10.1.1 Tidewater Finance Company Agreement
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Tidewater Finance Company
RETAIL FINANCING DEALER AGREEMENT
This Agreement made this 28th day of August, 2000, by and between Tidewater
Finance Company trading as Tidewater Credit Services, a Virginia financial
institution with its office and principal place of business in the City of
Chesapeake, State of Virginia (hereinafter referred to as "the Finance
Company") and Elective Investments Inc having its office and principal place
of business in the City/Town of Stroudsburg and State of PA, (hereinafter
referred to as "The Dealer").
In consideration of the mutual covenants and promises as set forth in this
instrument, the parties agree as follows:
1. Sale/Assignment of Contracts: Dealer agrees to offer, from time to time, to
the Finance Company retail installment sales finance contracts relating to the
sale of consumer goods (goods) by the Dealer. The Finance Company agrees to
review and consider such contracts and to purchase assignments of such
contracts as are acceptable to the Finance Company under such terms and
conditions as are set forth herein. Nothing set forth in this instrument shall
constitute an obligation on the part of the Finance Company to purchase
contracts and such purchase shall be in the The Finance Company's sole
discretion.
2. Contract Documents: All contracts approved for purchase by the Finance
Company shall convey or be accompanied by documentation which conveys to the
Finance Company a purchase money first security interest in the property sold
by Dealer. Contracts shall be assigned to the Finance Company by Dealer,
without recourse to Dealer except for the Warranties and obligations of the
Dealer as set forth in this instrument and at law. Dealer agrees that The
Finance Company will have the right to pre-approve or deny any requests to
finance subsequent invoices.
3. Merchant Representations: Merchant makes the following representations,
which shall survive the termination of this agreement:
4.
a. That each contract is genuine, valid and legally enforceable in
accordance with its terms;
b. Dealer has verified the identity of contract obligors from a valid
drivers license, passport, military id or equivalent forms of photo
identification.
c. That each contract and negotiation thereof was and is in full compliance
with any and all federal, state and local laws and regulations applicable to
the sale of consumer goods, including but not limited to any and all federal,
state and local laws and regulations pertaining to the disclosure or warranty
requirements pertaining to the goods financed;
d. That there are no unstated, undisclosed or unwritten terms relating to
any contracts submitted to the Finance Company;
e. That each contract, once assigned, shall provide the Finance Company with
a valid purchase money first security interest relating to the goods from the
date of the contract and that the sale of the goods is and was free and clear
of any and all valid claims, counterclaims, offsets, defenses and charges on
the part of any person or business entity;
f. That all statements of fact as stated in the contract are true;
g. That the Dealer has no actual knowledge of any facts or circumstances
which impair the validity or value of the contract, including but not limited
to the lack of capacity on the part of the buyer;
h. That there are no express warranties of any nature made to the Buyer
which are not set forth in writing on the contract other than any written new
product warranty given to the Buyer by the manufacturer of the goods;
i. That no portion of the down payment was loaned by the Dealer to the Buyer
and that the cash down payment and trade in, if any, were in fact received and
have been accurately set forth on the contract;
j. That there are no valid claims or defenses that the Buyer may raise in
connection with the contract and that the Buyer has no claim, damages or
causes of action against the Dealer arising out of the sale of the goods;
k. That the goods were delivered in accordance wit h all requirements as set
forth under the contract and under applicable law;
l. That Dealer shall continue to perform such service and warranty
obligations as may be required under the terms of any express or implied
warranty to the goods given by the Dealer or manufacturer of the goods,
holding the Finance Company harmless in connection with such obligation;
m. That an executed copy of the contract and all notices and disclosure
requirements pertaining to the sale of goods have been properly provided to
the Buyer by the Dealer; and,
n. That all financial and credit information provided to the Finance Company
is true, complete and accurate to the best of Dealer's knowledge.
