Preview
FILED: SARATOGA COUNTY CLERK 04/19/2024 08:46 PM INDEX NO. EF20241345
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024
EXHIBIT A
FILED: SARATOGA COUNTY CLERK 04/19/2024 08:46 PM INDEX NO. EF20241345
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024
INVENTORY FINANCING AGREEMENT
This Inventory Financing Agreement (as from time to time amended and together with any Transaction Statements, as hereinafter defined,
"Aareement") is between Wells Fargo Commercial Distribution Finance, LLC ("WFCDF") and Wells Fargo Bank, N.A. ("WFBNA", and WFBNA and
WFCDF, each, a "Lender"), each with a place of business at 10 South Wacker Drive, Chicago, Filinois 60606 and My Ride Supply LLC, a New York
limited liablity company ("Qg.g[jgf) with its chief executive office and principal place of business at 31 Old Route 146, CIfton Park, New York 12065.
1. Lender Parties.
(a) For administrative convenience, rather than each Lender entering into a separate Inventory Financing Agreement with Dealer in the
form of this Agreement, the pardes instead desire that each Lender join this Agreement as a Lender party.
(b) With respect to each Lender, all references in this Agreement, including but not limited to each program terms letter and billing
"Lander"
statement, to (and each other defined term used to refer to a Lender party) shall mean such Lender as if such Lender and Dealer had entered
into a separate agreement in the form of this Agreement without the other Lender being a party thereto. In furtherance of the foregoing, (A) each Lender
"Lander" under this
shall have all of the rights and remedies of, and shat each be obligated as, Agreement, but only with respect to invoices financed by
such Lender, (B) neither Lander shall be liable for the obigations of the other under this Agreement, (C) any decision by a Lender shall be its own
independent decision and shall not impose any obligation or liability on the other Lender, (D) the termination of this Agreement in accordance with its
temis by Dealer with respect to a Lender shall automatically result in the termination of this Agreement with respect to the other Lender, (E) the
termination of this Agreement by a Lander shall be effective only as between Dealer and such Lander and shall not result in the termination of this
"Lender"
Agreement as between Dealer and the other Lender, (F) any consent or approval of required under this Agreement which relates to or
otherwise affects one or more invoices financed or to be financed by a Lender shall constitute the consent or approval of such Lender and not of both
Lenders, and (G) all notices, statements, documents, agreements or other information provided by Dealer, if provided to only one Lender, may be
shared with the other Lender. Except as otherwise expressly set forth in this Agreement, nothng in this Agreement shall be deemed to confer on either
Lender any express, impled or apparent authority to incur any obligation or liabilty on behalf of the other Lander.
(c) Any incentive, rebate, refund, or price adjustment based upon volume, average net receivables ("AN_F), or average daily balance
("ADB") shall be calculated based on the aggregate volume financed for Dealer by both Lenders, although each Lander shall only be obligated to the
extent of the volume, ANR, or ADB associated with invoices financed by such Lender, including, without duplication, any Dealer obligations related to
financed invoices assigned to such Lander from the other. Any incentive, rebate or other similar amount to be paid by either Lender shall be paid by any
"Lender"
one or more Lenders in the aggregate and without duplication. Any subimit or limitation based upon the amount financed by under this
Agreement or outstanding at any point In time shali be calculated based on the aggregate amount financed by or outstanding to both Lenders without
duplication.
(d) All invoices and requests to finance the same delivered by Dealer under this Agreement shall be delvered to WFCDF and the Landers
shall determine, in their collective sole and absolute discretion, which Lender, If any, will finance theinvoices and related inventory.
(a) Any collateral inspection fee, COMS non-usage fee, floorplan administration fee or any other fee payable by Dealer under thIs
Agreement in connection with the servicing and/or administration of Dealers account in general, and which does not relate to any particular invoice(s)
financed by either Lender, shall be payabb by Dealer to WFCDF for allocation between the Lenders as they shall determine in their sole discretion.
attorneys'
Notwithstanding the foregoing and for the avoidance of doubt, any late fees, NSF fees, fees and other costs of cogection, and any other fees
relating to any particular invoice(s) financed by a Lender, shall be payable by Dealer to the Lender which financed the applicable invoice(s).
LLC,"
(f) Among other symbols, WFCDF hereby adopts "Weils Fargo Commercial DIstributlan Finance,
Finance,"
or "Wells Fargo Commercial
N.A.," Bank,"
Distribution as evidence of Its intent to authenticate a record and WFBNA hereby adopts "Wells Fargo Bank, or "Wells Fargo as
evidence of its Intent to authentcate a record.
2. Extensions of CredL Subject to the terms of this Agreement, Lender may extend credit to or on behalf of Dealer from time to time to
enable Dealer to purchase inventory from Lander-approved vendors ("Vendors") and for other purposes. Vendor approval is an ongoing process and
depends, in part, on the total value of invoices approved by Leader with any given Vendor at any point in time. The total value of invoices approved by
Lender with a vendor is subject to one or more maximum amounts separate from the amount of Dealers credit line. Leaders decision to advance funds
is at Lenders discretion. Lender may combine all of Lende s advances to Dealer or on Deate s behalf, whether under this Agreement or any other
agreement, whether provided by one or more of Lenders branch offices, and whether administered as separate sublimits, multiple accounts, or
otherwise, together with all finance charges, fees and expenses related thereto, to constitute one debt and loan owed by Dealer. Without limiting the
discretionary nature of this credit facility, Lender may, without notice to Dealer, elect not to finance any inventory sold by particular Vendors who are in
default to Lender, who have exceed or will exceed (if such inventory is financed) the appicable maximum amount established for that Vendor, with
respect to which Lender reasonably feels insecure. All advances and other transactions hereunder are for business purposes and not for personal,
family, household or any other consumer purposes.
3. Financing Terms. Lender and Dealer agree to set forth In this Agreement only the general terrns of Dealers financing arrangement
with Lender as certain financial terms depend, in part, on factors which vary from time to time, including without imitation, the availability of Vendor
discounts, payment terms or other incentives, Lenders floorplanning volume with Dealer and Vendor and other economic factors. Upon agreeing to
finance an item of inventory for Dealer, Lender will transmit, send or otherwise make available to Dealer a "Transaction Statement" which is a record that
may be authenticated and which identifies the Collateral financed and/or the advance made and the terms and conditions of repayment of such advance.
Dealer agrees that Dealers failure to notify Lender in writing of any objection to a Transaction Statement within thirty (30) days after a Transaction
Statement is transmitted, sent or otherwise made available to Dealer shall constitute Dealer's (a) acceptance of all terms thereof, (b) agreement that
Lender is financing such inventory at Dealers request, and (c) agreement that such Transaction Statement will be incorporated herein by reference. If
Dealer objects to the terms of any Transaction Statement, Dealer will pay Lender 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 terrns, at the lesser of 16% per annum or at the maximum lawful contract rate of
Interest permitted under applicable law), subject to termination of this Agreement by Lender and its rights under the termination provision contained
herein. To the extent Vendor program subsidies are applicable to Dealers financing program (each a "Lender Credit"), with respect to any advance
Lender makes to a Vendor on behalf of Dealer, Lender may apply against any such arnount owed to Vendor any amount Lender is owed from such
Vendor for any such Lander Credit; provided, however, In the event Vendor does not remit any such Lender Credit, Dealer agrees to pay the full amount
of such Lender Credit.
4. Security Interest.
(a) Dealer hereby grants to Lender a security interest in all of the Collateral as security for all Obligations.
"Collaterai"
(b) means all personal property of Dealer, whether such property or Dealers right, title or interest therein or thereto is now
owned or existing or hereafter acquired or arising, and wherever located, including without limitation, all Accounts, Inventory, Equiprnent, Fixtures, other
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Goods, General Intangibles (including without limitation, Payment lntangibles), Chattel Paper (whether tangible or electronic), instruments (including
without imitation, Promissory Notes), Deposit Accounts, Investment Property and Documents and ali Products and Proceeds of the foregoing, Without
limiting the foregoing, the Collateral includes Dealers right to all Vendor Credits (as defined babw). Similarly, the Collateral includes, without Imitation,
ali books and records, electronic or otherwise, which evidence or otherwise relate to any of the foregoing property, and all computers, disks, tapes,
media and other devices in which such records are stored. For purposes of this Section 4 only, capitalized terms used in this Section 4, which are not
otherwise defined, shall have the meanings given to them in Article 9 of the lillnois Uniform Commercial Code.
"Oblications"
(c) means all Indebtedness and other obligations of any nature whatsoever of Dealer to Lender, whether such indebtedness
or other obligations arise under this Agreement or any other existing or future agreement between or among Dealer and Lender or otherwise, and
whether for principal, interest, fees, Charges, expenses, indemnification obligations or otherwise, and whether such indebtedness or other obligations
are existing, future, direct, indirect, acquired, contractual, noncontractual, joint and/or several, fixed, contingent or otherwise.
