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EXHIBIT 10.12
AGREEMENT FOR WHOLESALE FINANCING
This Agreement for Wholesale Financing ("Agreement") is made as of October
31st, 1996 between DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS") and BTG,
Inc. , a |___| SOLE PROPRIETORSHIP, |___| PARTNERSHIP, | X | CORPORATION,
|___| LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"), having a
principal place of business located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ , ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
1. EXTENSION OF CREDIT. Subject to the terms of this Agreement, DFS
may extend credit to Dealer from time to time to purchase
inventory from DFS approved vendors ("Vendors") and for other
purposes. If DFS advances funds to Dealer following Dealer's
execution of this Agreement, DFS will be deemed to have entered
into this Agreement with Dealer, whether or not executed by DFS.
DFS' decision to advance funds will not be binding until the
funds are actually advanced. DFS may combine all of DFS'
advances to Dealer or on Dealer's behalf, whether under this
Agreement or any other agreement, and whether provided by one or
more of DFS' branch offices, together with all finance charges,
fees and expenses related thereto, to make one debt owed by
Dealer. DFS may, at any time and without notice to Dealer, elect
not to finance any inventory sold by particular Vendors who are
in default of their obligations to DFS, or with respect to which
DFS reasonably feels insecure. This is an agreement regarding
the extension of credit, and not the provision of goods or
services.
2. FINANCING TERMS AND STATEMENTS OF TRANSACTION. Dealer and DFS
agree that certain financial terms of any advance made by DFS
under this Agreement, whether regarding finance charges, other
fees, maturities, curtailments or other financial terms, are not
set forth herein because such terms depend, in part, upon the
availability of Vendor discounts, payment terms or other
incentives, prevailing economic conditions, DFS' floorplanning
volume with Dealer and with Dealer's Vendors, and other economic
factors which may vary over time. Dealer and DFS further agree
that it is therefore in their mutual best interest to set forth
in this Agreement only the general terms of Dealer's financing
arrangement with DFS. 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 by
reference, will be made a part hereof as if originally set forth
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
to Section 17, and cease making additional advances to Dealer.
However, such termination will not accelerate the maturities of
advances previously made, unless Dealer shall otherwise be in
default of this Agreement.
3. GRANT 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, whether now
owned or hereafter acquired by Dealer and wherever located, and
all discounts, rebates, credits, incentive payments, returns,
repossessions, exchanges, substitutions, replacements,
attachments, parts, accessories, and accessions thereto, and all
cash proceeds received by Dealer before delivery to a buyer
thereof and insurance proceeds thereof (all such assets being
collectively referred to herein as the "Collateral."), excluding,
however, receivables and excluding any cash or other property of
Dealer delivered to a third party as prepayments for the future
delivery to Dealer of certain assets from such third party,
including any and all rights thereto; it being understood and
agreed that any and all accounts receivable and any cash or other
property of Dealer delivered to a third party as prepayments for
the future delivery to Dealer of certain assets from such third
party, including any and all rights thereto shall not be included
hereby and that as between
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NationsBank, N.A., as Agent ("NationsBank") and DFS under and
pursuant to the terms of that certain Subordination Agreement
between DFS and NationsBank dated as of the date hereof (the
"NationsBank Subordination Agreement"), NationsBank shall have
and retain a valid and perfected first lien security interest in
and to such accounts and such cash or other property of Dealer
delivered to a third party as prepayments for the future delivery
to Dealer of certain assets from such third party, including any
and all rights thereto. 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
with Section 9.
4. AFFIRMATIVE WARRANTIES AND REPRESENTATIONS. Dealer warrants and
represents to DFS that: (a) Dealer has good title to all
Collateral, subject to the subordinate security interest therein
of NationsBank; (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 bound or the terms of which have not been
waived by the beneficiary thereof; (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 when 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 Dealer's
principal place of business listed above, and such other
locations, if any, of which Dealer has notified DFS in writing or
as listed on any current or future Exhibit "A" attached hereto
which written notice(s) to DFS and Exhibit A(s) are incorporated
herein by reference; (o) Dealer will give DFS 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; (r)
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; and (s) Dealer will, and
will cause its subsidiaries to, promptly notify DFS of the
existence of any known condition or event, which constitutes or
which will constitute with notice or the passage of time or both,
a default under this Agreement.