4. Remedies for Breach of Representation or Covenant: In the event of a breach
of any representation or covenant in this agreement or any addendum thereto,
merchant, at the option of TCS shall:
A. Indemnify and hold TCS harmless from all claims, demands or liabilities
arising directly or indirectly out of a merchandise contract. If a claim is
asserted against TCS due to merchants misrepresentation or breach of contract,
TCS may retain attorneys of its own selection to represent TCS and the
merchant shall be responsible for reasonable attorney fees. TCS shall direct
the defense of the claim and shall be the sole judge of the acceptability of
any settlement and or
B. Repurchase from TCS upon request, a merchandise contract affected by a
breach, by paying the unpaid balance (plus accrued interest, if any) due from
the customer on the merchandise contract and or
C. Accept an offset determined by TCS from any funds owed merchant by TCS.
5. Dealer notification: Dealer hereby agrees to notify the Finance Company of
the existence of any facts or the occurrence of any event which comes to the
attention of the Dealer which would require the Dealer to repurchase any
contract under the terms and conditions of this Agreement or, of the existence
of any facts or the occurrence of any event which would impair or impede the
rights of the Finance Company to enforce the terms of any contract against a
Buyer.
6. Sales and Use Tax: In addition to all other warranties expressed herein or
implied by law, Dealer specifically represents to the Finance Company that all
sales and use taxes applicable to the sale and purchase of the goods covered
by any contract have been paid in full and that there are no outstanding
federal, state or municipal charges or liens pertaining to any goods which are
the subject of any contract sold and assigned to the Finance Company.
7. Payment to Dealer: In consideration for the assignment of contracts from
the Dealer to the Finance Company as set forth in this instrument, the Finance
Company agrees to pay the Dealer the amount to be financed from the invoice,
in keeping with its approved credit amount less a discount of: Eight(8)
percent % of the amount financed.
8. Contract Payments: Dealer agrees that it shall not accept any payment in
connection with any contract sold and assigned to the Finance Company. Dealer
hereby appoints The Finance Company as its true and lawful attorney, with
power of substitution in the Dealer or in the Finance Company's name to
demand, collect, receive payment, receipt for, give discharges, releases,
extensions, modifications or postponements under such contracts as the Finance
Company may deem appropriate in its sole discretion. Finance Company is
further given the authority to settle, compromise, commence and prosecute any
suit or action or proceeding in law or at equity relating to any matter under
the sold or assigned contact. The Dealer hereby waives demand, protest, notice
of default, nonpayment, partial payment and hereby consents to and waives
notice of granting of any extensions of payment, the taking or release of
security, the addition or release of any person primarily or secondarily
liable on any contract sold or assigned to the Finance Company. Dealer shall
be under full recourse with respect to any contract under which Dealer makes
any settlement with the Buyer relating to Buyer's obligations under the
contract without the Finance Company's written consent. In such event, the
Dealer shall be responsible for any and all costs incurred by the Finance
Company in enforcing its rights under this paragraph, including reasonable
attorney's fee.
9. Omissions: Dealer hereby agrees to supplement any information and to
execute any additional documents as may be reasonably required or requested by
the Finance Company in order for the Finance Company to effect or exercise any
of its rights under any contract sold and assigned under the terms of this
Agreement.
10. Modification: This Agreement shall not be modified except as evidenced in
writing and signed by the parties.
11. Termination: This Agreement may be terminated at any time by either party
upon notice in writing to the other. It is specifically agreed, however, that
any termination shall not affect any warranties, obligations or liabilities of
the parties with respect to any contact sold and is assigned to the Finance
Company prior to termination of this Agreement.
12. Binding Effect: This Agreement shall inure to and bind the successors and
assigns of the parties.
13. Severability: If any paragraph or portion thereof of this Agreement is
held unenforceable or invalid by a court of competent jurisdiction, such
invalidity and unenforceability shall not invalidate or render unenforceable
the remaining provisions of this Agreement; but rather, such remaining parts
and portions of this contract shall remain in full force and effect.
14. Applicable Law/Venue: This Agreement shall be subject to and construed in
accordance with the laws of the Commonwealth of Virginia and that the venue
for any suit filed by the parties shall be in the Commonwealth of Virginia.
15. Entire Agreement: This instrument represents the entire agreement between
the parties and supersedes any previous agreement, written or oral.
DATED this 28th day of August, 2000.
DEALER
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Witness Its Duly Authorized Agent
DATED this day of August 2000.
Tidewater Finance Company T/A
Tidewater Credit Service's
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Witness Its Duly Authorized Agent
