EXHIBIT NO. 10(s)
MASTER DEALER AGREEMENT
DATE: October 23, 1997
----------------
PARTIES: CREDIT CONCEPTS, LLC, an
Oregon Limited Liability Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Company")
▇▇▇▇▇▇▇▇ IMPORTED MOTORS, INC.
▇▇▇ ▇▇▇▇ ▇▇., ▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Dealer")
AGREEMENTS:
-----------
IN CONSIDERATION, of the mutual promises of the parties, Company and
Dealer hereby agree as follows:
SECTION 1. SALES AND PURCHASES
------------------------------
1.1 Dealer shall, from time to time, sell, transfer, and assign to
company, in accordance with this Agreement, chattel paper (hereafter
"Contracts") including, but not limited to, purchase money security agreements
and/or retail installment contracts as Company, in its sole discretion, shall
elect to purchase. The Contracts will arise from the credit sale by Dealer of
motor vehicles, accessories, service contracts, credit life and disability
insurance, and related items.
1.2 Dealer agrees that all Contracts shall be executed only on forms
approved by Company.
1.3 Company shall have the right, at all times, to refuse to purchase any
and all Contracts offered for sale by Dealer.
1.4 Company may offer to purchase any Contract offered on a "without
recourse". "with recourse" or "limited recourse" basis. The form of
assignment on the Contract shall govern the terms of recourse. The term "with
recourse" means that the assignment to Company is conditioned on the
Purchaser's complete performance of every duty imposed under the Contract and
that the risk of loss remains with Dealer until the Purchaser completes
performance of the Contract. If the Purchaser does not completely perform a
Contract assigned on a "with recourse" basis at any time, Company may require
Dealer to repurchase the Contract for the amount then owing. The term "without
recourse" means that the assignment to Company is not conditioned on the
Purchaser's performance of the Contract and that the risk of loss on the
Contract rests with Company, except as otherwise provided in this Agreement and
in the warranty terms of the Contract. The term "limited recourse" means that
the assignment to Company is conditioned on the Purchaser's performance of the
Contract for the time and/or on the terms indicated in the assignment section
of the Contract. If the Purchaser fails to perform a Contract on a "limited
recourse" basis for the time and/or on the terms indicated in the assignment
section of the Contract, Company at any time may require Dealer to repurchase
the Contract for the amount then owing. After the Purchaser has met the terms
indicated in the assignment section of the Contract, an assignment on a
"limited recourse" basis shall be treated as an assignment on a "without
recourse" basis. Notwithstanding any provision of this Agreement, or any
assigned Contract to the contrary, the warranty and breach provisions of this
Agreement and the assigned Contract shall control over the terms of assignment.
1.5 Dealer agrees to execute properly the assignment and warranty section
on the Contracts assigned to Company. If Dealer fails to execute the
assignment form, Company may still purchase the Contract, endorse Dealer's name
thereon, and designate whether the Contract is purchased on a full or limited
recourse or nonrecourse basis. company's right to refuse to purchase any or all
Contracts on any basis may be exercised by Company at any time notwithstanding
any past course of conduct between Dealer and Company.
1.6 When Company purchases a Contract from Dealer" Dealer shall deliver,
or cause to be delivered, to Company:
1.6.1 The Contract, with the appropriate assignment and
endorsement of the Contract;
1.6.2 The certificate of title covering the Vehicle showing
Company as sole lienholder of the Vehicle and the Purchaser as the registered
owner of the Vehicle if the Vehicle is subject to a certificate of title, or
such other evidence of a perfected security interest required by Company if the
Vehicle or property is not subject to a certificate of title; and
1.6.3 The insurance policies covering the Vehicle written by
insurance companies approved by the Company.
1.7 If Company purchases any Contract on any basis before all of the
documents described in the foregoing paragraph are received by Company, Dealer
unconditionally guarantees full payment of all debts and obligations owed under
each such Contract until the required documentation is complete in the files of
the Company. After all required documentation is complete, Dealer's
obligations shall be as set forth in this Agreement and the Contracts assigned.
1.8 When Company purchases a Contract from Dealer ' Company shall pay
Dealer the amount financed as shown on the face of the Contract plus any
insurance financed through Dealer, or any other price to which Dealer and
Company agree in writing ("Purchase Price"). Company and Dealer may, from time
to time, agree upon a nonrefundable reserve to be retained by Company in
connection with the Contracts. The Purchase Price less any nonrefundable
reserve shall be paid by Company to Dealer in cash. Full title to the Contract
passes to Company upon payment. Dealer agrees to provide reasonable assistance
to Company with respect to collection of the amounts due Company on assigned
Contracts upon Company's request, including, but not limited to, locating and
contacting Purchaser and assisting in repossession of any security.
