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EXHIBIT 10.101
AGREEMENT FOR WHOLESALE FINANCING
(Industrial/Construction - Rental)
This Agreement for Wholesale Financing ("Agreement") is made as of May 31, 1996
between Deutsche Financial Services Corporation ("DFS") and Western Traction
Company., a [___] SOLE PROPRIETORSHIP, [__] PARTNERSHIP, [XX] CORPORATION, [__]
LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"), having a principal
place of business located at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxx, XX 00000.
1. Extension of Credit. In the course of Dealer's business, Dealer
acquires new and used inventory and equipment ("Inventory") which is
manufactured or sold by, and/or which bears a trademark or trade name of: (a)
Svedala Industries, Inc./Dynapac Mfg. and Link-Belt Construction Equipment
Company or any of their subsidiaries or affiliated companies ("Vendor"), or (b)
other manufacturers or distributors. Subject to the terms of this Agreement,
DFS, in its sole discretion, may extend credit to Dealer from time to time to
purchase Inventory from Vendor or other manufacturers or distributors. 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 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' decision to advance funds on any Inventory will not be binding until the
funds are actually advanced. DFS may, at any time and without notice to Dealer,
elect not to finance any Inventory sold by Vendor or another specific
manufacturer or distributor if Vendor or the specific manufacturer or
distributor is in default of its obligations to DFS, or with respect to which
DFS reasonably feels insecure.
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 from time to time of discounts, payment terms or other
incentives from Vendor and other manufacturers and distributors, prevailing
economic conditions, and other economic factors which may vary over time. It is
therefore in DFS' and Dealer's 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, and any amendment thereto ("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 the items of Inventory referenced
in such Statement of Transaction are being financed by DFS 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 will pay DFS for such Inventory
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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. Security Interest. To secure payment of all 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 new and used inventory and equipment which is manufactured or sold by,
and/or which bears a trademark or trade name of, (a) Vendor, or (b) any other
manufacturer or distributor, in each case which is financed by DFS or against
which DFS has advanced monies, whether now owned or hereafter acquired by
Dealer, and all accounts, contract rights, chattel paper, security agreements,
deposit accounts, reserves, documents, general intangibles and instruments
arising from all such inventory and equipment, and all judgments, claims,
insurance policies and payments owed or made to Dealer thereon, and all
attachments, accessories, accessions, substitutions and replacements thereto and
all proceeds thereof. All such assets are collectively referred to herein as the
"Collateral." 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 solely for release or distribution to DFS, with such proceeds
being payable solely to DFS 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; (b) DFS'
security interest in the Collateral 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; (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; (h) there are and,
to the best of Dealer's knowledge 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; (1) 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
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incorporated herein by reference; (0) 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; and (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.
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,
demonstrate, lease or otherwise dispose of or transfer any of its assets; (b)
demonstrate, consign, or use any Collateral; 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 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 thirty (30) 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.
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9. Payment Terms. Dealer will immediately pay DFS the principal
indebtedness owed DFS on each item of Inventory financed by DFS or against which
DFS has advanced funds on the earliest occurrence of any of the following
events: (a) (i) when such Inventory is lost, stolen or damaged - immediately if
such loss, theft or damage is not covered completely by insurance, or (ii) if
completely covered by insurance, then upon Dealer's receipt of the insurance
proceeds therefor or thirty (30) days following the loss theft or damage,
whichever occurs first; (b) when such Inventory is sold, transferred or
otherwise disposed of; provided, however, if any item of Inventory financed by
DFS or against which DFS has advanced funds is sold and Dealer does not receive
payment for such item at the time of sale, Dealer will pay DFS the full amount
of the principal balance owed DFS on such item of Inventory within thirty (30)
days immediately following the sale date of such item of Inventory or
immediately upon Dealer's receipt of payment for such items of Inventory,
whichever occurs first; (c) in strict accordance with any curtailment schedule
for such Inventory (as shown on the Statement of Transaction identifying such
Inventory); (d) when any item of such Inventory matures (as shown on the
Statement of Transaction identifying such Inventory). With respect to Inventory
financed by DFS or against which DFS has advanced funds and held for rent and/or
lease, Dealer will owe DFS and agree to pay DFS monthly the percentage of the
principal balance owed on each item of such Inventory that is required under the
terms of Dealer's financing program with DFS. However, if any Inventory financed
by DFS or against which DFS has advanced funds and held for rent and/or lease:
(A) is sold and Dealer does not receive payment for such item at the time of
sale, Dealer will pay DFS the full amount of the principal balance owed to DFS
on such item of Inventory within thirty (30) days immediately following the sale
date of such item of Inventory or immediately upon Dealer's receipt of payment
for such item of Inventory, whichever occurs first; or (B) is stolen, destroyed
or otherwise disposed of, Dealer will immediately pay DFS the full amount of
Dealer's outstanding indebtedness owed to DFS for such Inventory. If Dealer from
time to time is required to make immediate payment to DFS of any past due
obligation discovered during any Inventory audit, or at any other time, Dealer
agrees that acceptance of such payments by DFS will not be construed to have
waived or amended the terms of its financing program. 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 Inventory financed by DFS, but, in any event, all
principal payments will first be applied to such Inventory 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
Inventory will not reduce the debt Dealer owes DFS until DFS has received
payment therefor in cash. Dealer will: (1) pay DFS even if any Inventory
financed by DFS or against which DFS has advanced funds 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 Inventory relating to the condition of, or any representations regarding,
any of the Inventory. Dealer waives all rights of offset and counterclaims which
Dealer may have against DFS.
10. Calculation of charges. Dealer will pay finance charges to DFS on
the outstanding principal debt Dealer owes DFS for each item of Inventory
financed-by DFS at the rate(s) shown on the Statement of Transaction identifying
such Inventory, unless Dealer objects thereto as provided in
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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
Inventory identified on such Statement of Transaction until DFS receives full
payment of the principal debt Dealer owes DFS for each item of such Inventory 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 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 Inventory 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).
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. The
annual percentage rate of the finance charges relating to any item of Inventory
financed by DFS will be calculated from the invoice date of such Inventory,
regardless of any period during which any finance charge subsidy will be paid or
payable by any third party.
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 upon 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.
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12. Rental Contracts. Dealer may rent the Inventory financed by DFS or
against which DFS has advanced funds pursuant to the terms of Dealer's rental
contracts ("Rental Contracts"). Such Inventory will thereafter be subject to the
rates and terms of DFS' financing program in effect for goods which are rented,
as reflected in the Statement of Transaction for such Inventory. All of Dealer's
Rental Contracts, agreements, and rental transactions will be in a form
satisfactory to DFS and will be in accordance with all applicable Federal, State
and local laws. Dealer will indemnify DFS against any loss or damage which DFS
suffers, whether direct or indirect, resulting in any way from the Rental
Contracts, agreements, or rental transactions which fail to comply with such
laws. All Rental Contracts will be transferable to DFS. Dealer will indemnify
DFS against any claims by its customers regarding Dealer's obligations under the
Rental Contracts. Dealer will immediately, upon DFS' request, deliver to DFS all
Rental Contracts and all related documents. This assignment is a transfer for
security only, and, until DFS has foreclosed its interest in the Rental
Contracts, will not be deemed to delegate any of Dealer's duties under the
Rental Contracts to DFS, nor is it intended to alter or impair performance by
either party to the Rental Contracts. DFS may, from time to time, verify the
accuracy of the Rental Contracts, and Dealer will immediately, upon DFS'
request, provide DFS with the following information regarding Rental Contracts
which are in effect on the date of such request: (a) the name, address and
telephone number of each customer who has executed a Rental Contract; (b) the
location of the Inventory; (c) the date of each Rental Contract; (d) the date
when the Inventory is to be returned under each Rental Contract; and, (e) any
other information which DFS may reasonably request. If the rental period under
the Rental Contract is ninety (90) days or longer, Dealer will stamp the
original of such Rental Contract with the following legend:
`FOR VALUE RECEIVED, THIS AGREEMENT HAS BEEN ASSIGNED TO DEUTSCHE
FINANCIAL SERVICES CORPORATION AND THERE ARE NO DEFENSES AGAINST THE
ASSIGNEE.'
Other than to DFS, Dealer will not assign, sell, pledge, convey or by any other
means transfer any Rental Contracts or chattel paper, without DFS' prior written
consent. Dealer will not enter into any Rental Contracts for Inventory financed
by DFS or against which DFS has advanced funds pursuant to which: (i) the
original term of the Rental Contract is greater than three hundred sixty (360)
days; (ii) the original term of the Rental Contract is equal to or greater than
the remaining economic life of such Inventory; (iii) the customer is bound to
renew the Rental Contract for the economic life of such Inventory or is bound to
become the owner of such Inventory; or, (iv) the customer has an option to renew
the Rental Contract for the remaining economic life of such Inventory, or to
become the owner of such Inventory, for nominal consideration, or for
consideration which is less than the unpaid balance owed to DFS for such
Inventory. If any such Rental Contracts are issued, Dealer will take any action
which DFS may reasonably require to perfect and/or protect DFS' security
interest in such Rental Contracts and/or the Inventory subject thereto.
13. Default. Dealer will be in default under this Agreement if: (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
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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 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; (e) Dealer abandons any Collateral; (f)
Dealer or any guarantor is or becomes in default in the payment of any debt owed
to any third party; (g) a money judgment issues against Dealer or any guarantor;
(h) an attachment, sale or seizure issues or is executed against any assets of
Dealer or of any guarantor; (i) 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; (j) any guarantor dies; (k) Dealer or any guarantor shall cease
existence as a corporation, partnership, limited liability company or trust, as
applicable; (1) Dealer or any guarantor ceases or suspends business; (m) 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; (n) 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; (0) 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; (p) any guaranty of
Dealer's debts to DFS is terminated; (q) Dealer loses any franchise, permission,
license or right to sell or deal in any Inventory which DFS finances; or (r)
Dealer or any guarantor misrepresents Dealer's or such guarantor's financial
condition or organizational structure.
14. 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 attorney's 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 will 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
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of interest permitted under applicable law.
(e) Dealer grants DFS an irrevocable power of attorney to: execute
or endorse on Dealer's behalf any checks, drafts or other
forms of exchange received as payment on any Collateral for
deposit in DFS' account; execute 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;
sell, assign, transfer, negotiate, demand, collect, receive,
settle, extend, or renew any amounts due on any of the
Collateral; do anything Dealer is obligated to do hereunder;
initiate and settle any insurance claim pertaining to the
Collateral; and do anything to preserve and protect the
Collateral and DFS' rights and interests therein.
(f) Upon DFS' oral or written demand, Dealer will immediately
deliver the original Rental Contracts to DFS, and DFS may
collect in DFS' name all amounts owed to Dealer under the
Rental Contracts.
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.
15. 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 Vendor or
a manufacturer or distributor, as provided in any agreement between DFS and the
Vendor, manufacturer or distributor, is a commercially reasonable disposition
and private sale of such Collateral under the Uniform Commercial Code, and no
request for bids will 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 Vendor or a manufacturer or distributor).
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.
16. Power of Attorney; Information. Dealer grants DFS an irrevocable
power of attorney to do anything necessary to preserve and protect the
Collateral and DFS' rights and interest therein. 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, manufacturer or
distributor, any credit, financial or other information regarding Dealer that
such Vendor, manufacturer or distributor may from time to time possess.
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
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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 riot
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. 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 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000, 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 (or any predecessor in interest to
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 (or any predecessor
in interest to 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.
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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 Vendor or any manufacturer or distributor, 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 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 0 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
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and addenda hereto, or the breach, invalidity or termination
hereof; (b) any previous or subsequent agreement between DFS
(or any predecessor in interest to DFS) and Dealer; (c) any
act committed by DFS (or any predecessor in interest to DFS)
or by any parent company, subsidiary or affiliated company of
DFS (or any predecessor in interest to DFS) (collectively the
"DFS Companies"), or by any employee, agent, officer or
director of an 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 (or any predecessor in interest to DFS) and Dealer; and/or
(d) any other relationship, transaction or dealing between DFS
(or any predecessor in interest to 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 AM 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 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.
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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.
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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 state of Missouri. 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.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
IN WITNESS WHEREOF, Deals and DFS have executed this Agreement as of the date
first set forth hereinabove.
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SECRETARY'S CERTIFICATE OF RESOLUTION
I certify that I am the Secretary or Assistant 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 May 31, 1996
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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 Western
Traction Company ("Dealer") and Deutsche Financial Services Corporation ("DFS")
on May 31, 1996, as amended ("Agreement").
FOR VALUE RECEIVED, Dealer and DFS agree to amend paragraph 17 of the
Agreement to provide as follows:
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, 60 days prior notice of termination is reasonable and
sufficient, or (b) is in default hereunder, no prior notice of
termination is required. DFS will not, unless Dealer is in default
hereunder, accelerate the indebtedness owed by Dealer to DFS but will
allow Dealer to liquidate its indebtedness owed to DFS over the
original financing terms provided by DFS on particular units financed
by DFS. 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.
Dealer waives notice of DFS' acceptance of this Amendment.
All other terms as they appear in 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 Amendment to
Agreement for Wholesale Financing July 15, 1996.
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AGREEMENT FOR WHOLE SALE FINANCING
(Industrial/Construction - Rental)
This Agreement for Wholesale Financing ("Agreement") is made as of March 16,
1999 between Deutsche Financial Services Corporation ("DFS") and Machinery,
Inc., a [___] SOLE PROPRIETORSHIP, [__] PARTNERSHIP, [X] CORPORATION, [__]
LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"), having a principal
place of business located at 0000 Xxxxx 00xx Xxxx Xxxxxx, Xxxxx, XX 00000.
1. Extension of Credit. In the course of Dealer's business, Dealer
acquires new and used inventory and equipment ("Inventory") which is
manufactured or sold by, and/or which bears a trademark or trade name of:
(a) Diversified, PPH Cranes (Terrex), or any of their subsidiaries or affiliated
companies ("Vendor"), or (b) other manufacturers or distributors. Subject to the
terms of this Agreement, DFS, in its sole discretion, may extend credit to
Dealer from time to time to purchase Inventory from Vendor or other
manufacturers or distributors. 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 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' decision to advance funds on any Inventory will
not be binding until the funds are actually advanced. DFS may, at any time and
without notice to Dealer, elect not to finance any Inventory sold by Vendor or
another specific manufacturer or distributor if Vendor or the specific
manufacturer or distributor is in default of its obligations to DFS, or with
respect to which DFS reasonably feels insecure.
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 from time to time of discounts, payment terms or other
incentives from Vendor and other manufacturers and distributors, prevailing
economic conditions, and other economic factors which may vary over time. It is
therefore in DFS' and Dealer's 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, and any amendment thereto ("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 the items of Inventory referenced
in such Statement of Transaction are being financed by DFS 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 will pay DFS for such Inventory in accordance with the
most recent terms for similar Inventory to which Dealer has not objected (or,
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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. Security Interest. To secure payment of all 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 new and used inventory and equipment which is manufactured or sold by,
and/or which bears a trademark or trade name of, (a) Vendor, or (b) any other
manufacturer or distributor, in each case which is financed by DFS or against
which DFS has advanced monies, whether now owned or hereafter acquired by
Dealer, and all accounts, contract rights, chattel paper, security agreements,
deposit accounts, reserves, documents, general intangibles and instruments
arising from all such inventory and equipment, and all judgments, claims,
insurance policies and payments owed or made to Dealer thereon, and all
attachments, accessories, accessions, substitutions and replacements thereto and
all proceeds thereof. All such assets are collectively referred to herein as the
"Collateral." 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 solely for release or distribution to DFS, with such proceeds
being payable solely to DFS 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; (b) DFS'
security interest in the Collateral 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; (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; (h) there are and,
to the best of Dealer's knowledge 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; (1) 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; (0) Dealer will give DFS thirty (30) days
prior written notice of any
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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; and (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.
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,
demonstrate, lease or otherwise dispose of or transfer any of its assets; (b)
demonstrate, consign, or use any Collateral; 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 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 thirty (30) 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.
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9. Payment Terms. Dealer will immediately pay DFS the principal
indebtedness owed DFS on each item of Inventory financed by DFS or against which
DFS has advanced funds on the earliest occurrence of any of the following
events: (a) (i) when such Inventory is lost, stolen or damaged - immediately if
such loss, theft or damage is not covered completely by insurance, or (ii) if
completely covered by insurance, then upon Dealer's receipt of the insurance
proceeds therefor or thirty (30) days following the loss theft or damage,
whichever occurs first; (b) when such Inventory is sold, transferred or
otherwise disposed of; provided, however, if any item of Inventory financed by
DFS or against which DFS has advanced funds is sold and Dealer does not receive
payment for such item at the time of sale, Dealer will pay DFS the full amount
of the principal balance owed DFS on such item of Inventory within thirty (30)
days immediately following the sale date of such item of Inventory or
immediately upon Dealer's receipt of payment for such items of Inventory,
whichever occurs first; (c) in strict accordance with any curtailment schedule
for such Inventory (as shown on the Statement of Transaction identifying such
Inventory); (d) when any item of such Inventory matures (as shown on the
Statement of Transaction identifying such Inventory). With respect to Inventory
financed by DFS or against which DFS has advanced funds and held for rent and/or
lease, Dealer will owe DFS and agree to pay DFS monthly the percentage of the
principal balance owed on each item of such Inventory that is required under the
terms of Dealer's financing program with DFS. However, if any Inventory financed
by DFS or against which DFS has advanced funds and held for rent and/or lease:
(A) is sold and Dealer does not receive payment for such item at the time of
sale, Dealer will pay DFS the full amount of the principal balance owed to DFS
on such item of Inventory within thirty (30) days immediately following the sale
date of such item of Inventory or immediately upon Dealer's receipt of payment
for such item of Inventory, whichever occurs first; or (B) is stolen, destroyed
or otherwise disposed of, Dealer will immediately pay DFS the full amount of
Dealer's outstanding indebtedness owed to DFS for such Inventory. If Dealer from
time to time is required to make immediate payment to DFS of any past due
obligation discovered during any Inventory audit, or at any other time, Dealer
agrees that acceptance of such payments by DFS will not be construed to have
waived or amended the terms of its financing program. 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 Inventory financed by DFS, but, in any event, all
principal payments will first be applied to such Inventory 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
Inventory will not reduce the debt Dealer owes DFS until DFS has received
payment therefor in cash. Dealer will: (1) pay DFS even if any Inventory
financed by DFS or against which DFS has advanced funds 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 Inventory relating to the condition of, or any representations regarding,
any of the Inventory. Dealer waives all rights of offset and counterclaims which
Dealer may have against DFS.
