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EXHIBIT 10.32
MANUFACTURER AGREEMENT
In consideration of General Electric Credit Corporation (hereinafter GECC)
agreeing to extend, from time to time and in GECC's sole discretion, inventory
financing accommodation on the undersigned Manufacturer's products (manufactured
homes, mobile homes, modular homes, sectional homes and/or motor homes and
recreational vehicles) purchased directly from Manufacturer by Dealers whose
credit and financial responsibility are acceptable to GECC, Manufacturer agrees
as follows:
1. Prior to shipping each product, Manufacturer will obtain GECC's
commitment to finance and pay for such product upon receipt and acceptance by
Dealer. Manufacturer will provide GECC with the original invoice and certificate
of origin. Manufacturer warrants that (a) its invoice represents a bona fide
order by Dealer; (b) titles are clear of all liens and encumbrances; (c)
invoices are true and accurate, represent a fair market price for the product,
have not been inflated above published prices to include any Dealer rebate and
do not contain items not sold with the product; (d) invoices for manufactured
home products comply with the Truth in Invoicing Practices Statement of the
Manufactured Housing Institute; (e) all right, title and interest to the product
have been transferred to Dealer; (f) the product is new, free of all
manufacturing defects, and complies and has been constructed in accordance with
all applicable laws and regulations including, but not in limitation, the
National Manufactured Housing Construction and Safety Standards Act and all
applicable FTC Trade Regulation Rules. In case of any breach of any of the above
warranties (a) through (f), Manufacturer agrees to reimburse GECC for any
amounts advanced plus earned but uncollected charges and to indemnify and hold
GECC harmless against all costs and expenses arising out of or related directly
or indirectly to such breach.
2. GECC will advance one hundred percent (100%) of the net wholesale
invoice amount, of such percentage as has been otherwise agreed upon or as may
be reduced by any Dealer downpayment (which shall be Manufacturer's obligation
to collect). Such amount shall exclude any dealer assistance programs or
subsidies other than volume rebates. A volume rebate is an established
manufacturer marketing practice offered to all Dealers on an equal,
nondiscriminatory basis for volume purchases over a stated period of time of not
less than three months. Rebates on single units or small volume purchases are
not considered eligible.
3. Manufacturer will deliver each product in good and merchantable
condition to the Dealer at such location or place of business as has been
previously approved by GECC under GECC's inventory financing agreement with
Dealer. In the event a product is delivered to Dealer at a location other than
an approved location, Manufacturer shall reimburse GECC for any loss arising out
of such delivery adversely affecting the perfection or priority of GECC's
security interest in such product.
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4. If GECC takes actual or constructive possession of a product financed
under this Agreement due to a default on the part of any Dealer, GECC will give
Manufacturer notice followed by a written confirmation requesting repurchase and
state the repurchase price and where Manufacturer is to take delivery.
Manufacturer shall immediately thereafter repurchase such product(s) in
accordance with Section 5 below. Manufacturer shall take delivery of such
product(s) in "as is" condition provided, however, that the repurchase price may
be adjusted as set forth in Section 6 below. The term "default" as used in this
section means the failure by Dealer to meet obligations under agreements with
GECC which in GECC's sole judgment authorizes GECC to take possession of any
products financed under GECC's inventory financing agreement with Dealer.
5. The repurchase price for a product shall be payable prior to taking
delivery or, in GECC's discretion, within 5 days thereafter, and will be the
principal amount due GECC plus, commencing 10 days after GECC's request for
repurchase, earned but uncollected charges. At GECC's option, payment shall be
made by i) Manufacturer's check, or ii) certified or bank check. The repurchase
price shall in no event be reduced by any reserves or other property held by
GECC as security for the performance of Dealer's obligations to GECC.
Notwithstanding the foregoing, Manufacturer's repurchase obligation on each
product shall be reduced by 2% for each Dealer billing period commencing with
the 5th billing period after GECC's advance of funds, provided, however, that
GECC shall have 30 days for administration purposes and provided further that in
the event of a Dealer bankruptcy, Manufacturer's repurchase obligation shall be
fixed as of the filing date.
6. On all products repurchased, in addition to the repurchase price,
Manufacturer will reimburse GECC for the reasonable costs and expenses related
to the repossession, securing and storing of any product. Manufacturer may
deduct from the repurchase price Manufacturer's wholesale cost for any missing
or damaged equipment, furniture or appliances provided the same was specifically
identified on the invoice and was a part of the product as originally delivered
to Dealer.
7. Manufacturer will not be required to repurchase a product if title
thereto has been transferred or assigned by a Dealer to a retail buyer in the
ordinary course of business who has accepted delivery of and used such product,
or if a product has been used as an office or rental or otherwise occupied.
8. Upon the repurchase of any product under the terms of this Agreement,
the Manufacturer shall be subrogated to a corresponding portion of GECC's rights
against the Dealer with respect to such product and the security or title
retention instrument covering such product and GECC agrees to execute and
deliver such partial assignments and other documents relating thereto as the
Manufacturer may reasonably request. Any such repurchase by Manufacturer shall
not constitute a sale or
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disposition under the Uniform Commercial Code. The Manufacturer shall thereafter
have the duties of a secured party under the Uniform Commercial Code.