Credits"
(d) "Vendor means all of Dealers rights to any price protection payments, rebates, discounts, credits, factory holdbacks, incentive
payments and other amounts which at any time are due Dealer from a Vendor.
(e) For the avoidance of doubt, in no event shall Dealer's grant of a secunty interest to Lander in the CoHateral under this Agreement
secure Dealers obligations arising under a securities contract, commodities contract, forward contract, repurchase agreement, swap agreement, or any
similar agreement (as defined for purposes of Treasury Part 148 under 12 U.S.C, § 5390(c)(8)(H) or FDIC Part 371 under 12 U.S.C. § 1821(e)(8)(D))
that the Federal Deposit Insurance Corporation determines by regulation, resolution, or order to be a qualified financial contract. In addition, in no event
shall Dealer's obligations under this Agreement be secured by any interest in real property.
5, Representations and Warrantles. Dealer represents and warrants that at the time of execution of this Agreement and at the time of
each approval and each advance hereunder: (a) Dealer does not conduct business under any trade styles or trade names except as disclosed by the
Dealer to Lender In writing and has all the necessary authority to enter into and perform this Agreement and Dealer will not violate its organizational
documents, or any law, regulation or agreement binding upon it, by entering into or performing its obligations under this Agreement: (b) Dealer will only
keep Collateral at locations within the U.S. which have been disclosed to Lender either (i) in writing prior to the execution of this Agreement or (ii) upon
tNrty (30) days written notice, and, in either case, which have been approved by Lander ("Perrnitted Locations"); (c) this Agreement correctly sets forth
Dealers true legal name, the type of its organization (if not an individual), the state in which Dealer is incorporated or otherwise organized, and Dealers
organizational identification number, if any; (d) all information supplied by Dealer to Lender, including any financial, credit or accounting statements or
application for credit, in connection with this Agreement is true, correct and complete; (e) Dealer has good title to all Collateral; and (f) there are no
actions or proceedings pending or threatened against Dealer which rnight result in any material adverse change in Dealer's financial or business
condition.
6. Covenants.
(a) Until sold as permitted by thIs Agreement, Dealer shall own all Collateral financed by Lender free and clear of an liens, security
interests, claims and other encumbrances, whether arising by agreement or operation of law (collectively "j....jengi"),other than Liens in favor of Lender
and subordinate Liens in favor of other persons with respect to which Lander shall have first consented in wdting.
(b) Dealer will: (1) keep all Collateral at Permitted Locations and keep all tangible Collateral safe and secure, in good order, repair and
operating condition and insured as required by Lender; (2) promptly file all tax returns required by law and promptly pay all taxes, fees, and other
governmental charges for which it is liable, including without limitation all governmental charges against the Collateral or this Agreement; (3) permit
Lender and its designees, without notice, to inspect the Collateral during normal business hours and at any other time Lander deems desirable (and
Dealer hereby grants Lender and its designees an irrevocable license to enter Dealer's business beations during norrnal business hours without notice
to Dealer to account for and Inspect all Collateral and to examine and copy Dealer's books and records related to the CoHaterai), and in connection with
any inspection, provide Lender and its designees safe and secure access to the Collateral and comply with any request made by Lender or its designees
to move the Collateral in order to provide such safe and secure access; (4) keep complete and accurate records of its business, including inventory,
accounts and sales, and permit Lender and its designees to inspect and copy such records upon request; (5) furnish Lender with such additional
information regarding the Collateral and Dealers business andfinancial condition as Lender may from time to time reasonably request (including without
limitation financial statements and projections more frequently than set forth below); (6) immediately notify Lender of any material adverse change in
Dealers prospects, business, operations or conditIon (financial or otherwise) or in any Collateral; (7) execute (or cause any third party in possession of
CoBateral to execute) all documents Lender requests to perfect and maintain Lenders security Interest in the Collateral; (8) deliver to Lander
immediately upon each request by Lender (and Lender may retain) each certificate of title or statement of origin issued for Collateral financed by Lender;
(9) at all times be duly organized. existing, in good standing, qualified and icensed to do business in each jurisdiction in which the nature of its business
or property so requires and, when requested, provide Lender with documentation evidencing the same; (10) notify Lender of the commencement of any
material legal proceedings against Dealer or any Guarantor (as defined below); and (11) comply with all laws, rules and regulations appicable to Dealer,
including without limitation, the USA PATRIOT ACT and all laws, rules and regulations relating to import or export controls or anti-money laundering.
(c) Dealer will not without Lende s pdor written consent: (1) use (except for demonstration for sale), rent, lease, sell, transfer, consign,
IIcense, encumber or otherwise dispose of Collateral except for sales of Inventory at retail in the ordinary course of Dealers business; (2) engage in any
other material transaction not in the ordinary course of Dealers business; (3) change its business in any material manner or its organizational structure
or be a party to a merger or consolidation or change Its registration to a registered organizatlan other than as specified above; (4) change its name
without giving Lender at least thirty (30) days' prior written notice thereof; (5) change the state in which it is incorporated or otherwise organized (except
days'
upon thirty (30) prior written notice to Lender); (6) change its chief executive office or office where it keeps its records with respect to accounts or
chattel paper; (7) finance on a secured basis with any Vendor or any third party the acqulsItion of inventory of the same brand as any inventory financed
or to be financed by Lander; (8) store inventory financed by Lender with any third party; or (9) sell or otherwise transfer inventory to a Dealer Affiliate.
Affiliate"
"Deqler means any person that: (i) directly or Indirectly controls, is controlled by or is under common control with Dealer, (ii) directly or Indirectly
owns 5% or more of Dealer, (lil) Is a director, partner, manager, or officer of Dealer or an affilate of Dealer, or (Iv) any natural person related to Dealer or
an affiliate of Dealer.
7. Insurance. All risk of loss, damage to or destruction of Conateral shati at all times be on Dealer, Dealer shall keep tangible Collateral
insured for full value against all insurable risks under poicies delivered to Lander and issued by insurers satisfactory to Lender with loss payable to
Lender. Lender is to be provided with any written notice of cancellation or change in such policies within two (2) Business Days (as defined below) of the
issuance of such notice. Lender is authorized, but not required, to act as attomey-in-fact for Dealer in adjusting and setting any insurance claims under
any such policy and in endorsing any checks or drafts drawn by insurers. Dealer shall promptly remit to Lender in the form received, with all necessary
endorsements, all proceeds of such insurance which Dealer may receive. Lender, at its election, shall either apply any proceeds of insurance it may
receive toward payment of the Obligations or pay such proceeds to Dealer.
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B. Financial Statements. Unless waived by Lender, Dealer wlil deliver to Lender, in a form satisfactory to Lender (a) Dealers year-end
balance sheet and annual profit and loss statement for each of its fiscal years, within twenty (20) days after the same are prepared but in no event later
than one hundred twenty (120) days after the end of each fiscal year; (b) within forty-five (45) days after the end of each of Dealers fiscal quarters, a
reasonably detailed balance sheet and Income statement as of the last day of such quarter covering Dealer's operations for such quarter; and (c) within
ten (10) days after Lende s request, any other information relating to the Collateral or the financialcondition of Dealer or any Guarantor.
9. Payment Terms,
(a) Dealer will immediately pay Lender the principal amount of the Obligations owed Lander on each item of Collateral financed by Lender
on the earlest occurrence of any of the following events: (i) when such Collateral is lost, stolen or damaged; (ii) for Collateral financed under any pay-as-
sold ("PAT) terms, when such Collateral is sold, transferred, rented, leased, otherwise disposed of. unaccounted for, or its payment term has matured;
(iii) for CoHateral financed under any scheduled payment program (1EP") terms, In strict accordance with the installment payment schedule; (iv) In strict
accordance with any curtailment schedule for such Collateral; and (v) when otherwise required under the terms of this Agreement. The PAS, SPP and
curtailment terms are or may be set forthin a Transaction Statement. Lender may apply: (1) payments to reduce finance charges first and then principal,
regardless of Dealers instructions; and (2) principal payments to the oldest (earliest) invoice for Collateral financed by Lender, but, in any event, all
principal payments, may, In Lander's sole discretion, first be applied to such Collateral which is sold, lost, stolen. damaged, rented, leased, or otherwise
disposed of or unaccounted for. Any payment hereunder which would otherwise be due on a day which is not a Business Day, shall be due on the next
succeeding Day"Business Day, with such extension of time included in any calculation of applicable finance charges. For purposes of this Agreement,
"Business means any day the Federal Reserve Bank of Chicago is open for the transaction of business; provided, however, that, for purposes of
determining a Benchmark (as defined below), if a Business Day falls on a day that the Index Rate (as defined below) used to calculate such Benchmark
is not published by the Federal Reserve Bank of New York or by such other publication, website or electronic source as Lender, in its sole discretion,
may select, then such Index Rate shell be as last published pnor to such Business Day,
(b) If Dealer (i) fails to immediately remit funds to Lander upon the maturity of Dealer's applicable payment terms with respect to such
advance or upon the sale, transfer, rental, lease, loss, theft, damage, or other disposition of or inabilty to account for any inventory financed by Lander
trust"
for Debtor (a "sale out of or "SOT") or (ii) is required to make immediate payment to Lender of any past due obligation discovered during any
Collateral review, or at any other time, then Lende s acceptance of any payment with respect to such past due obligation (whether in full or partial
satisfaction of such obligation) shall not be construed to have waived or amended the terms of its financing program. Dealer will send all such payments
to Lander as directed.