10. Calculation of Charges. Dealer will pay finance charges to DFS on
the outstanding principal debt Dealer owes DFS for each item of Inventory
financed-by DFS at the rate(s) shown on the Statement of Transaction identifying
such Inventory, unless Dealer objects thereto as provided in Section 2. The
finance charges attributable to the rate shown on the Statement of Transaction
will:
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(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 Inventory identified
on such Statement of Transaction until DFS receives full payment of the
principal debt Dealer owes DFS for each item of such Inventory 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 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 Inventory 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).
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. The
annual percentage rate of the finance charges relating to any item of Inventory
financed by DFS will be calculated from the invoice date of such Inventory,
regardless of any period during which any finance charge subsidy will be paid or
payable by any third party.
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 upon 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.
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12. Rental Contracts. Dealer may rent the Inventory financed by DFS or
against which DFS has advanced funds pursuant to the terms of Dealer's rental
contracts ("Rental Contracts"). Such Inventory will thereafter be subject to the
rates and terms of DFS' financing program in effect for goods which are rented,
as reflected in the Statement of Transaction for such Inventory. All of Dealer's
Rental Contracts, agreements, and rental transactions will be in a form
satisfactory to DFS and will be in accordance with all applicable Federal, State
and local laws. Dealer will indemnify DFS against any loss or damage which DFS
suffers, whether direct or indirect, resulting in any way from the Rental
Contracts, agreements, or rental transactions which fail to comply with such
laws. All Rental Contracts will be transferable to DFS. Dealer will indemnify
DFS against any claims by its customers regarding Dealer's obligations under the
Rental Contracts. Dealer will immediately, upon DFS' request, deliver to DFS all
Rental Contracts and all related documents.
This assignment is a transfer for security only, and, until DFS has foreclosed
its interest in the Rental Contracts, will not be deemed to delegate any of
Dealer's duties under the Rental Contracts to DFS, nor is it intended to alter
or impair performance by either party to the Rental Contracts. DFS may, from
time to time, verify the accuracy of the Rental Contracts, and Dealer will
immediately, upon DFS' request, provide DFS with the following information
regarding Rental Contracts which are in effect on the date of such request: (a)
the name, address and telephone number of each customer who has executed a
Rental Contract; (b) the location of the Inventory; (c) the date of each Rental
Contract; (d) the date when the Inventory is to be returned under each Rental
Contract; and, (e) any other information which DFS may reasonably request. If
the rental period under the Rental Contract is ninety (90) days or longer,
Dealer will stamp the original of such Rental Contract with the following
legend:
`FOR VALUE RECEIVED, THIS AGREEMENT HAS BEEN ASSIGNED TO DEUTSCHE
FINANCIAL SERVICES CORPORATION AND THERE ARE NO DEFENSES AGAINST THE
ASSIGNEE.'
Other than to DFS, Dealer will not assign, sell, pledge, convey or by any other
means transfer any Rental Contracts or chattel paper, without DFS' prior written
consent. Dealer will not enter into any Rental Contracts for Inventory financed
by DFS or against which DFS has advanced funds pursuant to which: (i) the
original term of the Rental Contract is greater than three hundred sixty (360)
days; (ii) the original term of the Rental Contract is equal to or greater than
the remaining economic life of such Inventory; (iii) the customer is bound to
renew the Rental Contract for the economic life of such Inventory or is bound to
become the owner of such Inventory; or, (iv) the customer has an option to renew
the Rental Contract for the remaining economic life of such Inventory, or to
become the owner of such Inventory, for nominal consideration, or for
consideration which is less than the unpaid balance owed to DFS for such
Inventory. If any such Rental Contracts are issued, Dealer will take any action
which DFS may reasonably require to perfect and/or protect DFS' security
interest in such Rental Contracts and/or the Inventory subject thereto.
13. Default. Dealer will be in default under this Agreement if: (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
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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 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; (e) Dealer
abandons any Collateral; (f) Dealer or any guarantor is or becomes in default in
the payment of any debt owed to any third party; (g) a money judgment issues
against Dealer or any guarantor; (h) an attachment, sale or seizure issues or is
executed against any assets of Dealer or of any guarantor; (i) 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; (j) any guarantor dies; (k) Dealer or any
guarantor shall cease existence as a corporation, partnership, limited liability
company or trust, as applicable; (1) Dealer or any guarantor ceases or suspends
business; (m) 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; (n) 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; (0)
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; (p) any guaranty of Dealer's debts to DFS is terminated; (q) Dealer
loses any franchise, permission, license or right to sell or deal in any
Inventory which DFS finances; or (r) Dealer or any guarantor misrepresents
Dealer's or such guarantor's financial condition or organizational structure.
14. 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 attorney's 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 will 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
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the rate in effect immediately prior to the default, or the
highest lawful contract rate of interest permitted under
applicable law.
(e) Dealer grants DFS an irrevocable power of attorney to: execute
or endorse on Dealer's behalf any checks, drafts or other
forms of exchange received as payment on any Collateral for
deposit in DFS' account; execute 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;
sell, assign, transfer, negotiate, demand, collect, receive,
settle, extend, or renew any amounts due on any of the
Collateral; do anything Dealer is obligated to do hereunder;
initiate and settle any insurance claim pertaining to the
Collateral; and do anything to preserve and protect the
Collateral and DFS' rights and interests therein.
(f) Upon DFS' oral or written demand, Dealer will immediately
deliver the original Rental Contracts to DFS, and DFS may
collect in DFS' name all amounts owed to Dealer under the
Rental Contracts.
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.
15. 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 Vendor or
a manufacturer or distributor, as provided in any agreement between DFS and the
Vendor, manufacturer or distributor, is a commercially reasonable disposition
and private sale of such Collateral under the Uniform Commercial Code, and no
request for bids will 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 Vendor or a manufacturer or distributor).
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.
16. Power of Attorney; Information. Dealer grants DFS an irrevocable
power of attorney to do anything necessary to preserve and protect the
Collateral and DFS' rights and interest therein. 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, manufacturer or
distributor, any credit, financial or other information regarding Dealer that
such Vendor, manufacturer or distributor may from time to time possess.
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
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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 riot 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. 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 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000, 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 (or any predecessor in interest to
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 (or any predecessor
in interest to DFS), and in that event this Agreement shall neither be deemed a
novation nor a termination of such previously executed agreement nor shall
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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 Vendor or any manufacturer or distributor, 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 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 0 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
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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 (or any predecessor in
interest to DFS) and Dealer; (c) any act committed by DFS (or
any predecessor in interest to DFS) or by any parent company,
subsidiary or affiliated company of DFS (or any predecessor in
interest to DFS) (collectively the "DFS Companies"), or by any
employee, agent, officer or director of an 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 (or any predecessor in interest to DFS)
and Dealer; and/or (d) any other relationship, transaction or
dealing between DFS (or any predecessor in interest to 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 AM 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 witness(es), and (d) the arbitration
hearing will be continued to the earliest possible date that
enables the foregoing limited discovery to be accomplished.
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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
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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 state of Missouri. 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.
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.
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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: March 16, 1999
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AGREEMENT FOR WHOLESALE FINANCING
(Industrial/Construction - Rental)
This Agreement for Wholesale Financing ("Agreement") is made as of August 4,
1999 between Deutsche Financial Services Corporation ("DFS") and Xxxxxxxx Xxxxx
Rentals, Inc., a [___] SOLE PROPRIETORSHIP, [__] PARTNERSHIP, [X] CORPORATION,
[__] LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"), having a
principal place of business located at 0000 Xxxxxx Xxx, Xxxxx, XX 00000.
1. Extension of Credit. In the course of Dealer's business, Dealer
acquires new and used inventory and equipment ("Inventory") which is
manufactured or sold by, and/or which bears a trademark or trade name of: (a) P
& H and Grove, or any of their subsidiaries or affiliated companies ("Vendor"),
or (b) other manufacturers or distributors. Subject to the terms of this
Agreement, DFS, in its sole discretion, may extend credit to Dealer from time to
time to purchase Inventory from Vendor or other manufacturers or distributors.
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 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' decision to advance funds on any Inventory will not be binding until the
funds are actually advanced. DFS may, at any time and without notice to Dealer,
elect not to finance any Inventory sold by Vendor or another specific
manufacturer or distributor if Vendor or the specific manufacturer or
distributor is in default of its obligations to DFS, or with respect to which
DFS reasonably feels insecure.
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 from time to time of discounts, payment terms or other
incentives from Vendor and other manufacturers and distributors, prevailing
economic conditions, and other economic factors which may vary over time. It is
therefore in DFS' and Dealer's 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, and any amendment thereto ("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 the items of Inventory referenced
in such Statement of Transaction are being financed by DFS 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 will pay DFS for such Inventory in accordance with the
most recent terms for similar Inventory to which Dealer has not objected (or,
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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. Security Interest. To secure payment of all 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 new and used inventory and equipment which is manufactured or sold by,
and/or which bears a trademark or trade name of, (a) Vendor, or (b) any other
manufacturer or distributor, in each case which is financed by DFS or against
which DFS has advanced monies, whether now owned or hereafter acquired by
Dealer, and all accounts, contract rights, chattel paper, security agreements,
deposit accounts, reserves, documents, general intangibles and instruments
arising from all such inventory and equipment, and all judgments, claims,
insurance policies and payments owed or made to Dealer thereon, and all
attachments, accessories, accessions, substitutions and replacements thereto and
all proceeds thereof. All such assets are collectively referred to herein as the
"Collateral." 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 solely for release or distribution to DFS, with such proceeds
being payable solely to DFS 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; (b) DFS'
security interest in the Collateral 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; (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; (h) there are and,
to the best of Dealer's knowledge 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; (1) 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; (0) Dealer will give DFS thirty (30) days
prior written notice of any
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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; and (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.
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,
demonstrate, lease or otherwise dispose of or transfer any of its assets; (b)
demonstrate, consign, or use any Collateral; 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 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 thirty (30) 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.
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9. Payment Terms. Dealer will immediately pay DFS the principal
indebtedness owed DFS on each item of Inventory financed by DFS or against which
DFS has advanced funds on the earliest occurrence of any of the following
events: (a) (i) when such Inventory is lost, stolen or damaged - immediately if
such loss, theft or damage is not covered completely by insurance, or (ii) if
completely covered by insurance, then upon Dealer's receipt of the insurance
proceeds therefor or thirty (30) days following the loss theft or damage,
whichever occurs first; (b) when such Inventory is sold, transferred or
otherwise disposed of; provided, however, if any item of Inventory financed by
DFS or against which DFS has advanced funds is sold and Dealer does not receive
payment for such item at the time of sale, Dealer will pay DFS the full amount
of the principal balance owed DFS on such item of Inventory within thirty (30)
days immediately following the sale date of such item of Inventory or
immediately upon Dealer's receipt of payment for such items of Inventory,
whichever occurs first; (c) in strict accordance with any curtailment schedule
for such Inventory (as shown on the Statement of Transaction identifying such
Inventory); (d) when any item of such Inventory matures (as shown on the
Statement of Transaction identifying such Inventory). With respect to Inventory
financed by DFS or against which DFS has advanced funds and held for rent and/or
lease, Dealer will owe DFS and agree to pay DFS monthly the percentage of the
principal balance owed on each item of such Inventory that is required under the
terms of Dealer's financing program with DFS. However, if any Inventory financed
by DFS or against which DFS has advanced funds and held for rent and/or lease:
(A) is sold and Dealer does not receive payment for such item at the time of
sale, Dealer will pay DFS the full amount of the principal balance owed to DFS
on such item of Inventory within thirty (30) days immediately following the sale
date of such item of Inventory or immediately upon Dealer's receipt of payment
for such item of Inventory, whichever occurs first; or (B) is stolen, destroyed
or otherwise disposed of, Dealer will immediately pay DFS the full amount of
Dealer's outstanding indebtedness owed to DFS for such Inventory. If Dealer from
time to time is required to make immediate payment to DFS of any past due
obligation discovered during any Inventory audit, or at any other time, Dealer
agrees that acceptance of such payments by DFS will not be construed to have
waived or amended the terms of its financing program. 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 Inventory financed by DFS, but, in any event, all
principal payments will first be applied to such Inventory 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
Inventory will not reduce the debt Dealer owes DFS until DFS has received
payment therefor in cash. Dealer will: (1) pay DFS even if any Inventory
financed by DFS or against which DFS has advanced funds 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 Inventory relating to the condition of, or any representations regarding,
any of the Inventory. Dealer waives all rights of offset and counterclaims which
Dealer may have against DFS.
10. Calculation of charges. Dealer will pay finance charges to DFS on
the outstanding principal debt Dealer owes DFS for each item of Inventory
financed-by DFS at the rate(s) shown on the Statement of Transaction identifying
such Inventory, unless Dealer objects thereto as provided in Section 2. The
finance charges attributable to the rate shown on the Statement of Transaction
will:
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(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 Inventory identified
on such Statement of Transaction until DFS receives full payment of the
principal debt Dealer owes DFS for each item of such Inventory 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 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 Inventory 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).
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. The
annual percentage rate of the finance charges relating to any item of Inventory
financed by DFS will be calculated from the invoice date of such Inventory,
regardless of any period during which any finance charge subsidy will be paid or
payable by any third party.
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 upon 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.
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12. Rental Contracts. Dealer may rent the Inventory financed by DFS or
against which DFS has advanced funds pursuant to the terms of Dealer's rental
contracts ("Rental Contracts"). Such Inventory will thereafter be subject to the
rates and terms of DFS' financing program in effect for goods which are rented,
as reflected in the Statement of Transaction for such Inventory. All of Dealer's
Rental Contracts, agreements, and rental transactions will be in a form
satisfactory to DFS and will be in accordance with all applicable Federal, State
and local laws. Dealer will indemnify DFS against any loss or damage which DFS
suffers, whether direct or indirect, resulting in any way from the Rental
Contracts, agreements, or rental transactions which fail to comply with such
laws. All Rental Contracts will be transferable to DFS. Dealer will indemnify
DFS against any claims by its customers regarding Dealer's obligations under the
Rental Contracts. Dealer will immediately, upon DFS' request, deliver to DFS all
Rental Contracts and all related documents. This assignment is a transfer for
security only, and, until DFS has foreclosed its interest in the Rental
Contracts, will not be deemed to delegate any of Dealer's duties under the
Rental Contracts to DFS, nor is it intended to alter or impair performance by
either party to the Rental Contracts. DFS may, from time to time, verify the
accuracy of the Rental Contracts, and Dealer will immediately, upon DFS'
request, provide DFS with the following information regarding Rental Contracts
which are in effect on the date of such request: (a) the name, address and
telephone number of each customer who has executed a Rental Contract; (b) the
location of the Inventory; (c) the date of each Rental Contract; (d) the date
when the Inventory is to be returned under each Rental Contract; and, (e) any
other information which DFS may reasonably request. If the rental period under
the Rental Contract is ninety (90) days or longer, Dealer will stamp the
original of such Rental Contract with the following legend:
`FOR VALUE RECEIVED, THIS AGREEMENT HAS BEEN ASSIGNED TO DEUTSCHE
FINANCIAL SERVICES CORPORATION AND THERE ARE NO DEFENSES AGAINST THE
ASSIGNEE.'
Other than to DFS, Dealer will not assign, sell, pledge, convey or by any other
means transfer any Rental Contracts or chattel paper, without DFS' prior written
consent. Dealer will not enter into any Rental Contracts for Inventory financed
by DFS or against which DFS has advanced funds pursuant to which: (i) the
original term of the Rental Contract is greater than three hundred sixty (360)
days; (ii) the original term of the Rental Contract is equal to or greater than
the remaining economic life of such Inventory; (iii) the customer is bound to
renew the Rental Contract for the economic life of such Inventory or is bound to
become the owner of such Inventory; or, (iv) the customer has an option to renew
the Rental Contract for the remaining economic life of such Inventory, or to
become the owner of such Inventory, for nominal consideration, or for
consideration which is less than the unpaid balance owed to DFS for such
Inventory. If any such Rental Contracts are issued, Dealer will take any action
which DFS may reasonably require to perfect and/or protect DFS' security
interest in such Rental Contracts and/or the Inventory subject thereto.
13. Default. Dealer will be in default under this Agreement if: (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,
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report or certificate made or delivered by Dealer or any guarantor to DFS is not
accurate when made; (d) 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; (e) Dealer abandons any Collateral; (f) Dealer or any guarantor is or
becomes in default in the payment of any debt owed to any third party; (g) a
money judgment issues against Dealer or any guarantor; (h) an attachment, sale
or seizure issues or is executed against any assets of Dealer or of any
guarantor; (i) 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; (j) any
guarantor dies; (k) Dealer or any guarantor shall cease existence as a
corporation, partnership, limited liability company or trust, as applicable; (1)
Dealer or any guarantor ceases or suspends business; (m) 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;
(n) 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; (0) 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; (p) any guaranty of Dealer's debts to
DFS is terminated; (q) Dealer loses any franchise, permission, license or right
to sell or deal in any Inventory which DFS finances; or (r) Dealer or any
guarantor misrepresents Dealer's or such guarantor's financial condition or
organizational structure.
14. 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 attorney's 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 will 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.
(e) Dealer grants DFS an irrevocable power of attorney to: execute
or endorse on
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Dealer's behalf any checks, drafts or other forms of exchange
received as payment on any Collateral for deposit in DFS'
account; execute 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; sell, assign,
transfer, negotiate, demand, collect, receive, settle, extend,
or renew any amounts due on any of the Collateral; do anything
Dealer is obligated to do hereunder; initiate and settle any
insurance claim pertaining to the Collateral; and do anything
to preserve and protect the Collateral and DFS' rights and
interests therein.
(f) Upon DFS' oral or written demand, Dealer will immediately
deliver the original Rental Contracts to DFS, and DFS may
collect in DFS' name all amounts owed to Dealer under the
Rental Contracts.
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.
15. 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 Vendor or
a manufacturer or distributor, as provided in any agreement between DFS and the
Vendor, manufacturer or distributor, is a commercially reasonable disposition
and private sale of such Collateral under the Uniform Commercial Code, and no
request for bids will 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 Vendor or a manufacturer or distributor).
