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EXHIBIT 10.29
MANUFACTURER AGREEMENT
AGREEMENT, between MERITOR CREDIT CORPORATION, a New York corporation
("Lender"), having a principal place of business at 000 Xxxxxxx 0, Xxxxxxx,
Xxxxxxxxxxx, and Manufacturer named below.
WHEREAS, Manufacturer wishes to make manufactured homes available to its
dealers; and
WHEREAS, Lender has agreed to extend a wholesale financing accommodation to
dealers pursuant to which Lender will pay Manufacturer's invoices on behalf of
dealers; and
WHEREAS, Lender wishes to require Manufacturer to reimburse Lender for amounts
due and unpaid by dealers to Lender and/or repurchase homes under certain
circumstances.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained therein, the parties hereto agree as follows:
1. Prior to shipping any manufactured home ("Product") to any one of its
dealers ("Dealer"), Manufacturer will obtain Lender's oral approval. At the
time of shipping of Product to Dealer, Manufacturer will provide Lender
with the original invoice and certificate or origin. Manufacturer warrants
that (a) its invoice represents a bona fide order by Dealer; (b) title to
Product is clear of all liens and encumbrances; (c) the invoice is true and
accurate and does not contain items not sold with Product; (d) the invoice
is not inflated above published wholesale price (Manufacturer's cost plus
reasonable profit for Manufacturer); (e) the invoice does not include
dealer's rebate, unless full disclosure of such is made; (f) the invoice
complies with the Uniform Invoicing Code of the Manufactured Housing
Institute; (g) the Product is new and has not been used as a dwelling by
any person or used commercially for any purpose other than display and/or
demonstration; and (h) no Product is unsalable due to a manufacturing
defect or non-compliance with the National Manufactured Home Construction
and Safety Standards Act of 1974. Upon breach of any of the above
warranties (a) through (h), at any time, Manufacturer agrees to pay Lender,
upon demand, the present balance owed by Dealer to Lender for Product plus
interest at the rate paid by Dealer to Lender.
2. Lender will advance Manufacturer 100% of the wholesale invoice amount or
such portion thereof as has been agreed upon in writing in advance by
Lender, Dealer and Manufacturer.
3. Lender will require Dealer to obtain and maintain insurance against loss by
fire, theft, and physical damage for the wholesale invoice amount of each
Product.
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4. Whenever Lender repossesses a Product from Dealer for any reason, Lender
will notify Manufacturer verbally of such repossession and issue a
repurchase request to Manufacturer advising Manufacturer where Product is
available for reclamation. Manufacturer will be required to repurchase such
Product at a repurchase price determined as follows:
Single Section Products - The original invoice amount:
(a) less 2% of the original invoice amount for each 30 day period
from date of delivery of Product to Dealer to date of repurchase,
starting with the fourth 30 day period, and, in addition, Lender
will be allowed another 30 day period for administrative
processing before any reductions from the original invoice amount
are made;
(b) plus up to one month's past due interest charges earned by Lender
and uncollected from Dealer.
Multi Section Products - The original invoice amount:
(a) less 2% of the original invoice amount for each 30 day period
from date of delivery of Product to Dealer to date of repurchase,
starting with the sixth 30 day period, and, in addition, Lender
will be allowed another 30 day period for administrative
processing before any reductions from the original invoice amount
are made;
(b) plus up to one month's past due interest charges earned by
Landlord and uncollected from Dealer.
Manufacturer's obligation to repurchase a Product under this Paragraph 4
will remain in effect for 365 days (12 months) from date of delivery for
single section Products, and for 455 days (15 months) from date of delivery
for multi-section Products.
5. Whenever Lender issues a repurchase request to Manufacturer, Manufacturer
agrees to take possession of Product within 10 days of notice, and to pay
Lender in accordance with this Agreement within 20 days of such notice. If
Manufacturer does not take possession within 10 days of notice,
Manufacturer agrees to reimburse Lender for costs incurred in providing
physical protection for Product.
6. Whenever Lender repossesses and Manufacturer is required to repurchase a
Product, Manufacturer will reimburse Lender for reasonable costs and
expenses not to exceed $75.00 per single section Product and $150.00 per
multi section Product, regardless of the number of Products repossessed.
7. Upon reimbursement of Lender or repurchase of a Product under the terms of
this Agreement, Manufacturer will be subrogated
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to a corresponding portion of Lender's rights against Dealer with respect
to such Product and the security or title retention instrument covering
such Product, and Lender agrees to execute and deliver such assignments and
other documents relating thereto as Manufacturer may request. Any such
reimbursement or repurchase by Manufacturer will not constitute a sale or
disposition under the Uniform Commercial Code. Following any such
reimbursement or repurchase, Manufacturer will have the duties of a secured
party under the Uniform Commercial Code.
