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EXHIBIT 10.31
FLOORPLAN AGREEMENT
To: ITT COMMERCIAL FINANCE CORP.
0000 Xxxxxxxx Xxxxxx Xxxxxxx,
Xxxxxxxx 00000
We sell various products ("Merchandise") to dealers and/or distributors
(collectively, "Dealer") who may require financial assistance in order to make
such purchases from us. To induce you to finance the acquisition of Merchandise
by any Dealer and in consideration thereof, we agree that:
1. Whenever a Dealer requests the shipment of Merchandise from us and that
you finance such Merchandise, we may deliver to you an invoice(s) describing the
Merchandise. By delivery of an invoice we warrant the following:
a. That we transfer to the Dealer all right, title and interest in
and to the Merchandise so described contingent upon your approval
to finance the transaction;
b. That our title to the Merchandise is free and clear of all liens
and encumbrances when transferred to the Dealer;
c. That the Merchandise is in salable condition, free of any
defects;
d. That the Merchandise is the subject of a bona fide order by the
Dealer placed with and accepted by us and that the Dealer has
requested the transaction be financed by you; and
e. That the Merchandise subject to the transaction has been shipped
to Dealer not more than 10 days prior to the invoice date.
If we breach any of the above-described warranties, we will immediately:
(i) pay to you any amount equal to the total unpaid balance (being principal and
finance charges) owed to you on all Merchandise directly or indirectly related
to the breach; and (ii) reimburse you for all costs and expenses (including, but
not limited to, attorney's fees) incurred by you as a direct or indirect result
of the breach.
2. You will only be bound to finance Merchandise which you have accepted to
finance (which acceptances will be indicated by your issuance of an approval
number or a draft or other instrument to us in payment of the invoice less the
amount of your charges as agreed upon from time to time) and only if: (i) the
Merchandise is delivered to the Dealer within 30 days following your acceptance;
(ii) you have received our invoice for such
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Merchandise within 10 days from the date of delivery of the Merchandise to
Dealer; and (iii) you have not revoked your acceptance prior to the shipment of
the Merchandise to Dealer.
3. Whenever you deem it necessary in your sole discretion to repossess or
if you otherwise come into possession of any Merchandise, in which you have a
security interest or other lien, we shall purchase such Merchandise from you at
the time of your repossession or other acquisition or possession in accordance
with the following terms and conditions:
a. We shall purchase such Merchandise, regardless of its condition,
at the point where you repossess it or where it otherwise comes
into your possession;
b. The price that we will pay to you for such Merchandise will be
due and payable immediately in full, and will be an amount equal
to the total unpaid principal balance owed to you on Merchandise
based on our original invoice price, minus, any curtailments paid
by Dealers, in accordance with the following schedule: 2% of the
original invoice price after 270 days from the original invoice
date; and 2% of the original invoice price each 30 days
thereafter. Dealers may be granted a thirty (30) day extension
period in which to pay the curtailments to you. You may request
waivers of scheduled curtailments, in writing, which shall be
sent to us at the address set forth below. Such waivers must be
approved in writing by us in order to be effective. Repurchase
will be in effect for 360 days from the date of invoice.
The repurchase price may be reduced by: the cost of replacing any
missing standard or accessory items which were supplied by us when the
Merchandise was sold and shipped to the Dealer; and, our cost of
repairing any damage to the Merchandise after original delivery to the
Dealer, excluding normal wear and tear resulting from the sales
display or demonstration of the Merchandise.
If your repossession of Merchandise and consequently your tendering of
Merchandise for repurchase, is delayed because of legal proceedings,
including but not limited to proceedings under the Bankruptcy Code,
the date of commencement of or entering into legal proceedings by you
to repossess the Merchandise, or the date of the filing under the
Bankruptcy Code by any party, shall be considered the date that demand
for
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repurchase was made for the purposes of this Section 3.
If we fail to pay you the repurchase price within ten (10) days after
payment is due, we will be responsible for and pay you all finance
charges accrued on the Dealer's account after the demand for
repurchase and until the time the repurchase price is paid.
4. In addition to our obligations set forth above, if you at any time
repossess or otherwise come into possession of any Merchandise from any Dealer,
who received the Merchandise from a third party and not directly from us, we
shall purchase such Merchandise from you on demand in accordance with the terms
set forth above in Section 3; provided, however: (a) you will first request such
third party to purchase such Merchandise from you; and (b) if such third party
fails to immediately purchase such Merchandise from you, we shall immediately
purchase such Merchandise and pay you a purchase price therefore in an amount
equal to the total unpaid balance (being principal and finance charges) owed to
you with respect to such Merchandise and all costs and expenses (including,
without limitation, reasonable attorney fees) paid or incurred by you in
connection with your repossession of such Merchandise, but in no event will our
liability with respect to any item of such Merchandise exceed our original
invoice price for such item. This provision will be in effect if we have
approved your purchase from a third party in writing prior to acquisition by
you.
5. You may extend the time of a Dealer in default to fulfill its
obligations to you without notice to us and without altering our obligations
hereunder. We waive any rights we 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 required by law, and any rights we may have to require you to proceed
against a Dealer or to pursue any other remedy in your power. Our liability to
you is direct and unconditional and will not be affected by any change in the
terms of payment or performance of any agreement between you 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 you and Dealer.
6. We shall pay all your expenses (including, without limitation, court
costs, arbitration fees and reasonable attorney fees) in the event you are
required to enforce your rights against us. Your failure to exercise any rights
granted hereunder will not operate as a waiver of those rights.
7. This Agreement will be binding on and inure to the benefit of your
successors and assigns. You may perform or cause
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to be performed any of your subsidiary and/or affiliated companies, and our
obligations under this Agreement inure to the benefit of your subsidiary and/or
affiliated companies.
8. Either of us may terminate this Agreement by notice to the other in
writing, the termination to be effective 30 days after receipt of the notice by
the other party, but no termination of this Agreement will affect any of our
liability with respect to any financial transactions entered into by you 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.
9. We waive notice of your acceptance of this Agreement.
10. Any controversy or claim arising out of or relating to this Agreement,
the relationship resulting in or from this Agreement or the breach of any duties
hereunder will be settled by arbitration in accordance with the Code of
Procedure of the National Arbitration Forum, Inc., 0000 Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
Dated: April 24, 1992
ATTEST:
____________________________ Bellcrest Homes, Inc.
By:______________________
Title: President
ACCEPTED: Business Address:
ITT COMMERCIAL FINANCE CORP. 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
By:___________________________
Title:________________________
+++++++++
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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MANUFACTURER CERTIFICATION
This certifies that all invoices submitted to General Electric Credit
Corporation for inventory financing will reflect published prices free of all
rebates except true volume incentives. A volume incentive is defined as an
established manufacturer marketing practice offered to all dealers on an equal,
nondiscriminating basis for volume purchases over a stated period of time of not
less than 6 months.
Any special bonuses, rebates or refunds will be fully disclosed as line
items on the invoices. It is understood that these items will be excluded from
GECC financing.
It is our understanding that this certification will make our invoices
eligible for investments at retail financing of up to 130%, including extra
equipment, but exclusive of any special bonuses, rebates or refunds.
We further understand that General Electric Credit Corporation is relying
on this certificate and would not agree to finance our produce without it.
Dated this 12th day of January, 1987.
Manufacturer:
BELLCREST HOMES, INC.
By: ______________________________________
(Officer)
Title: President
GENERAL
ELECTRIC
CREDIT
CORPORATION