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.
16. Power of Attorney; Information. Dealer grants DFS an irrevocable
power of attorney to do anything necessary to preserve and protect the
Collateral and DFS' rights and interest therein. 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, manufacturer or
distributor, any credit, financial or other information regarding Dealer that
such Vendor, manufacturer or distributor may from time to time possess.
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
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required. Dealer will riot 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. 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 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000, 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 (or any predecessor in interest to
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 (or any predecessor
in interest to 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.
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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 Vendor or any manufacturer or distributor, 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 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 0 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 (or any predecessor in
interest to DFS) and
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Dealer; (c) any act committed by DFS (or any predecessor in
interest to DFS) or by any parent company, subsidiary or
affiliated company of DFS (or any predecessor in interest to
DFS) (collectively the "DFS Companies"), or by any employee,
agent, officer or director of an 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 (or any predecessor in interest to DFS) and
Dealer; and/or (d) any other relationship, transaction or
dealing between DFS (or any predecessor in interest to 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 AM 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 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
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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 with constitute an absolute bar and waiver to the
institution of any proceeding, whether arbitration or 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.
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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 state of Missouri. 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.
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.
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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 August 4, 1999
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AGREEMENT FOR WHOLESALE FINANCING
(Industrial/Construction - Rental)
This Agreement for Wholesale Financing ("Agreement") is made as of December 2,
1999 between Deutsche Financial Services Corporation ("DFS") and Xxxxxx
Equipment Center, Inc., a [___] SOLE PROPRIETORSHIP, [__] PARTNERSHIP, [X]
CORPORATION, [__] LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"),
having a principal place of business located at 0000 Xxxxxxxx Xx., Xxxxxxxx, XX
00000.
1. Extension of Credit. In the course of Dealer's business, Dealer
acquires new and used inventory and equipment ("Inventory") which is
manufactured or sold by, and/or which bears a trademark or trade name of: (a)
PPH Cranes or any of their subsidiaries or affiliated companies ("Vendor"), or
(b) other manufacturers or distributors. Subject to the terms of this Agreement,
DFS, in its sole discretion, may extend credit to Dealer from time to time to
purchase Inventory from Vendor or other manufacturers or distributors. 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 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' decision to advance funds on any Inventory will not be binding until the
funds are actually advanced. DFS may, at any time and without notice to Dealer,
elect not to finance any Inventory sold by Vendor or another specific
manufacturer or distributor if Vendor or the specific manufacturer or
distributor is in default of its obligations to DFS, or with respect to which
DFS reasonably feels insecure.
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 from time to time of discounts, payment terms or other
incentives from Vendor and other manufacturers and distributors, prevailing
economic conditions, and other economic factors which may vary over time. It is
therefore in DFS' and Dealer's 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, and any amendment thereto ("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 the items of Inventory referenced
in such Statement of Transaction are being financed by DFS 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 will pay DFS for such Inventory in accordance with the
most recent terms for similar Inventory to which Dealer has not objected (or,
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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. Security Interest. To secure payment of all 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 new and used inventory and equipment which is manufactured or sold by,
and/or which bears a trademark or trade name of, (a) Vendor, or (b) any other
manufacturer or distributor, in each case which is financed by DFS or against
which DFS has advanced monies, whether now owned or hereafter acquired by
Dealer, and all accounts, contract rights, chattel paper, security agreements,
deposit accounts, reserves, documents, general intangibles and instruments
arising from all such inventory and equipment, and all judgments, claims,
insurance policies and payments owed or made to Dealer thereon, and all
attachments, accessories, accessions, substitutions and replacements thereto and
all proceeds thereof. All such assets are collectively referred to herein as the
"Collateral." 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 solely for release or distribution to DFS, with such proceeds
being payable solely to DFS 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; (b) DFS'
security interest in the Collateral 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; (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; (h) there are and,
to the best of Dealer's knowledge 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; (1) 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; (0) Dealer will give DFS thirty (30) days
prior written notice of any
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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; and (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.
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,
demonstrate, lease or otherwise dispose of or transfer any of its assets; (b)
demonstrate, consign, or use any Collateral; 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 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 thirty (30) 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.
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9. Payment Terms. Dealer will immediately pay DFS the principal
indebtedness owed DFS on each item of Inventory financed by DFS or against which
DFS has advanced funds on the earliest occurrence of any of the following
events: (a) (i) when such Inventory is lost, stolen or damaged - immediately if
such loss, theft or damage is not covered completely by insurance, or (ii) if
completely covered by insurance, then upon Dealer's receipt of the insurance
proceeds therefor or thirty (30) days following the loss theft or damage,
whichever occurs first; (b) when such Inventory is sold, transferred or
otherwise disposed of; provided, however, if any item of Inventory financed by
DFS or against which DFS has advanced funds is sold and Dealer does not receive
payment for such item at the time of sale, Dealer will pay DFS the full amount
of the principal balance owed DFS on such item of Inventory within thirty (30)
days immediately following the sale date of such item of Inventory or
immediately upon Dealer's receipt of payment for such items of Inventory,
whichever occurs first; (c) in strict accordance with any curtailment schedule
for such Inventory (as shown on the Statement of Transaction identifying such
Inventory); (d) when any item of such Inventory matures (as shown on the
Statement of Transaction identifying such Inventory). With respect to Inventory
financed by DFS or against which DFS has advanced funds and held for rent and/or
lease, Dealer will owe DFS and agree to pay DFS monthly the percentage of the
principal balance owed on each item of such Inventory that is required under the
terms of Dealer's financing program with DFS. However, if any Inventory financed
by DFS or against which DFS has advanced funds and held for rent and/or lease:
(A) is sold and Dealer does not receive payment for such item at the time of
sale, Dealer will pay DFS the full amount of the principal balance owed to DFS
on such item of Inventory within thirty (30) days immediately following the sale
date of such item of Inventory or immediately upon Dealer's receipt of payment
for such item of Inventory, whichever occurs first; or (B) is stolen, destroyed
or otherwise disposed of, Dealer will immediately pay DFS the full amount of
Dealer's outstanding indebtedness owed to DFS for such Inventory. If Dealer from
time to time is required to make immediate payment to DFS of any past due
obligation discovered during any Inventory audit, or at any other time, Dealer
agrees that acceptance of such payments by DFS will not be construed to have
waived or amended the terms of its financing program. 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 Inventory financed by DFS, but, in any event, all
principal payments will first be applied to such Inventory 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
Inventory will not reduce the debt Dealer owes DFS until DFS has received
payment therefor in cash. Dealer will: (1) pay DFS even if any Inventory
financed by DFS or against which DFS has advanced funds 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 Inventory relating to the condition of, or any representations regarding,
any of the Inventory. Dealer waives all rights of offset and counterclaims which
Dealer may have against DFS.
10. Calculation of charges. Dealer will pay finance charges to DFS on
the outstanding principal debt Dealer owes DFS for each item of Inventory
financed-by DFS at the rate(s) shown on the Statement of Transaction identifying
such Inventory, unless Dealer objects thereto as provided in Section 2. The
finance charges attributable to the rate shown on the Statement of Transaction
will:
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(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 Inventory identified
on such Statement of Transaction until DFS receives full payment of the
principal debt Dealer owes DFS for each item of such Inventory 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 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 Inventory 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).
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. The
annual percentage rate of the finance charges relating to any item of Inventory
financed by DFS will be calculated from the invoice date of such Inventory,
regardless of any period during which any finance charge subsidy will be paid or
payable by any third party.
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 upon 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.
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12. Rental Contracts. Dealer may rent the Inventory financed by DFS or
against which DFS has advanced funds pursuant to the terms of Dealer's rental
contracts ("Rental Contracts"). Such Inventory will thereafter be subject to the
rates and terms of DFS' financing program in effect for goods which are rented,
as reflected in the Statement of Transaction for such Inventory. All of Dealer's
Rental Contracts, agreements, and rental transactions will be in a form
satisfactory to DFS and will be in accordance with all applicable Federal, State
and local laws. Dealer will indemnify DFS against any loss or damage which DFS
suffers, whether direct or indirect, resulting in any way from the Rental
Contracts, agreements, or rental transactions which fail to comply with such
laws. All Rental Contracts will be transferable to DFS. Dealer will indemnify
DFS against any claims by its customers regarding Dealer's obligations under the
Rental Contracts. Dealer will immediately, upon DFS' request, deliver to DFS all
Rental Contracts and all related documents. This assignment is a transfer for
security only, and, until DFS has foreclosed its interest in the Rental
Contracts, will not be deemed to delegate any of Dealer's duties under the
Rental Contracts to DFS, nor is it intended to alter or impair performance by
either party to the Rental Contracts. DFS may, from time to time, verify the
accuracy of the Rental Contracts, and Dealer will immediately, upon DFS'
request, provide DFS with the following information regarding Rental Contracts
which are in effect on the date of such request: (a) the name, address and
telephone number of each customer who has executed a Rental Contract; (b) the
location of the Inventory; (c) the date of each Rental Contract; (d) the date
when the Inventory is to be returned under each Rental Contract; and, (e) any
other information which DFS may reasonably request. If the rental period under
the Rental Contract is ninety (90) days or longer, Dealer will stamp the
original of such Rental Contract with the following legend:
`FOR VALUE RECEIVED, THIS AGREEMENT HAS BEEN ASSIGNED TO DEUTSCHE
FINANCIAL SERVICES CORPORATION AND THERE ARE NO DEFENSES AGAINST THE
ASSIGNEE.'
Other than to DFS, Dealer will not assign, sell, pledge, convey or by any other
means transfer any Rental Contracts or chattel paper, without DFS' prior written
consent. Dealer will not enter into any Rental Contracts for Inventory financed
by DFS or against which DFS has advanced funds pursuant to which: (i) the
original term of the Rental Contract is greater than three hundred sixty (360)
days; (ii) the original term of the Rental Contract is equal to or greater than
the remaining economic life of such Inventory; (iii) the customer is bound to
renew the Rental Contract for the economic life of such Inventory or is bound to
become the owner of such Inventory; or, (iv) the customer has an option to renew
the Rental Contract for the remaining economic life of such Inventory, or to
become the owner of such Inventory, for nominal consideration, or for
consideration which is less than the unpaid balance owed to DFS for such
Inventory. If any such Rental Contracts are issued, Dealer will take any action
which DFS may reasonably require to perfect and/or protect DFS' security
interest in such Rental Contracts and/or the Inventory subject thereto.
13. Default. Dealer will be in default under this Agreement if: (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,
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report or certificate made or delivered by Dealer or any guarantor to DFS is not
accurate when made; (d) 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; (e) Dealer abandons any Collateral; (f) Dealer or any guarantor is or
becomes in default in the payment of any debt owed to any third party; (g) a
money judgment issues against Dealer or any guarantor; (h) an attachment, sale
or seizure issues or is executed against any assets of Dealer or of any
guarantor; (i) 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; (j) any
guarantor dies; (k) Dealer or any guarantor shall cease existence as a
corporation, partnership, limited liability company or trust, as applicable; (1)
Dealer or any guarantor ceases or suspends business; (m) 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;
(n) 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; (0) 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; (p) any guaranty of Dealer's debts to
DFS is terminated; (q) Dealer loses any franchise, permission, license or right
to sell or deal in any Inventory which DFS finances; or (r) Dealer or any
guarantor misrepresents Dealer's or such guarantor's financial condition or
organizational structure.
14. 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 attorney's 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 will 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.
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(e) Dealer grants DFS an irrevocable power of attorney to: execute
or endorse on Dealer's behalf any checks, drafts or other
forms of exchange received as payment on any Collateral for
deposit in DFS' account; execute 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;
sell, assign, transfer, negotiate, demand, collect, receive,
settle, extend, or renew any amounts due on any of the
Collateral; do anything Dealer is obligated to do hereunder;
initiate and settle any insurance claim pertaining to the
Collateral; and do anything to preserve and protect the
Collateral and DFS' rights and interests therein.
(f) Upon DFS' oral or written demand, Dealer will immediately
deliver the original Rental Contracts to DFS, and DFS may
collect in DFS' name all amounts owed to Dealer under the
Rental Contracts.
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.
15. 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 Vendor or
a manufacturer or distributor, as provided in any agreement between DFS and the
Vendor, manufacturer or distributor, is a commercially reasonable disposition
and private sale of such Collateral under the Uniform Commercial Code, and no
request for bids will 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 Vendor or a manufacturer or distributor).
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.
16. Power of Attorney; Information. Dealer grants DFS an irrevocable
power of attorney to do anything necessary to preserve and protect the
Collateral and DFS' rights and interest therein. 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, manufacturer or
distributor, any credit, financial or other information regarding Dealer that
such Vendor, manufacturer or distributor may from time to time possess.
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,
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also be reasonable and sufficient); or (b) is in default hereunder, no prior
notice of termination is required. Dealer will riot 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. 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 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000, 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 (or any predecessor in interest to
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 (or any predecessor
in interest to 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.
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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 Vendor or any manufacturer or distributor, 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 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 0 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 (or any predecessor in
interest to DFS) and
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Dealer; (c) any act committed by DFS (or any predecessor in
interest to DFS) or by any parent company, subsidiary or
affiliated company of DFS (or any predecessor in interest to
DFS) (collectively the "DFS Companies"), or by any employee,
agent, officer or director of an 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 (or any predecessor in interest to DFS) and
Dealer; and/or (d) any other relationship, transaction or
dealing between DFS (or any predecessor in interest to 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 AM 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 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
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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
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the state of Missouri. 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.
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.
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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: December 2, 1999
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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 Crescent Machinery Company ("Dealer") and Deutsche
Financial Services Corporation ("DFS") on April 6, 1998, 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:
"Dealer will at all times maintain:
(a) a Tangible Net Worth in the amount of not less than twenty million
dollars ($20,000,000.00); and
(b) a ratio of Debt to Tangible Net Worth of not more than five to one
(5.0:1).
For purposes of this paragraph: (i) 'Tangible Net Worth' means the book
value of Dealer's assets less liabilities, excluding from such assets
all Intangibles; (ii) 'Intangibles' means and includes general
intangibles (as that term is defined in the Uniform Commercial Code);
accounts receivable and advances due from officers, directors,
employees, stockholders and affiliates; leasehold improvements net of
depreciation; licenses; good will; prepaid expenses; escrow deposits;
covenants not to compete; franchise fees; organizational costs; finance
reserves held for recourse obligations; capitalized research and
development costs; and such other similar items as DFS may from time to
time determine in DFS' sole discretion; (iii) '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; and (iv) 'Subordinated Debt' means all of Dealer's
Debt which is subordinated to the payment of Dealer's liabilities to
DFS by an agreement in form and substance satisfactory to DFS. The
foregoing terms shall be determined in accordance with generally
accepted accounting principles consistently applied, and, if
applicable, on a consolidated basis."
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 executed this Addendum on this 12th day of
April 1999.
59
GUARANTY
TO: DEUTSCHE FINANCIAL SERVICES CORPORATION
In consideration of financing provided or to be provided by you to Western
Traction Company ("Dealer"), and for other good and valuable consideration
received, we jointly, severally, unconditionally and absolutely guaranty to you,
from property held separately, jointly or in community, the immediate payment
when due of all current and future liabilities owed by Dealer to you, whether
such liabilities are direct, indirect or owed by Dealer to a third party and
acquired by you ("Liabilities"). We will pay you on demand the full amount of
all sums owed by Dealer to you, together with all costs and expenses (including,
without limitation, reasonable attorneys' fees). We also indemnify and hold you
harmless from and against all (a) losses, costs and expenses you incur and/or
are liable for (including, without limitation, reasonable attorneys' fees) and
(b) claims, actions and demands made by Dealer or any third party against you,
which in any way relate to any relationship or transaction between you and
Dealer.
Our guaranty will not be released, discharged or affected by, and we hereby
irrevocably consent to, any: (a) change in the manner, place, interest rate,
finance or other charges, or terms of payment or performance in any current or
future agreement between you and Dealer, the release, settlement or compromise
of or with any party liable for the payment or performance thereof or the
substitution, release, non-perfection, impairment, sale or other disposition of
any collateral thereunder; (b) change in Dealer's financial condition; (c)
interruption of relations between Dealer and you or us; (d) claim or action by
Dealer against you; and/or (e) increases or decreases in any credit you may
provide to Dealer. We will pay you even if you have not: (i) notified Dealer
that it is in default of the Liabilities, and/or that you intend to accelerate
or have accelerated the payment of all or any part of the Liabilities, or (ii)
exercised any of your rights or remedies against Dealer, any other person or any
current or future collateral. This Guaranty is assignable by you and will inure
to the benefit of your assignee. If Dealer hereafter undergoes any change in its
ownership, identity or organizational structure, this Guaranty will extend to
all current and future obligations which such new or changed legal entity owes
to you.
We irrevocably waive: notice of your acceptance of this Guaranty, presentment,
demand, protest, nonpayment, nonperformance, notice of breach or default, notice
of intent to accelerate and notice of acceleration of any indebtedness of
Dealer, any right of contribution from other guarantors, dishonor, the amount of
indebtedness of Dealer outstanding at any time, the number and amount of
advances made by you to Dealer in reliance on this Guaranty and any claim or
action against Dealer; all other demands and notices required by law; all rights
of offset and counterclaims against you or Dealer; all defenses to the
enforceability of this Guaranty (including, without limitation, fraudulent
inducement). We further waive all defenses based on suretyship or impairment of
collateral, and defenses which the Dealer may assert on the underlying debt,
including but not limited to, failure of consideration, breach of warranty,
fraud, payment, statute of frauds, bankruptcy, lack of legal capacity, statute
of limitations, lender liability, deceptive trade practices, accord and
satisfaction and usury. We also waive all rights to claim, arbitrate for or xxx
for any punitive or exemplary damages.
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In addition, we hereby irrevocably subordinate to you any and all of our present
and future rights and remedies: (a) of subrogation against Dealer to any of your
rights or remedies against Dealer, (b) of contribution, reimbursement,
indemnification and restoration from Dealer; and (c) to assert any other claim
or action against Dealer directly or indirectly relating to this Guaranty, such
subordinations to last until you have been paid in full for all Liabilities. All
of our waivers and subordinations herein will survive any termination of this
Guaranty.