1.9 If any payments are made to Dealer on any Contract sold to Company,
Dealer will hold such funds in trust for Company without commingling the funds
with funds of Dealer and will promptly deliver the funds to Company. Company
is irrevocably authorized to negotiate and to endorse the name of Dealer on any
remittance offered as payment on any Contract sold to Company and to retain the
proceeds thereof as payment on such Contract. Dealer further appoints Company
as its attorney-in-fact to negotiate and present for payment any check or item
received as payment of Purchaser's obligation under the assigned Contract. If
any Vehicle described in any Contract sold to Company shall come into the
possession of Dealer, while Purchaser is in default under the Contract, and
Company is entitled to possession of the Vehicle, Dealer shall promptly notify
Company, shall hold the Vehicle for the benefit of Company and exercise the
same degree of care over the Vehicle as Dealer exercises with regard to
Dealer's inventory, and shall deliver the Vehicle to Company on demand.
1.10 Dealer hereby agrees to indemnify and hold harmless Company against
any and all actions or claims, or any liabilities therefrom, by Purchaser or
any other party which may arise from or in connection with any Contract
purchased under this Agreement, including, but not limited to, Company's
attorney fees and interest losses incurred as a result of or arising out of any
claim or defense that could be asserted against Dealer, regardless of whether
such claims or defense is related to the condition of the property sold or the
quality of services provided, whether it existed at the time of the sale of
Contract or arose thereafter, or whether the claim or defense is true or false
or brought in good faith. Dealer further agrees promptly to fulfill all
obligations to Purchaser as required by the Contract, underlying sales
transaction, manufacturer's warranty, or otherwise. The agreement to indemnify
above shall apply to any breach of this Agreement.
1.11 Notwithstanding any provision to the contrary, Dealer unconditionally
guarantees full performance of each Contract sold or to be sold by Dealer to
Company on a no recourse or limited recourse basis when and if Dealer, without
Company's prior written consent, modifies the Contract or makes any settlement
or arrangement with Purchaser contrary to the terms of the Contract, or if
Purchaser fails to make required payments because of any breach in Dealer's
duties under the Contract, any other agreement between Dealer and Purchaser, or
any warranty, expressed or implied.
1.12 For each Contract sold to Company, Dealer waives notice of
acceptance, demand and presentation for payment, notice of nonpayment, protest,
notice of protest, and hereby agrees to each and every renewal or extension
that Company may grant for the payment of any sum due or to become due under
any such Contract. Dealer agrees that Company, in its sole discretion, without
affecting the obligations and liability of Dealer under this Agreement or under
any endorsement or guaranty of Dealer, may grant any renewal, modification, or
extension of any Contract upon whatever terms and conditions as Company deems
advisable.
SECTION 2. WARRANTIES
----------------------
With respect to each Contract sold or to be sold by Dealer to Company,
Dealer warrants and agrees:
2.1 Dealer has, and will continue to have, legal capacity to enter into
each Contract and assign the same to Company and the vehicle subject to the
Contract is not subject to any lien, claim, or encumbrance or right of setoff
of any nature.
2.2 Each Purchaser has, and will continue to have, legal capacity to
enter into the Contract executed by the Purchaser and that such Contract is,
and will continue to be, legally enforceable against the Purchaser.
2.3 The credit information provided to Company is true to the best of the
Dealer's knowledge and was obtained by Dealer from the Contract Purchaser or
from third parties with Purchaser's consent.
2.4 Each Contract assigned to Company was made in good faith, was
actually signed by the person or persons named therein as Purchasers,
accurately reflects a genuine transaction between Dealer and Purchaser in all
particulars, and is not in default at the time Company accepts the Contract.
2.5 Dealer has performed all of Dealer's duties under each Contract
transferred to Company.
2.6 Before closing and in connection with each sale, Dealer will comply
with all requirements of applicable state and -federal laws or regulations,
including but not limited to:
2.6.1 Federal Consumer Protection Act and all amendments thereto,
including:
2.6.2 Truth in Lending Act;
2.6.3 Equal Credit Opportunity Act;
2.6.4 Regulations Z and B, respectively, as promulgated by the
Federal Reserve Board;
2.6.5 Fair Credit Reporting Act;
2.6.6 Applicable State Credit Codes and Uniform Consumer Credit
Codes; Regulations of the Federal Trade Commission;
2.6.7 Uniform Commercial Code; and
2.6.8 All other applicable laws and regulations.
2.7 The downpayment on each Contract has been actually received by Dealer
in the form of cash or fair trade allowance, rebate, or combination of the
foregoing, and will not be represented by, nor consist of, Purchaser's deferred
obligations of any kind whatsoever.
