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FILED
5/16/2024 2:37 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
1 CITIES Dominique Gadberry DEPUTY
DC-24-07248
CAUSE NO.
EXETER FINANCE LLC, IN THE DISTRICT COURT
Plaintiff,
Vv. DALLAS COUNTY, TEXAS
WRIGHT WAY MOTORS, LLC
d/b/a AMAJAY MOTORS 162nd
JUDICIAL DISTRICT
Defendant.
ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Plaintiff Exeter Finance LLC (“Plaintiff’ or “Exeter”) complaining of
Wright Way Motors, LLC d/b/a Amajay Motors (“Defendant”), and in support thereof would show
the Court as follows:
I
PARTIES
1 Exeter is a Delaware limited liability company with its principal place of business
in Irving, Dallas County, Texas.
2. Defendant is an Indiana limited liability company with its principal place of
business located at 7809 Taft Street, Merrillville, IN 46410. Defendant may be served through its
owner and registered agent Willie Wright at 7809 Taft Street, Merrillville, IN 46410, or 126 N.
Cline Ave, Griffith, IN 46319, or wherever he may be found.
IL.
JURISDICTION AND VENUE
3 Jurisdiction and venue are proper in Dallas County, Texas because the parties have
agreed to the exclusive jurisdiction and venue of state courts located in Dallas County, Texas in
any legal suit, action or proceeding arising out of, relating or based upon the subject contract
ORIGINAL PETITION PAGE 1
between the parties giving rise to this action.
Ti.
DISCOVERY CONTROL PLAN
4 Exeter intends to conduct discovery under Level 3 in accordance with Texas Rule
of Civil Procedure 190.4.
IV.
STATEMENT OF DAMAGES
5 Pursuant to Rule 47 of the Texas Rules of Civil Procedure, Exeter is seeking only
monetary relief of $250,000 or less, excluding interest, statutory or punitive damages and penalties,
and attorney’s fees and costs.
iV;
BACKGROUN D FACTS
6. Exeter is in the business of purchasing automobile retail installment sales contracts
from automobile dealerships such as Defendant.
7
On or about March 15, 2023, Exeter and Defendant entered into a Non-Recourse
Dealer Agreement, including its incorporated rate sheet and program guidelines (the
“Agreement”), relating to the purchase of retail installment sales contracts for automobiles. A true
and correct, redacted copy of the Agreement is attached hereto as Exhibit A.
8 The Agreement provides, inter alia, as follows: “This Agreement shall be governed
by and interpreted in all respects by the laws of the state of Texas, without regard to any conflicts
of law principles or choice of laws. Each party irrevocably submits to the exclusive jurisdiction
and venue of state and federal courts located in Dallas County, Texas in any legal suit, action or
proceeding arising out of, relating to or based upon this Agreement.” See Ex. A § 21(e). Thus,
venue and jurisdiction are proper in this Court, and Texas law applies to this action.
ORIGINAL PETITION PAGE 2
9 Under the Agreement, Defendant may submit proposals to sell/assign certain retail
installment sales contracts (each a “Contract” and collectively, the “Contracts”) to Exeter. Jd. 4 3.
10. As part of the proposal process, Defendant submits a Contract to Exeter that
describes the vehicle that is the subject of the Contract, including the condition and equipment
options included with the vehicle. /d. 4 10.
DE In connection with each proposed sale/assignment, Defendant makes several
representations and warranties to Exeter concerning Defendant’s business practices, the vehicle
that is the subject of the Contract, and the Contract itself. Jd.
12. Among Defendant’s representations and warranties to Exeter, Defendant agreed
that it would take all necessary steps to ensure that Exeter will have a valid, perfected first-priority
security interest in the vehicles relating to the Contracts and that title to the vehicles relating to the
Contracts were not branded. Jd. §§ 10(d), (h).
13. Defendant further contractually agreed that each Contract accurately described the
vehicle and all options therein. /d. 4 10(h).