We have made an independent investigation of the financial condition of Dealer
and give this Guaranty based on that investigation and not upon any
representation made by you. We have access to current and future Dealer
financial information which enables us to remain continuously informed of
Dealer's financial condition. We represent and warrant to you that we have
received and will receive substantial direct or indirect benefit by making this
Guaranty and incurring the Liabilities. We will provide you with financial
statements on us each year within ninety (90) days after the end of Dealer's
fiscal year end. We warrant and represent to you that all financial statements
and information relating to us or Dealer which have been or may hereafter be
delivered by us or Dealer to you are true and correct and have been and will be
prepared in accordance with generally accepted accounting principles
consistently applied and, with respect to previously delivered statements and
information, there has been no material adverse change in the financial or
business condition of us or Dealer since the submission to you, either as of the
date of delivery, or if different, the date specified therein, and we
acknowledge your reliance thereon. This Guaranty will survive any federal and/or
state bankruptcy or insolvency action involving Dealer. We are solvent and our
execution of this Guaranty will not make us insolvent. If you are required in
any action involving Dealer to return or rescind any payment made to or value
received by you from or for the account of Dealer, this Guaranty will remain in
full force and effect and will be automatically reinstated without any further
action by you and notwithstanding any termination of this Guaranty or your
release of us. Any delay or failure by you, or your successors or assigns, in
exercising any of your rights or remedies hereunder will not waive any such
rights or remedies. 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 debt are not enforceable. To protect us and you from misunderstanding
or disappointment, any agreements we reach covering such matters are contained
in this writing, which is the complete and exclusive statement of the agreement
between us, except as specifically provided herein or as we may later agree in
writing to modify it. Notwithstanding anything herein to the contrary: (a) you
may rely on any facsimile copy, electronic data transmission or electronic data
storage of this Guaranty, any agreement between you and Dealer, any Statement of
Transaction, billing statement, invoice from a vendor, financial statements or
other report, 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 Guaranty or
any other agreement between you and us, and for all evidentiary purposes before
any arbitrator, court or other adjudicatory authority. We may terminate this
Guaranty by a written notice to you, the termination to be effective sixty (60)
days after you receive and acknowledge it, but the termination will not
terminate our obligations hereunder for Liabilities arising prior to the
effective termination date. We have read and understood all terms and provisions
of this Guaranty. We acknowledge receipt of a true copy of this Guaranty and of
all agreements between you and Dealer. The meanings of all terms herein are
equally applicable to both the singular and plural forms of such terms.
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BINDING ARBITRATION. 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 Guaranty, and whether
directly or indirectly relating to this Guaranty and/or any amendments and
addenda hereto, or the breach, invalidity or termination hereof (collectively
the "Disputes"), will be subject to and resolved by binding arbitration.
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 arbitrations will be in the Division of the Federal Judicial
District in which AAA maintains a regional office that is closest to Dealer.
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 witness(es), and (d) the
arbitration hearing will be continued to the earliest possible date that enables
the foregoing limited discovery to be accomplished.
The Arbitrator(s) will not have the authority to award exemplary or
punitive damages.
All arbitration proceedings, including testimony or evidence at
hearings, will be kept
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confidential, although any award or order rendered by the arbitrator(s) pursuant
to the terms of this Guaranty may be entered as a judgment or order in any state
or federal court and may be entered as a judgment or order within the federal
judicial district which includes the residence of the party against whom such
award or order was entered. This Guaranty concerns transactions involving
commerce among the several states. The Federal Arbitration Act ("FAA") will
govern all arbitration(s) and confirmation proceedings hereunder.
Nothing herein will be construed to prevent your or our 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 your or our right to compel arbitration of any Dispute.
If either we or you bring any other action for judicial relief with
respect to any Dispute (other than those set forth in the immediately preceding
paragraph), 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 we or you bring or appeal 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 we xxx you or institute any arbitration
claim or counterclaim against you in which you are the prevailing party, we will
pay all costs and expenses (including attorneys' fees) incurred by you in the
course of defending such action or proceeding.
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 with
respect to such Dispute. Except as otherwise stated herein, all notices,
arbitration claims, responses, requests and documents will be sufficiently given
or served if mailed or delivered: (i) to us at our address below; (ii) to you at
000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention: General
Counsel; or such other address as the parties may specify from time to time in
writing.
The agreement to arbitrate will survive the termination of this
Guaranty.
IF THIS GUARANTY 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. WE WAIVE ANY RIGHT TO A JURY TRIAL IN
ANY SUCH PROCEEDING.
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We acknowledge and agree that this Guaranty and all agreements between Dealer
and you have been substantially negotiated, and will be performed, in the state
of Missouri. Accordingly, we agree 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 will control and govern all
arbitration proceedings hereunder.
THIS GUARANTY CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGES
WAIVER PROVISIONS.
Date: October 26, 1998
SECRETARY'S CERTIFICATE
I hereby certify that I am the Secretary or Assistant Secretary of Crescent
Machinery Company ("Guarantor") and that execution of the above Guaranty was
ratified, approved and confirmed by the Shareholders at a meeting, if necessary,
and pursuant to a resolution of the Board of Directors of Guarantor at a meeting
of the Board of Directors duly called, and which is currently in effect, which
resolution was duly presented, seconded and adopted and read as follows:
"BE IT RESOLVED that any executive officer of this corporation is hereby
authorized to execute a guaranty of the obligations of Western Traction Company
("Dealer") to Deutsche Financial Services Corporation on behalf of the
corporation, which instrument may contain such terms as the above named persons
may see fit including, but not limited to a waiver of notice of the acceptance
of the guaranty; presentment; demand; protest; notices of nonpayment,
nonperformance, dishonor, the amount of indebtedness of Dealer outstanding at
any time, any legal proceedings Dealer, and any other demands and notices
required by law; and any right of ___________ from other guarantors * RIDER 1."
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RIDERS TO
SECRETARY'S CERTIFICATE
DEUTSCHE FINANCIAL SERVICES CORPORATION/CRESCENT MACHINERY COMPANY
RIDER 1:
; provided, however, that, in the case of any such executive officer who is not
also an executive officer of Crescent Operating, Inc., a Delaware corporation,
such authorization is limited to one or more transactions having an aggregate
value of no greater than Five Hundred Thousand Dollars ($500,000.00).
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COLLATERALIZED GUARANTY
TO: DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS")
1. Guaranty and Indemnification. In consideration of financing provided or to be
provided by you to Crescent Machinery Company ("Dealer"), and for other good and
valuable consideration received, the undersigned (individually and/or
collectively "Guarantor") unconditionally and absolutely guaranty to DFS, from
property held separately, jointly or in community, the immediate payment when
due of all current and future liabilities owed by Dealer to DFS, whether such
liabilities are direct, indirect or owed by Dealer to a third party and acquired
by DFS ("Liabilities"). Guarantor will pay DFS on demand the full amount of all
sums owed by Dealer to DFS, together with all costs and expenses (including,
without limitation, reasonable attorneys fees). Guarantor also indemnifies and
holds DFS harmless from and against all (a) losses, costs and expenses DFS
incurs and/or is liable for (including, without limitation, reasonable
attorneys' fees) and (b) claims, actions and demands made by Dealer or any third
party against DFS; which in any way relate to any relationship or transaction
between DFS and Dealer.
2. Consents. This Guaranty will not be released, discharged or affected by, and
Guarantor hereby irrevocably consents to, any: (a) change in the manner, place,
interest rate, finance or other charges, or terms of payment or performance in
any current or future agreement between DFS and Dealer, the release, settlement
or compromise of or with any party liable for the payment or performance thereof
or the substitution, release, non-perfection, impairment, sale or other
disposition of any collateral thereunder; (b) change in Dealer's financial
condition; (c) interruption of relations between Dealer and DFS or Guarantor;
(d) claim or action by Dealer against DFS; and/or (e) increases or decreases in
any credit DFS may provide to Dealer.
3. Unconditional Obligations. Guarantor will pay DFS even if DFS has not: (a)
notified Dealer that it is in default of the Liabilities, and/or that DFS
intends to accelerate or has accelerated the payment of all or any part of the
Liabilities, or (b) exercised any of DFS' rights or remedies against Dealer, any
other person or any current or future collateral. If Dealer hereafter undergoes
any change in its ownership, identity or organizational structure, this Guaranty
will extend to all current and future obligations which such new or changed
legal entity owes to DFS.
4. Waivers. Guarantor irrevocably waives: notice of DFS' acceptance of this
Guaranty, presentment, demand, protest, nonpayment, nonperformance, notice of
breach or default, notice of intent to accelerate and notice of acceleration of
any indebtedness of Dealer, any right of contribution from other guarantors,
dishonor, the amount of indebtedness of Dealer outstanding at any time, the
number and amount of advances made by DFS to Dealer in reliance on this Guaranty
and any claim or action against Dealer; all other demands and notices required
by law; all rights of offset and counterclaims against DFS or Dealer; all
defenses to the enforceability of this Guaranty (including, without limitation,
fraudulent inducement). Guarantor further waives all defenses based on
suretyship or impairment of collateral, and defenses which the Dealer may assert
on the underlying debt, including but not limited to, failure of consideration,
breach of warranty, fraud, payment,
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statute of frauds, bankruptcy, lack of legal capacity, statute of limitations,
lender liability, deceptive trade practices, accord and satisfaction and usury.
Guarantor also waives all rights to claim, arbitrate for or xxx for any punitive
or exemplary damages. In addition, Guarantor hereby irrevocably subordinates to
DFS any and all of Guarantor's present and future rights and remedies: (a) of
subrogation against Dealer to any of DFS' rights or remedies against Dealer, (b)
of contribution, reimbursement, indemnification and restoration from Dealer; and
(c) to assert any other claim or action against Dealer directly or indirectly
relating to this Guaranty, such subordinations to last until DFS has been paid
in full for all Liabilities. All of Guarantor's waivers and subordinations
herein will survive any termination of this Guaranty.
5. Warranties and Representations. Guarantor has made an independent
investigation of the financial condition of Dealer and gives this Guaranty based
on that investigation and not upon any representation made by DFS. Guarantor has
access to current and future Dealer financial information which enables
Guarantor to remain continuously informed of Dealer's financial condition.
Guarantor represents and warrants to DFS that Guarantor has received and will
receive substantial direct or indirect benefit by making this Guaranty and
incurring the Liabilities. Guarantor also represents and warrants to DFS that
Guarantor is solvent and Guarantor's execution of this Guaranty will not make
Guarantor insolvent. Guarantor further represents and warrants to DFS that: (a)
the present fair salable value of Guarantor's assets is greater than the amount
required to pay Guarantor's liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities); (b) Guarantor is able to pay all of its
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) as they become absolute and matured; and (c) Guarantor does not
have unreasonably small capital.
6. Grant of Security Interest. To secure payment of all Liabilities and all of
Guarantor's current and future debts to DFS, whether under this Guaranty or any
current or future guaranty or other agreement, Guarantor grants DFS a security
interest in all of Guarantor's (1) new and used inventory and equipment which is
financed by DFS for, or against which DFS has loaned monies to, Guarantor or
Dealer or any of their subsidiaries or affiliated companies, whether now owned
or hereafter acquired and whether or not transferred among such entities or any
of their subsidiaries or affiliated companies, and (2) all accounts, contract
rights, chattel paper, security agreements, deposit accounts, reserves,
documents, general intangibles and instruments arising from the sale, lease,
rental or other disposition of all such inventory and equipment, and all
judgments, claims, insurance policies and payments owed or made to Guarantor
thereon, and all attachments, accessories, accessions, substitutions and
replacements thereto and all cash and non-cash proceeds of all of the foregoing.
All such assets are collectively referred to herein as the "Collateral." 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 for Dealer or Guarantor, and all proceeds thereof, will be held in trust by
Guarantor for DFS.
7. Additional Warranties and Representations. Guarantor warrants and represents
to DFS that: (a) Guarantor has good title to all Collateral; (b) DFS' security
interest in the Collateral financed by DFS for Dealer or Guarantor is not now
and will not become subordinate to the security interest, lien, encumbrance or
claim of any person; (c) Guarantor will execute all documents DFS requests to
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perfect and maintain DFS' security interest in the Collateral; (d) Guarantor
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 for Dealer or Guarantor; (e) Guarantor 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) Guarantor has the right and is duly authorized to enter into this Guaranty;
(g) Guarantor's execution of this Guaranty does not constitute a breach of any
agreement to which Guarantor is now or hereafter becomes bound; (h) there are
and will be no actions or proceedings pending or threatened against Guarantor
which might result in any material adverse change in Guarantor's financial or
business condition or which might in any way adversely affect any of Guarantor's
assets; (i) Guarantor will maintain the Collateral in good condition and repair;
(j) Guarantor has duly filed and will duly file all tax returns required by law;
(k) Guarantor has paid and will pay when due all taxes, levies, assessments and
governmental charges of any nature; (I) Guarantor will keep and maintain all of
its books and records pertaining to the Collateral at its principal place of
business designated below; (m) Guarantor will promptly supply DFS with such
information concerning it as DFS hereafter may reasonably request; (n) all
Collateral will be kept at Dealer's principal place of business or Guarantor's
place of business listed below, and such other locations, if any, of which
Dealer or Guarantor has notified DFS in writing or as listed on any current or
future Exhibit "A" attached to any Agreement for Wholesale Financing or security
agreement between Dealer and DFS or this Guaranty which written notice(s) to DFS
and Exhibit A(s) are incorporated herein by reference; (o) Guarantor will give
DFS thirty (30) days prior written notice of any change in Guarantor'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) Guarantor 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) Guarantor will advise DFS of the commencement of material legal
proceedings against Dealer or Guarantor; and (r) Guarantor 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.
8. Negative Covenants. Guarantor 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 for Dealer or
Guarantor; or (c) merge or consolidate with another entity.
9. Insurance. Guarantor will immediately notify DFS of any loss, theft or damage
to any Collateral. Guarantor 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 and containing standard
lender's loss payable and termination provisions. Guarantor will provide DFS
with written evidence of such property insurance coverage and lender's
loss-payee endorsement.
10. Financial Statements. Guarantor will provide DFS with financial statements
on it each year within ninety (90) days after the end of Dealer's fiscal year
end. Guarantor warrants and represents
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to DFS that all financial statements and information relating to Guarantor or
Dealer which have been or may hereafter be delivered by Guarantor or Dealer to
DFS are true and correct and have been and will be prepared in accordance with
generally accepted accounting principles consistently applied and, with respect
to previously delivered statements and information, there has been no material
adverse change in the financial or business condition of Guarantor or Dealer
since the submission to DFS, either as of the date of delivery, or if different,
the date specified therein, and Guarantor acknowledges DFS' reliance thereon.
11. Reviews. Guarantor grants DFS an irrevocable license to enter Guarantor's
business locations during normal business hours without notice to Guarantor to:
(a) account for and inspect all Collateral; (b) verify Guarantor's compliance
with this Guaranty; and (c) examine and copy Guarantor's books and records
related to the Collateral.
12. Default. Guarantor will be in default under this Guaranty if: (a) Dealer
breaches any terms, warranties or representations contained in any Agreement for
Wholesale Financing, in any Statement of Transaction to which Dealer has not
objected, or in any other agreement between DFS and Dealer; (b) Guarantor
breaches any terms, warranties or representations contained herein or in any
other agreement between Guarantor and DFS; (c) any representation, statement,
report or certificate made or delivered by Dealer or Guarantor to DFS is not
accurate when made; (d) Dealer fails to pay any portion of Dealer's debts to DFS
when due and payable under any agreement between DFS and Dealer; (e) Guarantor
fails to pay any portion of Guarantor's debts to DFS when due and payable under
any agreement between DFS and Guarantor; (f) Dealer or Guarantor abandons any
Collateral; (g) Dealer or Guarantor is or becomes in default in the payment of
any debt owed to any third party; (h) a money judgment issues against Dealer or
Guarantor; (i) an attachment, sale or seizure issues or is executed against any
assets of Dealer or Guarantor; (j) Guarantor dies if Guarantor is an individual,
any general partner dies while Guarantor is a general or limited partnership, or
any member dies while Guarantor is a limited liability company, as applicable;
(k) Dealer or Guarantor shall cease existence as a corporation, partnership,
limited liability company or trust, as applicable; (l) Dealer or Guarantor
ceases or suspends business; (m) Dealer, Guarantor or any member while Dealer or
Guarantor is a limited liability company, as applicable, makes a general
assignment for the benefit of creditors; (n) Dealer, Guarantor or any member
while Dealer or Guarantor is 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; (o) any receiver
is appointed for any assets of Dealer, Guarantor or any member while Dealer or
Guarantor is a limited liability company, as applicable; (p) this Guaranty or
any other guaranty of Dealer's debts to DFS is terminated; (q) Dealer or
Guarantor loses any franchise, permission, license or right to sell or deal in
any Collateral which DFS finances for Dealer or Guarantor; (r) Dealer or
Guarantor misrepresents their respective financial condition or organizational
structure; or (5) DFS determines in good faith that it is insecure with respect
to any of the Collateral or the payment of any part of Dealer's or Guarantor's
obligation to DFS.
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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 or Guarantor, do any one or more of the following:
declare all or any part of the debt Guarantor owes DFS,
whether contingent or noncontingent and whether arising
hereunder or under any other agreement between Guarantor and
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
Guarantor, if applicable, or Dealer (DFS' right to cease
extending credit shall not be construed to limit the
discretionary nature of any credit facility)
(b) Guarantor 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, Guarantor 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 Guarantor, take immediate possession of the
Collateral together with all related documents.
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. Guarantor 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. Guarantor 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.
Guarantor 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). Guarantor 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 Guaranty.
15. Power of Attorney. Guarantor grants DFS an irrevocable power of attorney to:
execute or endorse on Guarantor'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 Guarantor; 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.
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16. Termination. Guarantor may terminate this Guaranty by a written notice to
DFS, the termination to be effective sixty (60) days after DFS receives and
acknowledges it, but the termination will not terminate Guarantor's obligations
hereunder for Liabilities arising prior to the effective termination date.
17. Binding Effect. Guarantor cannot assign this Guaranty without DFS' prior
written consent, although DFS may assign its interest herein without notice to,
or consent from, Guarantor. This Guaranty will protect and bind DFS' and
Guarantor's respective heirs, representatives, Successors and assigns.