9. Manufacturer waives any failure or delay on the part of GECC in
asserting or enforcing any rights of GECC hereunder or against the Dealer.
Manufacturer's liability shall not be affected by any extension or variation of
terms which may be granted in connection with any obligations of Dealer.
10. Any funds of Manufacturer or any other property of Manufacturer that
may now or at any time hereafter be given or left in the possession of GECC, for
any purpose, or that may be in transit to or from GECC for any purpose, are
hereby pledged and delivered to GECC to secure the payment of, or in GECC's
discretion to be offset against, any obligations or liabilities of Manufacturer
to GECC, direct or contingent, whether due or to become due, and whether now
existing or hereafter arising. Manufacturer waives any cause of action against
any Dealer for the collection of any funds offset. A photostatic copy or other
reproduction of this Agreement or of a financing statement shall be sufficient
as a financing statement.
11. Manufacturer hereby authorizes GECC, by any employee of GECC's
designation, to sign, execute, endorse, transfer, file or deliver in the name of
Manufacturer any financing or other statements required by applicable law
concerning GECC's security interest hereunder, any certificates of title or
origin or applications therefor, and any evidences of indebtedness with respect
to any advances made by GECC to finance inventory and to endorse in the name of
Manufacturer any notes, checks, drafts or other instruments for the payment of
money which may come into GECC's possession. This authorization is limited to
those acts reasonably necessary to effectuate this Agreement and to those acts
necessary or desirable in GECC's discretion to secure the indebtedness due
hereunder.
12. In the event that GECC refinances the inventory of a Dealer and such
refinanced inventory was originally floorplanned with another financing source,
then upon notification to Manufacturer, the terms and conditions of this
Agreement shall apply to any of Manufacturer's products in such inventory as
though such products had originally been floorplanned by GECC.
13. Regardless of whether GECC or another finance source provides the
floorplan financing for a product, Manufacturer agrees to honor all warranty
obligations to retail customers whose purchase is financed by GECC and further
agrees to reimburse GECC for any expenses, claims or damage (including
reasonable attorney fees incurred in any litigation), relating to any claim
against GECC for manufacturer defects, breach of warranty or product liability
on Manufacturer's products.
14. Manufacturer agrees that all business operations will be conducted in
compliance with federal, state and local law.
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Further, all signatures are duly authorized acts of the Manufacturer and the
individual signing on behalf of Manufacturer. This Agreement is not intended to
and does not set up any third party beneficiary rights on behalf of any Dealer
or other person not a party to this Agreement.
15. In the event Manufacturer is a participant in GECC's Instant Access(TM)
program, the following shall apply: Manufacturer shall have a non-exclusive and
non-transferable license to the program's computer software which shall be
revocable by GECC in its discretion. It is expressly understood and agreed that
the software contains "trade secret" information and other data proprietary to
GECC. Manufacturer shall maintain all software in strict confidence and shall
not allow such software to be disclosed, proliferated or duplicated. The license
of software shall be on an "as is" basis and all implied warranties of
merchantability or fitness for a particular purpose are excluded. GECC shall not
be liable for any loss or damage, including, without limitation, any indirect,
special or consequential damages arising from Manufacturer's use of the software
or its performance.
16. All statements of account rendered by GECC to Manufacturer shall be
presumed correct and accurate and constitute an account stated unless, within 30
days after receipt thereof, Manufacturer shall deliver by certified mail, return
receipt requested, written objection thereto specifying any errors in the
statement.
17. Manufacturer shall furnish, at Manufacturer's expense, at least
annually (and sooner if requested by GECC), an audited financial statement, or,
if such statement is not available, a balance sheet, a profit and loss
statement, and such other documents as may be requested by GECC, reflecting the
current financial condition of Manufacturer. Manufacturer further agrees to
provide GECC information related to products financed hereunder, including,
without limitation, product specifications, construction standards, current
price lists, freight practices, any bonus or rebate plans, and warranty
materials. Manufacturer represents that all financial and other information
supplied to GECC is and will be true, complete and accurate. Manufacturer
authorizes GECC to investigate Manufacturer's credit worthiness and credit
capacity as may in GECC's discretion be necessary from time to time.
Manufacturer further authorizes GECC to furnish information concerning
Manufacturer's account to credit reporting agencies and others who may lawfully
receive such information.
18. Time is of the essence with respect to Manufacturer's performance of
obligations hereunder notwithstanding any course of dealing or custom on the
part of GECC to grant extensions of time. Any extension of time shall be a
nonbinding accommodation to Manufacturer and shall not prejudice GECC's right to
demand immediate performance.
19. If any provision of this Agreement should be held to be void, invalid
or unenforceable by any court or other tribunal,
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the validity and enforceability of the remaining provisions shall
not be affected.
