and in the proceeds, in whatever form, of
any sale or other disposition thereof; and Dealer hereby assigns to Ford Credit,
and grants to Ford Credit a security interest in, all amounts that may now or
hereafter be payable to Dealer by the manufacturer, distributor or seller of any
of the Merchandise by way of rebate or refund of all or any portion of the
purchase price thereof.
5. Dealer's Possession and Sale of Merchandise
Dealer's possession of the Merchandise shall be for the sole purpose of storing
and exhibiting the same for sale or lease in the ordinary course of Dealer's
business. Dealer shall keep the Merchandise brand new and subject to inspection
by Ford Credit and free from all taxes, liens and encumbrances, and any sum of
money that may be paid by Ford Credit in release or discharge of any taxes,
liens or encumbrances on the Merchandise or on any documents executed in
connection therewith shall be paid by Dealer to Ford Credit upon demand. Except
as may be necessary to remove or transport the same from a freight depot to
Dealer's place of business, Dealer shall not use or operate, or permit the use
or operation of, the Merchandise for demonstration, hire or otherwise without
the express prior written consent of Ford Credit in each case, and shall not in
any event use the Merchandise illegally or improperly. Dealer shall not
mortgage, pledge or loan any of the Merchandise, and shall not transfer or
otherwise dispose of the same except by sale or lease in the ordinary course of
Dealer's business. Any and all proceeds of any sale, lease or other disposition
of the Merchandise by Dealer shall be received and held by Dealer in trust for
Ford Credit and shall be fully, faithfully and promptly accounted for and
remitted by Dealer to Ford Credit to the extent of Dealer's obligation to Ford
Credit with respect to the Merchandise. As used in this paragraph 5, (a) "sale
in the ordinary course of Dealer's business" shall include only (i) a bona fide
retail sale to a purchaser for his own use at the fair market value of the
Merchandise sold and (ii) an occasional sale of such Merchandise to another
dealer at a price not less than Dealer's cost of the Merchandise sold, unless
such sale is a part of a plan or scheme to liquidate all or any portion of
Dealer's business, and (b) "lease in the ordinary course of Dealer's business"
shall include only a bona fide lease to a lessee for his own use at a fair
rental value of the Merchandise leased.
6. Risk of Loss and Insurance Requirements
The Merchandise shall be at Dealer's sole risk of any loss or damage to the
same, except to the extent of any insurance proceeds actually received by Ford
Credit with respect thereto under insurance obtained by Ford Credit pursuant to
the Plan. Dealer shall indemnify Ford Credit against all claims for injury or
damage to persons or property caused by the use, operation or holding of the
Merchandise and, if requested to do so by Ford Credit, maintain at its own
expense liability insurance in connection therewith in such form and amounts as
Ford Credit may reasonably require from time to time. In addition, Dealer shall
insure each item of Merchandise that is or may be used for demonstration or
operated for any other purpose against loss due to collision, subject in each
case to the deductible amounts and limitations set forth in the Plan.
7. Credits
All funds or other property belonging to Ford Credit and received by Dealer
shall be received by Dealer in trust for Ford Credit and shall be remitted to
Ford Credit forthwith. Ford Credit, at all times, shall have a right to offset
and apply any and all credits, monies or properties of Dealer in Ford Credit's
possession or control against any obligation of Dealer to Ford Credit.
8. Information Concerning Dealer
To induce Ford Credit to extend financing accommodations hereunder, Dealer has
submitted information concerning its business organization and financial
condition, and certifies that the same is complete, true and correct in all
respects and that the financial information contained therein and any that may
be furnished to Ford Credit from time to time hereafter does and shall fairly
present the financial condition of Dealer in accordance with generally accepted
accounting principles applied on a consistent basis. Dealer agrees to notify
Ford Credit promptly of any material change in its business organization or
financial condition or in any information relating thereto previously furnished
to Ford Credit. Dealer acknowledges and intends that Ford Credit shall rely, and
shall have the right to rely, on such information in extending and continuing to
extend financing accommodations to Dealer. Dealer hereby authorizes Ford Credit
from time to time and at all reasonable times to examine, appraise and verify
the existence and condition of all Merchandise, documents, commercial or other
paper and other property in which Ford Credit has or has had any title, title
retention, lien, security or other interest, and all of Dealer's books and
records in any way relating to its business.
9. Default
The following shall constitute an Event of Default hereunder:
(a) Dealer shall fail to promptly pay any amount now or hereafter owing to Ford
Credit as and when the same shall become due and payable, or
(b) Dealer shall fail to duly observe or perform any other obligation secured
hereby, or
(c) any representation made by Dealer to Ford Credit shall prove to have been
false or misleading in any material respect as of the date on which the same was
made, or
(d) a proceeding in bankruptcy, insolvency or receivership shall be instituted
by or against Dealer or Dealer's property.