(c) Any Vendor Credit granted to Dealer for any Collateral will not reduce the Obligations Dealer owes Lender until Lender has received
payment therefor as set forth below. Dealer will: (i) pay Lander even if any Collateral is defective or fails to confonn to any warranties extended by any
third party; and (ii)) indemnify and hold Lender harmless against all claims and defenses asserted by any buyer of any Collateral. Dealer waives all rights
of setoff Dealer may have against Lender. Dealer will not assert against Lender any claim or defense Dealer may have against any Vendor and any such
claims or defenses shall not affect Dealer's tiabilities or obligations to Lender.
(d) Any advances which are not used to acquire inventory, as contemplated hereby, shaM be paid on demand unless otherwise provided in
this Agreement or in any Transaction Statement. In order to adequately secure Deaiers Obligations to Lender, Dealer shall, at Lender's request,
immediately pay Lander the amount necessary to reduce the sum of Lender's outstanding advances with respect to inventory received by Dealer to an
amount which does not exceed the aggregate invoice price to Dealer of the irwentory in Dealers possession which (1) is financed by Lender, and (ii) in
which Lender has a perfected first priority lien.
(e) All payments due by Dealer to Lender under this Agreement or otherwise shall be made by check made on a United States bank,
ACH, EDI or federal wire, in each case drawn on an account established in the name of Dealer. Payment in any other form may delay processing or be
returned to Dealer, and may cause Dealer to incur a late payment fee. Lender policy bars payment by cash or cash equivalents and any such payments
will be decIlned; Lender reserves the right to decline other forms of payment, including but not limited to, cashier's checks, money orders, bank drafts,
third-party checks and travelers checks. In the event of any such payment decine, Dealers debt will remain outstanding and Interest/fees permitted
under Dealer's agreement may accrue until acceptable payment is received. Lender will recognize and credit payments according to its payment
recognition policies from time to time in effect, or as otherwise agreed. Information regarding Lenders payment recognition policy is available from
Deale s Lender representative, the Lender website, or will be communicated pursuant to Section 11(b) below.
10. Calculation of Charges.
(a) Dealer shall pay fees, charges and interest (collectively, "Charges") with respect to each advance in accordance with this Agreement.
Dealer shall pay Lender its customary Charges for any check or other item which is returned unpaid to Lender, Unless otherwise provided in this
Rate"
Agreement, the following additional provisions shall be appicable to Charges: (i) any reference to (A) "Prime shall mean, for any calendar month,
rate" Rates"
an Interest rate equal to the greater of (1) the highest "prime as published in the "Money column of The Wall Street Joumal, or in such other
publication, website or electronic source as Lender, in its sole discretion, may select, on or about the first Business Day of such month, rounded to such
number of decimal places as selected by Lender, or (2) the Minimum (as defined below), and (B) "Adiusted 30-Day Averaae SOFR" shall mean, for any
SOFR"
calendar month, an Interest rate equal to the greater of (1) the sum of (x) an interest rate equal to the "30-DAY AVERAGE rate as published by
the Federal Reserve Bank of New York or by such other publication, website or electronic source as Lender, in its sole discretion, may select, on or
about the first Business Day of such month, plus (y) a spread adjustment from time to time selected by Lender and Identified on the applicable
Transaction Statement or other notice provided by Lender to Dealer, which sum shall be rounded to such number of decimal places as selected by
Lander, or (2) the Minimum (as defined below) (the Prime Rate and the Adjusted 30-Day Average SOFR are each referred to herein as a "Base Rate");
(11)al Charges shall be paid by Dealer monthly pursuant to the terms of the billing statement in which such Charges appear; (iii) Interest on each
advance and principal amount of the Obligations related thereto shall be computed for any period by dividing the interest rate provided in each
applicable Transaction Statement by 360 (the quotient of which is herein referred to as the "Daily Rate"), and then multiplying the Daily Rate by either (A)
the average principal balance outstanding during such period, or (B) the actual principal balance outstanding on each day during such period; (iv)
interest on an advance shall begin to accrue on the Start Date, which shall be defined as the earlier of: (A) the invoice date referred to in the Vendor's
invoice; or (B) the ship date referred to in the Vendors irwolce; or (C) the date Lender makes such advance; provided, however, if a Vendor fails to fully
pay, by honoring or paying any Lender Credit or otherwise, the interest or other cost of financing such inventory during the period between the Start Date
and the end of the Free Floor Period (as defined below), then Dealer shall pay such interest to Lender on demand as If there were no Free Floor Period
with respect to such inventory; (v) for the purpose of computing Charges, any payment will be credited pursuant to Lenders payment recognition
policies, as in effect from time to time; (vi) advances or any part thereof not paid when due (and Charges not paid when due, at the option of Lender,
shall become part of the principal arnount of the Obigations and) shall bear interest at the Default Rate (as defined below); and (vii) all interest rates
provided or referenced in Transaction Statements, including all references to Base Rate, Prime Rate or Adjusted 30-Day Average SOFR and additions
to Base Rate, Prime Rate or Adjusted 30-Day Average SOFR, are provided and referenced on the basis of a 360-day year. The method of calculating
Interest provided in this Section 10(a) (i.e., the interest rate calculated based on a year of 360 days, for the actual number of days elapsed) will result in
a higher effective rate than the quoted numeric rate provided in the Transaction Statement, Neither of the Base Rates, nor any other Benchmark (as
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defined below), constitutes Dealer's albin interest rate(s) with Lander, which rates may also include margins, matrices and any other adders as may from
time to time be set forth in Transaction Statements or other notices from Lender to Dealer. For purposes of this Agreement, the following definitions shall
"Minimum' shall
apply: mean the greater of (a) zero percent (0%) or (b) such other minimum amount as may be Identified on the applicable Transaction
Rate"
Statement or notice provided by Lender to Dealer pursuant to the Agreement; "Default shall mean the default rate specified in Dealer's financing
program with Lender, 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 lawfui contract rate of interest permitted under applicable law; and "Free Floor Perig( shall mean a period equal to the number of days
during which a Vendor agrees to assume the cost of financing Coliateral purchased by Dealer by granting Lender a Lender Credit.
(b) Lender intends to strictly conform to the usury laws governing this Agreement. Regardless of any provision contained herein, In any
Transaction Statement, or in any other document, Lender shall never be deemed to have contracted for, charged or be entitled to receive, collect or
apply as interest, any amount in excess of the maximum amount allowed by appicable law. If Lender ever receives any amount which, if considered to
be interest, would exceed the maximum amount permitted by law, Lerder wilt apply such excess amount to the reduction of the unpaid principal balance
which Dealer owes, and then will pay any remalnIng excess to Dealer, In determining whether the interest paid or payable exceeds the highest lawful
rate, Dealer and Lender shall, to the maximum extent permitted under applicable law, (1) 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, (2) exclude voluntary pre-payments and
the effect thereof, and (3) spread the total amount of interest throughout the entire term of this Agreement so that the interest rate is uniform throughout
such term. Dealer agrees to pay an effective rate of interest that is the sum of (1)the interest rate provided in this Agreement, including as provided in
each accepted Transaction Statement, as may be amended as provided herein; and (ii) any additional rate of Interest resulting from any other charges or
fees paid or to be paid by Dealer pursuant to this Agreement and that are determined to be interest or in the nature of interest.
