Exhibit 10.3.3
AGREEMENT FOR WHOLESALE FINANCING
This Agreement for Wholesale Financing ("Agreement") is made as of April 10,
1998 between Deutsche Financial Services corporation ("DFS") and Apple Homes
corporation a ( ) SOLE PROPRIETORSHIP, ( ) PARTNERSHIP, (XX) CORPORATION, ( )
LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"), having a principal
place of business located at 0000 Xxxxxxx Xx., Xxx 000, Xxxxxxx, XX 00000.
1. Extension of Credit. Subject to the terms of this Agreement, DFS may extend
credit to Dealer from time to time to purchase inventory from DFS approved
vendors ("Vendors") and for other purposes. If DFS advances funds to Dealer
following Dealer's execution of this Agreement, DFS will be deemed to have
entered into this Agreement with Dealer, whether or not executed by DFS. DFS'
decision to advance funds will not be binding until the funds are actually
advanced. DFS may combine all of DFS' advances to Dealer or on Dealer's behalf,
whether under this Agreement or any other agreement, and whether provided by one
or more of DFS' branch offices together with all finance charges, fees and
expenses related thereto, to make one debt owed by Dealer. DFS may, at any time
and without notice to Dealer, elect not to finance any inventory sold by
particular Vendors who are in default of their obligations to DFS, or with
respect to which DFS reasonably feels insecure. This is an agreement regarding
the extension of credit, and not the provision of goods or services.
2. Financing Terms and Statements of Transaction. Dealer and DFS agree that
certain financial terms of any advance made by DFS under this Agreement, whether
regarding finance charges, other fees, maturities, curtailments or other
financial terms, are not set forth herein because such terms depend, in part,
upon the availability of Vendor discounts, payment terms or other incentives,
prevailing economic conditions, DFS' floorplanning volume with Dealer and with
Dealer's Vendors, and other economic factors which may vary over time. Dealer
and DFS further agree that it is therefore in their mutual best interest to set
forth in this Agreement only the general terms of Dealer's financing arrangement
with DFS. Upon agreeing to finance a particular item of inventory for Dealer,
DFS will send Dealer a Statement of Transaction identifying such inventory and
the applicable financial terms. Unless Dealer notifies DFS in writing of any
objection within fifteen (15) days after a Statement of Transaction is mailed to
Dealer: (a) the amount shown on such Statement of Transaction will be an account
stated; (b) Dealer will have agreed to all rates, charges and other terms shown
on such Statement of Transaction; (c) Dealer will have agreed that DFS is
financing the items of inventory referenced in such Statement of Transaction at
Dealer's request; and (d) such Statement of Transaction will be incorporated
herein by reference, will be made a part hereof as if originally set forth
herein, and will constitute an addendum hereto. If Dealer objects to the terms
of any Statement of Transaction, Dealer agrees to pay DFS for such inventory in
accordance with the most recent terms for similar invent6ory to which Dealer has
no 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 Section17, and cease making additional advances to Dealer.
However, such termination will not accelerate the maturities of advances
previously made, unless Dealer shall otherwise be in default of this Agreement.
3. Grant of Security Interest. To secure payment of all of Dealer's current and
future debts to DFS, whether under this Agreement or any current or future
guaranty or other agreement, Dealer grants DFS a security interest in all of
Dealer's Inventory, equipment, fixtures, accounts, contract rights, chattel
paper, security agreements, instruments, deposit accounts, reserves, documents,
and general intangibles; and all judgments, claims, insurance policies, and
payments owed or made to Dealer thereon; all whether now owned or hereafter
acquired, all attachments, accessories, accessions, returns, repossessions,
exchanges, 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, with
such proceeds being payable in accordance with Section 9.