14. Defendant further contractually agreed that in the event an additional/ancillary
product, defined in the Agreement as an Additional Product, is cancelled or a refund is otherwise
required, Defendant agreed to remit to Exeter any unearned premium and/or charge immediately
upon receipt, credit, or Exeter’s request. /d. § 10(j).
15. In the event of a breach of any representations, warranties, and/or covenants
identified in Section 10 of the Dealer Agreement, Defendant agreed that Exeter would have the
right to demand that Defendant repurchase the vehicle contracts from Exeter at the Repurchase
Price, as defined in the Dealer Agreement, and further reimburse Exeter for any fees and costs
incurred by Exeter as a result of the breach, as well as pay Exeter the amounts owed for ancillary
product cancellations. Jd. § 12.
ORIGINAL PETITION PAGE 3
16. Defendant further agreed that, in the event Defendant was required to repurchase
any Contract, Defendant would repay any participation chargebacks and/or other amounts required
as part of the repurchase(s). /d. § 8.
17. Exeter has identified numerous contracts for which Defendant has breached the
representations and warranties described above including, but not limited to, the representations
and warranties contained in Paragraph 10 of the Agreement. Defendant’s breaches are the result
of its: (a) misrepresentations to Exeter about the equipment options included with the vehicle by
identifying equipment options and features that were not, in fact, included with the vehicle; (b)
failures to remit to Exeter amounts for unearned premiums and additional/ancillary product
cancellations; and (c) failures to satisfy title/lien deficiencies.
18. The acts and omissions described above violate Defendant’s representations and
warranties under Paragraph 10 of the Agreement. Because of the breach of Defendant’s
representations and warranties to Exeter, Defendant is required by the terms of the Agreement to
repurchase each Contract identified by Exeter that contained missing equipment or for which
Defendant failed to timely secure a valid, perfected first-priority security interest in the vehicles
relating to the Contracts or contained branded title, pay Exeter the amounts owed for ancillary
product cancellations, and reimburse Exeter for any fees and costs suffered as a result of the
breaches. /d. §9 8, 12.
19. Exeter notified Defendant and demanded that it comply with its repurchase and
reimbursement obligations under the Agreement relating to the contracts, but Defendant has failed
to repurchase and reimburse Exeter as required by the Agreement. Consequently, Defendant is in
breach of the Agreement.
20. The amount owed to Exeter for the Contracts at issue currently totals an amount no
less than $168,918.67, exclusive of attorney’s fees and costs.
ORIGINAL PETITION PAGE 4
21. Exeter is entitled to recover its attorney’s fees and costs resulting from Defendant’s
breach pursuant to Paragraph 12 of the Agreement and § 38.001(8) of the Texas Civil Practice &
Remedies Code.
22. Exeter has performed all conditions precedent to the bringing of this action or said
conditions precedent have been waived or excused.
234 Exeter has retained the law firm of Polsinelli PC to prosecute this action and is
obligated to pay the undersigned law firm reasonable attorney fees for its services.
VI.
CAUSES OF ACTION
COUNT I- BREACH OF CONTRACT
24. Exeter incorporates the foregoing paragraphs as if fully set forth herein.
25. The Parties have a valid and binding Agreement with respect to Exeter’s purchase
of Contracts and, where applicable, Defendant’s repurchase of such Contracts.
26. Defendant represented to Exeter that all vehicles collaterally securing the Contracts
were identified correctly in all respects and that they contained certain features and/or packages
that purportedly increased the value of the vehicles (as collateral); that Defendant would ensure
Exeter would receive valid, perfected first-priority security interests in all vehicles collaterally
securing the Contracts and that title to the vehicles were not branded; and that Defendant would
remit to Exeter reimbursements for unearned premiums and charges for canceled
ancillary/additional products for the vehicles at issue.
27. Exeter relied, and premised its purchase of the Contracts at issue, upon Defendant’s
aforementioned representations and warranties in the Agreement.
28. With respect to each such Contract at issue, Defendant’s representations and
warranties were false.
ORIGINAL PETITION PAGES
29. Because Defendant falsely represented the condition, features and/or value of the
vehicles collaterally securing the Contracts, the terms of the Agreement expressly require
Defendant to repurchase each such Contract at issue.