(c) If a Benchmark Transition Event (as defined below) occtrs with respect to the index rate used to calculate a Benchmark (as defined
below) (such index rate, an "Index Rate"), Lender may, effective upon the applicable Benchmark Replacement Date (as defined below), (1) replace such
Benchmark with (i) an alternate rate of interest that has been selected by Lender as the replacement for such Benchmark, plus (ii) a spread adjustment
selected by Lender (collectively, the "Benchmark Replacement"), and (2) make technical, administrative and/or operational changes, including without
limitation, (i) the margins or adders which may, from time to time, be added to the Benchmark Replacement, (ii) the timing and frequency of determining
rates, and (iii) the payment of interest or other Charges and other administrative matters as may be, in each case, appropriate, in the sore discretion of
Lender, to reflect the adoption of the Benchmark Replacement and to permit the administration thereof by Lander in such manner as Lender may
determine (colective¾ the "B nghmprk Replacement Conforming Chanqng"). The Benchmark Replacement shall replace all references to such
Benchmark, and the Benchmark Replacement Conforming Changes shall become effective, on the date(s) set forth in a written notice thereof to Dealer
(such date(s), the "Benchm9rk R plpcement Date", and such notice, the "Benchmark Replacement Notice") without any smendment or other
modification to the Agreement and without any further action or consent of Dealer and/or any other person or entity; and, for the avoidance of doubt, the
replacement of such Benchmark with the Benchmark Replacernent and the Benchmark Replacement Conforming Changes shall be effective with
respect to existing Obligations owing by Dealer to Lender and/or to Obligations incurred or arising after the Benchmark Replacement Date, all as Lender
IEvent'
may elect by so indicating in the Benchmark Replacement Notice. A "Benghmgrk Transition means the occurrence of one or more of the following
events with respect to the Index Rate used to calculate a Benchmark: (a) a public statement or publication of information by or on behalf of the
administrator of such Index Rate, or any successor administrator (collectively, "Benchmark Administrator') or a regulatory supervisor for, or any
insolvency or resolution official with authority over, the Benchmark Administrator, announcing that: (i) the Benchmark Administrator has ceased or will
cease to provide such Index Rate, permanently or indefinitely; or (ii) such Index Rate is no longer, or as of a specified future date will no longer be,
representative of underlying markets; or (b) notice is provided by Lander to Dealer of Lender's intention to adopt a new benchmark to replace such index
Rate: or (c) entrance by Lender and Dealer Into a written agreement to adopt a new benchmark to replace such Index Rate. As used herein, a
"Benchmark"
means, Initially, a Base Rate: provided, that If a Benchmark Transition Event occurs with respect to the Index Rate used to calculate a
Benchmark (including any replacement of a Benchmark pursuant to the provisions of this paragraph), then "Benchmark", as used herein with respect to
such Benchmark, shall mean the appleable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to
this paragraph; and provided further, that no Benchmark shall ever be less than the Minimum. Any determination, decision or election that may be made
by Lender pursuant to this paragraph, including, without imitation, any determination with respect to a tenor, rate or adjustment or of the occurrence or
nordoccurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and
binding on Dealer and will be made in Lenders sole discretion and without Dealer consent, except as expressly required pursuant to the provisions of
the Agreement.
11. Billing Statement/Fees; Right to Modify Charges and Other Terms.
(a) Lander will transmit, send or otherwise make available to Dealer a monthly billing statement identifying all charges due on Dealer's
account with Lander. The charges specified on each billing statement will be (1) due and payable in full immedlately on receipt, unless otherwise stated
In writing in Dealers billing statement, transaction statement or other written document provided by Lender, and (2) an account stated, unless Lender
receIves Deale s written objection thereto within fifteen (15) days after it is transmitted, sent or otherwise made available to Dealer. If Lender does not
receive, by the 25th day of any given month, payment of all charges accrued to Dealer's account with Lender during the Immediately preceding month,
Dealer will (to the extent allowed by law) pay Lender a late fee equai to the greater of $5 or 5% of the amount of such charges (payment of such fee
does not waive the default caused by the late payment). Lender may adjust the billing statement at any time to corform to spplicable law and this
Agreement,
(b) Lender may charge one or more fees in connection with the servicing and administration of Dealer's account. From time to time,
Lender may provide written notice to Dealer of new or changed fees, interest and/or other finance charges (including without limitation, increases or
decreases in the periodic rate or amount of finance charges, the method of computing finance charges and when and how finance charges, and principal
payments, are payable), policies, practices and other charges and/or credit terms (coHectively, "Fees and Terms") payable by, or applicable to, Dealer or
relating to Dealer's account generally, or in connection with specific services, or events, to be effective as of the notice date, or such other future
effective date as Lender shall advise, with respect to existing Obligations owing by Dealer to Lender and/or to Obligations incurred or arising after such
notice or future effective date, as the case may be, all as Lender may elect by so indicating in such notice. Such notice may be delivered by mail, courier
or electronically in a separate writing or website posting, or set forth in the Transaction Statement and/or the billing statement. Dealer shall be deemed to
have accepted such Fees and Terms by either (1) making any request for financing after the effective date of such notice, or (2) failing to notify Lender in
writing of any objection to a Transaction Statement, billing statement or written notice advising of such Fees and Terms within fifteen (15) days after
such notice has been sent to Dealer. If Dealer objects to the Fees and Terms, such Fees and Terms shall not be imposed, but Lender may charge or
Implement the last Fees and Terms to which Dealer has not objected, and may elect to terminate Dealer's financing program.
12. Default The occurrence of one or more of the following events shall constitute a default by Dealer (a "Default"): (a) Dealer shall fall to
pay any Obligations hereunder or other amounts, however or wherever doctrnented, owed to Lender or to any person that at any time directly or
indirectly controls, is controlled by, or is under common control with Lender (a "Lender AffillaW) when due or any remittance for any such Obligations or
such other amounts is dishonored when first presented for payment: (b) any representation made to Lender by Dealer or by any guarantor, surety, issuer
17756539(09/21)/21659924(10/21) 4
FILED: SARATOGA COUNTY CLERK 04/19/2024 08:46 PM INDEX NO. EF20241345
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024
of a letter of credit or any person other than Dealer primarily or secondadly lable with respect to any Obligations (a "Guarantor") shall not be true when
made or if Dealer or any Guarantor shall breach any covenant, warranty or agreement to or with Lender; (c) Dealer (including, if Dealer is a partnership
or limited liabilty company, any partner or member of Dealer) or any Guarantor shall die, become Insolvent or generally fail to pay its debts as they
become due or, if a business, shall cease to do business as a going concern; (d) any letter of credit or other form of collateral provided by Dealer or a
Guarantor to Lender with respect to any Obligations or Collateral shall terminate or not be renewed at least sixty (60) days prior to its stated expiration or
maturity; (e) Desier abandons any Collateral; (f) any Guarantor shall revoke, terminate or limit, or take any action purporting to revoke, terminate or limit,
any guaranty or other assurance of payment relating to any Obilgations; (g) Dealer or any Guarantor shall make an assignment for the benefit of
creditors, or commence a proceeding with respect to itself under any bankruptcy, reorganization, arrangement, insolvency, receivership, dissolution or
liquidation statute or similar law of any jurisdiction, or any such proceeding shall be commenced against it or any of its property (an "Automatic Default");
(h) an attachment, sale or seizure shall be issued or shall be executed against any assets of Dealer or of any Guarantor; (i) Dealer shall lose, or shan be
In default of, any franchise, license or right to deat In any Collateral which Lender finances; (j) Dealer, Guarantor or any third party shall file any
correction or termination statement with respect to any Uniform Commercial Code (the "jJ.C.Q")filIng made by Lender in connection herewith; (k) a
material adverse change shall occur in the business, operations or condition (financial or otherwise) of Dealer (including, if Dealer is a partnership or
limited liabitty company, any partner or member of Dealer) or any Guarantor or with respect to the Collateral; (I) Dealer or any Guarantor fails to pay any
debt or perform any other obligation owed to any third party; (m) Dealer or any Guarantor defaults under the terms of any agreement with any Lander
Affiliate; or (n) Lender In good faith believes the prospect of payment of any Obligations is impaired or Lender deems itself Insecure.