18. 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 Guarantor at its address below; (b) to DFS at 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention: General Counsel; or
such other address as the parties may specify from time to time in writing.
19. Severability. If any provision of this Guaranty or its application is
invalid or unenforceable, the remainder of this Guaranty will not be impaired or
affected and will remain binding and enforceable.
20. Supplement. If Guarantor and DFS have heretofore executed other guaranties
or agreements in connection with all or any part of the Collateral, this
Guaranty shall supplement each and every other such guaranty and agreement
previously executed by and between Guarantor and DFS, and in that event this
Guaranty shall neither be deemed a novation nor a termination of such previously
executed guaranty or agreement nor shall execution of this Guaranty be deemed a
satisfaction of any obligation secured by such previously executed guaranty or
agreement.
21. Receipt of Guaranty. Guarantor has read and understood all terms and
provisions of this Guaranty. Guarantor acknowledges receipt of a true copy of
this Guaranty and of all agreements between DFS and Dealer. The meanings of all
terms herein are equally applicable to both the singular and plural forms of
such terms. Notwithstanding anything herein to the contrary: (a) DFS may rely on
any facsimile copy, electronic data transmission or electronic data storage of
this Guaranty, any agreement between DFS and Dealer, any Statement of
Transaction, billing statement, invoice from a vendor, financial statements or
other report, 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 Guaranty or
any other agreement between DFS and Guarantor, and for all evidentiary purposes
before any arbitrator, court or other adjudicatory authority.
22. 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 debt
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are not enforceable. To protect Guarantor and DFS from misunderstanding or
disappointment, any agreements Guarantor and DFS or Dealer and DFS reach
covering such matters are contained in this Guaranty, an Agreement for Wholesale
Financing, or another agreement between Guarantor and DFS or between Dealer and
DFS, which agreement(s) is (are) the complete and exclusive statement of the
agreement between Guarantor and DFS and between Dealer and DFS, except as
specifically provided herein, in such other agreement(s) or as Guarantor and DFS
or Dealer and DFS may later agree in writing.
23. Miscellaneous. This Guaranty will survive any federal and/or state
bankruptcy or insolvency action involving Dealer. If DFS is required in any
action involving Dealer to return or rescind any payment made to or value
received by DFS from or for the account of Dealer, this Guaranty will remain in
full force and effect and will be automatically reinstated without any further
action by DFS and notwithstanding any termination of this Guaranty or DFS'
release of Guarantor. Any delay or failure by DFS, or DFS' successors or
assigns, in exercising any of DFS' rights or remedies hereunder will not waive
any such rights or remedies. If Guarantor 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 directly owed by Guarantor to DFS, which
shall be subject to finance charges at the highest rate allowed by law; and (b)
due and payable immediately in full. Guarantor 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 Guaranty are for convenience only and
do not define or limit the contents of any Section.
24. BINDING ARBITRATION.
24.1 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
Guaranty, and whether directly or indirectly relating to: (a) this Guaranty
and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between DFS and us;
(c) any act committed by DFS or by any parent company, subsidiary or affiliated
company of DFS (the "DFS Companies"), or by an 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 or DFS and Guarantor; and/or (d) any other relationship, transaction,
dealing or agreement between DFS and Dealer or DFS and Guarantor (collectively
the "Disputes"), will be subject to and resolved by binding arbitration.
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24.2 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 arbitrations will be in the
Division of the Federal Judicial District in which AAA maintains a regional
office that is closest to Dealer.
24.3 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 witness(es), and (d) the arbitration hearing will be
continued to the earliest possible date that enables the foregoing limited
discovery to be accomplished.
24.4 Exemplary or Punitive Damages. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
24.5 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 Guaranty
may be entered as a judgment or order in any state or federal court and may be
entered as a judgment or order within the federal judicial district which
includes the residence of the party against whom such award or order was
entered. This Guaranty concerns transactions involving commerce among the
several states. The Federal Arbitration Act ("FAA") will govern all
arbitration(s) and confirmation proceedings hereunder.
24.6 Prejudgment and Provisional Remedies. Nothing herein will be
Construed to prevent DFS' or Guarantor'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
Guarantor's right to compel arbitration of any Dispute.
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24.7 Attorneys' Fees. If either Guarantor or DFS bring any other action
for judicial relief with respect to any Dispute (other than those set forth in
the immediately preceding paragraph), 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 Guarantor or DFS bring or appeal
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 Guarantor
sues DFS or institutes any arbitration claim or counterclaim against DFS in
which DFS is the prevailing party, Guarantor will pay all costs and expenses
(including attorneys' fees) incurred by DFS in the course of defending such
action or proceeding.
24.8 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
with respect to such Dispute.
24.9 Survival After Termination. The agreement to arbitrate will
survive the termination of this Guaranty.
25. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS GUARANTY 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. DFS AND GUARANTOR WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
26. Governing Law. Guarantor acknowledges and agrees that this Guaranty and all
agreements between Dealer and DFS have been substantially negotiated, and will
be performed, in the state of Missouri. Accordingly, Guarantor 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
will control and govern all arbitration proceedings herein.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
Date: April 12, 1999
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"SECRETARY'S CERTIFICATE
I hereby certify that I am the Secretary or Assistant Secretary of Xxxxxx
Equipment Center, Inc. ("Guarantor") and that execution of the above Guaranty
was ratified, approved and confirmed by the Shareholders at a meeting, if
necessary, and pursuant to a resolution of the Board of Directors of Guarantor
at a meeting of the Board of Directors duly called, and which is currently in
effect, which resolution was duly presented, seconded and adopted and reads as
follows:
"BE IT RESOLVED that any officer of this corporation is hereby authorized to
execute a guaranty of the obligations of Crescent Machinery Company ("Dealer")
to Deutsche Financial Services Corporation ("DFS") on behalf of the corporation,
which instrument may contain such terms as the above named persons may see fit
including, but not limited to a waiver of notice of the acceptance of the
guaranty; presentment; demand; protest; notices of nonpayment, nonperformance,
dishonor, the amount of indebtedness of Dealer outstanding at any time, any
legal proceedings against Dealer, and any other demands and notices required by
law; and any right of contribution from other guarantors. As security for such
guaranty to DFS, any officer of this corporation is hereby authorized 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."
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal
on this 12th day of April, 1999.
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COLLATERALIZED GUARANTY
TO: DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS")
1. Guaranty and Indemnification. In consideration of financing provided or to be
provided by you to Xxxxxx Equipment Center, Inc. ("Dealer"), and for other good
and valuable consideration received, the undersigned (individually and/or
collectively "Guarantor") unconditionally and absolutely guaranty to DFS, from
property held separately, jointly or in community, the immediate payment when
due of all current and future liabilities owed by Dealer to DFS, whether such
liabilities are direct, indirect or owed by Dealer to a third party and acquired
by DFS ("Liabilities"). Guarantor will pay DFS on demand the full amount of all
sums owed by Dealer to DFS, together with all costs and expenses (including,
without limitation, reasonable attorneys fees). Guarantor also indemnifies and
holds DFS harmless from and against all (a) losses, costs and expenses DFS
incurs and/or is liable for (including, without limitation, reasonable
attorneys' fees) and (b) claims, actions and demands made by Dealer or any third
party against DFS; which in any way relate to any relationship or transaction
between DFS and Dealer.
2. Consents. This Guaranty will not be released, discharged or affected by, and
Guarantor hereby irrevocably consents to, any: (a) change in the manner, place,
interest rate, finance or other charges, or terms of payment or performance in
any current or future agreement between DFS and Dealer, the release, settlement
or compromise of or with any party liable for the payment or performance thereof
or the substitution, release, non-perfection, impairment, sale or other
disposition of any collateral thereunder; (b) change in Dealer's financial
condition; (c) interruption of relations between Dealer and DFS or Guarantor;
(d) claim or action by Dealer against DFS; and/or (e) increases or decreases in
any credit DFS may provide to Dealer.
3. Unconditional Obligations. Guarantor will pay DFS even if DFS has not: (a)
notified Dealer that it is in default of the Liabilities, and/or that DFS
intends to accelerate or has accelerated the payment of all or any part of the
Liabilities, or (b) exercised any of DFS' rights or remedies against Dealer, any
other person or any current or future collateral. If Dealer hereafter undergoes
any change in its ownership, identity or organizational structure, this Guaranty
will extend to all current and future obligations which such new or changed
legal entity owes to DFS.
4. Waivers. Guarantor irrevocably waives: notice of DFS' acceptance of this
Guaranty, presentment, demand, protest, nonpayment, nonperformance, notice of
breach or default, notice of intent to accelerate and notice of acceleration of
any indebtedness of Dealer, any right of contribution from other guarantors,
dishonor, the amount of indebtedness of Dealer outstanding at any time, the
number and amount of advances made by DFS to Dealer in reliance on this Guaranty
and any claim or action against Dealer; all other demands and notices required
by law; all rights of offset and counterclaims against DFS or Dealer; all
defenses to the enforceability of this Guaranty (including, without limitation,
fraudulent inducement). Guarantor further waives all defenses based on
suretyship or impairment of collateral, and defenses which the Dealer may assert
on the underlying debt, including but not limited to, failure of consideration,
breach of warranty, fraud, payment,
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statute of frauds, bankruptcy, lack of legal capacity, statute of limitations,
lender liability, deceptive trade practices, accord and satisfaction and usury.
Guarantor also waives all rights to claim, arbitrate for or xxx for any punitive
or exemplary damages. In addition, Guarantor hereby irrevocably subordinates to
DFS any and all of Guarantor's present and future rights and remedies: (a) of
subrogation against Dealer to any of DFS' rights or remedies against Dealer, (b)
of contribution, reimbursement, indemnification and restoration from Dealer; and
(c) to assert any other claim or action against Dealer directly or indirectly
relating to this Guaranty, such subordinations to last until DFS has been paid
in full for all Liabilities. All of Guarantor's waivers and subordinations
herein will survive any termination of this Guaranty.
5. Warranties and Representations. Guarantor has made an independent
investigation of the financial condition of Dealer and gives this Guaranty based
on that investigation and not upon any representation made by DFS. Guarantor has
access to current and future Dealer financial information which enables
Guarantor to remain continuously informed of Dealer's financial condition.
Guarantor represents and warrants to DFS that Guarantor has received and will
receive substantial direct or indirect benefit by making this Guaranty and
incurring the Liabilities. Guarantor also represents and warrants to DFS that
Guarantor is solvent and Guarantor's execution of this Guaranty will not make
Guarantor insolvent. Guarantor further represents and warrants to DFS that: (a)
the present fair salable value of Guarantor's assets is greater than the amount
required to pay Guarantor's liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities); (b) Guarantor is able to pay all of its
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) as they become absolute and matured; and (c) Guarantor does not
have unreasonably small capital.
6. Grant of Security Interest. To secure payment of all Liabilities and all of
Guarantor's current and future debts to DFS, whether under this Guaranty or any
current or future guaranty or other agreement, Guarantor grants DFS a security
interest in all of Guarantor's (1) new and used inventory and equipment which is
financed by DFS for, or against which DFS has loaned monies to, Guarantor or
Dealer or any of their subsidiaries or affiliated companies, whether now owned
or hereafter acquired and whether or not transferred among such entities or any
of their subsidiaries or affiliated companies, and (2) all accounts, contract
rights, chattel paper, security agreements, deposit accounts, reserves,
documents, general intangibles and instruments arising from the sale, lease,
rental or other disposition of all such inventory and equipment, and all
judgments, claims, insurance policies and payments owed or made to Guarantor
thereon, and all attachments, accessories, accessions, substitutions and
replacements thereto and all cash and non-cash proceeds of all of the foregoing.
All such assets are collectively referred to herein as the "Collateral." 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 for Dealer or Guarantor, and all proceeds thereof, will be held in trust by
Guarantor for DFS.
7. Additional Warranties and Representations. Guarantor warrants and represents
to DFS that: (a) Guarantor has good title to all Collateral; (b) DFS' security
interest in the Collateral financed by DFS for Dealer or Guarantor is not now
and will not become subordinate to the security interest, lien, encumbrance or
claim of any person; (c) Guarantor will execute all documents DFS requests to
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perfect and maintain DFS' security interest in the Collateral; (d) Guarantor
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 for Dealer or Guarantor; (e) Guarantor 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) Guarantor has the right and is duly authorized to enter into this Guaranty;
(g) Guarantor's execution of this Guaranty does not constitute a breach of any
agreement to which Guarantor is now or hereafter becomes bound; (h) there are
and will be no actions or proceedings pending or threatened against Guarantor
which might result in any material adverse change in Guarantor's financial or
business condition or which might in any way adversely affect any of Guarantor's
assets; (i) Guarantor will maintain the Collateral in good condition and repair;
(j) Guarantor has duly filed and will duly file all tax returns required by law;
(k) Guarantor has paid and will pay when due all taxes, levies, assessments and
governmental charges of any nature; (I) Guarantor will keep and maintain all of
its books and records pertaining to the Collateral at its principal place of
business designated below; (m) Guarantor will promptly supply DFS with such
information concerning it as DFS hereafter may reasonably request; (n) all
Collateral will be kept at Dealer's principal place of business or Guarantor's
place of business listed below, and such other locations, if any, of which
Dealer or Guarantor has notified DFS in writing or as listed on any current or
future Exhibit "A" attached to any Agreement for Wholesale Financing or security
agreement between Dealer and DFS or this Guaranty which written notice(s) to DFS
and Exhibit A(s) are incorporated herein by reference; (o) Guarantor will give
DFS thirty (30) days prior written notice of any change in Guarantor'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) Guarantor 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) Guarantor will advise DFS of the commencement of material legal
proceedings against Dealer or Guarantor; and (r) Guarantor 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.
8. Negative Covenants. Guarantor 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 for Dealer or
Guarantor; or (c) merge or consolidate with another entity.
9. Insurance. Guarantor will immediately notify DFS of any loss, theft or damage
to any Collateral. Guarantor 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 and containing standard
lender's loss payable and termination provisions. Guarantor will provide DFS
with written evidence of such property insurance coverage and lender's
loss-payee endorsement.
10. Financial Statements. Guarantor will provide DFS with financial statements
on it each year within ninety (90) days after the end of Dealer's fiscal year
end. Guarantor warrants and represents
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to DFS that all financial statements and information relating to Guarantor or
Dealer which have been or may hereafter be delivered by Guarantor or Dealer to
DFS are true and correct and have been and will be prepared in accordance with
generally accepted accounting principles consistently applied and, with respect
to previously delivered statements and information, there has been no material
adverse change in the financial or business condition of Guarantor or Dealer
since the submission to DFS, either as of the date of delivery, or if different,
the date specified therein, and Guarantor acknowledges DFS' reliance thereon.
11. Reviews. Guarantor grants DFS an irrevocable license to enter Guarantor's
business locations during normal business hours without notice to Guarantor to:
(a) account for and inspect all Collateral; (b) verify Guarantor's compliance
with this Guaranty; and (c) examine and copy Guarantor's books and records
related to the Collateral.
12. Default. Guarantor will be in default under this Guaranty if: (a) Dealer
breaches any terms, warranties or representations contained in any Agreement for
Wholesale Financing, in any Statement of Transaction to which Dealer has not
objected, or in any other agreement between DFS and Dealer; (b) Guarantor
breaches any terms, warranties or representations contained herein or in any
other agreement between Guarantor and DFS; (c) any representation, statement,
report or certificate made or delivered by Dealer or Guarantor to DFS is not
accurate when made; (d) Dealer fails to pay any portion of Dealer's debts to DFS
when due and payable under any agreement between DFS and Dealer; (e) Guarantor
fails to pay any portion of Guarantor's debts to DFS when due and payable under
any agreement between DFS and Guarantor; (f) Dealer or Guarantor abandons any
Collateral; (g) Dealer or Guarantor is or becomes in default in the payment of
any debt owed to any third party; (h) a money judgment issues against Dealer or
Guarantor; (i) an attachment, sale or seizure issues or is executed against any
assets of Dealer or Guarantor; (j) Guarantor dies if Guarantor is an individual,
any general partner dies while Guarantor is a general or limited partnership, or
any member dies while Guarantor is a limited liability company, as applicable;
(k) Dealer or Guarantor shall cease existence as a corporation, partnership,
limited liability company or trust, as applicable; (l) Dealer or Guarantor
ceases or suspends business; (m) Dealer, Guarantor or any member while Dealer or
Guarantor is a limited liability company, as applicable, makes a general
assignment for the benefit of creditors; (n) Dealer, Guarantor or any member
while Dealer or Guarantor is 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; (o) any receiver
is appointed for any assets of Dealer, Guarantor or any member while Dealer or
Guarantor is a limited liability company, as applicable; (p) this Guaranty or
any other guaranty of Dealer's debts to DFS is terminated; (q) Dealer or
Guarantor loses any franchise, permission, license or right to sell or deal in
any Collateral which DFS finances for Dealer or Guarantor; (r) Dealer or
Guarantor misrepresents their respective financial condition or organizational
structure; or (5) DFS determines in good faith that it is insecure with respect
to any of the Collateral or the payment of any part of Dealer's or Guarantor's
obligation to DFS.
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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 or Guarantor, do any one or more of the following:
declare all or any part of the debt Guarantor owes DFS,
whether contingent or noncontingent and whether arising
hereunder or under any other agreement between Guarantor and
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
Guarantor, if applicable, or Dealer (DFS' right to cease
extending credit shall not be construed to limit the
discretionary nature of any credit facility)
(b) Guarantor 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, Guarantor 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 Guarantor, take immediate possession of the
Collateral together with all related documents.
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. Guarantor 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. Guarantor 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.
Guarantor 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). Guarantor 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 Guaranty.
15. Power of Attorney. Guarantor grants DFS an irrevocable power of attorney to:
execute or endorse on Guarantor'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 Guarantor; 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.
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16. Termination. Guarantor may terminate this Guaranty by a written notice to
DFS, the termination to be effective sixty (60) days after DFS receives and
acknowledges it, but the termination will not terminate Guarantor's obligations
hereunder for Liabilities arising prior to the effective termination date.
17. Binding Effect. Guarantor cannot assign this Guaranty without DFS' prior
written consent, although DFS may assign its interest herein without notice to,
or consent from, Guarantor. This Guaranty will protect and bind DFS' and
Guarantor's respective heirs, representatives, Successors and assigns.