Upon the occurrence of an Event of Default Ford Credit may accelerate, and
declare immediately due and payable, all or any part of the unpaid balance of
all Advances made hereunder together with accrued interest and flat charges,
without notice to anyone. In addition, Ford Credit may take immediate possession
of all property in which it has a security interest hereunder, without demand or
other notice and without legal process. For this purpose and in furtherance
thereof if Ford Credit so requests, Dealer shall assemble such property and make
it available to Ford Credit at a reasonably convenient place designated by Ford
Credit, and Ford Credit shall have the right, and Dealer hereby authorizes and
empowers Ford Credit, its agents or representatives, to enter upon the premises
wherever such property may be and remove same. In the event Ford Credit acquires
possession of such property or any portion thereof, as hereinbefore provided,
Ford Credit may, in its sole discretion (i) sell the same, or any portion
thereof, after five days' written notice, at public or private sale for the
account of Dealer, (ii) declare this agreement, all wholesale transactions and
Dealer's obligations in connection therewith to be terminated and cancelled and
retain any sums of money that may have been paid by Dealer in connection
therewith, and (iii) enforce any other remedy that Ford Credit may have under
applicable law. Dealer agrees that the sale by Ford Credit of any new and unused
property repossessed by Ford Credit to the manufacturer, distributor or seller
thereof, or to any person designated by such manufacturer, distributor or
seller, at the invoice cost thereof to Dealer less any credits granted to Dealer
with respect thereto and reasonable costs of transportation and reconditioning,
shall be deemed to be a commercially reasonable means of disposing of the same.
Dealer further agrees that if Ford Credit shall solicit bids from three or more
other dealers in the type of property repossessed by Ford Credit hereunder, any
sale by Ford Credit of such property in bulk or in parcels to the bidder
submitting the highest cash bid therefor also shall be deemed to be a
commercially reasonable means of disposing of the same. Dealer understands and
agrees, however that such means of disposal shall not be exclusive and that Ford
Credit shall have the right to dispose of any property repossessed hereunder by
any commercially reasonable means. Dealer agrees to pay reasonable attorneys'
fees and legal expenses incurred by Ford Credit in connection with the
repossession and sale of any such property. Ford Credit's remedies hereunder are
cumulative and may be enforced successively or concurrently.
10. General
Dealer waives the benefit of all homestead and exemption laws and agrees that
the acceptance by Ford Credit of any payment after it may have become due or the
waiver by Ford Credit of any other default shall not be deemed to alter or
affect Dealer's obligations or Ford Credit's right with respect to any
subsequent payment or default.
Neither this agreement, nor any other agreement between Dealer and Ford Credit,
or between Dealer and any manufacturer, distributor or seller that has been
assigned to Ford Credit, nor any funds payable by Ford Credit to Dealer, shall
be assigned by Dealer without the express prior written consent of Ford Credit
in each case.
Any provision hereof prohibited by any applicable law shall be ineffective to
the extent of such prohibition without invalidating the remaining provisions
hereof. Except as herein provided, no modification hereof may be made except by
a written instrument duly executed by, or pursuant to the express written
authority of an executive officer of Ford Credit.
Dealer shall execute and deliver to Ford Credit promissory notes or other
evidences of Dealer's indebtedness hereunder, security agreements, trust
receipts, chattel mortgages or other security instruments and any other
documents which Ford Credit may reasonably request to confirm Dealer's
obligations to Ford Credit and to confirm Ford Credit's security interest in the
Merchandise financed by Ford Credit under the Plan or in any other property as
provided hereunder, and in such event the terms and conditions hereof shall be
deemed to be incorporated therein. Ford Credit's security or other interest in
any Merchandise shall not be impaired by the delivery to Dealer of Merchandise
or of bills of lading, certificates of origin, invoices or other documents
pertaining thereto or by the payment by Dealer of any curtailment, security or
other deposit or portion of the amount financed. The execution by Dealer or on
Dealer's behalf of any document for the amount of any credit extended shall be
deemed evidence of Dealer's obligation and not payment thereof. Ford Credit may,
for and in the name of Dealer, endorse and assign any obligation transferred to
Ford Credit by Dealer and any check or other medium of payment intended to apply
upon such obligation. Ford Credit may complete any blank space and fill in
omitted information on any document or paper furnished to it by Dealer.
Unless the context otherwise clearly requires, the terms used herein shall be
given the same meaning as ascribed to them under the provisions of the Uniform
Commercial Code. Section headings are inserted for convenience only and shall
not affect any construction or interpretation of this agreement.
This agreement shall be interpreted in accordance with the laws of the state of
the Dealer's place of business set out above.
11. Acceptance and Termination
Dealer waives notice of Ford Credit's acceptance of this agreement and agrees
that it shall be deemed accepted by Ford Credit at the time Ford Credit shall
first extend credit to Dealer under the Plan. This agreement shall be binding on
Dealer and Ford Credit and their respective successors and assigns from the date
thereof until terminated by receipt of a written notice by either party from the
other, except that any such termination shall not relieve either party from any
obligation incurred prior to the effective date thereof.
Witness or Attest: Family Ford, Inc.