13, Rights and Rernedies Upon Default. Upon the occurrence of a Defaul Lender shall have all rights and remedies of a secured party
under the UCC as in effect in any appicable jurisdiction and other applicable law and al the rights and remedies set forth in this Agreement. Lender may
terminate any obligations It has under this Agreement and any outstanding credit approvals immediately and/or declare any and all Obligations
Immediately due and payable without notice or demand, Dealer waives notice of Intent to accelerate, and of acceleration of any Obligations. Lender may
enter any premises of Dealer, with or without process of law, without force, to search for, take possession of, and remove the Collateral, or any part
thereof. If Lander requests, Dealer shall cease disposition of and shall assemble the Collateral and make it available to Lender, at Dealers expense, at a
convenient place or places designated by Lender. Lender may take possession of the Collateral or any part thereof on Dealer's premises and cause it to
remain there at Dealer's expense, pending sale or other disposition. Dealer agrees that the sale of inventory by Lender to a person who is liable to
Lender under a guaranty, endorsement, repurchase agreement or the like shall not be deemed to be a transfer subject to UCC §9-618 or any similar
provision of any other applicable law, and Dealer waives any provision of such laws to that effect. Dealer agrees that the repurchase of inventory by a
Vendor pursuant to a repurchase agreement with Lender shall be a commercisfly reasonable method of disposition. Dealer shall be liable to Lender for
any deficiency resulting from Lender s disposition, Including without limitation a repurchase by a Vendor, regardless of any subsequent disposition
thereof. Dealer is not a beneficiary of, and has no right to require Lender to enforce, any repurchase agreement If Dealer falls to perform any of its
obligations under this Agreement, Lender may perform the same in any form or manner Lender in its discretion deems necessary or desirable, and all
monies paid by Lender in connection therewith shall be additional Obilgations and shall be immediately due and payable without notice together with
interest payable on demand at the Default Rate. All of Lender's rights and remedies shall be cumulative. At Lender's request, or without request in the
event of an Automatic Default, Dealer shalt pay att Vendor Credits to Lender as soon as the same are received for application to the Obligadons. Dealer
authorizes Lender to collect such amounts directly from Vendors and, upon request of Lender, shall instruct Vendors to pay Lender directly. Dealer
irrevocably waives any requirement that Lender retain possession and not dispose of any Collateral until after tri
Preview
FILED: SARATOGA COUNTY CLERK 04/19/2024 08:46 PM INDEX NO. EF20241345 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 EXHIBIT A FILED: SARATOGA COUNTY CLERK 04/19/2024 08:46 PM INDEX NO. EF20241345 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 INVENTORY FINANCING AGREEMENT This Inventory Financing Agreement (as from time to time amended and together with any Transaction Statements, as hereinafter defined, "Aareement") is between Wells Fargo Commercial Distribution Finance, LLC ("WFCDF") and Wells Fargo Bank, N.A. ("WFBNA", and WFBNA and WFCDF, each, a "Lender"), each with a place of business at 10 South Wacker Drive, Chicago, Filinois 60606 and My Ride Supply LLC, a New York limited liablity company ("Qg.g[jgf) with its chief executive office and principal place of business at 31 Old Route 146, CIfton Park, New York 12065. 1. Lender Parties. (a) For administrative convenience, rather than each Lender entering into a separate Inventory Financing Agreement with Dealer in the form of this Agreement, the pardes instead desire that each Lender join this Agreement as a Lender party. (b) With respect to each Lender, all references in this Agreement, including but not limited to each program terms letter and billing "Lander" statement, to (and each other defined term used to refer to a Lender party) shall mean such Lender as if such Lender and Dealer had entered into a separate agreement in the form of this Agreement without the other Lender being a party thereto. In furtherance of the foregoing, (A) each Lender "Lander" under this shall have all of the rights and remedies of, and shat each be obligated as, Agreement, but only with respect to invoices financed by such Lender, (B) neither Lander shall be liable for the obigations of the other under this Agreement, (C) any decision by a Lender shall be its own independent decision and shall not impose any obligation or liability on the other Lender, (D) the termination of this Agreement in accordance with its temis by Dealer with respect to a Lender shall automatically result in the termination of this Agreement with respect to the other Lender, (E) the termination of this Agreement by a Lander shall be effective only as between Dealer and such Lander and shall not result in the termination of this "Lender" Agreement as between Dealer and the other Lender, (F) any consent or approval of required under this Agreement which relates to or otherwise affects one or more invoices financed or to be financed by a Lender shall constitute the consent or approval of such Lender and not of both Lenders, and (G) all notices, statements, documents, agreements or other information provided by Dealer, if provided to only one Lender, may be shared with the other Lender. Except as otherwise expressly set forth in this Agreement, nothng in this Agreement shall be deemed to confer on either Lender any express, impled or apparent authority to incur any obligation or liabilty on behalf of the other Lander. (c) Any incentive, rebate, refund, or price adjustment based upon volume, average net receivables ("AN_F), or average daily balance ("ADB") shall be calculated based on the aggregate volume financed for Dealer by both Lenders, although each Lander shall only be obligated to the extent of the volume, ANR, or ADB associated with invoices financed by such Lender, including, without duplication, any Dealer obligations related to financed invoices assigned to such Lander from the other. Any incentive, rebate or other similar amount to be paid by either Lender shall be paid by any "Lender" one or more Lenders in the aggregate and without duplication. Any subimit or limitation based upon the amount financed by under this Agreement or outstanding at any point In time shali be calculated based on the aggregate amount financed by or outstanding to both Lenders without duplication. (d) All invoices and requests to finance the same delivered by Dealer under this Agreement shall be delvered to WFCDF and the Landers shall determine, in their collective sole and absolute discretion, which Lender, If any, will finance theinvoices and related inventory. (a) Any collateral inspection fee, COMS non-usage fee, floorplan administration fee or any other fee payable by Dealer under thIs Agreement in connection with the servicing and/or administration of Dealers account in general, and which does not relate to any particular invoice(s) financed by either Lender, shall be payabb by Dealer to WFCDF for allocation between the Lenders as they shall determine in their sole discretion. attorneys' Notwithstanding the foregoing and for the avoidance of doubt, any late fees, NSF fees, fees and other costs of cogection, and any other fees relating to any particular invoice(s) financed by a Lender, shall be payable by Dealer to the Lender which financed the applicable invoice(s). LLC," (f) Among other symbols, WFCDF hereby adopts "Weils Fargo Commercial DIstributlan Finance, Finance," or "Wells Fargo Commercial N.A.," Bank," Distribution as evidence of Its intent to authenticate a record and WFBNA hereby adopts "Wells Fargo Bank, or "Wells Fargo as evidence of its Intent to authentcate a record. 2. Extensions of CredL Subject to the terms of this Agreement, Lender may extend credit to or on behalf of Dealer from time to time to enable Dealer to purchase inventory from Lander-approved vendors ("Vendors") and for other purposes. Vendor approval is an ongoing process and depends, in part, on the total value of invoices approved by Leader with any given Vendor at any point in time. The total value of invoices approved by Lender with a vendor is subject to one or more maximum amounts separate from the amount of Dealers credit line. Leaders decision to advance funds is at Lenders discretion. Lender may combine all of Lende s advances to Dealer or on Deate s behalf, whether under this Agreement or any other agreement, whether provided by one or more of Lenders branch offices, and whether administered as separate sublimits, multiple accounts, or otherwise, together with all finance charges, fees and expenses related thereto, to constitute one debt and loan owed by Dealer. Without limiting the discretionary nature of this credit facility, Lender may, without notice to Dealer, elect not to finance any inventory sold by particular Vendors who are in default to Lender, who have exceed or will exceed (if such inventory is financed) the appicable maximum amount established for that Vendor, with respect to which Lender reasonably feels insecure. All advances and other transactions hereunder are for business purposes and not for personal, family, household or any other consumer purposes. 3. Financing Terms. Lender and Dealer agree to set forth In this Agreement only the general terrns of Dealers financing arrangement with Lender as certain financial terms depend, in part, on factors which vary from time to time, including without imitation, the availability of Vendor discounts, payment terms or other incentives, Lenders floorplanning volume with Dealer and Vendor and other economic factors. Upon agreeing to finance an item of inventory for Dealer, Lender will transmit, send or otherwise make available to Dealer a "Transaction Statement" which is a record that may be authenticated and which identifies the Collateral financed and/or the advance made and the terms and conditions of repayment of such advance. Dealer agrees that Dealers failure to notify Lender in writing of any objection to a Transaction Statement within thirty (30) days after a Transaction Statement is transmitted, sent or otherwise made available to Dealer shall constitute Dealer's (a) acceptance of all terms thereof, (b) agreement that Lender is financing such inventory at Dealers request, and (c) agreement that such Transaction Statement will be incorporated herein by reference. If Dealer objects to the terms of any Transaction Statement, Dealer will pay Lender 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 terrns, at the lesser of 16% per annum or at the maximum lawful contract rate of Interest permitted under applicable law), subject to termination of this Agreement by Lender and its rights under the termination provision contained herein. To the extent Vendor program subsidies are applicable to Dealers financing program (each a "Lender Credit"), with respect to any advance Lender makes to a Vendor on behalf of Dealer, Lender may apply against any such arnount owed to Vendor any amount Lender is owed from such Vendor for any such Lander Credit; provided, however, In the event Vendor does not remit any such Lender Credit, Dealer agrees to pay the full amount of such Lender Credit. 