30. Because Defendant failed to secure a valid, perfected first-priority security interest
in the vehicles collaterally securing the Contracts and vehicles contained branded title, the terms
of the Agreement expressly require Defendant to repurchase each such Contract at issue.
31. Because Defendant failed to remit required reimbursements to Exeter for unearned
premiums and charges for canceled ancillary/additional products, the terms of the Agreement
expressly require Defendant to repurchase each such Contract at issue and/or pay Exeter amounts
owed thereunder.
32. Despite Exeter’s full performance of all obligations under the Agreement, and
written demand, Defendant has failed to repurchase each Contract at issue and/or pay Exeter
amounts owed thereunder, thereby further breaching the Agreement.
33. Exeter has suffered damages as a result of Defendant’s failure to comply with the
terms of the Agreement as described herein.
34. Exeter seeks damages for Defendant’s breaches of the Agreement, in an amount no
less than $168,918.68, exclusive of attorney fees, costs, and interest.
35. Pursuant to Paragraph 12 of the Agreement and § 38.001(8) of the Texas Civil
Practice & Remedies Code, Exeter demands an award of attorney fees and costs from Defendant.
WHEREFORE, Exeter demands entry of a judgment in its favor against Defendant for
damages, together with attorney fees and costs of suit, and such other and further relief as the Court
may deem proper.
COUNT Il—- FRAUD
36. Exeter incorporates the foregoing paragraphs as if fully set forth herein.
ORIGINAL PETITION PAGE 6
37. Defendant represented to Exeter for certain of the Contracts at issue that the
vehicles contained certain equipment options that purportedly increased the value of the vehicles
(as collateral). The equipment options on the vehicles were a material component of the Contracts
at issue.
38. Defendant’s representations regarding the vehicle equipment options were known
to be false, or at minimum, recklessly made without knowledge of the truth as a positive assertion.
39. Defendant’s representations regarding the vehicle equipment options were made
with the intent to entice Exeter into overpaying for the value of each Contract, to the benefit of
Defendant.
40. Exeter acted in reliance upon Defendant’s representations and, in fact, overpaid
Defendant for each Contract, by paying for equipment options that did not exist, thereby suffering
damages.
WHEREFORE, Exeter demands entry of a judgment in its favor against Defendant for
damages, together with attorney fees and costs of suit, and such other and further relief as the Court
may deem proper.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that Defendant be cited to appear, and that
Plaintiff have judgment against Defendant for:
(a) actual damages in an amount no less than $168,918.67, exclusive of fees and costs;
(b) pre- and post-judgment interest at the maximum rate permitted by law;
(c) reasonable and necessary attorney’s fees and costs; and
(d) such other and further relief, both at law and in equity, to which Plaintiff is entitled.
ORIGINAL PETITION PAGE7
Respectfully submitted,
/s/ Mare D. Cabrera
Mare D. Cabrera
State Bar No. 24069453
meabrera@polsinelli.com
Polsinelli PC
2950 N. Harwood Street, Suite 2100
Dallas, TX 75201
T: (214) 397-0030
F: (214) 397-0033
ATTORNEYS FOR EXETER FINANCE LLC
ORIGINAL PETITION PAGE 8
Exhibit A
DocuSign Envelope ID: 3E490496-092E-49D5-8768-43087131FE47
x Exeter Dealer Agreement
Thisisa Non-Recourse Dealer Agreement by and among Exeter Finance LLC, a Delaware limited lability company ("Exeter"), and the undersigned automobile dealer,
on behalfof itself and each affiliate and subsidiary dealership set forth on the signature page hereto (individually and collectively referred to as “Dealer’):
1 Definitions. The following capitalized terms shall have the meaning ascribed to each as follows:
a. “Agreement”
means this agreement and any schedules
and addenda thereto, as may be amended from time to time.
b. “Additional Product" means, with respect to each Contract, each product and service sold in connection with the sale of a Vehicle, including, theft
deterrent products, audio or video products, GPS systems, electronic equipment, surface protection products, extended warranties (otherwise known
as, mechanical repair, service or repair contracts), GAP, property insurance, credit insurance, debt protection
or any other insurance products.
