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EXHIBIT 10.12
FLOORPLAN AGREEMENT
This Floorplan Agreement ("Agreement") is made as of September 9, 1996
between DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS"), having a principal
place of business at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, and
KARTS INTERNATIONAL/XXXXXXX'X THUNDER KARTS, INC. [Full and exact name of
Vendor] ("Vendor"), having a principal place of business located at Xxxxxxx 00
Xxxxx Xxxxxxxx, XX 00000.
Vendor sells various products ("Merchandise") to dealers and/or
distributors (individually and collectively "Dealer") who may require financial
assistance in order to make such purchases from Vendor. To induce DFS to
finance the acquisition of Merchandise by any Dealer and in consideration
thereof, Vendor and DFS agree that:
1. VENDOR'S WARRANTIES. Whenever a Dealer requests the shipment
of Merchandise from Vendor and that DFS finance such Merchandise, Vendor may
deliver to DFS an invoice(s) describing the Merchandise. By delivery of an
invoice, Vendor and DFS warrant the following:
a. That Vendor transfers to Dealer all right, title and
interest in and to the Merchandise so described,
contingent upon DFS' approval to finance the
transaction;
b. That Vendor's title to the Merchandise is free and
clear of all liens and encumbrances when transferred
to Dealer;
c. That the Merchandise is in salable condition suitable
for ordinary retail sale, free of any defects;
d. That the Merchandise is the subject of a bona fide
order by Dealer placed with and accepted by Vendor,
and that Dealer has requested the transaction be
financed by DFS; and
e. That the Merchandise subject to the transaction has
been shipped to Dealer not more than ten (10) days
prior to the invoice date.
If Vendor breaches any of the above-described warranties,
Vendor will immediately: (i) pay to DFS an amount equal to the total unpaid
balance (being principal and finance charges) owed to DFS on all Merchandise
related to the breach; and (ii) reimburse DFS for all costs and expenses
(including, but not limited to, reasonable attorneys' fees) incurred by DFS as
a result of the breach.
2. FINANCING OF MERCHANDISE. DFS will only be bound to finance
Merchandise which DFS has accepted to finance (such acceptances will be
indicated by DFS' issuance of an approval number, draft or other instrument to
Vendor in payment of the invoice, less the amount of DFS' charges as agreed
upon from time to time) and only if: (a) the Merchandise is delivered to Dealer
within thirty (30) days following DFS' acceptance; (b) DFS has received
Vendor's invoice for such Merchandise within ten (10) days from the date of
delivery of the Merchandise to Dealer; and (c) DFS has not revoked its
acceptance prior to the shipment of the Merchandise to Dealer.
3. PURCHASE OF MERCHANDISE. Whenever DFS deems it necessary in
its sole discretion to repossess or if DFS otherwise comes into possession,
actual or constructive, of any Merchandise in which it has a security interest
or other lien, Vendor will purchase such Merchandise from DFS at the time of
DFS' repossession or other acquisition of possession in accordance with the
following terms and conditions:
a. Vendor will purchase such Merchandise, regardless of
its condition, at the point where DFS repossesses it
or where it otherwise comes into DFS' possession;
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b. The purchase price Vendor will pay to DFS for such
Merchandise will be due and payable immediately in
full, and will be an amount equal to (i) the total
unpaid balance (being principal and finance charges)
owed to DFS with respect to such Merchandise, or
Vendor's original invoice price for such Merchandise,
whichever is greater, and (ii) all costs and expenses
(including, but not limited to, reasonable attorneys'
fees) paid or incurred by DFS in connection with the
repossession of such Merchandise; and
c. Vendor shall not assert or obtain any interest in or
to any Merchandise acquired by Vendor until the
purchase price therefor is paid in full.
4. ADDITIONAL TERMS OF PURCHASE. In addition to Vendor's
obligations set forth above, if DFS at any time repossesses or otherwise comes
into possession of any Merchandise from any Dealer who received the Merchandise
from a third party and not directly from Vendor, Vendor shall purchase such
Merchandise from DFS on demand, in accordance with the terms set forth above in
Section 3; provided, however; (a) DFS will first request such third party to
purchase such Merchandise from DFS; and (b) if such third party fails to
immediately purchase such Merchandise from DFS, Vendor shall immediately
purchase such Merchandise and pay DFS a purchase price therefor in an amount
equal to the total unpaid balance (being principal and finance charges) owed to
DFS with respect to such Merchandise and all costs and expenses (including,
without limitation, reasonable attorneys' fees) paid or incurred by DFS in
connection with its repossession of such Merchandise, but in no event will
Vendor's liability with respect to any item of such Merchandise exceed Vendors
invoice price for such item.