5. 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, demonstrate, consign, or use any
Collateral financed by DFS; or (c) merge or consolidate with
another entity.
6. 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.
7. 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
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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 therefor 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 DFS, either as of the date of delivery, or, if
different, the date specified therein, and Dealer acknowledges
DFS' reliance thereon.
8. REVIEWS. 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 copy Dealer's books and records related to the
Collateral.
9. 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
Statement of Transaction identifying such Collateral); (d) for
Collateral financed under Scheduled 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' benefit, 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 therefor 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.
10. 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) shown on the
Statement of Transaction identifying such Collateral, unless
Dealer objects thereto as provided in Section 2. 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 Charge"
is the product of the Daily Rate (as defined below) multiplied by
the Average Daily Balance (as defined below). The "Daily Rate"
is the quotient of the annual rate shown on
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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 (an "NSF 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 laws 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 termed 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 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 than 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.
11. 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.
12. DEFAULT. Dealer will be in default under this Agreement if: (I)
Any of the following occur and such breach, violation, or other
event of default is not cured to DFS' satisfaction within fifteen
(15) days after Dealer's receipt of notice of such breach from
DFS: (a) Dealer breaches any terms, warranties or
representations contained herein, in any Statement of Transaction
to which Dealer has not objected as provided in Section 2, 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 abandons
any Collateral; (e) Dealer or any guarantor is or becomes in
default in the payment of any debt owed to any third party; (f) a
money judgment issues against Dealer or any guarantor; (g) an
attachment, sale or seizure issues or is executed against any
assets of Dealer or of any guarantor; (h) 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; (i) any guarantor dies; (j) Dealer or any guarantor
shall cease existence as a corporation, partnership, limited
liability company or trust, as applicable; (k) Dealer or any
guarantor ceases or suspends business; (l) 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; (m) Dealer, any guarantor or any member
while Dealer's business is operated as a limited liability
company, as applicable, becomes insolvent or voluntarily or
involuntarily becomes subject to the Federal Bankruptcy Code, any
state insolvency law or any similar law; (n) 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; (o) any guaranty of Dealer's debts to DFS
is terminated; (p) Dealer loses any franchise, permission,
license or right to sell or deal in any Collateral which DFS
finances; (q) Dealer or any guarantor misrepresents Dealer's or
such guarantor's financial condition or organizational structure;
or (r) DFS determines in good faith that it is insecure with
respect
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to any of the Collateral or the payment of any part of Dealer's
obligation to DFS; or (II) 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 and such failure is not
cured to DFS' satisfaction within five (5) days after the
Dealer's receipt of notice of such breach from DFS, provided
however, that during any period of 180 consecutive days
commencing at any time hereafter, Dealer shall be entitled to no
more than two (2) such 5-day cure periods, and as to any such
payment failures in excess of such limitation, no such cure
period shall be available to Dealer.
13. 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 attorneys' 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 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.
14. 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 therefor, 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. If DFS
disposes of any such Collateral other than as herein
contemplated, the commercial reasonableness of such disposition
will be determined in accordance with the laws of the state
governing this Agreement.
15. 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.
16. 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.
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17. TERMINATION. Either party may terminate this Agreement at any
time by written notice received by the other party. If DFS
terminates 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. DFS will retain all of its
rights, interests and remedies hereunder until Dealer has paid
all of Dealer's debts to DFS. All waivers set forth within this
Agreement will survive any termination of this Agreement.
18. 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, it being understood and agreed, however, that
any such assignee shall be bound by the terms and conditions of
the NationsBank Subordination Agreement and that with respect
solely to any such assignee's obligation to be bound by the
NationsBank Subordination Agreement, NationsBank shall be a third
party beneficiary of such obligation. This Agreement will
protect and bind DFS' and Dealer's respective heirs,
representatives, successors and assigns.
19. 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: General Counsel, or such other address as
the parties may hereafter specify in writing.
20. 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.
21. 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.
22. 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.
23. SUPPLEMENT. If Dealer and DFS have heretofore executed other
agreements in connection with all or any part of the Collateral,
this 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.
24. 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.
25. 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 grant extensions of time.
Dealer's liability under this Agreement
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is direct and 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 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 attorneys' fees and
expenses incurred by DFS in enforcing DFS' rights hereunder. The
Section titles used in this Agreement are for convenience only
and do not define or limit the contents of any Section.