4. Affirmative Warranties and Representations. Dealer warrants and represents to
DFS that: (a) Dealer has good title to all Collateral; (b) DFS' security
interest in the Collateral financed by DFS is not now and will not become
subordinate to the security interest, lien, encumbrance or claim of any person;
(c) Dealer will execute all documents DFS requests to perfect and maintain DFS'
security interest in the Collateral; (d) Dealer will deliver to DFS immediately
upon each request, and DFS may retain, each Certificate of Title or Statement of
Origin issued for Collateral financed by DFS; (e) Dealer will at all times by
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 will be no actions or proceedings pending or threatened
against Dealer which might result in any material adverse change in Dealer's
financial or business condition or which might in any way adversely affect any
of Dealer's assets; (i) Dealer will maintain the Collateral in good condition
and repair; (j) Dealer has duly filed and will duly file all tax returns
required by law; (k) Dealer has paid and will pay when due all taxes, levies,
assessments and governmental charges of any nature; (l) Dealer will keep and
maintain all of its books and records pertaining to the Collateral at its
principal place of business designated in this Agreement; (m) Dealer will
promptly supply DFS with such information concerning it or any guarantor as DFS
hereafter may reasonably request; (n) all Collateral will be kept at Dealer's
principal place of business listed above, and such other locations, if any , of
which Dealer has notified DFS in writing or as listed on any current or future
Exhibit "A" attached hereto which written notice(s) to DFS and Exhibit A(s) are
incorporated herein by reference; (o) Dealer will give DFS thirty (30) days
prior written notice of any change in Dealer's identity, name, form of business
organization, ownership, management, principal place of business, Collateral
locations or other business locations, and before moving any books and records
to any other location; (p) Dealer will observe and perform all matters required
by any lease, license, concession or franchise forming part of the Collateral in
order to maintain all the rights of DFS thereunder; (q) Dealer will advise DFS
of the commencement of material legal proceedings against Dealer or any
guarantor; 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, lease or
otherwise dispose of or transfer any of its assets; (b) rent, lease,
demonstrate, consign, or use any Collateral financed by DFS; or (c) merge or
consolidate with another entity.
6. Insurance. Dealer will immediately notify DFS of any loss, theft or damage to
any Collateral. Dealer will keep the Collateral insured for its full insurable
value under an "all risk" property insurance policy with a company acceptable to
DFS, naming DFS as a lender loss-payee or mortgage 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 Statement. 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 detail 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 ten (10) days after
request therefor by DFS, any other report requested by DFS relating to the
Collateral or the financial condition of Dealer. Dealer warrants and represents
to DFS that all financial statements and information relating to Dealer or any
guarantor which have been or may hereafter be delivered by Dealer or any
guarantor are true and correct and have been and will be prepared in accordance
with generally accepted accounting principles consistently applied and, with
respect to such previously delivered statements or information, there has been
no material adverse change in the financial or business condition of Dealer or
any guarantor since the submission to DFS, either as of the date of delivery,
or, if different, the date specified therein, and Dealer acknowledges DFS'
reliance thereon.
8. Reviews. Dealer grants DFS an irrevocable license to enter Dealer's business
locations during normal business hours without notice to Dealer to: (a) account
for and inspect all Collateral; (b) veri9fy Dealer's compliance with this
Agreement; and (c) examine and copy Dealer's books and records related to the
Collateral.
9. Payment Terms. Dealer will immediately pay DFS the principal indebtedness
owed DFS on each item of Collateral financed by DFS (as shown on the Statement
of Transaction identifying such Collateral) on the earliest occurrence of any of
the following events: (a) when such Collateral is lost, stolen or damaged; (b)
for Collateral financed under Pay-As-Sold ("PAS") terms (as shown on the
Statement of Transaction identifying such Collateral), when such Collateral is
sold, transferred, rented, leased, otherwise disposed of or matured; (c) in
strict accordance with any curtailment schedule for such Collateral (as shown on
the Statement of Transaction identifying such Collateral); (d) for Collateral
financed under Scheduled Payment Program ("SPP") terms (as shown on the
Statement of Transaction identifying such Collateral), in strict accordance with
the installment payment schedule; and (e) when otherwise required under the
terms of any financing program agreed to in writing by the parties. Regardless
of the SPP terms pertaining to any Collateral financed by DFS, if DFS determines
that the current outstanding debt which Dealer owes to DFS exceeds the agg5egate
wholesale invoice price of such Collateral in Dealer" possession, Dealer will
immediately upon demand pay DFS the difference between such outstanding debt and
the aggregate wholesale invoice price of such Collateral. If Dealer from time to
time is required to make immediate payment to DFS of any past due obligation
discovered during any Collateral audit, or at any other time, dealer agrees that
acceptance of such payment by DFS shall not be construed to have waived or
amended the terms of its financing program. The proceeds of any Collateral
received by Dealer will be held by Dealer in trust for DFS' benefit, for
application as provided in this Agreement. Dealer will send all payments to DFS'
branch office(s) responsible for Dealer's account. DFS may apply: (i) payments
or reduce finance charges first and then principal, regardless of Dealer's
instructions, and (ii) principal payments to the oldest (earliest) invoice for
Collateral financed by DFS, but, in any event, all principal payments will first
be applied to such Collateral which is sold, lost, stolen, damaged, rented,
leased, or otherwise disposed of or unaccounted for. Any third party discount,
rebate, bonus or credit granted to Dealer for any Collateral will not reduce the
debt Dealer owes DFS until DFS has received payment therefor in cash. Dealer
will: (1) pay DFS even if any Collateral is defective or fails to conform to any
warranties extended by any third party; (2) not assert against DFS any claim or
defense Dealer has against any third party; and (3) indemnify and hold DFS
harmless against all claims and defenses asserted by any buyer of the Collateral
relating to the condition of, or any representations regarding, any of the
Collateral. Dealer waives all rights of offset and counterclaims Dealer may have
against DFS.