“Buyer” means, with respect to any Contract, any person, including any co-Buyer, co-signeror guarantor(s) who enters into such Contract with the
Dealer
for the purchase
of a Vehicle, together
with any Additional Products, ifany.
“Contract” means a retail installment sale contract, conditional sale contract, security agreement or other document providing for the payment by
Buyerto Dealer of monies in connection with a credit sale to Buyerof a Vehicle owned by Dealer, together with any Additional Products.
“Credit Application” means a written and completed form of application seeking credit submitted to Dealer by Buyer.
“GLB Act Privacy Regulations” means the regulations promulgated under Title V of the Gramm-Leach-Bliley Act of 1999, as amended from time to
time, 15 U.S.C. 6801 to 6809.
"Nonpublic Personal Information” shall have the same meaning ascribed to this term under the GLB Act Privacy Regulations
Participation” means, with respect to a Contract, an amount in addition to the Purchase Price that Exeter may pay to Dealeras specifically described in
Section 8.
“Purchase Price” means, with respect to a Contract, the sum amountto be paid by Exeter for such Contract.
“Repurchase Price” means, with respect to any Contract at any time, the then remaining unpaid amounts owing with respect to such Contract,
including, without limitation, all unpaid principal, all accrued and unpaid interest and all other amounts due and payable under or pursuant to such
Contract.
“Stipulations” means condition(s) and/or requirement(s) with respect to a Credit Application, determined by Exeter, which must be fulfilled before
Exeter will purchase the related Contract from Dealer. Such conditions or requirements may include, for example, requiring a copy of the customer's
insurance card, proof of residency,or a copy of the customer's
pay stubs
I “Vehicle” means, with respect to any Contract, the new or used motor vehicle that is the subject of such Contract.
Applicability. This Agreement shall apply to all transactions related to the purchase of Contracts by Exeter from Dealer.
Purchase
and Sale of Contracts. Dealer may, from time to time, submit Credit Applications to Exeter for Exeter to evaluate for purposes of making an offer
to purchase the related Contract. Dealer is not obligated to submit any Credit Applications to Exeter, and Exeter is not obligated to offer to purchase or
purchase any Contract from Dealer. The Contracts will arise from the sale of Vehicles and Additional Products on credit by Dealer.
Credit Application Process. In its sole discretion, Exeter shall determine which Credit Applications it approves and provides Dealer with an offer to purchase
the related Contract. Exeter's offerto purchaseis conditional on Dealer satisfying all Stipulations provided in the offerand the conditions and requirements set
forth in Section 5. Exeter's offerto purchase will be valid for thirty (30) days. If Dealer accepts Exeter's offerto purchase, it shall promptly notify Exeterof such
decision. All Credit Applications submitted to Exeter shall be with the consent of Buyer and shall contain an authorization which complies with the Fair Credit
Reporting Act and all other applicable laws that will enable Exeterto obtain a consumer report regarding the Buyer. Dealer shall notify each Buyer applicant
that his/her Credit Application is being submitted to Exeter and that Exeter may obtain a consumer report regarding the Buyer.
Conditions
to the Purchase of Contracts. Exeter shall purchase a Contract upon satisfaction, in the sole discretion of Exeter, of each of the following
conditions: (i) receipt of such Contract, the related Credit Application, and any other documentation associated with such Contract as required by Exeter and
communicated to Dealer; (ii) receipt of proof of the satisfaction of Stipulation(s) specified by Exeter (hereinafter collectively included in the term “Contract”),
if applicable; (il) confirmation by Exeter that such Contract is properly completed and executed; (iv) the Vehicle shall have been delivered to, and accepted
without dispute or claim by, the Buyer; (v) each of the Contract representations, warranties and covenants set forth in Section 10 are true and correct as to
such Contract; and (vi) the Dealer is not in default of this Agreement. Exeter will have no obligation to purchase a Contract if, after approval but prior to
paying the Purchase Price: (i) a Buyer dies; (i) a Buyer files for bankruptcy protection; (i) the Vehicle is lost, stolen or damaged; (iv) a Buyeris in a dispute
with Dealer; or (v) Exeter determines, in its sole discretion that a change in circumstance has occurred that puts repayment of the Contract at risk.