2.8 Any financial statements Dealer has provided to Company accurately
reflect Dealer's financial condition at the time each such statement was
provided and there have been no adverse material changes in Dealer's financial
condition since the giving of such statement, except those disclosed to Company
in writing.
2.9 Dealer has taken all steps required to or will apply for and obtain a
proper certificate of title for the Vehicle, showing Purchaser as registered
owner and Company as legal owner and first lienholder of the Vehicle, or
otherwise reflect a perfected security interest in favor of Company before or
within twenty (20) days after Purchaser takes possession of the Vehicle.
2.10 Any person who has an ownership interest in the Vehicle has signed
the Contract as Purchaser or other owner.
2.11 Purchaser has not obtained any right in, or possession of, the
Vehicle by fraud or any other unlawful scheme, trick, or device.
2.12 Purchaser has accepted the goods and services described in the
Contract and has communicated no dissatisfaction with such goods and services
to Dealer.
2.13 The Vehicle is not to be used as a taxi or for hire and is not to be
rented or leased.
2.14 There are no defenses to the Contract assigned to Company.
2.15 Dealer will pay to Company promptly any payments received from the
Purchaser under the Contract.
2.16 Dealer has verified the placement of replacement cost insurance
insuring the property subject to the Retail Installment Contract against
casualty with such policies issued by companies and in form and substance
satisfactory to Company, and Dealer has taken all- steps necessary to make
Company a loss payee or additional insured under such policies.
2.17 Dealer is not self-insuring obligations under any service or
maintenance contract written in connection with the sale of any Vehicle and
financed in the Contract.
2.18 The statements in this Dealer Agreement are true and are offered for
the purpose of inducing Company to purchase Contracts under this Agreement.
SECTION 3. DEFAULT
------------------
Each of the following shall constitute an event of default under this
Agreement:
3.1 Failure of Dealer to comply with or to perform any provision of this
Agreement, or any other agreement between Dealer and Company. If such failure
is curable, without prejudice to the rights of Company, and if Dealer has not
been given a prior notice of breach of the same provision of the applicable
agreement, it may be cured (and no event of default shall have occurred) if
Dealer, after receiving written notice from Company demanding cure of such
failure:
3.1.1 Cures the default within ten (10) days; or
3.1.2 If the cure requires more than ten (10) days,
immediately initiates steps sufficient to cure the default and therefore
continues and completes all reasonable and necessary steps sufficient to
produce compliance as soon as reasonably practical.
3.2 Any representation, warranty, promise, guaranty, agreement, or
statement by Dealer to Company under this Agreement, any contract assigned to
Company, or any other agreement between Dealer and Company, is breached or is
at the time made or furnished was false or misleading in any manner or respect.
3.3 Dealer misrepresents to Company the amount or form of the down
payment received from the Purchaser in any Contract assigned to Company.
3.4 Dissolution or termination of Dealer's existence as a going business,
death or incompetency of Dealer, insolvency of Dealer, appointment of a
receiver for any part of Dealer's property, any assignment by Dealer for the
benefit of creditors, or the commencement of any proceeding under bankruptcy or
insolvency laws by or against Dealer.
3.5 Commencement of foreclosure, whether by judicial proceeding, self-
help repossession, or any other method, by any creditor of Dealer against any
of Dealer's assets. This subsection shall not apply in the event of a good
faith dispute by Dealer as to the validity or reasonableness of the claim which
is the basis of the foreclosure, provided Dealer gives Company written notice
of such claim and finishes adequate reserves for the claim.
SECTION 4. REMEDIES
-------------------
4.1 If any event of default described above shall. occur, Dealer shall
promptly reimburse Company for any expenses related to the default and Dealer
shall immediately repurchase the Contract(s) subject to the default for an
amount equal to the unpaid principal balance and accrued interest owing on the
Contract, plus any costs and expenses incurred by Company as a result of the
event of default. Dealer's obligations in this paragraph shall arise
automatically without any requirement that Company repossess the Vehicle or
that the Contract otherwise be in default. In addition, upon any event of
default, without notice of any kind to Dealer, all amounts owing from Dealer to
Company shall become immediately due and payable upon the option of Company,
except for an event of default described in 3.1.4 above, in which case
acceleration shall be automatic and not optional. Company may proceed to
exercise its legal rights in such manner as it may elect, including, but not
limited to, any rights specified in this Agreement. Company may have a
receiver appointed as a matter of right. The receiver may be an employee of
Company and may serve without bond. Company may hold all of Dealer's accounts
with Company, and may apply the funds in these accounts to pay all or part of
any obligations, direct or contingent, owing from Dealer to Company. In
addition, Company shall have and may exercise any or all of the rights and
remedies of a secured creditor under the provisions of the Uniform Commercial
Code, at law, in equity, or otherwise, with regard to any collateral securing
Dealer's obligation to Company.