26. BINDING ARBITRATION.
26.1 ARBITRABLE CLAIMS. Except as otherwise specified below,
all actions, disputes, claims and controversies under
common law, statutory law or in equity of any type or
nature whatsoever (including, without limitation, all
torts, whether regarding negligence, breach of fiduciary
duty, restraint of trade, fraud, conversion, duress,
interference, wrongful replevin, 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.
26.2 ADMINISTRATIVE 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 least 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.
26.3 DISCOVERY. 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 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, 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
7
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witness(es), and (d) the arbitration hearing will be
continued to the earliest possible date that enables the
foregoing limited discovery to be accomplished.
26.4 EXEMPLARY OR PUNITIVE DAMAGES. The Arbitrator(s) will not
have the authority to award exemplary or punitive damages.
26.5 CONFIDENTIALITY 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.
26.6 PREJUDGMENT 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.
26.7 ATTORNEYS' FEES. If either Dealer or DFS brings any other
action for judicial relief with respect to any Dispute
(other than those set forth in Section 26.6), 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 defending such
action or proceeding.
26.8 LIMITATIONS. 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.
26.9 SURVIVAL AFTER TERMINATION. The agreement to arbitrate
will survive the termination of this Agreement.
27. 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.
28. 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
Commonwealth of Virginia. 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.
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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.
ATTEST: BTG, INC
--------------------------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Dealer's Name
----------------------------------
Secretary By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -----------------------------------
----------------------- Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: President
-------------------------------
DEUTSCHE FINANCIAL SERVICES
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ GUEST
-----------------------------------
Print Name: ▇▇▇▇▇▇▇ Guest
--------------------------
Title: Regional Vice President
-------------------------------
9
10
SECRETARY'S CERTIFICATE OF RESOLUTION
I certify that I am the 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 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 therefor; from time to time 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 WHEREOF, I have executed and affixed the seal of the
corporation on the date stated below.
Dated: October 31st, 1996 /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Secretary
BTG, Inc.
--------------------------------------------
Corporate Name
(SEAL)
10
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ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING
This Addendum is made to that certain Agreement for
Wholesale Financing entered into by and between BTG, INC. ("Dealer") and
DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS") on October 31st, 1996, as
amended ("Agreement").
FOR VALUE RECEIVED, DFS and Dealer agree that the
following paragraph is incorporated into the Agreement as if fully and
originally set forth therein:
"FINANCIAL COVENANTS.
So long as this Agreement remains in effect, the
Dealer will comply with each of the financial
covenants set forth below. All financial or
accounting terms referenced below and not otherwise
defined in this Agreement shall have the meanings
attributable to such terms in accordance with
generally accepted accounting principles,
consistently applied ('GAAP') and on a consolidated
basis:
(a) Covenants.
(i) Tangible Net Worth. Dealer will
maintain on a consolidated basis at all
times during the following periods,
Tangible Net Worth of not less than the
following amounts corresponding thereto:
Required
Consolidated
Periods Tangible Net Worth
------- ------------------
Fiscal quarter ending 09/30/96 $ 7,500,000
Fiscal quarter ending 12/31/96 $ 8,500,000
Fiscal quarter ending 03/31/97 $ 8,500,000
Fiscal quarter ending 06/30/97 $16,000,000
Fiscal quarter ending 09/30/97 $16,000,000
Fiscal quarter ending 12/31/97 $16,000,000
From 1/1/98 through 03/30/98 $16,000,000
At any time from and after 03/31/98 $24,000,000
(ii) Leverage Ratio. Dealer will achieve
a ratio of Consolidated Total Indebtedness
to Consolidated EBITDA as of each date set
forth below for the four (4) consecutive
fiscal quarters ending thereon of not more