5. EXTENSION OF TIME; WAIVERS. DFS may extend the time of a
Dealer in default to fulfill its obligations to DFS without notice to Vendor
and without altering Vendor's obligations hereunder. Vendor waives any rights
it may have to notice of nonpayment, nonperformance, dishonor, the amount of
indebtedness of a Dealer outstanding at any time, any legal proceeding against
a Dealer, and any other demands and notices except as required by law, and any
rights it may have to require DFS to proceed against a Dealer or the
Merchandise or to pursue any other remedy in DFS' power. Vendor's liability to
DFS is direct and unconditional and will not be affected by any change in the
terms of payment or performance of any agreement between DFS and Dealer, or the
release, settlement or compromise of or with any party liable for the payment
or performance thereof, the release or non-perfection of any security
thereunder, any change in Dealer's financial condition, or the interruption of
business relations between DFS and Dealer.
6. EXPENSES; RELEASE OF INFORMATION. Vendor will pay all DFS'
expenses (including, but not limited to, court costs, arbitration fees and
reasonable attorneys' fees) in the event DFS is required to enforce its rights
against Vendor. Vendor will release to DFS any credit, financial or other
information on any Dealer upon each request by DFS. Vendor will immediately
notify DFS if Vendor reasonably believes that Dealer has violated the terms of
any franchise, permission, license or right to sell or deal in the Merchandise.
DFS' failure to exercise any rights granted hereunder shall not operate as a
waiver of those rights.
7. INVOICES. Invoices submitted to DFS by Vendor should indicate
that the Merchandise is "Sold to (Name of Dealer) and "Financed by Deutsche
Financial Services Corporation." However, if Vendor's invoices read "Sold to
Deutsche Financial Services Corporation", and, regardless of the invoice,
Vendor acknowledges and agrees that DFS is not purchasing Merchandise, but is
only financing said Merchandise for Dealer.
8. SUCCESSORS AND ASSIGNS; OBLIGATIONS. This Agreement will be
binding upon and inure to the benefit of DFS' successors and assigns. Vendor
cannot assign this Agreement without DFS' prior written consent. DFS may
perform or cause to be performed any or all of its obligations hereunder by any
of its subsidiaries and/or affiliated companies. Vendor's obligations under
this Agreement inure to the benefit of any of DFS' subsidiaries and/or
affiliated companies.
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9. EVENTS OF DEFAULT. The occurrence of any of the following
events shall be deemed an "Event of Default" under this Agreement: (a)
Vendor's failure to pay when due any amount owed DFS hereunder or under any
other agreement between DFS and Vendor; (b) Vendor's failure to perform or
observe any covenant, term or provision hereunder or under any other agreement
between DFS and Vendor; (c) termination or impairment of any guaranty of
Vendor's obligations hereunder; (d) Vendor shall cease existence as a
corporation, partnership, limited liability company or trust, as applicable;
(e) Vendor ceases or suspends business; (f) Vendor makes a general assignment
for the benefit of creditors; (g) Vendor becomes insolvent or voluntarily or
involuntarily becomes subject to the Federal Bankruptcy Code, any state
insolvency law or any similar law; (h) any receiver is appointed for any assets
of Vendor; (i) Vendor sells, transfers or assigns all or substantially all of
its assets; (j) Vendor merges its business with another business, regardless of
whether Vendor is the surviving entity; or (k) there is any material adverse
change in Vendor's financial condition.
10. REMEDIES UPON DEFAULT. Upon the occurrence of any Event of
Default, DFS shall have the right, at DFS' option, to immediately exercise one
or more of the following remedies: (a) refuse to extend any further financing
to Dealers; (b) terminate the Agreement; or (c) exercise any other rights it
may have under the laws of the state governing this Agreement.