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(DEALER'S EXACT BUSINESS NAME)
/S/ Grace Perkins By /s/ Edward Shaker Title President
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POWER OF ATTORNEY FOR WHOLESALE
KNOW ALL MEN BY THESE PRESENTS: That the undersigned dealer does hereby make,
constitute and appoint S.L. Owens, J.M. Walsh and F.H. Mason, all of Dearborn,
Michigan and each of them and any other officer or employee of Ford Motor Credit
Company, a Delaware corporation in Dearborn, Michigan, its true and lawful
attorneys with full power of substitution, for and in its name, stead and
behalf, to prepare, make, execute, acknowledge and deliver to Ford Motor Credit
Company from time to time promissory notes or other evidences of indebtedness,
bearing such rate of interest as Ford Motor Credit Company may require from time
to time, and trust receipts, chattel mortgages and other title retention or
security instruments necessary or appropriate in connection with the wholesale
financing sale by Ford Motor Credit Company of merchandise to the undersigned
dealer under the terms of the Ford Motor Credit Company Automotive Wholesale
Plan, and generally to perform all acts and to do all things necessary or
appropriate in discharge of the power hereby conferred, including the making of
affidavits and the acknowledging of instruments, as if fully done by the
undersigned dealer, and each of the said attorneys hereby is further authorized
and empowered in the discharge of the power hereby conferred to execute any
instruments by means of either a manual, imprinted or other facsimile signature
or by completing a printed form to which an imprinted or other facsimile
signature is then affixed.
This Power of Attorney is executed by the undersigned dealer to induce Ford
Motor Credit Company to make advances for merchandise to be acquired by the
undersigned dealer and recognizes that advances are made to manufacturers,
distributors and other sellers of such Merchandise at places other than the
undersigned dealer's place of business, and that it is impractical for the
undersigned dealer to execute the promissory notes, trust receipts, chattel
mortgages and other title retention or security instruments necessary or
appropriate in connection with such sales without unduly delaying the delivery
of such merchandise to the undersigned dealer. Accordingly, this Power of
Attorney maybe revoked by the undersigned dealer only by notice in writing
addressed to Ford Motor Credit Company, Dearborn, Michigan by registered mail,
return receipt requested, stating an effective date on or after the receipt
thereof by Ford Motor Credit Company.
Dated this 2nd day of August, 1984
Witness or Attest: Family Ford, Inc.
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(DEALER'S EXACT BUSINESS NAME)
/s/ Theresa Farina By: /s/ Edward Shaker Title President
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State of Connecticut
ss.
County of New Haven
On this 2nd day of August, 1984, before me, the undersigned Notary Public,
personally appeared Edward Shaker who acknowledged himself to be the President
(TITLE) of Edward Shaker (DEALER'S NAME), the grantor of the foregoing Power of
Attorney, and that he, being authorized so to do, executed the foregoing Power
of Attorney for the purposes therein contained, by signing the name of the said
grantor by himself in the capacity indicated.
IN WITNESS WHEREOF I have hereunto set my hand and official seal.
/s/ Theresa Farina
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NOTARY PUBLIC
(NOTARY'S
My commission expires March 31, 1987 SEAL)
CERTIFIED COPY OF RESOLUTION OF BOARD OF DIRECTORS
The undersigned hereby certifies that he is the Secretary of Family Ford, Inc.
(DEALER'S EXACT CORPORATE NAME) of 1200 Wolcott Street, Waterbury, Connecticut
06705 (DEALER'S ADDRESS) and that the following is a true, correct and complete
copy of resolutions adopted by the board of directors of the said corporation at
a meeting duly called and held on August 2, 1984 at which a quorum was present
and voting, and that said resolutions are unchanged and are now in full force
and effect:
RESOLVED, That the officers of this corporation be, and each hereby is,
authorized and empowered to execute and deliver on behalf of this corporation an
Application for Wholesale Financing to Ford Motor Credit Company of Dearborn,
Michigan in such form and upon such terms and conditions as the said Ford Motor
Credit Company may require, and to execute and deliver from time to time
promissory notes or other evidences of indebtedness, bearing such rate of
interest as the said Ford Motor Credit Company may require from time to time,
and trust receipts, chattel mortgages and other title retention or security
instrument as, and in such form as, the said Ford Motor Credit Company may
require, evidencing any financing extended by the said Ford Motor Credit Company
to this corporation under the terms of the Ford Motor Credit Company Automotive
Wholesale Plan.
FURTHER RESOLVED, That S.L. Owens, J.M. Walsh and F.H. Mason, all of Dearborn,
Michigan, and each of them and any other officer or employee of the said Ford
Motor Credit Company be and each of them hereby is constituted and appointed an
attorney-in-fact of this corporation for the purposes set forth in the Power of
Attorney presented to this board of directors this date, with full power of
substitution, and the officers of this corporation are, and each of them hereby
is, authorized and empowered to execute a formal Power of Attorney in such form.
FURTHER RESOLVED, That the officers of this corporation be, and each hereby is,
authorized and empowered to do all other things and to execute all other
instruments and documents necessary or appropriate in the premises.
IN WITNESS WHEREOF I have hereunto set my hand and affixed the corporate seal of
the said corporation this 2nd day of August, 1984.
/s/ Rose Shaker (CORPORATE
- ------------------------------------ SEAL)
SECRETARY