than the following amounts corresponding
thereto:
Required
Leverage
Periods Ratio
------- --------
Fiscal quarter ending 09/30/96 5.0 to 1.0
Fiscal quarter ending 12/31/96 5.0 to 1.0
Fiscal quarter ending 03/31/97 4.3 to 1.0
Fiscal quarter ending 06/30/97 4.3 to 1.0
Fiscal quarter ending 09/30/97 4.3 to 1.0
Fiscal quarter ending 12/31/97 4.3 to 1.0
Fiscal quarter ending 03/31/98 4.3 to 1.0
Each fiscal quarter thereafter 3.7 to 1.0
1
12
(iii) Fixed Charge Coverage Ratio. Dealer
will achieve a ratio of Consolidated
EBITDA to Consolidated Fixed Charges as of
each date set forth below for the four (4)
consecutive fiscal quarters ending thereon
of not more than the following amounts
corresponding thereto:
Required
Fixed Charge
Periods Coverage Ratio
------- --------------
Fiscal quarter ending 09/30/96 1.4 to 1.0
Fiscal quarter ending 12/31/96 1.6 to 1.0
Fiscal quarter ending 03/31/97 1.6 to 1.0
Fiscal quarter ending 06/30/97 1.7 to 1.0
Fiscal quarter ending 09/30/97 1.7 to 1.0
Fiscal quarter ending 12/31/97 1.7 to 1.0
Fiscal quarter ending 03/31/98 1.7 to 1.0
Each fiscal quarter thereafter 1.8 to 1.0
(b) Defined Terms. For purposes of this Agreement, the following terms shall
have the meaning corresponding thereto:
(i) 'Consolidated EBITDA' means, for any
period, the sum of (a) Consolidated Net
Income (Loss) plus (b) in each case to the
extent deducted in determining such
Consolidated Net Income (Loss), the sum of
(i) Consolidated Interest Expense, plus
(ii) Consolidated Income Tax Expense, plus
(iii) depreciation expense, plus (iv)
amortization expense, plus (v) all other
non-cash charges, all as determined with
respect to Dealer for such period.
(ii) 'Consolidated Fixed Charges' shall
mean, for any period, without duplication,
(i) Consolidated Interest Expense for such
period, plus (ii) scheduled payments of
principal of all Consolidated Total
Indebtedness of Dealer during such period
(including, without limitation, that
portion of any capitalized lease
obligations attributable to principal
amortization in accordance with GAAP),
plus (iii) all cash payments made during
such period on account of federal and
state taxes based on or measured by the
net income of Dealer.
(iii) 'Consolidated Income Tax Expense'
means, for any period, the amount which,
in conformity with GAAP, should be shown
as provision for current and deferred
federal and state income taxes on a
consolidated statement of operations of
Dealer for such period.
(iv) 'Consolidated Interest Expense'
means, for any period, all amounts which,
in conformity with GAAP, should be
included as interest expense on a
consolidated statement of operations of
Dealer for such period, including in any
event, without limitation, interest
accrued on all Consolidated Total
Indebtedness including that portion of any
capitalized lease obligations attributable
to interest expense in accordance with
GAAP, debt issuance costs and capitalized
interest accrued during such period, all
commissions, all discounts and other fees
and charges accrued with respect to
letters of credit and bankers' acceptance
financing and net costs under interest
rate protection agreements (including
amortization of such costs), all as
determined for Dealer for such period.
(v) 'Consolidated Net Income (Loss)'
means, for any period, the net income (or
loss) of Dealer for such period taken as a
single accounting period, determined in
accordance with GAAP; provided that in
determining Consolidated Net Income (Loss)
there shall be excluded: (i) the income
(or loss of any person which is not a
subsidiary of Dealer except
2
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to the extent of the amount of dividends
or other distributions actually paid to
Dealer by such person during such period,
(ii) the income (or loss) of any person
accrued prior to the date it becomes a
subsidiary of Dealer or is merged into or
consolidated with Dealer or any of its
subsidiaries or that person's assets are
acquired by Dealer or any of its
subsidiaries, (iii) the proceeds of any
life insurance policy, (iv) gains and
losses from the sale, exchange, transfer
or other disposition of property not in
the ordinary course of business of Dealer,
(v) any other extraordinary or
non-recurring gains and losses of Dealer,
and (vi) the income of any subsidiary of
Dealer to the extent that the declaration
or payment of dividends or similar
distributions by that subsidiary of that
income is not at the time permitted by
operation of the terms of its charter or
of any agreement, instrument, law or
regulation applicable to that subsidiary.
(vi) 'Consolidated Total Indebtedness'
means, as of any date of determination,
the aggregate amount of outstanding Debt
of Dealer as of such date, determined on a
consolidated basis in accordance with
GAAP.
(vii) '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.