11. TERMINATION. Either party may terminate this Agreement by
notice to the other in writing, the termination to be effective thirty (30)
days after receipt (which receipt is presumed to be five (5) business days
after the same is sent) of notice by the other party provided, however, that
DFS may terminate this Agreement immediately if an Event of Default has
occurred. In any event, no termination of this Agreement will affect any of
Vendor's (or its assignees, whether permitted or unpermitted) liability with
respect to any financial transactions entered into by DFS with any Dealer prior
to the effective date of termination, including, without limitation,
transactions that will not be completed until after the effective date of
termination.
12. MISCELLANEOUS. Vendor will notify DFS of any change in its
name or business structure. Vendor waives notice of DFS' acceptance of this
Agreement. This Agreement is not intended, nor shall it be deemed to, directly
or indirectly, benefit any person or entity, including any Dealer, who is not a
party hereto.
13. NO ORAL AGREEMENTS. There are no oral or unwritten agreements
between DFS and Vendor regarding the subject matter hereof. Vendor and DFS
acknowledge and agree that all agreements and understandings between them are
set forth in this Agreement and any terms letters executed in connection
herewith (as the same may be revised from time to time without necessitating an
amendment of this Agreement) or in any other writing between the parties
relating hereto.
14. BINDING ARBITRATION. Any controversy or claim arising out of
or relating to this Agreement, the relationship resulting in or from this
Agreement, the breach of any duties hereunder or any other relationship,
transaction or dealing between the parties (collectively "Disputes") will be
settled by binding arbitration in accordance with the Commercial Arbitration
Rules of The American Arbitration Association, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000. 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 DFS at 000 Xxxxxxxxx Xxxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000. Attention: General Counsel; and (b) to
any other party at the address specified herein; or such other address as the
parties may specify from time to time in writing. The parties agree that all
arbitrators selected will be attorneys with at least five (5) years secured
transactions experience. Any award rendered by the arbitrator(s) may be entered
as a judgment or order and confirmed or enforced by either party in any state
or federal court having competent jurisdiction thereof. If either party
brings or appeals any judicial action to vacate or modify any award rendered
pursuant to arbitration or opposes the confirmation of such award and the party
bringing or appealing such action
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or opposing confirmation of such award does not prevail, such party will pay
all of the costs and expenses (including, without limitation, court costs,
arbitrators fees and expenses and attorneys' fees) incurred by the other party
in defending such action. Additionally, if either party brings any action for
judicial relief in the first instance without pursuing arbitration prior
thereto, the party bringing such action for judicial relief will be liable for
and will immediately pay to the other party all of the other party's costs and
expenses (including, without limitation, court costs and attorneys' fees) to
stay or dismiss such judicial action and/or remove it to arbitration. The
failure of either party to exercise any rights granted hereunder shall not
operate as a waiver of any of those rights. THE LAWS OF THE STATE OF ILLINOIS
WILL GOVERN THIS AGREEMENT AND ALL TRANSACTIONS HEREUNDER AS TO INTERPRETATION,
ENFORCEMENT VALIDITY, CONSTRUCTION, EFFECT AND IN ALL OTHER RESPECTS; PROVIDED,
HOWEVER, THAT THE FEDERAL ARBITRATION ACT ("FAA"), TO THE EXTENT INCONSISTENT,
WILL SUPERSEDE THE LAWS OF SUCH STATE AND GOVERN. This Agreement concerns
transactions involving commerce among the several states. The arbitrators will
not be empowered to award punitive damages. The agreement to arbitrate will
survive termination of this Agreement. IF THIS AGREEMENT IS FOUND TO BE NOT
SUBJECT TO ARBITRATION, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE COURTS LOCATED WITHIN SUCH STATE AND AGREE THAT ALL LEGAL PROCEEDINGS WILL
BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT A JURY. EACH
PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
KARTS INTERNATIONAL/XXXXXXX'X THUNDER KARTS, INC.
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ATTEST:
/s/ XXXXXXX X. XXXXXX By: /s/ V. XXXX XXXXXXXX
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Name: V. Xxxx Xxxxxxxx
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Title: President
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DEUTSCHE FINANCIAL SERVICES CORPORATION
By:
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Name:
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Title:
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(1) Name of Vendor
(2) Signature of Vendor's Authorized Representative
(3) Signature of Vendor's Secretary, if Vendor is
a Corporation, Otherwise a Witness' Signature
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