20. In the event Manufacturer declares bankruptcy, makes an assignment for
the benefit of creditors, becomes insolvent or unable to pay debts as they
become due, cease to do business as a going concern, fails to meet consumer
warranty obligations, or otherwise fails to meet any obligation or breaches any
covenant hereunder or under any other agreement with GECC such event shall
constitute a default. A default under the terms of this Agreement shall
constitute a default under any other agreement with GECC. Both parties agree
that the sole and exclusive remedy for any matter or cause of action related
directly or indirectly to any breach of the Agreement shall be a cause of action
sounding in contract and with damages limited to actual and direct damages
incurred. Neither party shall be liable for any consequential, special,
incidental or indirect damages.
21. Waiver of any default is not a wavier of any subsequent default. GECC
shall have the absolute and unconditional right at all times to enforce all
agreements of whatever kind or nature, present or future, in strict accordance
with the written terms thereof, notwithstanding any conduct or custom on the
part of GECC in refraining from doing so at any prior time or times. GECC shall
have the right to refrain from or postpone enforcement of any agreements without
prejudice. The failure to strictly enforce such agreements shall not be
construed as having created a course of dealing between the parties contrary to
the specific terms of the agreements or as having modified, released or waived
the same.
22. Manufacturer hereby waives presentment, protest, demand and notice of
dishonor. GECC may exercise any and all rights available to it as secured party
under the laws of the state governing this Agreement, without limitation or
election, it being agreed that all remedies available to GECC shall be
cumulative. Manufacturer agrees to pay court costs and reasonable attorney's
fees incurred by GECC in enforcing GECC's rights and remedies after default
under this Agreement.
23. Both parties to this Agreement agree to waive any and all rights to a
trial by jury in any action or proceeding, whether in law or in equity, arising
out of or related to this Agreement.
24. This Agreement represents the entire agreement between the parties and
may not be modified or amended except by a writing duly executed by both parties
hereto. All prior representations, promises and conditions whether written or
oral are merged herein and all prior agreements of courses of dealing are hereby
amended. This Agreement shall be binding upon, and inure to the benefit of the
successors and assigns of the parties, provided that no assignment by
Manufacturer shall be valid without GECC's written consent. In the event of
conflict between this and any prior agreement or between this Agreement and any
legend or
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notation on an invoice, certificate of origin or similar documentation, the
terms of this Agreement shall control.
25. This Agreement shall be effective until terminated by either party,
with or without cause, upon thirty (30) days written notice sent by certified
mail, return receipt requested, but shall continue to be effective as to
obligations assumed hereunder prior to the effective date of termination.
26. This Agreement shall be governed by and construed in accordance with
the laws of the State of Connecticut.
The parties hereto have accepted this Agreement on the dates set
forth below. Accepted at Stamford, Connecticut.
Dated this ________________ day of Dated this 12th day of
______________________________, 19___. January, 1987.
General Electric Credit Corporation: Manufacturer:
__________________________(Seal) BELLCREST HOMES, INC.(Seal)
By:_______________________(Seal) By:__________________(Seal)
Title:_________________________ Title: President
Business Address: 000 Xxxx Xxxxx Principal Place of Business
Road, Stamford, Connecticut and Mailing Address:
Region Office:_________________ 000 Xxxxxxxx Xx., X.X. Xxx
000, Xxxxxx, Xxxxxxx 00000
_______________________________
GUARANTY
As an inducement to GECC to extend inventory financing on Manufacturers'
products purchased directly from Manufacturer by Dealers whose credit and
financial responsibility are acceptable to GECC, but without in any way binding
you to do so, the undersigned do hereby jointly and severally guarantee to GECC
the full and prompt payment and performance by the said Manufacturer of all of
its debts, liabilities and obligations to GECC arising under or directly related
to the Manufacturer Agreement entered into by said Manufacturer.
In the event of default in the performance of this Guaranty, the
undersigned jointly and severally agree to pay all reasonable court costs,
attorneys' fees, and other expenses paid or incurred by GECC in connection with
the enforcement hereof.
This Guaranty shall not be affected or impaired by any modification,
extension, release or variation of the terms of the Manufacturer Agreement, nor
by any waiver of strict compliance with the terms thereof, it being expressly
understood and agreed that notice to or the consent of the undersigned with
respect to any
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such modification, extension, release, variation or waiver shall not be
required. It is further understood and agreed that the liability of the
undersigned hereunder is direct and unconditional, and may be enforced without
prior resort to any right or remedy, which GECC may have against the
Manufacturer. No delay in exercising any right hereunder or failure to exercise
the same shall operate as a waiver thereof.
To the extent permitted by law, notice of acceptance hereof, notice of
default by the Manufacturer, demand for payment or performance thereof, the
right to a trial by jury in any action hereon, and any and all notices or
demands to which the undersigned might otherwise be entitled are all hereby
expressly waived. This Guaranty shall be governed by and construed in accordance
with the laws of the State of Connecticut.
This Guaranty may not be modified, altered or changed nor may any
provisions hereof be waived, expect by an instrument in writing signed by the
party against whom such modification, alteration, change or waiver is sought to
be enforced. This Guaranty shall be binding upon the successors and assigns of
the undersigned and the benefits hereof shall extend to GECC and include its
successors and assigns.
WITNESS our hands and seals this ____ day of _______________, 19___.
____________________________ _________________________(Seal)
____________________________ By:______________________(Seal)
Title:_________________________
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