4. Security Interest. (a) Dealer hereby grants to Lender a security interest in all of the Collateral as security for all Obligations. "Collaterai" (b) means all personal property of Dealer, whether such property or Dealers right, title or interest therein or thereto is now owned or existing or hereafter acquired or arising, and wherever located, including without limitation, all Accounts, Inventory, Equiprnent, Fixtures, other FILED: SARATOGA COUNTY CLERK 04/19/2024 08:46 PM INDEX NO. EF20241345 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 Goods, General Intangibles (including without limitation, Payment lntangibles), Chattel Paper (whether tangible or electronic), instruments (including without imitation, Promissory Notes), Deposit Accounts, Investment Property and Documents and ali Products and Proceeds of the foregoing, Without limiting the foregoing, the Collateral includes Dealers right to all Vendor Credits (as defined babw). Similarly, the Collateral includes, without Imitation, ali books and records, electronic or otherwise, which evidence or otherwise relate to any of the foregoing property, and all computers, disks, tapes, media and other devices in which such records are stored. For purposes of this Section 4 only, capitalized terms used in this Section 4, which are not otherwise defined, shall have the meanings given to them in Article 9 of the lillnois Uniform Commercial Code. "Oblications" (c) means all Indebtedness and other obligations of any nature whatsoever of Dealer to Lender, whether such indebtedness or other obligations arise under this Agreement or any other existing or future agreement between or among Dealer and Lender or otherwise, and whether for principal, interest, fees, Charges, expenses, indemnification obligations or otherwise, and whether such indebtedness or other obligations are existing, future, direct, indirect, acquired, contractual, noncontractual, joint and/or several, fixed, contingent or otherwise. Credits" (d) "Vendor means all of Dealers rights to any price protection payments, rebates, discounts, credits, factory holdbacks, incentive payments and other amounts which at any time are due Dealer from a Vendor. (e) For the avoidance of doubt, in no event shall Dealer's grant of a secunty interest to Lander in the CoHateral under this Agreement secure Dealers obligations arising under a securities contract, commodities contract, forward contract, repurchase agreement, swap agreement, or any similar agreement (as defined for purposes of Treasury Part 148 under 12 U.S.C, § 5390(c)(8)(H) or FDIC Part 371 under 12 U.S.C. § 1821(e)(8)(D)) that the Federal Deposit Insurance Corporation determines by regulation, resolution, or order to be a qualified financial contract. In addition, in no event shall Dealer's obligations under this Agreement be secured by any interest in real property. 5, Representations and Warrantles. Dealer represents and warrants that at the time of execution of this Agreement and at the time of each approval and each advance hereunder: (a) Dealer does not conduct business under any trade styles or trade names except as disclosed by the Dealer to Lender In writing and has all the necessary authority to enter into and perform this Agreement and Dealer will not violate its organizational documents, or any law, regulation or agreement binding upon it, by entering into or performing its obligations under this Agreement: (b) Dealer will only keep Collateral at locations within the U.S. which have been disclosed to Lender either (i) in writing prior to the execution of this Agreement or (ii) upon tNrty (30) days written notice, and, in either case, which have been approved by Lander ("Perrnitted Locations"); (c) this Agreement correctly sets forth Dealers true legal name, the type of its organization (if not an individual), the state in which Dealer is incorporated or otherwise organized, and Dealers organizational identification number, if any; (d) all information supplied by Dealer to Lender, including any financial, credit or accounting statements or application for credit, in connection with this Agreement is true, correct and complete; (e) Dealer has good title to all Collateral; and (f) there are no actions or proceedings pending or threatened against Dealer which rnight result in any material adverse change in Dealer's financial or business condition. 6. Covenants. (a) Until sold as permitted by thIs Agreement, Dealer shall own all Collateral financed by Lender free and clear of an liens, security interests, claims and other encumbrances, whether arising by agreement or operation of law (collectively "j....jengi"),other than Liens in favor of Lender and subordinate Liens in favor of other persons with respect to which Lander shall have first consented in wdting. (b) Dealer will: (1) keep all Collateral at Permitted Locations and keep all tangible Collateral safe and secure, in good order, repair and operating condition and insured as required by Lender; (2) promptly file all tax returns required by law and promptly pay all taxes, fees, and other governmental charges for which it is liable, including without limitation all governmental charges against the Collateral or this Agreement; (3) permit Lender and its designees, without notice, to inspect the Collateral during normal business hours and at any other time Lander deems desirable (and Dealer hereby grants Lender and its designees an irrevocable license to enter Dealer's business beations during norrnal business hours without notice to Dealer to account for and Inspect all Collateral and to examine and copy Dealer's books and records related to the CoHaterai), and in connection with any inspection, provide Lender and its designees safe and secure access to the Collateral and comply with any request made by Lender or its designees to move the Collateral in order to provide such safe and secure access; (4) keep complete and accurate records of its business, including inventory, accounts and sales, and permit Lender and its designees to inspect and copy such records upon request; (5) furnish Lender with such additional information regarding the Collateral and Dealers business andfinancial condition as Lender may from time to time reasonably request (including without limitation financial statements and projections more frequently than set forth below); (6) immediately notify Lender of any material adverse change in Dealers prospects, business, operations or conditIon (financial or otherwise) or in any Collateral; (7) execute (or cause any third party in possession of CoBateral to execute) all documents Lender requests to perfect and maintain Lenders security Interest in the Collateral; (8) deliver to Lander immediately upon each request by Lender (and Lender may retain) each certificate of title or statement of origin issued for Collateral financed by Lender; (9) at all times be duly organized. existing, in good standing, qualified and icensed to do business in each jurisdiction in which the nature of its business or property so requires and, when requested, provide Lender with documentation evidencing the same; (10) notify Lender of the commencement of any material legal proceedings against Dealer or any Guarantor (as defined below); and (11) comply with all laws, rules and regulations appicable to Dealer, including without limitation, the USA PATRIOT ACT and all laws, rules and regulations relating to import or export controls or anti-money laundering. (c) Dealer will not without Lende s pdor written consent: (1) use (except for demonstration for sale), rent, lease, sell, transfer, consign, IIcense, encumber or otherwise dispose of Collateral except for sales of Inventory at retail in the ordinary course of Dealers business; (2) engage in any other material transaction not in the ordinary course of Dealers business; (3) change its business in any material manner or its organizational structure or be a party to a merger or consolidation or change Its registration to a registered organizatlan other than as specified above; (4) change its name without giving Lender at least thirty (30) days' prior written notice thereof; (5) change the state in which it is incorporated or otherwise organized (except days' upon thirty (30) prior written notice to Lender); (6) change its chief executive office or office where it keeps its records with respect to accounts or chattel paper; (7) finance on a secured basis with any Vendor or any third party the acqulsItion of inventory of the same brand as any inventory financed or to be financed by Lander; (8) store inventory financed by Lender with any third party; or (9) sell or otherwise transfer inventory to a Dealer Affiliate. Affiliate" "Deqler means any person that: (i) directly or Indirectly controls, is controlled by or is under common control with Dealer, (ii) directly or Indirectly owns 5% or more of Dealer, (lil) Is a director, partner, manager, or officer of Dealer or an affilate of Dealer, or (Iv) any natural person related to Dealer or an affiliate of Dealer. 7. Insurance. All risk of loss, damage to or destruction of Conateral shati at all times be on Dealer, Dealer shall keep tangible Collateral insured for full value against all insurable risks under poicies delivered to Lander and issued by insurers satisfactory to Lender with loss payable to Lender. Lender is to be provided with any written notice of cancellation or change in such policies within two (2) Business Days (as defined below) of the issuance of such notice. Lender is authorized, but not required, to act as attomey-in-fact for Dealer in adjusting and setting any insurance claims under any such policy and in endorsing any checks or drafts drawn by insurers. Dealer shall promptly remit to Lender in the form received, with all necessary endorsements, all proceeds of such insurance which Dealer may receive. Lender, at its election, shall either apply any proceeds of insurance it may receive toward payment of the Obligations or pay such proceeds to Dealer. 17756539(09/21)/21859924(10/21) 2 FILED: SARATOGA COUNTY CLERK 04/19/2024 08:46 PM INDEX NO. EF20241345 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 B. Financial Statements. Unless waived by Lender, Dealer wlil deliver to Lender, in a form satisfactory to Lender (a) Dealers year-end balance sheet and annual profit and loss statement for each of its fiscal years, within twenty (20) days after the same are prepared but in no event later than one hundred twenty (120) days after the end of each fiscal year; (b) within forty-five (45) days after the end of each of Dealers fiscal quarters, a reasonably detailed balance sheet and Income statement as of the last day of such quarter covering Dealer's operations for such quarter; and (c) within ten (10) days after Lende s request, any other information relating to the Collateral or the financialcondition of Dealer or any Guarantor. 