10. Calculation of Charges. Dealer will pay finance charges to DFS on the
outstanding principal debt which Dealer owes DFS for each item of Collateral
financed by DFS at the rate(s) shown on the Statement of Transaction identifying
such Collateral, unless Dealer objects thereto as provided in Section 2. The
finance charges attributable to the rate shown on the Statement of Transaction
will: (a) be computed based on a 360 day year; (b) be calculated by multiplying
the Daily Charge (as defined below) by the actual number of days in the
applicable billing period, and (c) accrue from the invoice date of the
Collateral identified on such Statement of Transaction until DFS receives full
payment in good funds of the principal debt Dealer owes DFS for each item of
such Collateral in accordance with DFS' payment recognition policy and DFS
applies such payment to Dealer's principal debt in accordance with the terms of
this Agreement. The "Daily Charge" is the product of the Daily Rate (as defined
below) multiplied by the Average Daily Balance (as defined below). The "Daily
Rate" is the quotient of the annual rate shown on the Statement of Transaction
divided by 360, or the monthly rate shown on the Statement of Transaction
divided by 30. The "Average Daily Balance" is the quotient of (i) the sum of the
outstanding principal debt owed DFS on each day of a billing period for each
item of Collateral identified on a Statement of Transaction, divided by (ii) the
actual number of days in such billing period. Dealer will also pay DFS $100 for
each check returned unpaid for insufficient funds (an "NSF check") (such $100
payment repays DFS' estimated administrative costs; it does not waive the
default caused by the NSF check). The annual percentage rate of the finance
charges relating to any item of Collateral financed by DFS will be calculated
from the invoice date of such Collateral, regardless of an period during which
any finance charge subsidy shall be paid or payable by any third party. Dealer
acknowledges that DFS intends to strictly conform to the applicable usury laws
governing this Agreement. Regardless of any provision contained herein or in any
other document executed or delivered in connection herewith or therewith. DFS
shall never be deemed to have contracted for, charged or be entitled to receive,
collect or apply as interest on this Agreement (whether termed interest herein
or deemed to be interest by judicial determination or operation of law), any
amount in excess of the maximum amount allowed by applicable law, and, if DFS
ever receives, collects or applies as interest any such excess, such amount
which would be excessive interest will be applied first to the reduction of the
unpaid principal balances of advances under this Agreement, and, second, any
remaining excess will be paid to Dealer. In determining whether or not the
interest paid or payable under any specific contingency exceeds the highest
lawful rate. Dealer and DFS shall, to the maximum extent permitted under
applicable law: (A) characterize any non-principal payment (other than payments
which are expressly designated as interest payments hereunder) as an expense or
fee rather than as interest; (B) exclude voluntary pre-payments and the effect
thereof; and (C) spread the total amount of interest throughout the entire term
of this Agreement so that the interest rate is uniform throughout such term.
11. Billing Statement. DFS will send Dealer a monthly billing statement
identifying all charges due on Dealer's account with DFS. The charges specified
on each billing statement will be: (a) due and payable in full immediately on
receipt; and (b) an account stated, unless DFS receives Dealer's written
objection thereto within 15 days after it is mailed to Dealer. If DFS does not
receive, by the 25th day of any given month, payment of all charges accrued to
Dealer's account with DFS during the immediately preceding month, Dealer will
(to the extent allowed by law) pay DFS a late fee ("Late Fee") equal to the
greater of $5 or 5% of the amount of such finance charges (payment of the late
Fee does not waive the default caused by the late payment). DFS may adjust the
billing statement at any time to conform to applicable law and this Agreement.
12. Default. Dealer will be in default under this Agreement if: (a) Dealer
breaches any terms, warranties or representations contained herein, in any
Statement of Transaction to which Dealer has not objected as provided in Section
2, or in any other agreement between DFS and Dealer; (b) any guarantor of
Dealer's debts to DFS breaches any terms, warranties or representations
contained in any guaranty or other agreement between the guarantor and DFS; (c)
any representation, statement, report or certificate made or delivered by Dealer
or any guarantor to DFS is not accurate when made; (d) Dealer 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 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; (o)
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
Collateral which DFS finances; (R) Dealer or any guarantor misrepresents
Dealer's or such guarantor's financial condition or organizational structure; or
(s) 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 obligation to DFS.
