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AGREEMENT FOR WHOLESALE FINANCING
This Agreement for Wholesale Financing ("Agreement") is made as of
February 18, 2000 between Deutsche Financial Services Corporation ("DFS") and
iRV - Knoxville, Inc., a ( ) SOLE PROPRIETORSHIP, ( ) PARTNERSHIP, (x)
CORPORATION, ( ) LIMITED LIABILITY COMPANY (check applicable term)
("Dealer"), having a principal place of business located at 5373 North Union
Boulevard, Colorado Springs, CO 80918.
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' floor planning 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 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
15, 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. Letter of Credit. 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 to issue in DFS' favor an
Irrevocable Letter of Credit in a form acceptable to DFS in the amount of
Three Hundred Thousand Dollars ($330,000.00) bearing an effective date of no
later than the date hereof, and expiring no earlier than twelve months from
the date hereof. At least sixty days prior to the expiration date of the
Letter of Credit, or any subsequent or substitute Letter of Credit accepted by
DFS, Dealer will renew and extend such Letter of Credit for a term of twelve
months or longer, or Dealer will have a new Letter of Credit issued to DFS for
a term of twelve months or longer and in an amount, form and from an
institution acceptable to DFS.
4. 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.
5. 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 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 endorsement.
6. 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 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.
7. 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.
8. 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 aggregate
wholesale invoice price of such Collateral in Dealer's 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 review, 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 to 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.
9. 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 any 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.
10. 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.
11. 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 shall cease existence as a corporation,
partnership, limited liability company or trust, as applicable;
(l) 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;
(s) There shall occur a material adverse change in the financial or
other condition or business prospects of Dealer or any guarantor; or
(t) 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.
12. 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.
13. 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 (including 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.
14. 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.
15. 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.
16. 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
required. 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.
17. 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.
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 Dealer at Dealer's principal place of business specified
above; and
(b) To DFS at 655 Maryville Centre Drive, St. Louis, Missouri
63141-5832, Attention: General Counsel, or such other address as the parties
may hereafter specify in writing.
19. 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.
20. 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.
21. 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.
22. Supplement. If Dealer and 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, 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.
23. 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 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 repletion, 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 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 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; 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 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 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 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, repletion, claim and delivery, sequestration,
seizure, attachment, foreclosure 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 the state of Arizona. 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 Dealer's Name Attest:
By: By:
------------------------- ------------------------------
Print Name: Print Name:
Title: Title: (Assistant) Secretary
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:
----------------
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(Assistant) Secretary
Corporate Name
(SEAL)