9. Payment Terms, (a) Dealer will immediately pay Lender the principal amount of the Obligations owed Lander on each item of Collateral financed by Lender on the earlest occurrence of any of the following events: (i) when such Collateral is lost, stolen or damaged; (ii) for Collateral financed under any pay-as- sold ("PAT) terms, when such Collateral is sold, transferred, rented, leased, otherwise disposed of. unaccounted for, or its payment term has matured; (iii) for CoHateral financed under any scheduled payment program (1EP") terms, In strict accordance with the installment payment schedule; (iv) In strict accordance with any curtailment schedule for such Collateral; and (v) when otherwise required under the terms of this Agreement. The PAS, SPP and curtailment terms are or may be set forthin a Transaction Statement. Lender may apply: (1) payments to reduce finance charges first and then principal, regardless of Dealers instructions; and (2) principal payments to the oldest (earliest) invoice for Collateral financed by Lender, but, in any event, all principal payments, may, In Lander's sole discretion, first be applied to such Collateral which is sold, lost, stolen. damaged, rented, leased, or otherwise disposed of or unaccounted for. Any payment hereunder which would otherwise be due on a day which is not a Business Day, shall be due on the next succeeding Day"Business Day, with such extension of time included in any calculation of applicable finance charges. For purposes of this Agreement, "Business means any day the Federal Reserve Bank of Chicago is open for the transaction of business; provided, however, that, for purposes of determining a Benchmark (as defined below), if a Business Day falls on a day that the Index Rate (as defined below) used to calculate such Benchmark is not published by the Federal Reserve Bank of New York or by such other publication, website or electronic source as Lender, in its sole discretion, may select, then such Index Rate shell be as last published pnor to such Business Day, (b) If Dealer (i) fails to immediately remit funds to Lander upon the maturity of Dealer's applicable payment terms with respect to such advance or upon the sale, transfer, rental, lease, loss, theft, damage, or other disposition of or inabilty to account for any inventory financed by Lander trust" for Debtor (a "sale out of or "SOT") or (ii) is required to make immediate payment to Lender of any past due obligation discovered during any Collateral review, or at any other time, then Lende s acceptance of any payment with respect to such past due obligation (whether in full or partial satisfaction of such obligation) shall not be construed to have waived or amended the terms of its financing program. Dealer will send all such payments to Lander as directed. (c) Any Vendor Credit granted to Dealer for any Collateral will not reduce the Obligations Dealer owes Lender until Lender has received payment therefor as set forth below. Dealer will: (i) pay Lander even if any Collateral is defective or fails to confonn to any warranties extended by any third party; and (ii)) indemnify and hold Lender harmless against all claims and defenses asserted by any buyer of any Collateral. Dealer waives all rights of setoff Dealer may have against Lender. Dealer will not assert against Lender any claim or defense Dealer may have against any Vendor and any such claims or defenses shall not affect Dealer's tiabilities or obligations to Lender. (d) Any advances which are not used to acquire inventory, as contemplated hereby, shaM be paid on demand unless otherwise provided in this Agreement or in any Transaction Statement. In order to adequately secure Deaiers Obligations to Lender, Dealer shall, at Lender's request, immediately pay Lander the amount necessary to reduce the sum of Lender's outstanding advances with respect to inventory received by Dealer to an amount which does not exceed the aggregate invoice price to Dealer of the irwentory in Dealers possession which (1) is financed by Lender, and (ii) in which Lender has a perfected first priority lien. (e) All payments due by Dealer to Lender under this Agreement or otherwise shall be made by check made on a United States bank, ACH, EDI or federal wire, in each case drawn on an account established in the name of Dealer. Payment in any other form may delay processing or be returned to Dealer, and may cause Dealer to incur a late payment fee. Lender policy bars payment by cash or cash equivalents and any such payments will be decIlned; Lender reserves the right to decline other forms of payment, including but not limited to, cashier's checks, money orders, bank drafts, third-party checks and travelers checks. In the event of any such payment decine, Dealers debt will remain outstanding and Interest/fees permitted under Dealer's agreement may accrue until acceptable payment is received. Lender will recognize and credit payments according to its payment recognition policies from time to time in effect, or as otherwise agreed. Information regarding Lenders payment recognition policy is available from Deale s Lender representative, the Lender website, or will be communicated pursuant to Section 11(b) below. 10. Calculation of Charges. (a) Dealer shall pay fees, charges and interest (collectively, "Charges") with respect to each advance in accordance with this Agreement. Dealer shall pay Lender its customary Charges for any check or other item which is returned unpaid to Lender, Unless otherwise provided in this Rate" Agreement, the following additional provisions shall be appicable to Charges: (i) any reference to (A) "Prime shall mean, for any calendar month, rate" Rates" an Interest rate equal to the greater of (1) the highest "prime as published in the "Money column of The Wall Street Joumal, or in such other publication, website or electronic source as Lender, in its sole discretion, may select, on or about the first Business Day of such month, rounded to such number of decimal places as selected by Lender, or (2) the Minimum (as defined below), and (B) "Adiusted 30-Day Averaae SOFR" shall mean, for any SOFR" calendar month, an Interest rate equal to the greater of (1) the sum of (x) an interest rate equal to the "30-DAY AVERAGE rate as published by the Federal Reserve Bank of New York or by such other publication, website or electronic source as Lender, in its sole discretion, may select, on or about the first Business Day of such month, plus (y) a spread adjustment from time to time selected by Lender and Identified on the applicable Transaction Statement or other notice provided by Lender to Dealer, which sum shall be rounded to such number of decimal places as selected by Lander, or (2) the Minimum (as defined below) (the Prime Rate and the Adjusted 30-Day Average SOFR are each referred to herein as a "Base Rate"); (11)al Charges shall be paid by Dealer monthly pursuant to the terms of the billing statement in which such Charges appear; (iii) Interest on each advance and principal amount of the Obligations related thereto shall be computed for any period by dividing the interest rate provided in each applicable Transaction Statement by 360 (the quotient of which is herein referred to as the "Daily Rate"), and then multiplying the Daily Rate by either (A) the average principal balance outstanding during such period, or (B) the actual principal balance outstanding on each day during such period; (iv) interest on an advance shall begin to accrue on the Start Date, which shall be defined as the earlier of: (A) the invoice date referred to in the Vendor's invoice; or (B) the ship date referred to in the Vendors irwolce; or (C) the date Lender makes such advance; provided, however, if a Vendor fails to fully pay, by honoring or paying any Lender Credit or otherwise, the interest or other cost of financing such inventory during the period between the Start Date and the end of the Free Floor Period (as defined below), then Dealer shall pay such interest to Lender on demand as If there were no Free Floor Period with respect to such inventory; (v) for the purpose of computing Charges, any payment will be credited pursuant to Lenders payment recognition policies, as in effect from time to time; (vi) advances or any part thereof not paid when due (and Charges not paid when due, at the option of Lender, shall become part of the principal arnount of the Obigations and) shall bear interest at the Default Rate (as defined below); and (vii) all interest rates provided or referenced in Transaction Statements, including all references to Base Rate, Prime Rate or Adjusted 30-Day Average SOFR and additions to Base Rate, Prime Rate or Adjusted 30-Day Average SOFR, are provided and referenced on the basis of a 360-day year. The method of calculating Interest provided in this Section 10(a) (i.e., the interest rate calculated based on a year of 360 days, for the actual number of days elapsed) will result in a higher effective rate than the quoted numeric rate provided in the Transaction Statement, Neither of the Base Rates, nor any other Benchmark (as 17756539(D9/21)/21859924(10/21) 3 FILED: SARATOGA COUNTY CLERK 04/19/2024 08:46 PM INDEX NO. EF20241345 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 defined below), constitutes Dealer's albin interest rate(s) with Lander, which rates may also include margins, matrices and any other adders as may from time to time be set forth in Transaction Statements or other notices from Lender to Dealer. For purposes of this Agreement, the following definitions shall "Minimum' shall apply: mean the greater of (a) zero percent (0%) or (b) such other minimum amount as may be Identified on the applicable Transaction Rate" Statement or notice provided by Lender to Dealer pursuant to the Agreement; "Default shall mean the default rate specified in Dealer's financing program with Lender, 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 lawfui contract rate of interest permitted under applicable law; and "Free Floor Perig( shall mean a period equal to the number of days during which a Vendor agrees to assume the cost of financing Coliateral purchased by Dealer by granting Lender a Lender Credit. (b) Lender intends to strictly conform to the usury laws governing this Agreement. Regardless of any provision contained herein, In any Transaction Statement, or in any other document, Lender shall never be deemed to have contracted for, charged or be entitled to receive, collect or apply as interest, any amount in excess of the maximum amount allowed by appicable law. If Lender ever receives any amount which, if considered to be interest, would exceed the maximum amount permitted by law, Lerder wilt apply such excess amount to the reduction of the unpaid principal balance which Dealer owes, and then will pay any remalnIng excess to Dealer, In determining whether the interest paid or payable exceeds the highest lawful rate, Dealer and Lender shall, to the maximum extent permitted under applicable law, (1) 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, (2) exclude voluntary pre-payments and the effect thereof, and (3) spread the total amount of interest throughout the entire term of this Agreement so that the interest rate is uniform throughout such term. Dealer agrees to pay an effective rate of interest that is the sum of (1)the interest rate provided in this Agreement, including as provided in each accepted Transaction Statement, as may be amended as provided herein; and (ii) any additional rate of Interest resulting from any other charges or fees paid or to be paid by Dealer pursuant to this Agreement and that are determined to be interest or in the nature of interest. (c) If a Benchmark Transition Event (as defined below) occtrs with respect to the index rate used to calculate a Benchmark (as defined below) (such index rate, an "Index Rate"), Lender may, effective upon the applicable Benchmark Replacement Date (as defined below), (1) replace such Benchmark with (i) an alternate rate of interest that has been selected by Lender as the replacement for such Benchmark, plus (ii) a spread adjustment selected by Lender (collectively, the "Benchmark Replacement"), and (2) make technical, administrative and/or operational changes, including without limitation, (i) the margins or adders which may, from time to time, be added to the Benchmark Replacement, (ii) the timing and frequency of determining rates, and (iii) the payment of interest or other Charges and other administrative matters as may be, in each case, appropriate, in the sore discretion of Lender, to reflect the adoption of the Benchmark