13. Rights of DFS upon Default. In the event of a default:
(a) DFS may at any time at DFS' election, without notice or demand to Dealer, do
any one or more of the following: declare all or any part of the debt Dealer
owes DFS immediately due and payable, together with all costs and expenses of
DFS' collection activity, including, without limitation, all reasonable
attorneys' fees; exercise any or all rights under applicable law (including,
without limitation, the right to possess, transfer and dispose of the
Collateral); and/or cease extending any additional credit to Dealer (DFS' right
to cease extending credit shall not be construed to limit the discretionary
nature of this credit facility).
(b) Dealer will segregate and keep the Collateral in trust for DFS, and in good
order and repair, and will not sell, rent, lease, consign, otherwise dispose of
or use any Collateral, nor further encumber any Collateral.
(c) Upon DFS' oral or written demand, Dealer will immediately deliver the
Collateral to DFS, in good order and repair, at a place specified by DFS,
together with all related documents; or DFS may, in DFS' sole discretion and
without notice or demand to Dealer, take immediate possession of the Collateral
together with all related documents.
(d) DFS may, without notice, apply a default finance charge to Dealer's
outstanding principal indebtedness equal to the default rate specified in
Dealer's financing program with DFS, if any, or if there is none so specified,
at the lesser of 3% per annum above the rate in effect immediately prior to the
default, or the highest lawful contract rate of interest permitted under
applicable law.
All of DFS' rights and remedies are cumulative. DFS' failure to exercise any of
DFS' rights or remedies hereunder will not waive any of DFS' rights or remedies
as to any past, current or future default.
14. Sale of Collateral. Dealer agrees that if DFS conducts a private sale of any
Collateral by requesting bids from 10 or more dealers or distributors in that
type of Collateral, any sale by DFS of such Collateral in bulk or in parcels
within 120 days of: (a) DFS' taking possession and control of such Collateral;
or (b) when DFS is otherwise authorized to sell such Collateral; whichever
occurs last, to the bidder submitting the highest cash bid (therefor, is a
commercially reasonable sale of such Collateral under the Uniform Commercial
Code Dealer agrees that the purchase of any Collateral by a Vendor, as provided
in any agreement between DFS and the Vendor, is a commercially reasonable
disposition and private sale of such Collateral under the Uniform Commercial
Code and no request for bids shall be required. Dealer further agrees that 7 or
more days prior written notice will be commercially reasonable notice of any
public or private sale 9including any sale to a Vendor). Dealer irrevocably
waives any requirement that DFS retain possession and not dispose of any
Collateral until after an arbitration hearing, arbitration award, confirmation,
trial or final judgment. If DFS disposes of any such Collateral other than as
herein contemplated, the commercial reasonableness of such disposition will be
determined in accordance with the laws of the state governing this Agreement.
15. Power of Attorney. Dealer grants DFS an irrevocable power of attorney to:
execute or endorse on Dealer's behalf any checks, financing statements,
instruments, Certificates of Title and Statements of Origin pertaining to the
Collateral; supply any omitted information and correct errors in any documents
between DFS and Dealer; initiate and settle any insurance claim pertaining to
the Collateral; and do anything to preserve and protect the Collateral and DFS'
rights and interest therein.
16. Information. DFS may provide to any third party any credit, financial or
other information on Dealer that DFS may from time to time possess. DFS may
obtain from any Vendor any credit, financial or other information regarding
Dealer that such Vendor may from time to time possess.
17. Termination. Either party many terminate this Agreement at any time by
written notice received by the other party. If DFS terminates this Agreement,
Dealer agrees that if Dealer: (a) is not in default hereunder, 30 days prior
notice of termination is reasonable and sufficient (although this provision
shall not be construed to mean that shorter periods may not, in particular
circumstances, also be reasonable and sufficient); or (b) is in default
hereunder, no prior notice of termination is required. Dealer will not be
relieved from any obligation to DFS arising out of DFS' advance 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 have heretofore executed other agreements in
connection with all or nay part of the Collateral, this Agreement shall
supplement each and every other agreement previously executed by and between
Dealer and DFS, and in that event this Agreement shall neither be deemed a
novation nor a termination of such previously executed agreement nor shall
execution of this Agreement be deemed a satisfaction of any obligation secured
by such previously executed agreement.