(viii) 'Tangible Net Worth' shall mean all
capital stock, paid in capital and
retained earnings, less all treasury
stock, amounts due from officers,
directors, stockholders and members of
their immediate families, amounts due from
affiliates (to the extent that such
amounts are part of the Dealer's
consolidated net worth), investments in
non-marketable securities, notes
receivable of affiliated companies (to the
extent that such amounts are part of the
Dealer's consolidated net worth),
leasehold improvements, goodwill,
non-competition agreements, capitalized
organization and development costs,
capitalized expenses, loan costs, patents,
trademarks, copyrights, franchises,
licenses and other intangible assets."
Dealer waives notice of DFS' acceptance of this
addendum.
All other terms and provisions of the Agreement, to the
extent not inconsistent with the foregoing, are ratified and remain unchanged
and in full force and effect.
IN WITNESS WHEREOF, Dealer and DFS have executed this
Addendum on this 31st day of October, 1996.
BTG, INC.
ATTEST:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: President
------------------------------ ----------------------------------
Secretary
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ GUEST
----------------------------------
Title: Regional Vice President
-------------------------------
3
14
AMENDMENT TO AGREEMENT FOR WHOLESALE FINANCING
This Amendment to Agreement for Wholesale Financing is made to that
certain Agreement for Wholesale Financing entered into by and between BTG, Inc.
("Dealer") and Deutsche Financial Services Corporation ("DFS") on October 31st,
1996, as amended ("Agreement").
FOR VALUE RECEIVED,Dealer and DFS agree to amend paragraph number 9
of the Agreement to provide as follows:
"9. PAYMENT TERMS/PAYDOWN. 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 Statement of Transaction identifying such
Collateral); (d) for Collateral financed under
Scheduled 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. Dealer will forward to DFS by the 10th
day of each month a Collateral Summary Report (as
defined below) dated as of the last day of the prior
month.
Regardless of the SPP terms pertaining to any
Collateral financed by DFS, and notwithstanding any
scheduled payments made by Dealer after the
Determination Date (as defined below), if DFS
determines, after reviewing the Collateral Summary
Report, after conducting an inspection of the
Collateral or otherwise, that (i) the total current
outstanding indebtedness owed by Dealer to DFS as of
the date of the Collateral Summary Report, inspection
or any other date on which a paydown is otherwise
required hereunder, as applicable (the 'Determination
Date'), exceeds (ii) the Collateral Liquidation Value
(as defined below) as of the Determination Date, Dealer
will immediately upon demand pay DFS the difference
between (i) Dealer's total current outstanding
indebtedness owed to DFS as of the Determination Date,
and (ii) the Collateral Liquidation Value as of the
Determination Date.
The term 'COLLATERAL REPORT' is defined herein
to mean a report compiled by Dealer specifying the
following information: (a) the total aggregate
wholesale invoice price of all of Dealer's inventory
financed by DFS that is unsold and in Dealer's
possession and control as of the date of such Report;
and (b) the total aggregate wholesale invoice price of
all of Dealer's inventory not financed by DFS that is
unsold, and in Dealer's possession and control as of
the date of such Report; in each case to the extent DFS
has a first priority, fully perfected security interest
therein.
15
The term 'COLLATERAL LIQUIDATION VALUE' is defined
herein to mean: (i) one hundred percent (100%) of the
total aggregate wholesale invoice price of all of
Dealer's inventory financed by DFS that is unsold and
in Dealer's possession and control; and (ii) fifty
percent (50%) of the total aggregate wholesale invoice
price of all Dealer's inventory not financed by DFS that
is unsold, and in Dealer's possession and control; in
each case to the extent DFS has a first priority,
fully perfected security interest therein.
If Dealer from time to time is required to make
immediate payment to DFS of any past due obligation
discovered during any Collateral audit, upon review of
a Collateral Summary Report 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' benefit, 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 therefor 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."
All other terms as they appear in the Agreement, to the extent consistent with
the foregoing, are ratified and remain unchanged and in full force and effect.
IN WITNESS WHEREOF, Dealer and DFS have executed this Amendment to
Agreement for Wholesale Financing this 31st day of October, 1996.
BTG, INC.
ATTEST:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: President
------------------------------ ----------------------------------
Secretary
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ GUEST
-------------------------------------
Title: Regional Vice President
----------------------------------