Nonrecourse. Notwithstanding anything to the contrary contained in any Contract, Contracts shall be sold to Exeter pursuant to this Agreement without
credit recourse to Dealer, except as otherwise agreed and except with respect to the representations, warranties, repurchase obligations and other
obligations, and agreementsof, and indemnification by, Dealer
set forthin this Agreement.
©2022 Exeter Finance LLC. All Rights Reserved. // Confidential and Proprietary // Version 2.4
DocuSign Envelope ID: 3E490496-092E-49D5-8768-43087131FE47
Assignment. Upon Dealer’s acceptance of Exeter's offer to purchase any Contract, Dealer shall promptly assign such Contract to Exeter. Any such
assignment shall include all right, title and interest held by Dealer regarding such Contract, including, but not limited to, a security interest or lien on the
Vehicle.
Participation. During the term of this Agreement, Exeter may, in its sole discretion, pay Dealer a Participation for certain Contracts purchased by Exeter
from Dealer. The Participation, if any, for a particular Contract purchased by Exeter will be either a fixed amount, or an amount based upon a specified
percentage ofthe difference by which the Contract rate exceeds the buy rate, which shall be set forth from time to time in program sheets, notices, or other
communications from Exeter.
IFa Participation is payable, Exeter will compute and pay such Participation on a transaction basis. Exeter shall have the right to discontinue or modify the
Participation provisions described in this Agreement or in any program sheet, notice or other communication. Communication ofthe foregoing changes
may occur via facsimile, email, phone call, regular mail or hand delivery. If this Agreement is terminated for any reason, whether by Exeter or Dealer, no
further Participation shall be paid to Dealer. If Dealeris required to repurchase any Contract, Dealer will remit to Exeter
the full amount of any Participation
paidto Dealer with respect to such Contract along with any other amounts Dealer is required to pay for such repurchase.
Representations and Warranties of Dealer. At all times during the term of this Agreement, Dealer hereby represents and warrants to Exeter the following
a Organization. Dealers duly organized, validly existing, qualified and authorized to transact business in, and is in good standing under the laws of the
jurisdiction of its organization
and each jurisdictionin which it performs or will perform its obligations
under this Agreement.
Capacity Authority. Dealer has the power, authority and legal right to execute, deliver, and perform this Agreementand its obligations
hereunder. The execution, delivery and performance of this Agreement by Dealer have been duly authorized by all necessary action.
Licenses. Dealer's, and throughout the term of this Agreementwill remain, duly authorized and properly licensed under all applicable laws to transact
businessas presently conducted, and to perform the transactions contemplated under this Agreement.
Compliance with Law. All business practices, acts and operations of Dealer (including, without limitation, all forms and documents used by Dealer and
the sale and financing of Vehicles and Additional Product) are in compliance with all applicable federal, state and local laws, regulations, rules and
ordinances.
Books and Records. Dealer shall maintain complete and accurate records concerning the following: (i) Credit Applications forwarded to Exeter for
consideration; (i) any Contract sold to Exeter, as well as the interest in the covered Vehicle; and (ii) all other transactions affecting the sale and finance
of the covered Vehicle and Additional Products. Exeter has the right to review and inspect Dealer's records relating to the Credit Applications,
Contracts, covered Vehicles and Additional Products, and all matters and transactions relating to the sale and finance of the covered Vehicle and
Additional Products, upon reasonable notice to Dealer (which shall in no event be less than two (2) business days), during normal business hours. Dealer
shall reasonably cooperate with Exeter during such review and inspection.