8. Periodically, but at least annually, Lender will, upon request, provide
Manufacturer with a report detailing Manufacturer's contingent liability
under this Agreement.
9. In the event that Manufacturer fails to make any payment due to Lender
under this Agreement on a timely basis, Lender will have an immediate right
of set-off against any money or other property of Manufacturer in Lender's
possession.
10. Manufacturer agrees to indemnify and hold Lender harmless from any and all
expenses, claims or damages of whatever kind or nature, including
reasonable attorney's fees, relating to or arising out of any claim against
Lender for breach of warranty or product liability with respect to
Products.
11. This Agreement will inure to the benefit of and bind the parties hereto,
their successors and assigns, and all of their subsidiaries whether now
existing or hereafter formed, and shall be effective until terminated by
either party at any time upon 10 days' written notice to the other, but
termination will not relieve either party from obligations assumed prior to
the effective date of said termination notice.
12. This Agreement is not intended to and does not set up any third party
beneficiary rights on behalf of any Dealer.
13. All parties to this Agreement hereby waive any and all rights to a trial by
jury in any action or proceeding, whether in law or in equity, arising out
of or related to this Agreement.
14. The parties may submit to arbitration any controversy or claim arising out
of or relating to this Agreement, or the breach thereof, and any such
controversy or claim shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the Arbitrator(s) may be entered in any
court having jurisdiction thereof.
15. Either party to this Agreement will be entitled to all costs of suit,
including reasonable attorney's fees, upon prevailing in any action or
proceeding brought to enforce any provision of this Agreement.
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16. Time is of the essence with respect to Manufacturer's performance of its
obligations hereunder.
17. If any provision of this Agreement should be held to be invalid or
unenforceable by any court, the validity and enforceability of the
remaining provisions will not be affected.
18. This Agreement supersedes any prior agreement between the parties,
constitutes the entire agreement, and may not be modified or amended except
in writing. Notwithstanding the foregoing, the terms and conditions of any
prior agreement as it relates to any Product shipped prior to the execution
of this Agreement will remain in effect.
19. All notices which are required to be given under this Agreement will be
addressed to Manufacturer and Lender, postage prepaid, as follows:
TO MANUFACTURER: Bellcrest Homes, Inc.
X.0. Xxx 000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx President
TO LENDER: MERITOR CREDIT CORPORATION
000 Xxxxxxx 0, Xxxxx Xxxxx
Xxxxxxx Xxxxxxxxxxx 00000
Attn: Manufactured Housing, with a
copy to General Counsel
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20. This Agreement will be governed by and construed in accordance with the
laws of the State of Connecticut. The parties hereto have accepted this
Agreement on the dates set forth below:
Manufacturer: Bellcrest Homes, Inc.
By: _________________________
Title: President
Address: P.0. Xxx 000
Xxxxxx, XX 00000
Date: January 16, 1987
MERITOR CREDIT CORPORATION
By:__________________________
Title:_______________________
Date:________________________
21. Manufacturer will not be required to repurchase a product if title thereto
has been transferred or assigned by a Dealer to a retail buyer in the
ordinary course of business who has accepted delivery of and used such
Product.
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EXHIBIT A
LIMITED ADDENDUM TO THE MANUFACTURER AGREEMENT
The Manufacturer Agreement between Ford Motor Credit Company, successor in
interest to Meritor Credit Corporation, f.k.a. PSFS Credit Corporation, and
BELLCREST HOMES, INC., dated 1/6/87, is amended as follows:
Paragraph 4, Single Section Products, subparagraph (a):
1. The figure 2% Is changed to 3%
2. The term "starting with the fourth 30 day period" is changed to
"starting with the ninth 30 day period."
Paragraph 4, Multi Section Products, subparagraph (a):
1. The figure 2% is changed to 3%
2. The term "starting with the sixth 30 day period" is changed to
"starting with the ninth 30 day period."
These changes are limited to repurchases from the following dealer(s):
Xxxxxxx Homes Corp., Inc.
(all locations)
Except as amended hereby, said Manufacturer Agreement remains in full force and
effect.
Firm Name: Bellcrest Homes, Inc. Ford Motor Credit Company
By:_________________________ By:___________________________
Title:______________________ Title:________________________
Date:________________________ Date:_________________________