24. Receipt of Agreement. Dealer acknowledges that it has received a true and
complete copy of this Agreement. Dealer acknowledges that it has read and
understood this Agreement. Notwithstanding anything herein to the contrary: (a)
DFS may rely on any facsimile copy, electronic data transmission or electronic
data storage of this Agreement, any Statement of Transaction, billing statement,
invoice from a Vendor, financial statements or other reports, and (b) such
facsimile copy, electronic data transmission or electronic data storage will be
deemed an original, and the best evidence thereof for all purposes, including,
without limitation, under this Agreement or any other agreement between DFS and
Dealer, and for all evidentiary purposes before any arbitrator, court or other
adjudicatory authority.
25. Miscellaneous. Time is of the essence regarding Dealer's performance of its
obligations to DFS notwithstanding any course of dealing or custom on DFS' part
to grant extensions of time. Dealer's liability under this Agreement is direct
and unconditional and will not be affected by the release or nonperfection of
any security interest granted hereunder. DFS will have the right to refrain from
or postpone enforcement of this Agreement or any other agreements between DFS
and Dealer without prejudice and the failure to strictly enforce these
agreements will not be construed as having created a course of dealing between
DFS and Dealer contrary to the specific terms of the agreements or as having
modified, released or waived the same. The express terms of this Agreement will
not be modified by any course of dealing, usage of trade, or custom of trade
which may deviate from the terms hereof. If Dealer fails to pay any taxes, fees
or other obligations which may impair DFS' interest in the Collateral, or fails
to keep the Collateral insured, DFS may, but shall not be required to, pay such
taxes, fees or obligation 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 or lawfulness of
any act), whether arising before or after the date of this Agreement, and
whether directly or indirectly relating to (a) this Agreement and/or any
amendments and addenda hereto, or the breach, invalidity or termination hereof;
(b) any previous or subsequent agreement between DFS and Dealer; (c) any act
committed by DFS or by any parent company, subsidiary or affiliated company of
DFS (the "DFS Companies"), or by any employee, agent, officer or director of 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 and Dealer;
and/or (d) any other relationship, transaction or dealing between DFS and Dealer
(collectively the "Disputes"), will be subject to and resolved by binding
arbitration.
26.2 Administrative Body. All arbitration hereunder will be conducted by 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. Tha 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 Fe3deral Judicial
District in which AAA maintains a regional office that is closest to Dealer.
26.3 Discovery. Discovery permitted in any arbitration proceeding commenced
hereunder is limited as follows. No later than thirty (30) days after the filing
of a claim for arbitration, the parties will exchange detailed statements
setting forth the facts supporting the claim(s) and all defenses to be raised
during the arbitration and a list of all exhibits and witnesses. No later than
twenty-one (21) days prior to the arbitration hearing, the parties will exchange
a final list of all exhibits and all witnesses, including any designation of any
expert witness(es) together with a summary of their testimony; a copy of all
documents and a detailed description of any property to be introduced at the
hearing. Under no circumstances will the use of interrogatories, requests for
admission, requests for the production of documents or the taking of depositions
be permitted. However, in the event of the designation of any expert
witness(es), the following will occur: (a) all information and documents relied
upon by the expert witness(es) will be delivered to the opposing party, (b) the
opposing party will be permitted to depose the expert witness(es), (c) the
opposing party will be permitted to designate rebuttal expert witness(es), and
(d) the arbitration hearing will be continued to the earliest possible date that
enables the foregoing limited discovery to be accomplished.
26.4 Exemplary or Punitive Damages. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
26.5 Confidentiality of Awards. All arbitration proceedings, including testimony
or evidence at hearings, will be kept confidential, although any award or order
rendered by the arbitrator(s) pursuant to the terms of this Agreement may be
entered a s a judgement 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 fort 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 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 Georgia. 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.
DEUTSCHE FINANCIAL SERVICES CORPORATION APPLE HOMES CORPORATION
Dealer's Name
BY: /s/ Xxx Xxxxxx BY: /s/ E. Xxxxxx Xxxxx
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PRINT NAME: Xxx Xxxxxx PRINT NAME: E. Xxxxxx Xxxxx
TITLE: Branch Operations Manager TITLE: President
ATTEST:
/s/ Xxxxxx Xxxxxx
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(ASSISTANT) SECREATRY
PRINT NAME: Xxxxxx Xxxxxx
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 the
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: April 10, 1998 /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
(ASSISTANT) SECRETARY
APPLE HOMES CORPORATION
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CORPORATE NAME