18. 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 Guarantor at its address below; (b) to DFS at 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention: General Counsel; or
such other address as the parties may specify from time to time in writing.
19. Severability. If any provision of this Guaranty or its application is
invalid or unenforceable, the remainder of this Guaranty will not be impaired or
affected and will remain binding and enforceable.
20. Supplement. If Guarantor and DFS have heretofore executed other guaranties
or agreements in connection with all or any part of the Collateral, this
Guaranty shall supplement each and every other such guaranty and agreement
previously executed by and between Guarantor and DFS, and in that event this
Guaranty shall neither be deemed a novation nor a termination of such previously
executed guaranty or agreement nor shall execution of this Guaranty be deemed a
satisfaction of any obligation secured by such previously executed guaranty or
agreement.
21. Receipt of Guaranty. Guarantor has read and understood all terms and
provisions of this Guaranty. Guarantor acknowledges receipt of a true copy of
this Guaranty and of all agreements between DFS and Dealer. The meanings of all
terms herein are equally applicable to both the singular and plural forms of
such terms. Notwithstanding anything herein to the contrary: (a) DFS may rely on
any facsimile copy, electronic data transmission or electronic data storage of
this Guaranty, any agreement between DFS and Dealer, any Statement of
Transaction, billing statement, invoice from a vendor, financial statements or
other report, 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 Guaranty or
any other agreement between DFS and Guarantor, and for all evidentiary purposes
before any arbitrator, court or other adjudicatory authority.
22. 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 debt
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are not enforceable. To protect Guarantor and DFS from misunderstanding or
disappointment, any agreements Guarantor and DFS or Dealer and DFS reach
covering such matters are contained in this Guaranty, an Agreement for Wholesale
Financing, or another agreement between Guarantor and DFS or between Dealer and
DFS, which agreement(s) is (are) the complete and exclusive statement of the
agreement between Guarantor and DFS and between Dealer and DFS, except as
specifically provided herein, in such other agreement(s) or as Guarantor and DFS
or Dealer and DFS may later agree in writing.
23. Miscellaneous. This Guaranty will survive any federal and/or state
bankruptcy or insolvency action involving Dealer. If DFS is required in any
action involving Dealer to return or rescind any payment made to or value
received by DFS from or for the account of Dealer, this Guaranty will remain in
full force and effect and will be automatically reinstated without any further
action by DFS and notwithstanding any termination of this Guaranty or DFS'
release of Guarantor. Any delay or failure by DFS, or DFS' successors or
assigns, in exercising any of DFS' rights or remedies hereunder will not waive
any such rights or remedies. If Guarantor 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 directly owed by Guarantor to DFS, which
shall be subject to finance charges at the highest rate allowed by law; and (b)
due and payable immediately in full. Guarantor 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 Guaranty are for convenience only and
do not define or limit the contents of any Section.
24. BINDING ARBITRATION.
24.1 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
Guaranty, and whether directly or indirectly relating to: (a) this Guaranty
and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between DFS and us;
(c) any act committed by DFS or by any parent company, subsidiary or affiliated
company of DFS (the "DFS Companies"), or by an 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 or DFS and Guarantor; and/or (d) any other relationship, transaction,
dealing or agreement between DFS and Dealer or DFS and Guarantor (collectively
the "Disputes"), will be subject to and resolved by binding arbitration.
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24.2 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 arbitrations will be in the
Division of the Federal Judicial District in which AAA maintains a regional
office that is closest to Dealer.
24.3 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 witness(es), and (d) the arbitration hearing will be
continued to the earliest possible date that enables the foregoing limited
discovery to be accomplished.
24.4 Exemplary or Punitive Damages. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
24.5 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 Guaranty
may be entered as a judgment or order in any state or federal court and may be
entered as a judgment or order within the federal judicial district which
includes the residence of the party against whom such award or order was
entered. This Guaranty concerns transactions involving commerce among the
several states. The Federal Arbitration Act ("FAA") will govern all
arbitration(s) and confirmation proceedings hereunder.
24.6 Prejudgment and Provisional Remedies. Nothing herein will be
Construed to prevent DFS' or Guarantor'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
Guarantor's right to compel arbitration of any Dispute.
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24.7 Attorneys' Fees. If either Guarantor or DFS bring any other action
for judicial relief with respect to any Dispute (other than those set forth in
the immediately preceding paragraph), 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 Guarantor or DFS bring or appeal
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 Guarantor
sues DFS or institutes any arbitration claim or counterclaim against DFS in
which DFS is the prevailing party, Guarantor will pay all costs and expenses
(including attorneys' fees) incurred by DFS in the course of defending such
action or proceeding.
24.8 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
with respect to such Dispute.
24.9 Survival After Termination. The agreement to arbitrate will
survive the termination of this Guaranty.
25. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS GUARANTY 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. DFS AND GUARANTOR WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
26. Governing Law. Guarantor acknowledges and agrees that this Guaranty and all
agreements between Dealer and DFS have been substantially negotiated, and will
be performed, in the state of Missouri. Accordingly, Guarantor 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
will control and govern all arbitration proceedings herein.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
Dated: April 12, 1999
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"SECRETARY' S CERTIFICATE
I hereby certify that I am the Secretary or Assistant Secretary of Crescent
Machinery Company ("Guarantor") and that execution of the above Guaranty was
ratified, approved and confirmed by the Shareholders at a meeting, if necessary,
and pursuant to a resolution of the Board of Directors of Guarantor at a meeting
of the Board of Directors duly called, and which is currently in effect, which
resolution was duly presented, seconded and adopted and reads as follows:
"BE IT RESOLVED that any officer of this corporation is hereby authorized to
execute a guaranty of the obligations of Xxxxxx Equipment Center, Inc.
("Dealer") to Deutsche Financial Services Corporation ("DFS") on behalf of the
corporation, which instrument may contain such terms as the above named persons
may see fit including, but not limited to a waiver of notice of the acceptance
of the guaranty; presentment; demand; protest; notices of nonpayment,
nonperformance, dishonor, the amount of indebtedness of Dealer outstanding at
any time, any legal proceedings against Dealer, and any other demands and
notices required by law; and any right of contribution from other guarantors. As
security for such guaranty to DFS, any officer of this corporation is hereby
authorized 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."
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal
on this 12th day of April, 1999.
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COLLATERALIZED GUARANTY
TO: DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS")
1. Guaranty and Indemnification. In consideration of financing provided or to be
provided by you to Machinery, Inc. ("Dealer"), and for other good and valuable
consideration received, the undersigned (individually and/or collectively
"Guarantor") unconditionally and absolutely guaranty to DFS, from property held
separately, jointly or in community, the immediate payment when due of all
current and future liabilities owed by Dealer to DFS, whether such liabilities
are direct, indirect or owed by Dealer to a third party and acquired by DFS
("Liabilities"). Guarantor will pay DFS on demand the full amount of all sums
owed by Dealer to DFS, together with all costs and expenses (including, without
limitation, reasonable attorneys' fees). Guarantor also indemnifies and holds
DFS harmless from and against all (a) losses, costs and expenses DFS incurs
and/or is liable for (including, without limitation, reasonable attorneys' fees)
and (b) claims, actions and demands made by Dealer or any third party against
DFS; which in any way relate to any relationship or transaction between DFS and
Dealer.
2. Consents. This Guaranty will not be released, discharged or affected by, and
Guarantor hereby irrevocably consents to, any: (a) change in the manner, place,
interest rate, finance or other charges, or terms of payment or performance in
any current or future agreement between DFS and Dealer, the release, settlement
or compromise of or with any party liable for the payment or performance thereof
or the substitution, release, non-perfection, impairment, sale or other
disposition of any collateral thereunder; (b) change in Dealer's financial
condition; (c) interruption of relations between Dealer and DFS or Guarantor;
(d) claim or action by Dealer against DFS; and/or (e) increases or decreases in
any credit DFS may provide to Dealer.
3. Unconditional Obligations. Guarantor will pay DFS even if DFS has not: (a)
notified Dealer that it is in default of the Liabilities, and/or that DFS
intends to accelerate or has accelerated the payment of all or any part of the
Liabilities, or (b) exercised any of DFS' rights or remedies against Dealer, any
other person or any current or future collateral. If Dealer hereafter undergoes
any change in its ownership, identity or organizational structure, this Guaranty
will extend to all current and future obligations which such new or changed
legal entity owes to DFS.
4. Waivers. Guarantor irrevocably waives: notice of DFS' acceptance of this
Guaranty, presentment, demand, protest, nonpayment, nonperformance, notice of
breach or default, notice of intent to accelerate and notice of acceleration of
any indebtedness of Dealer, any right of contribution from other guarantors,
dishonor, the amount of indebtedness of Dealer outstanding at any time, the
number and amount of advances made by DFS to Dealer in reliance on this Guaranty
and any claim or action against Dealer; all other demands and notices required
by law; all rights of offset and counterclaims against DFS or Dealer; all
defenses to the enforceability of this Guaranty (including, without limitation,
fraudulent inducement). Guarantor further waives all defenses based on
suretyship or impairment of collateral, and defenses which the Dealer may assert
on the underlying debt, including but not limited to, failure of consideration,
breach of warranty, fraud, payment,
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statute of frauds, bankruptcy, lack of legal capacity, statute of limitations,
lender liability, deceptive trade practices, accord and satisfaction and usury.
Guarantor also waives all rights to claim, arbitrate for or xxx for any punitive
or exemplary damages. In addition, Guarantor hereby irrevocably subordinates to
DFS any and all of Guarantor's present and future rights and remedies: (a) of
subrogation against Dealer to any of DFS' rights or remedies against Dealer, (b)
of contribution, reimbursement, indemnification and restoration from Dealer; and
(c) to assert any other claim or action against Dealer directly or indirectly
relating to this Guaranty, such subordinations to last until DFS has been paid
in full for all Liabilities. All of Guarantor's waivers and subordinations
herein will survive any termination of this Guaranty.
5. Warranties and Representations. Guarantor has made an independent
investigation of the financial condition of Dealer and gives this Guaranty based
on that investigation and not upon any representation made by DFS. Guarantor has
access to current and future Dealer financial information which enables
Guarantor to remain continuously informed of Dealer's financial condition.
Guarantor represents and warrants to DFS that Guarantor has received and will
receive substantial direct or indirect benefit by making this Guaranty and
incurring the Liabilities. Guarantor also represents and warrants to DFS that
Guarantor is solvent and Guarantor's execution of this Guaranty will not make
Guarantor insolvent. Guarantor further represents and warrants to DFS that: (a)
the present fair salable value of Guarantor's assets is greater than the amount
required to pay Guarantor's liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities); (b) Guarantor is able to pay all of its
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) as they become absolute and matured; and (c) Guarantor does not
have unreasonably small capital.
6. Grant of Security Interest. To secure payment of all Liabilities and all of
Guarantor's current and future debts to DFS, whether under this Guaranty or any
current or future guaranty or other agreement, Guarantor grants DFS a security
interest in all of Guarantor's (1) new and used inventory and equipment which is
financed by DFS for, or against which DFS has loaned monies to, Guarantor or
Dealer or any of their subsidiaries or affiliated companies, whether now owned
or hereafter acquired and whether or not transferred among such entities or any
of their subsidiaries or affiliated companies, and (2) all accounts, contract
rights, chattel paper, security agreements, deposit accounts, reserves,
documents, general intangibles and instruments arising from the sale, lease,
rental or other disposition of all such inventory and equipment, and all
judgments, claims, insurance policies and payments owed or made to Guarantor
thereon, and all attachments, accessories, accessions, substitutions and
replacements thereto and all cash and non-cash proceeds of all of the foregoing.
All such assets are collectively referred to herein as the "Collateral." 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 for Dealer or Guarantor, and all proceeds thereof, will be held in trust by
Guarantor for DFS.
7. Additional Warranties and Representations. Guarantor warrants and represents
to DFS that: (a) Guarantor has good title to all Collateral; (b) DFS' security
interest in the Collateral financed by DFS for Dealer or Guarantor is not now
and will not become subordinate to the security interest, lien, encumbrance or
claim of any person; (c) Guarantor will execute all documents DFS requests to
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perfect and maintain DFS' security interest in the Collateral; (d) Guarantor
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 for Dealer or Guarantor; (e) Guarantor 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) Guarantor has the right and is duly authorized to enter into this Guaranty;
(g) Guarantor's execution of this Guaranty does not constitute a breach of any
agreement to which Guarantor is now or hereafter becomes bound; (h) there are
and will be no actions or proceedings pending or threatened against Guarantor
which might result in any material adverse change in Guarantor's financial or
business condition or which might in any way adversely affect any of Guarantor's
assets; (i) Guarantor will maintain the Collateral in good condition and repair;
(j) Guarantor has duly filed and will duly file all tax returns required by law;
(k) Guarantor has paid and will pay when due all taxes, levies, assessments and
governmental charges of any nature; (I) Guarantor will keep and maintain all of
its books and records pertaining to the Collateral at its principal place of
business designated below; (m) Guarantor will promptly supply DFS with such
information concerning it as DFS hereafter may reasonably request; (n) all
Collateral will be kept at Dealer's principal place of business or Guarantor's
place of business listed below, and such other locations, if any, of which
Dealer or Guarantor has notified DFS in writing or as listed on any current or
future Exhibit "A" attached to any Agreement for Wholesale Financing or security
agreement between Dealer and DFS or this Guaranty which written notice(s) to DFS
and Exhibit A(s) are incorporated herein by reference; (o) Guarantor will give
DFS thirty (30) days prior written notice of any change in Guarantor'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) Guarantor 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) Guarantor will advise DFS of the commencement of material legal
proceedings against Dealer or Guarantor; and (r) Guarantor 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.
8. Negative Covenants. Guarantor 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 for Dealer or
Guarantor; or (c) merge or consolidate with another entity.
9. Insurance. Guarantor will immediately notify DFS of any loss, theft or damage
to any Collateral. Guarantor 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 and containing standard
lender's loss payable and termination provisions. Guarantor will provide DFS
with written evidence of such property insurance coverage and lender's
loss-payee endorsement.
10. Financial Statements. Guarantor will provide DFS with financial statements
on it each year within ninety (90) days after the end of Dealer's fiscal year
end. Guarantor warrants and represents
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to DFS that all financial statements and information relating to Guarantor or
Dealer which have been or may hereafter be delivered by Guarantor or Dealer to
DFS are true and correct and have been and will be prepared in accordance with
generally accepted accounting principles consistently applied and, with respect
to previously delivered statements and information, there has been no material
adverse change in the financial or business condition of Guarantor or Dealer
since the submission to DFS, either as of the date of delivery, or if different,
the date specified therein, and Guarantor acknowledges DFS' reliance thereon.
11. Reviews. Guarantor grants DFS an irrevocable license to enter Guarantor's
business locations during normal business hours without notice to Guarantor to:
(a) account for and inspect all Collateral; (b) verify Guarantor's compliance
with this Guaranty; and (c) examine and copy Guarantor's books and records
related to the Collateral.
12. Default. Guarantor will be in default under this Guaranty if: (a) Dealer
breaches any terms, warranties or representations contained in any Agreement for
Wholesale Financing, in any Statement of Transaction to which Dealer has not
objected, or in any other agreement between DFS and Dealer; (b) Guarantor
breaches any terms, warranties or representations contained herein or in any
other agreement between Guarantor and DFS; (c) any representation, statement,
report or certificate made or delivered by Dealer or Guarantor to DFS is not
accurate when made; (d) Dealer fails to pay any portion of Dealer's debts to DFS
when due and payable under any agreement between DFS and Dealer; (e) Guarantor
fails to pay any portion of Guarantor's debts to DFS when due and payable under
any agreement between DFS and Guarantor; (f) Dealer or Guarantor abandons any
Collateral; (g) Dealer or Guarantor is or becomes in default in the payment of
any debt owed to any third party; (h) a money judgment issues against Dealer or
Guarantor; (i) an attachment, sale or seizure issues or is executed against any
assets of Dealer or Guarantor; (j) Guarantor dies if Guarantor is an individual,
any general partner dies while Guarantor is a general or limited partnership, or
any member dies while Guarantor is a limited liability company, as applicable;
(k) Dealer or Guarantor shall cease existence as a corporation, partnership,
limited liability company or trust, as applicable; (l) Dealer or Guarantor
ceases or suspends business; (m) Dealer, Guarantor or any member while Dealer or
Guarantor is a limited liability company, as applicable, makes a general
assignment for the benefit of creditors; (n) Dealer, Guarantor or any member
while Dealer or Guarantor is 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; (o) any receiver
is appointed for any assets of Dealer, Guarantor or any member while Dealer or
Guarantor is a limited liability company, as applicable; (p) this Guaranty or
any other guaranty of Dealer's debts to DFS is terminated; (q) Dealer or
Guarantor loses any franchise, permission, license or right to sell or deal in
any Collateral which DFS finances for Dealer or Guarantor; (r) Dealer or
Guarantor misrepresents their respective financial condition or organizational
structure; or (5) DFS determines in good faith that it is insecure with respect
to any of the Collateral or the payment of any part of Dealer's or Guarantor's
obligation to DFS.
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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 or Guarantor, do any one or more of the following:
declare all or any part of the debt Guarantor owes DFS,
whether contingent or noncontingent and whether arising
hereunder or under any other agreement between Guarantor and
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
Guarantor, if applicable, or Dealer (DFS' right to cease
extending credit shall not be construed to limit the
discretionary nature of any credit facility)
(b) Guarantor 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, Guarantor 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 Guarantor, take immediate possession of the
Collateral together with all related documents.
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. Guarantor 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. Guarantor 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.
Guarantor 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). Guarantor 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 Guaranty.
15. Power of Attorney. Guarantor grants DFS an irrevocable power of attorney to:
execute or endorse on Guarantor'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 Guarantor; 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.
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16. Termination. Guarantor may terminate this Guaranty by a written notice to
DFS, the termination to be effective sixty (60) days after DFS receives and
acknowledges it, but the termination will not terminate Guarantor's obligations
hereunder for Liabilities arising prior to the effective termination date.
17. Binding Effect. Guarantor cannot assign this Guaranty without DFS' prior
written consent, although DFS may assign its interest herein without notice to,
or consent from, Guarantor. This Guaranty will protect and bind DFS' and
Guarantor's respective heirs, representatives, Successors and assigns.