4.2 All sums owed by Dealer to Company under this Agreement, shall bear
interest at the rate of thirteen and one-half percent (13-1/2%) per annum.
SECTION 5. GENERAL PROVISIONS
5.1 Dealer agrees to furnish such financial information and statements,
lists of assets and liabilities, budgets, forecasts, and other reports with
respect to Dealer's financial condition and business operations as company may
request from time to time.
5.2 Notwithstanding anything in this Agreement or any Contract to the
contrary, if Company purchases any Contract on any basis which contains a
pickup or a balloon payment provision, Dealer agrees that such Contract shall
be treated as a Contract purchase on a full recourse basis until such time as
the pickup payment or balloon payment is paid by Purchaser.
5.3 If Company suffers any loss on any purchased Contract as a result of
a repossession, or if any insurance written with respect to the Purchaser,
Vehicle, or Contract is canceled for any reason, Dealer agrees to pay Company
all unearned insurance premiums paid to Dealer, including, but not limited to,
warranty, property, mechanical breakdown, credit life, and credit disability
insurance. Dealer further agrees to pay Company all commissions unearned by
Dealer as a result of the sale of any insurance that is related to the
Purchaser, Vehicle, or Contract, if and when that insurance is canceled by the
Purchaser.
5.4 If any provision of this Agreement is held to be invalid, illegal, or
unenforceable by any court, the remaining provisions of this Agreement shall
nevertheless be binding, and this Agreement shall be enforceable as if the void
or unenforceable provision or provisions hereof had not been included in this
Agreement.
5.5 An express waiver by Company of an event of default will not
constitute a waiver of Company's right to declare a default under similar or
identical circumstances.
5.6 No amendment, modification, wavier, or consent with respect to any
provision of this Agreement by Company shall be effective unless it is in
writing and signed and delivered by Company to Dealer, and then any such
amendment, modification, waiver, or consent shall be effective only in the
specific instance and for the specific purpose for which it is given.
5.7 The rights and liabilities of the Company and Dealer as set forth in
this Agreement are in addition to those set forth, or which will be set forth,
in the written Contracts, written assignments, or related documents which
Dealer may sell, transfer, assign, or deliver to Company under this Agreement.
5.8 This Agreement may be terminated at any time by either party upon
notice to the other, provided, however, that such termination shall not affect
Dealer's direct or contingent obligations or Company's rights with respect to
any Contract purchased under this Agreement and held by Company.
5.9 All notices to be given by either party to the other under this
Agreement shall be in writing and shall be effective when actually delivered or
when deposited in the United States mail, first class postage prepaid,
addressed to the other party to whom the Notice is to be given at the address
shown above, or to such other addresses as either party may designate to the
other in writing. For notice purposes, Dealer agrees to keep Company informed
at all times of Dealer's current address.
5.10 Company may pay someone else to enforce this Agreement and Dealer
will pay that amount. This includes, subject to any limits under applicable
law, Company's attorney fees and legal expenses, whether or not there is a
lawsuit, including attorney fees for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated postjudgment collection services. Dealer also will pay any court
costs, in addition to all other sums provided by law.
5.11 If there is more than one Dealer under this Agreement or on any
Contract, all obligations of such Dealers shall be joint and several.
5.12 This Agreement, read in conjunction with each Contract assigned to
Company, shall be the entire agreement of the parties and shall be binding
upon Dealer and Company and their respective heirs, successors and assigns,
and shall inure to the benefit of Dealer and Company and the successors and
assigns of Company.
5.13 Dealer agrees that venue for any legal action arising from this
Agreement is in Lane County, Oregon, and this Agreement shall be governed by
and construed in accordance with the laws of the State of Oregon.
COMPANY: DEALER:
CREDIT CONCEPTS, LLC, an ▇▇▇▇▇▇▇▇ Imported Motors, Inc.
Oregon Limited Liability Co.
By: /s/ ▇▇▇ ▇▇▇▇▇▇, Member/Manager By: /s/ President
---------------------------------- -------------------------------
Title Title