Replacement and to permit the administration thereof by Lander in such manner as Lender may determine (colective¾ the "B nghmprk Replacement Conforming Chanqng"). The Benchmark Replacement shall replace all references to such Benchmark, and the Benchmark Replacement Conforming Changes shall become effective, on the date(s) set forth in a written notice thereof to Dealer (such date(s), the "Benchm9rk R plpcement Date", and such notice, the "Benchmark Replacement Notice") without any smendment or other modification to the Agreement and without any further action or consent of Dealer and/or any other person or entity; and, for the avoidance of doubt, the replacement of such Benchmark with the Benchmark Replacernent and the Benchmark Replacement Conforming Changes shall be effective with respect to existing Obligations owing by Dealer to Lender and/or to Obligations incurred or arising after the Benchmark Replacement Date, all as Lender IEvent' may elect by so indicating in the Benchmark Replacement Notice. A "Benghmgrk Transition means the occurrence of one or more of the following events with respect to the Index Rate used to calculate a Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Index Rate, or any successor administrator (collectively, "Benchmark Administrator') or a regulatory supervisor for, or any insolvency or resolution official with authority over, the Benchmark Administrator, announcing that: (i) the Benchmark Administrator has ceased or will cease to provide such Index Rate, permanently or indefinitely; or (ii) such Index Rate is no longer, or as of a specified future date will no longer be, representative of underlying markets; or (b) notice is provided by Lander to Dealer of Lender's intention to adopt a new benchmark to replace such index Rate: or (c) entrance by Lender and Dealer Into a written agreement to adopt a new benchmark to replace such Index Rate. As used herein, a "Benchmark" means, Initially, a Base Rate: provided, that If a Benchmark Transition Event occurs with respect to the Index Rate used to calculate a Benchmark (including any replacement of a Benchmark pursuant to the provisions of this paragraph), then "Benchmark", as used herein with respect to such Benchmark, shall mean the appleable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to this paragraph; and provided further, that no Benchmark shall ever be less than the Minimum. Any determination, decision or election that may be made by Lender pursuant to this paragraph, including, without imitation, any determination with respect to a tenor, rate or adjustment or of the occurrence or nordoccurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding on Dealer and will be made in Lenders sole discretion and without Dealer consent, except as expressly required pursuant to the provisions of the Agreement. 11. Billing Statement/Fees; Right to Modify Charges and Other Terms. (a) Lander will transmit, send or otherwise make available to Dealer a monthly billing statement identifying all charges due on Dealer's account with Lander. The charges specified on each billing statement will be (1) due and payable in full immedlately on receipt, unless otherwise stated In writing in Dealers billing statement, transaction statement or other written document provided by Lender, and (2) an account stated, unless Lender receIves Deale s written objection thereto within fifteen (15) days after it is transmitted, sent or otherwise made available to Dealer. If Lender does not receive, by the 25th day of any given month, payment of all charges accrued to Dealer's account with Lender during the Immediately preceding month, Dealer will (to the extent allowed by law) pay Lender a late fee equai to the greater of $5 or 5% of the amount of such charges (payment of such fee does not waive the default caused by the late payment). Lender may adjust the billing statement at any time to corform to spplicable law and this Agreement, (b) Lender may charge one or more fees in connection with the servicing and administration of Dealer's account. From time to time, Lender may provide written notice to Dealer of new or changed fees, interest and/or other finance charges (including without limitation, increases or decreases in the periodic rate or amount of finance charges, the method of computing finance charges and when and how finance charges, and principal payments, are payable), policies, practices and other charges and/or credit terms (coHectively, "Fees and Terms") payable by, or applicable to, Dealer or relating to Dealer's account generally, or in connection with specific services, or events, to be effective as of the notice date, or such other future effective date as Lender shall advise, with respect to existing Obligations owing by Dealer to Lender and/or to Obligations incurred or arising after such notice or future effective date, as the case may be, all as Lender may elect by so indicating in such notice. Such notice may be delivered by mail, courier or electronically in a separate writing or website posting, or set forth in the Transaction Statement and/or the billing statement. Dealer shall be deemed to have accepted such Fees and Terms by either (1) making any request for financing after the effective date of such notice, or (2) failing to notify Lender in writing of any objection to a Transaction Statement, billing statement or written notice advising of such Fees and Terms within fifteen (15) days after such notice has been sent to Dealer. If Dealer objects to the Fees and Terms, such Fees and Terms shall not be imposed, but Lender may charge or Implement the last Fees and Terms to which Dealer has not objected, and may elect to terminate Dealer's financing program. 12. Default The occurrence of one or more of the following events shall constitute a default by Dealer (a "Default"): (a) Dealer shall fall to pay any Obligations hereunder or other amounts, however or wherever doctrnented, owed to Lender or to any person that at any time directly or indirectly controls, is controlled by, or is under common control with Lender (a "Lender AffillaW) when due or any remittance for any such Obligations or such other amounts is dishonored when first presented for payment: (b) any representation made to Lender by Dealer or by any guarantor, surety, issuer 17756539(09/21)/21659924(10/21) 4 FILED: SARATOGA COUNTY CLERK 04/19/2024 08:46 PM INDEX NO. EF20241345 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 of a letter of credit or any person other than Dealer primarily or secondadly lable with respect to any Obligations (a "Guarantor") shall not be true when made or if Dealer or any Guarantor shall breach any covenant, warranty or agreement to or with Lender; (c) Dealer (including, if Dealer is a partnership or limited liabilty company, any partner or member of Dealer) or any Guarantor shall die, become Insolvent or generally fail to pay its debts as they become due or, if a business, shall cease to do business as a going concern; (d) any letter of credit or other form of collateral provided by Dealer or a Guarantor to Lender with respect to any Obligations or Collateral shall terminate or not be renewed at least sixty (60) days prior to its stated expiration or maturity; (e) Desier abandons any Collateral; (f) any Guarantor shall revoke, terminate or limit, or take any action purporting to revoke, terminate or limit, any guaranty or other assurance of payment relating to any Obilgations; (g) Dealer or any Guarantor shall make an assignment for the benefit of creditors, or commence a proceeding with respect to itself under any bankruptcy, reorganization, arrangement, insolvency, receivership, dissolution or liquidation statute or similar law of any jurisdiction, or any such proceeding shall be commenced against it or any of its property (an "Automatic Default"); (h) an attachment, sale or seizure shall be issued or shall be executed against any assets of Dealer or of any Guarantor; (i) Dealer shall lose, or shan be In default of, any franchise, license or right to deat In any Collateral which Lender finances; (j) Dealer, Guarantor or any third party shall file any correction or termination statement with respect to any Uniform Commercial Code (the "jJ.C.Q")filIng made by Lender in connection herewith; (k) a material adverse change shall occur in the business, operations or condition (financial or otherwise) of Dealer (including, if Dealer is a partnership or limited liabitty company, any partner or member of Dealer) or any Guarantor or with respect to the Collateral; (I) Dealer or any Guarantor fails to pay any debt or perform any other obligation owed to any third party; (m) Dealer or any Guarantor defaults under the terms of any agreement with any Lander Affiliate; or (n) Lender In good faith believes the prospect of payment of any Obligations is impaired or Lender deems itself Insecure. 13, Rights and Rernedies Upon Default. Upon the occurrence of a Defaul Lender shall have all rights and remedies of a secured party under the UCC as in effect in any appicable jurisdiction and other applicable law and al the rights and remedies set forth in this Agreement. Lender may terminate any obligations It has under this Agreement and any outstanding credit approvals immediately and/or declare any and all Obligations Immediately due and payable without notice or demand, Dealer waives notice of Intent to accelerate, and of acceleration of any Obligations. Lender may enter any premises of Dealer, with or without process of law, without force, to search for, take possession of, and remove the Collateral, or any part thereof. If Lander requests, Dealer shall cease disposition of and shall assemble the Collateral and make it available to Lender, at Dealers expense, at a convenient place or places designated by Lender. Lender may take possession of the Collateral or any part thereof on Dealer's premises and cause it to remain there at Dealer's expense, pending sale or other disposition. Dealer agrees that the sale of inventory by Lender to a person who is liable to Lender under a guaranty, endorsement, repurchase agreement or the like shall not be deemed to be a transfer subject to UCC §9-618 or any similar provision of any other applicable law, and Dealer waives any provision of such laws to that effect. Dealer agrees that the repurchase of inventory by a Vendor pursuant to a repurchase agreement with Lender shall be a commercisfly reasonable method of disposition. Dealer shall be liable to Lender for any deficiency resulting from Lender s disposition, Including without limitation a repurchase by a Vendor, regardless of any subsequent disposition thereof. Dealer is not a beneficiary of, and has no right to require Lender to enforce, any repurchase agreement If Dealer falls to perform any of its obligations under this Agreement, Lender may perform the same in any form or manner Lender in its discretion deems necessary or desirable, and all monies paid by Lender in connection therewith shall be additional Obilgations and shall be immediately due and payable without notice together with interest payable on demand at the Default Rate. All of Lender's rights and remedies shall be cumulative. At Lender's request, or without request in the event of an Automatic Default, Dealer shalt pay att Vendor Credits to Lender as soon as the same are received for application to the Obligadons. Dealer authorizes Lender to collect such amounts directly from Vendors and, upon request of Lender, shall instruct Vendors to pay Lender directly. Dealer irrevocably waives any requirement that Lender retain possession and not dispose of any Collateral until after tri