18. 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 Guarantor at its address below; (b) to DFS at 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention: General Counsel; or
such other address as the parties may specify from time to time in writing.
19. Severability. If any provision of this Guaranty or its application is
invalid or unenforceable, the remainder of this Guaranty will not be impaired or
affected and will remain binding and enforceable.
20. Supplement. If Guarantor and DFS have heretofore executed other guaranties
or agreements in connection with all or any part of the Collateral, this
Guaranty shall supplement each and every other such guaranty and agreement
previously executed by and between Guarantor and DFS, and in that event this
Guaranty shall neither be deemed a novation nor a termination of such previously
executed guaranty or agreement nor shall execution of this Guaranty be deemed a
satisfaction of any obligation secured by such previously executed guaranty or
agreement.
21. Receipt of Guaranty. Guarantor has read and understood all terms and
provisions of this Guaranty. Guarantor acknowledges receipt of a true copy of
this Guaranty and of all agreements between DFS and Dealer. The meanings of all
terms herein are equally applicable to both the singular and plural forms of
such terms. Notwithstanding anything herein to the contrary: (a) DFS may rely on
any facsimile copy, electronic data transmission or electronic data storage of
this Guaranty, any agreement between DFS and Dealer, any Statement of
Transaction, billing statement, invoice from a vendor, financial statements or
other report, 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 Guaranty or
any other agreement between DFS and Guarantor, and for all evidentiary purposes
before any arbitrator, court or other adjudicatory authority.
22. 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 debt
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are not enforceable. To protect Guarantor and DFS from misunderstanding or
disappointment, any agreements Guarantor and DFS or Dealer and DFS reach
covering such matters are contained in this Guaranty, an Agreement for Wholesale
Financing, or another agreement between Guarantor and DFS or between Dealer and
DFS, which agreement(s) is (are) the complete and exclusive statement of the
agreement between Guarantor and DFS and between Dealer and DFS, except as
specifically provided herein, in such other agreement(s) or as Guarantor and DFS
or Dealer and DFS may later agree in writing.
23. Miscellaneous. This Guaranty will survive any federal and/or state
bankruptcy or insolvency action involving Dealer. If DFS is required in any
action involving Dealer to return or rescind any payment made to or value
received by DFS from or for the account of Dealer, this Guaranty will remain in
full force and effect and will be automatically reinstated without any further
action by DFS and notwithstanding any termination of this Guaranty or DFS'
release of Guarantor. Any delay or failure by DFS, or DFS' successors or
assigns, in exercising any of DFS' rights or remedies hereunder will not waive
any such rights or remedies. If Guarantor 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 directly owed by Guarantor to DFS, which
shall be subject to finance charges at the highest rate allowed by law; and (b)
due and payable immediately in full. Guarantor 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 Guaranty are for convenience only and
do not define or limit the contents of any Section.
24. BINDING ARBITRATION.
24.1 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
Guaranty, and whether directly or indirectly relating to: (a) this Guaranty
and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between DFS and us;
(c) any act committed by DFS or by any parent company, subsidiary or affiliated
company of DFS (the "DFS Companies"), or by an 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 or DFS and Guarantor; and/or (d) any other relationship, transaction,
dealing or agreement between DFS and Dealer or DFS and Guarantor (collectively
the "Disputes"), will be subject to and resolved by binding arbitration.
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24.2 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 arbitrations will be in the
Division of the Federal Judicial District in which AAA maintains a regional
office that is closest to Dealer.
24.3 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 witness(es), and (d) the arbitration hearing will be
continued to the earliest possible date that enables the foregoing limited
discovery to be accomplished.
24.4 Exemplary or Punitive Damages. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
24.5 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 Guaranty
may be entered as a judgment or order in any state or federal court and may be
entered as a judgment or order within the federal judicial district which
includes the residence of the party against whom such award or order was
entered. This Guaranty concerns transactions involving commerce among the
several states. The Federal Arbitration Act ("FAA") will govern all
arbitration(s) and confirmation proceedings hereunder.
24.6 Prejudgment and Provisional Remedies. Nothing herein will be
Construed to prevent DFS' or Guarantor'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
Guarantor's right to compel arbitration of any Dispute.
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24.7 Attorneys' Fees. If either Guarantor or DFS bring any other action
for judicial relief with respect to any Dispute (other than those set forth in
the immediately preceding paragraph), 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 Guarantor or DFS bring or appeal
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 Guarantor
sues DFS or institutes any arbitration claim or counterclaim against DFS in
which DFS is the prevailing party, Guarantor will pay all costs and expenses
(including attorneys' fees) incurred by DFS in the course of defending such
action or proceeding.
24.8 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
with respect to such Dispute.
24.9 Survival After Termination. The agreement to arbitrate will
survive the termination of this Guaranty.
25. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS GUARANTY 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. DFS AND GUARANTOR WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
26. Governing Law. Guarantor acknowledges and agrees that this Guaranty and all
agreements between Dealer and DFS have been substantially negotiated, and will
be performed, in the state of Missouri. Accordingly, Guarantor 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
will control and govern all arbitration proceedings herein.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
Date: March 16, 1999
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"SECRETARY' S CERTIFICATE
I hereby certify that I am the Secretary or Assistant Secretary of Crescent
Machinery Company, Inc. ("Guarantor") and that execution of the above Guaranty
was ratified, approved and confirmed by the Shareholders at a meeting, if
necessary, and pursuant to a resolution of the Board of Directors of Guarantor
at a meeting of the Board of Directors duly called, and which is currently in
effect, which resolution was duly presented, seconded and adopted and reads as
follows:
"BE IT RESOLVED that any officer of this corporation is hereby authorized to
execute a guaranty of the obligations of Machinery, Inc. ("Dealer") to Deutsche
Financial Services Corporation ("DFS") on behalf of the corporation, which
instrument may contain such terms as the above named persons may see fit
including, but not limited to a waiver of notice of the acceptance of the
guaranty; presentment; demand; protest; notices of nonpayment, nonperformance,
dishonor, the amount of indebtedness of Dealer outstanding at any time, any
legal proceedings against Dealer, and any other demands and notices required by
law; and any right of contribution from other guarantors. As security for such
guaranty to DFS, any officer of this corporation is hereby authorized 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."
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal
on this 16th day of March, 1999.
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COLLATERALIZED GUARANTY
TO: DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS")
1. Guaranty and Indemnification. In consideration of financing provided or to be
provided by you to Solvenson Crane Rentals, Inc. ("Dealer"), and for other good
and valuable consideration received, the undersigned (individually and/or
collectively "Guarantor") unconditionally and absolutely guaranty to DFS, from
property held separately, jointly or in community, the immediate payment when
due of all current and future liabilities owed by Dealer to DFS, whether such
liabilities are direct, indirect or owed by Dealer to a third party and acquired
by DFS ("Liabilities"). Guarantor will pay DFS on demand the full amount of all
sums owed by Dealer to DFS, together with all costs and expenses (including,
without limitation, reasonable attorneys' fees). Guarantor also indemnifies and
holds DFS harmless from and against all (a) losses, costs and expenses DFS
incurs and/or is liable for (including, without limitation, reasonable
attorneys' fees) and (b) claims, actions and demands made by Dealer or any third
party against DFS; which in any way relate to any relationship or transaction
between DFS and Dealer.
2. Consents. This Guaranty will not be released, discharged or affected by, and
Guarantor hereby irrevocably consents to, any: (a) change in the manner, place,
interest rate, finance or other charges, or terms of payment or performance in
any current or future agreement between DFS and Dealer, the release, settlement
or compromise of or with any party liable for the payment or performance thereof
or the substitution, release, non-perfection, impairment, sale or other
disposition of any collateral thereunder; (b) change in Dealer's financial
condition; (c) interruption of relations between Dealer and DFS or Guarantor;
(d) claim or action by Dealer against DFS; and/or (e) increases or decreases in
any credit DFS may provide to Dealer.
3. Unconditional Obligations. Guarantor will pay DFS even if DFS has not: (a)
notified Dealer that it is in default of the Liabilities, and/or that DFS
intends to accelerate or has accelerated the payment of all or any part of the
Liabilities, or (b) exercised any of DFS' rights or remedies against Dealer, any
other person or any current or future collateral. If Dealer hereafter undergoes
any change in its ownership, identity or organizational structure, this Guaranty
will extend to all current and future obligations which such new or changed
legal entity owes to DFS.
4. Waivers. Guarantor irrevocably waives: notice of DFS' acceptance of this
Guaranty, presentment, demand, protest, nonpayment, nonperformance, notice of
breach or default, notice of intent to accelerate and notice of acceleration of
any indebtedness of Dealer, any right of contribution from other guarantors,
dishonor, the amount of indebtedness of Dealer outstanding at any time, the
number and amount of advances made by DFS to Dealer in reliance on this Guaranty
and any claim or action against Dealer; all other demands and notices required
by law; all rights of offset and counterclaims against DFS or Dealer; all
defenses to the enforceability of this Guaranty (including, without limitation,
fraudulent inducement). Guarantor further waives all defenses based on
suretyship or impairment of collateral, and defenses which the Dealer may assert
on the underlying debt, including but not limited to, failure of consideration,
breach of warranty, fraud, payment,
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statute of frauds, bankruptcy, lack of legal capacity, statute of limitations,
lender liability, deceptive trade practices, accord and satisfaction and usury.
Guarantor also waives all rights to claim, arbitrate for or xxx for any punitive
or exemplary damages. In addition, Guarantor hereby irrevocably subordinates to
DFS any and all of Guarantor's present and future rights and remedies: (a) of
subrogation against Dealer to any of DFS' rights or remedies against Dealer, (b)
of contribution, reimbursement, indemnification and restoration from Dealer; and
(c) to assert any other claim or action against Dealer directly or indirectly
relating to this Guaranty, such subordinations to last until DFS has been paid
in full for all Liabilities. All of Guarantor's waivers and subordinations
herein will survive any termination of this Guaranty.
5. Warranties and Representations. Guarantor has made an independent
investigation of the financial condition of Dealer and gives this Guaranty based
on that investigation and not upon any representation made by DFS. Guarantor has
access to current and future Dealer financial information which enables
Guarantor to remain continuously informed of Dealer's financial condition.
Guarantor represents and warrants to DFS that Guarantor has received and will
receive substantial direct or indirect benefit by making this Guaranty and
incurring the Liabilities. Guarantor also represents and warrants to DFS that
Guarantor is solvent and Guarantor's execution of this Guaranty will not make
Guarantor insolvent. Guarantor further represents and warrants to DFS that: (a)
the present fair salable value of Guarantor's assets is greater than the amount
required to pay Guarantor's liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities); (b) Guarantor is able to pay all of its
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) as they become absolute and matured; and (c) Guarantor does not
have unreasonably small capital.
6. Grant of Security Interest. To secure payment of all Liabilities and all of
Guarantor's current and future debts to DFS, whether under this Guaranty or any
current or future guaranty or other agreement, Guarantor grants DFS a security
interest in all of Guarantor's (1) new and used inventory and equipment which is
financed by DFS for, or against which DFS has loaned monies to, Guarantor or
Dealer or any of their subsidiaries or affiliated companies, whether now owned
or hereafter acquired and whether or not transferred among such entities or any
of their subsidiaries or affiliated companies, and (2) all accounts, contract
rights, chattel paper, security agreements, deposit accounts, reserves,
documents, general intangibles and instruments arising from the sale, lease,
rental or other disposition of all such inventory and equipment, and all
judgments, claims, insurance policies and payments owed or made to Guarantor
thereon, and all attachments, accessories, accessions, substitutions and
replacements thereto and all cash and non-cash proceeds of all of the foregoing.
All such assets are collectively referred to herein as the "Collateral." 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 for Dealer or Guarantor, and all proceeds thereof, will be held in trust by
Guarantor for DFS.
7. Additional Warranties and Representations. Guarantor warrants and represents
to DFS that: (a) Guarantor has good title to all Collateral; (b) DFS' security
interest in the Collateral financed by DFS for Dealer or Guarantor is not now
and will not become subordinate to the security interest, lien, encumbrance or
claim of any person; (c) Guarantor will execute all documents DFS requests to
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perfect and maintain DFS' security interest in the Collateral; (d) Guarantor
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 for Dealer or Guarantor; (e) Guarantor 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) Guarantor has the right and is duly authorized to enter into this Guaranty;
(g) Guarantor's execution of this Guaranty does not constitute a breach of any
agreement to which Guarantor is now or hereafter becomes bound; (h) there are
and will be no actions or proceedings pending or threatened against Guarantor
which might result in any material adverse change in Guarantor's financial or
business condition or which might in any way adversely affect any of Guarantor's
assets; (i) Guarantor will maintain the Collateral in good condition and repair;
(j) Guarantor has duly filed and will duly file all tax returns required by law;
(k) Guarantor has paid and will pay when due all taxes, levies, assessments and
governmental charges of any nature; (I) Guarantor will keep and maintain all of
its books and records pertaining to the Collateral at its principal place of
business designated below; (m) Guarantor will promptly supply DFS with such
information concerning it as DFS hereafter may reasonably request; (n) all
Collateral will be kept at Dealer's principal place of business or Guarantor's
place of business listed below, and such other locations, if any, of which
Dealer or Guarantor has notified DFS in writing or as listed on any current or
future Exhibit "A" attached to any Agreement for Wholesale Financing or security
agreement between Dealer and DFS or this Guaranty which written notice(s) to DFS
and Exhibit A(s) are incorporated herein by reference; (o) Guarantor will give
DFS thirty (30) days prior written notice of any change in Guarantor'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) Guarantor 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) Guarantor will advise DFS of the commencement of material legal
proceedings against Dealer or Guarantor; and (r) Guarantor 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.
8. Negative Covenants. Guarantor 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 for Dealer or
Guarantor; or (c) merge or consolidate with another entity.
9. Insurance. Guarantor will immediately notify DFS of any loss, theft or damage
to any Collateral. Guarantor 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 and containing standard
lender's loss payable and termination provisions. Guarantor will provide DFS
with written evidence of such property insurance coverage and lender's
loss-payee endorsement.
10. Financial Statements. Guarantor will provide DFS with financial statements
on it each year within ninety (90) days after the end of Dealer's fiscal year
end. Guarantor warrants and represents
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to DFS that all financial statements and information relating to Guarantor or
Dealer which have been or may hereafter be delivered by Guarantor or Dealer to
DFS are true and correct and have been and will be prepared in accordance with
generally accepted accounting principles consistently applied and, with respect
to previously delivered statements and information, there has been no material
adverse change in the financial or business condition of Guarantor or Dealer
since the submission to DFS, either as of the date of delivery, or if different,
the date specified therein, and Guarantor acknowledges DFS' reliance thereon.
11. Reviews. Guarantor grants DFS an irrevocable license to enter Guarantor's
business locations during normal business hours without notice to Guarantor to:
(a) account for and inspect all Collateral; (b) verify Guarantor's compliance
with this Guaranty; and (c) examine and copy Guarantor's books and records
related to the Collateral.
12. Default. Guarantor will be in default under this Guaranty if: (a) Dealer
breaches any terms, warranties or representations contained in any Agreement for
Wholesale Financing, in any Statement of Transaction to which Dealer has not
objected, or in any other agreement between DFS and Dealer; (b) Guarantor
breaches any terms, warranties or representations contained herein or in any
other agreement between Guarantor and DFS; (c) any representation, statement,
report or certificate made or delivered by Dealer or Guarantor to DFS is not
accurate when made; (d) Dealer fails to pay any portion of Dealer's debts to DFS
when due and payable under any agreement between DFS and Dealer; (e) Guarantor
fails to pay any portion of Guarantor's debts to DFS when due and payable under
any agreement between DFS and Guarantor; (f) Dealer or Guarantor abandons any
Collateral; (g) Dealer or Guarantor is or becomes in default in the payment of
any debt owed to any third party; (h) a money judgment issues against Dealer or
Guarantor; (i) an attachment, sale or seizure issues or is executed against any
assets of Dealer or Guarantor; (j) Guarantor dies if Guarantor is an individual,
any general partner dies while Guarantor is a general or limited partnership, or
any member dies while Guarantor is a limited liability company, as applicable;
(k) Dealer or Guarantor shall cease existence as a corporation, partnership,
limited liability company or trust, as applicable; (l) Dealer or Guarantor
ceases or suspends business; (m) Dealer, Guarantor or any member while Dealer or
Guarantor is a limited liability company, as applicable, makes a general
assignment for the benefit of creditors; (n) Dealer, Guarantor or any member
while Dealer or Guarantor is 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; (o) any receiver
is appointed for any assets of Dealer, Guarantor or any member while Dealer or
Guarantor is a limited liability company, as applicable; (p) this Guaranty or
any other guaranty of Dealer's debts to DFS is terminated; (q) Dealer or
Guarantor loses any franchise, permission, license or right to sell or deal in
any Collateral which DFS finances for Dealer or Guarantor; (r) Dealer or
Guarantor misrepresents their respective financial condition or organizational
structure; or (5) DFS determines in good faith that it is insecure with respect
to any of the Collateral or the payment of any part of Dealer's or Guarantor's
obligation to DFS.
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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 or Guarantor, do any one or more of the following:
declare all or any part of the debt Guarantor owes DFS,
whether contingent or noncontingent and whether arising
hereunder or under any other agreement between Guarantor and
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
Guarantor, if applicable, or Dealer (DFS' right to cease
extending credit shall not be construed to limit the
discretionary nature of any credit facility)
(b) Guarantor 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, Guarantor 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 Guarantor, take immediate possession of the
Collateral together with all related documents.
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. Guarantor 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. Guarantor 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.
Guarantor 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). Guarantor 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 Guaranty.
15. Power of Attorney. Guarantor grants DFS an irrevocable power of attorney to:
execute or endorse on Guarantor'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 Guarantor; 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.
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16. Termination. Guarantor may terminate this Guaranty by a written notice to
DFS, the termination to be effective sixty (60) days after DFS receives and
acknowledges it, but the termination will not terminate Guarantor's obligations
hereunder for Liabilities arising prior to the effective termination date.
17. Binding Effect. Guarantor cannot assign this Guaranty without DFS' prior
written consent, although DFS may assign its interest herein without notice to,
or consent from, Guarantor. This Guaranty will protect and bind DFS' and
Guarantor's respective heirs, representatives, Successors and assigns.
18. 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 Guarantor at its address below; (b) to DFS at 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention: General Counsel; or
such other address as the parties may specify from time to time in writing.
19. Severability. If any provision of this Guaranty or its application is
invalid or unenforceable, the remainder of this Guaranty will not be impaired or
affected and will remain binding and enforceable.
20. Supplement. If Guarantor and DFS have heretofore executed other guaranties
or agreements in connection with all or any part of the Collateral, this
Guaranty shall supplement each and every other such guaranty and agreement
previously executed by and between Guarantor and DFS, and in that event this
Guaranty shall neither be deemed a novation nor a termination of such previously
executed guaranty or agreement nor shall execution of this Guaranty be deemed a
satisfaction of any obligation secured by such previously executed guaranty or
agreement.
21. Receipt of Guaranty. Guarantor has read and understood all terms and
provisions of this Guaranty. Guarantor acknowledges receipt of a true copy of
this Guaranty and of all agreements between DFS and Dealer. The meanings of all
terms herein are equally applicable to both the singular and plural forms of
such terms. Notwithstanding anything herein to the contrary: (a) DFS may rely on
any facsimile copy, electronic data transmission or electronic data storage of
this Guaranty, any agreement between DFS and Dealer, any Statement of
Transaction, billing statement, invoice from a vendor, financial statements or
other report, 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 Guaranty or
any other agreement between DFS and Guarantor, and for all evidentiary purposes
before any arbitrator, court or other adjudicatory authority.
22. 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 debt
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are not enforceable. To protect Guarantor and DFS from misunderstanding or
disappointment, any agreements Guarantor and DFS or Dealer and DFS reach
covering such matters are contained in this Guaranty, an Agreement for Wholesale
Financing, or another agreement between Guarantor and DFS or between Dealer and
DFS, which agreement(s) is (are) the complete and exclusive statement of the
agreement between Guarantor and DFS and between Dealer and DFS, except as
specifically provided herein, in such other agreement(s) or as Guarantor and DFS
or Dealer and DFS may later agree in writing.
23. Miscellaneous. This Guaranty will survive any federal and/or state
bankruptcy or insolvency action involving Dealer. If DFS is required in any
action involving Dealer to return or rescind any payment made to or value
received by DFS from or for the account of Dealer, this Guaranty will remain in
full force and effect and will be automatically reinstated without any further
action by DFS and notwithstanding any termination of this Guaranty or DFS'
release of Guarantor. Any delay or failure by DFS, or DFS' successors or
assigns, in exercising any of DFS' rights or remedies hereunder will not waive
any such rights or remedies. If Guarantor 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 directly owed by Guarantor to DFS, which
shall be subject to finance charges at the highest rate allowed by law; and (b)
due and payable immediately in full. Guarantor 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 Guaranty are for convenience only and
do not define or limit the contents of any Section.
24. BINDING ARBITRATION.
24.1 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
Guaranty, and whether directly or indirectly relating to: (a) this Guaranty
and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between DFS and us;
(c) any act committed by DFS or by any parent company, subsidiary or affiliated
company of DFS (the "DFS Companies"), or by an 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 or DFS and Guarantor; and/or (d) any other relationship, transaction,
dealing or agreement between DFS and Dealer or DFS and Guarantor (collectively
the "Disputes"), will be subject to and resolved by binding arbitration.
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24.2 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 arbitrations will be in the
Division of the Federal Judicial District in which AAA maintains a regional
office that is closest to Dealer.
24.3 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 witness(es), and (d) the arbitration hearing will be
continued to the earliest possible date that enables the foregoing limited
discovery to be accomplished.
24.4 Exemplary or Punitive Damages. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
24.5 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 Guaranty
may be entered as a judgment or order in any state or federal court and may be
entered as a judgment or order within the federal judicial district which
includes the residence of the party against whom such award or order was
entered. This Guaranty concerns transactions involving commerce among the
several states. The Federal Arbitration Act ("FAA") will govern all
arbitration(s) and confirmation proceedings hereunder.
24.6 Prejudgment and Provisional Remedies. Nothing herein will be
Construed to prevent DFS' or Guarantor'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
Guarantor's right to compel arbitration of any Dispute.
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24.7 Attorneys' Fees. If either Guarantor or DFS bring any other action
for judicial relief with respect to any Dispute (other than those set forth in
the immediately preceding paragraph), 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 Guarantor or DFS bring or appeal
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 Guarantor
sues DFS or institutes any arbitration claim or counterclaim against DFS in
which DFS is the prevailing party, Guarantor will pay all costs and expenses
(including attorneys' fees) incurred by DFS in the course of defending such
action or proceeding.
24.8 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
with respect to such Dispute.
24.9 Survival After Termination. The agreement to arbitrate will
survive the termination of this Guaranty.
25. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS GUARANTY 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. DFS AND GUARANTOR WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
26. Governing Law. Guarantor acknowledges and agrees that this Guaranty and all
agreements between Dealer and DFS have been substantially negotiated, and will
be performed, in the state of Missouri. Accordingly, Guarantor 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
will control and govern all arbitration proceedings herein.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
Date: August 8, 1999
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"SECRETARY'S CERTIFICATE
I hereby certify that I am the Secretary or Assistant Secretary of Crescent
Machinery Company. ("Guarantor") and that execution of the above Guaranty was
ratified, approved and confirmed by the Shareholders at a meeting, if necessary,
and pursuant to a resolution of the Board of Directors of Guarantor at a meeting
of the Board of Directors duly called, and which is currently in effect, which
resolution was duly presented, seconded and adopted and reads as follows:
"BE IT RESOLVED that any officer of this corporation is hereby authorized to
execute a guaranty of the obligations of Solvenson Crane Rentals, Inc.
("Dealer") to Deutsche Financial Services Corporation ("DFS") on behalf of the
corporation, which instrument may contain such terms as the above named persons
may see fit including, but not limited to a waiver of notice of the acceptance
of the guaranty; presentment; demand; protest; notices of nonpayment,
nonperformance, dishonor, the amount of indebtedness of Dealer outstanding at
any time, any legal proceedings against Dealer, and any other demands and
notices required by law; and any right of contribution from other guarantors. As
security for such guaranty to DFS, any officer of this corporation is hereby
authorized 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."
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal
on this 4th day of August, 1999.
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AGREEMENT FOR WHOLESALE FINANCING
(Industrial/Construction - Rental)
This Agreement for Wholesale Financing ("Agreement") is made as of April 6, 1998
between Deutsche Financial Services Corporation ("DFS") and Xxxxx-Day, Inc., a
[___] SOLE PROPRIETORSHIP, [__] PARTNERSHIP, [X] CORPORATION, [__] LIMITED
LIABILITY COMPANY (check applicable term) ("Dealer"), having a principal place
of business located at 0000 Xxxxxx Xxxx. Xxxxxx, XX 00000.
1. Extension of Credit. In the course of Dealer's business, Dealer
acquires new and used inventory and equipment ("Inventory") which is
manufactured or sold by, and/or which bears a trademark or trade name of: (a)
JCB, Xxxxxxxxx-Xxxx, P & H Cranes, Pioneer Boom Trucks, Super Pac and Xxxxxxxxx
or any of their subsidiaries or affiliated companies ("Vendor"), or (b) other
manufacturers or distributors. Subject to the terms of this Agreement, DFS, in
its sole discretion, may extend credit to Dealer from time to time to purchase
Inventory from Vendor or other manufacturers or distributors. 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 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' decision to
advance funds on any Inventory will not be binding until the funds are actually
advanced. DFS may, at any time and without notice to Dealer, elect not to
finance any Inventory sold by Vendor or another specific manufacturer or
distributor if Vendor or the specific manufacturer or distributor is in default
of its obligations to DFS, or with respect to which DFS reasonably feels
insecure.
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 from time to time of discounts, payment terms or other
incentives from Vendor and other manufacturers and distributors, prevailing
economic conditions, and other economic factors which may vary over time. It is
therefore in DFS' and Dealer's 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, and any amendment thereto ("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 the items of Inventory referenced
in such Statement of Transaction are being financed by DFS 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 will pay DFS for such Inventory
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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. Security Interest. To secure payment of all 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 new and used inventory and equipment which is manufactured or sold by,
and/or which bears a trademark or trade name of, (a) Vendor, or (b) any other
manufacturer or distributor, in each case which is financed by DFS or against
which DFS has advanced monies, whether now owned or hereafter acquired by
Dealer, and all accounts, contract rights, chattel paper, security agreements,
deposit accounts, reserves, documents, general intangibles and instruments
arising from all such inventory and equipment, and all judgments, claims,
insurance policies and payments owed or made to Dealer thereon, and all
attachments, accessories, accessions, substitutions and replacements thereto and
all proceeds thereof. All such assets are collectively referred to herein as the
"Collateral." 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 solely for release or distribution to DFS, with such proceeds
being payable solely to DFS 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; (b) DFS'
security interest in the Collateral 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; (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; (h) there are and,
to the best of Dealer's knowledge 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; (1) 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
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incorporated herein by reference; (0) 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; and (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.
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,
demonstrate, lease or otherwise dispose of or transfer any of its assets; (b)
demonstrate, consign, or use any Collateral; 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 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 thirty (30) 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.
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9. Payment Terms. Dealer will immediately pay DFS the principal
indebtedness owed DFS on each item of Inventory financed by DFS or against which
DFS has advanced funds on the earliest occurrence of any of the following
events: (a) (i) when such Inventory is lost, stolen or damaged - immediately if
such loss, theft or damage is not covered completely by insurance, or (ii) if
completely covered by insurance, then upon Dealer's receipt of the insurance
proceeds therefor or thirty (30) days following the loss theft or damage,
whichever occurs first; (b) when such Inventory is sold, transferred or
otherwise disposed of; provided, however, if any item of Inventory financed by
DFS or against which DFS has advanced funds is sold and Dealer does not receive
payment for such item at the time of sale, Dealer will pay DFS the full amount
of the principal balance owed DFS on such item of Inventory within thirty (30)
days immediately following the sale date of such item of Inventory or
immediately upon Dealer's receipt of payment for such items of Inventory,
whichever occurs first; (c) in strict accordance with any curtailment schedule
for such Inventory (as shown on the Statement of Transaction identifying such
Inventory); (d) when any item of such Inventory matures (as shown on the
Statement of Transaction identifying such Inventory). With respect to Inventory
financed by DFS or against which DFS has advanced funds and held for rent and/or
lease, Dealer will owe DFS and agree to pay DFS monthly the percentage of the
principal balance owed on each item of such Inventory that is required under the
terms of Dealer's financing program with DFS. However, if any Inventory financed
by DFS or against which DFS has advanced funds and held for rent and/or lease:
(A) is sold and Dealer does not receive payment for such item at the time of
sale, Dealer will pay DFS the full amount of the principal balance owed to DFS
on such item of Inventory within thirty (30) days immediately following the sale
date of such item of Inventory or immediately upon Dealer's receipt of payment
for such item of Inventory, whichever occurs first; or (B) is stolen, destroyed
or otherwise disposed of, Dealer will immediately pay DFS the full amount of
Dealer's outstanding indebtedness owed to DFS for such Inventory. If Dealer from
time to time is required to make immediate payment to DFS of any past due
obligation discovered during any Inventory audit, or at any other time, Dealer
agrees that acceptance of such payments by DFS will not be construed to have
waived or amended the terms of its financing program. 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 Inventory financed by DFS, but, in any event, all
principal payments will first be applied to such Inventory 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
Inventory will not reduce the debt Dealer owes DFS until DFS has received
payment therefor in cash. Dealer will: (1) pay DFS even if any Inventory
financed by DFS or against which DFS has advanced funds 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 Inventory relating to the condition of, or any representations regarding,
any of the Inventory. Dealer waives all rights of offset and counterclaims which
Dealer may have against DFS.
10. Calculation of charges. Dealer will pay finance charges to DFS on
the outstanding principal debt Dealer owes DFS for each item of Inventory
financed-by DFS at the rate(s) shown on the Statement of Transaction identifying
such Inventory, unless Dealer objects thereto as provided in
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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
Inventory identified on such Statement of Transaction until DFS receives full
payment of the principal debt Dealer owes DFS for each item of such Inventory 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 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 Inventory 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) .
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. The
annual percentage rate of the finance charges relating to any item of Inventory
financed by DFS will be calculated from the invoice date of such Inventory,
regardless of any period during which any finance charge subsidy will be paid or
payable by any third party.
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 upon 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.
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12. Rental Contracts. Dealer may rent the Inventory financed by DFS or
against which DFS has advanced funds pursuant to the terms of Dealer's rental
contracts ("Rental Contracts"). Such Inventory will thereafter be subject to the
rates and terms of DFS' financing program in effect for goods which are rented,
as reflected in the Statement of Transaction for such Inventory. All of Dealer's
Rental Contracts, agreements, and rental transactions will be in a form
satisfactory to DFS and will be in accordance with all applicable Federal, State
and local laws. Dealer will indemnify DFS against any loss or damage which DFS
suffers, whether direct or indirect, resulting in any way from the Rental
Contracts, agreements, or rental transactions which fail to comply with such
laws. All Rental Contracts will be transferable to DFS. Dealer will indemnify
DFS against any claims by its customers regarding Dealer's obligations under the
Rental Contracts. Dealer will immediately, upon DFS' request, deliver to DFS all
Rental Contracts and all related documents. This assignment is a transfer for
security only, and, until DFS has foreclosed its interest in the Rental
Contracts, will not be deemed to delegate any of Dealer's duties under the
Rental Contracts to DFS, nor is it intended to alter or impair performance by
either party to the Rental Contracts. DFS may, from time to time, verify the
accuracy of the Rental Contracts, and Dealer will immediately, upon DFS'
request, provide DFS with the following information regarding Rental Contracts
which are in effect on the date of such request: (a) the name, address and
telephone number of each customer who has executed a Rental Contract; (b) the
location of the Inventory; (c) the date of each Rental Contract; (d) the date
when the Inventory is to be returned under each Rental Contract; and, (e) any
other information which DFS may reasonably request. If the rental period under
the Rental Contract is ninety (90) days or longer, Dealer will stamp the
original of such Rental Contract with the following legend:
`FOR VALUE RECEIVED, THIS AGREEMENT HAS BEEN ASSIGNED TO DEUTSCHE
FINANCIAL SERVICES CORPORATION AND THERE ARE NO DEFENSES AGAINST THE
ASSIGNEE.'
Other than to DFS, Dealer will not assign, sell, pledge, convey or by any other
means transfer any Rental Contracts or chattel paper, without DFS' prior written
consent. Dealer will not enter into any Rental Contracts for Inventory financed
by DFS or against which DFS has advanced funds pursuant to which: (i) the
original term of the Rental Contract is greater than three hundred sixty (360)
days; (ii) the original term of the Rental Contract is equal to or greater than
the remaining economic life of such Inventory; (iii) the customer is bound to
renew the Rental Contract for the economic life of such Inventory or is bound to
become the owner of such Inventory; or, (iv) the customer has an option to renew
the Rental Contract for the remaining economic life of such Inventory, or to
become the owner of such Inventory, for nominal consideration, or for
consideration which is less than the unpaid balance owed to DFS for such
Inventory. If any such Rental Contracts are issued, Dealer will take any action
which DFS may reasonably require to perfect and/or protect DFS' security
interest in such Rental Contracts and/or the Inventory subject thereto.
13. Default. Dealer will be in default under this Agreement if: (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
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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 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; (e) Dealer abandons any Collateral; (f)
Dealer or any guarantor is or becomes in default in the payment of any debt owed
to any third party; (g) a money judgment issues against Dealer or any guarantor;
(h) an attachment, sale or seizure issues or is executed against any assets of
Dealer or of any guarantor; (i) 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; (j) any guarantor dies; (k) Dealer or any guarantor shall cease
existence as a corporation, partnership, limited liability company or trust, as
applicable; (1) Dealer or any guarantor ceases or suspends business; (m) 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; (n) 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; (0) 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; (p) any guaranty of
Dealer's debts to DFS is terminated; (q) Dealer loses any franchise, permission,
license or right to sell or deal in any Inventory which DFS finances; or (r)
Dealer or any guarantor misrepresents Dealer's or such guarantor's financial
condition or organizational structure.
14. 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 attorney's 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 will 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.
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(e) Dealer grants DFS an irrevocable power of attorney to: execute
or endorse on Dealer's behalf any checks, drafts or other
forms of exchange received as payment on any Collateral for
deposit in DFS' account; execute 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;
sell, assign, transfer, negotiate, demand, collect, receive,
settle, extend, or renew any amounts due on any of the
Collateral; do anything Dealer is obligated to do hereunder;
initiate and settle any insurance claim pertaining to the
Collateral; and do anything to preserve and protect the
Collateral and DFS' rights and interests therein.
(f) Upon DFS' oral or written demand, Dealer will immediately
deliver the original Rental Contracts to DFS, and DFS may
collect in DFS' name all amounts owed to Dealer under the
Rental Contracts.
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.
15. 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 Vendor or
a manufacturer or distributor, as provided in any agreement between DFS and the
Vendor, manufacturer or distributor, is a commercially reasonable disposition
and private sale of such Collateral under the Uniform Commercial Code, and no
request for bids will 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 Vendor or a manufacturer or distributor).
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.
16. Power of Attorney; Information. Dealer grants DFS an irrevocable
power of attorney to do anything necessary to preserve and protect the
Collateral and DFS' rights and interest therein. 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, manufacturer or
distributor, any credit, financial or other information regarding Dealer that
such Vendor, manufacturer or distributor may from time to time possess.
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
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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 riot
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. 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 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000, 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 (or any predecessor in interest to
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 (or any predecessor
in interest to 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.
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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 Vendor or any manufacturer or distributor, 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 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 0 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
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and addenda hereto, or the breach, invalidity or termination
hereof; (b) any previous or subsequent agreement between DFS
(or any predecessor in interest to DFS) and Dealer; (c) any
act committed by DFS (or any predecessor in interest to DFS)
or by any parent company, subsidiary or affiliated company of
DFS (or any predecessor in interest to DFS) (collectively the
"DFS Companies"), or by any employee, agent, officer or
director of an 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 (or any predecessor in interest to DFS) and Dealer; and/or
(d) any other relationship, transaction or dealing between DFS
(or any predecessor in interest to 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 AM 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 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.
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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.
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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 state of Missouri. 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.
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.
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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: December 2, 1999
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