10. Representations and Warranties of Dealer as to Each Contract. At all times during the term of this Agreement, Dealer hereby represents and warrants
to Exeter
the following regarding each Contract being purchased:
a Credit Applications. Dealer has provided to Exeter copies of the Credit Application and any credit information received by Dealer with respect to the
Contract, and to the best of Dealer's knowledge, the Credit Application and such credit information are true, complete and accurate. Dealer agrees to
perform the due diligence required under the Fair Credit Reporting Act to confirm the identity ofsuch Applicant.
Contracts. (i) There is only one Contract in connection with the sale of the Vehicle to the Buyer(s) named therein, (ii) the Contract is valid and
represents a genuine obligation of the Buyer(s) named therein, (ii) Dealer knows of no defenses the Buyer(s) might have to avoid payment of the
amounts due under the Contract, (iv) Dealer is unaware of any fact that indicates the uncollectibility of all or any portion of the Contract, (v) the
Contractis legitimate, valid and bindingin accordance with its termsand complies with ll applicablefederal, state and local laws, rules, regulations
and
ordinances, (vi) the Contract fully and accurately states the terms ofthe transaction between Dealer and Buyer, (vii) Dealer has not made any
representations, warranties or agreements not contained in the Contract, (vill) to the best of Dealer's knowledge after reasonable investigation, each
signature on the Contract and on all other documents is genuine, (ix) to the best of Dealer's knowledge after reasonable investigation, each Buyer
has, atthe time of entering into the Contract, the full legal capacity
to do so, (x) to the best ofDealer's knowledge, no suit or legal action or proceeding
has been or will be brought or threatened to be brought by or against it in connection with the Contract, and (xi) the Contract is enforceable by
Exeter and_ its assigns.
Vehic Deliv ind Assignment. (i) Dealer has good and marketable title to the Vehicle, and such Vehicle is free from all liens or
encumbrances, except those which will be in favorof Exeter, (ii) Dealer has the right to make an assignment of the Contract, (ii) such Vehicle, together
with any Additional Products, has been delivered to the Buyer in good condition and has been accepted by the Buyer, and (iv) such Vehicle has been
purchased for use by the Buyer.
itle, Security Interest and Lien. (i) Dealer shall cause an application for title of the Vehicle that is the subject of the Contract to be submitted to the
appropriate government agency within the time periods required by applicable law, including, without limitation, the time periods necessary to prevent
the avoidance of the lien ina bankruptcy proceeding of the applicable Buyer and (i) Dealer shall take all steps necessary under applicable law to ensure
that Exeter will havea valid and properly perfected first priority security interest in such Vehicle, and that such lien shall be enforceable.
Disclosures. (i) All disclosures and notices required by law to be made to each Buyer were complete, accurate and properly and timely made, (ii) all
documents required to be delivered at the time of signing the Contract have been delivered, and (ii) a completely filled-in and legible copy of the
Contract was delivered to the Buyer at the time of execution.
©2022 Exeter Finance LLC. All Rights Reserved. // Confidential and Proprietary // Version 2.4
DocuSign Envelope ID: 3E490496-092E-49D5-8768-43087131FE47
Counterclaims and Defenses. Dealer has performed all of its obligations under the Contract, and Buyer has no offsets or counterclaims against or
defenses to the enforcement of the Contract, except as enforcement may be affected by bankruptcy and similar laws affecting creditors’ rights
generally.
Insurance. (i) At the time of Buyer’s execution of the Contract, the Vehicle that is the subject of the Contract shall be covered by comprehensive and
collision insurance protecting Exeter's interest in such Vehicle; and Exeter shall be named lien holder and loss payee under such Insurance Coverage, (ii)
Dealer shall provide to Exetera copy of an insurance binderor a declaration page insuring such Vehicle in the name of the Buyer(s) with Exeter named
as loss payee, and (ii) the evidence of insurance shall contain a valid addressfor Exeter and confirm an active comprehensive/ collision insurance policy
with a deductible not to be greater than five hundred dollars ($500.00) or such other amount agreed to by Exeter in its sole discretion
Vehicle Branding. To the best of Dealer's knowledge, (i) the Vehicle and all options therein are accurately described in such Contract, and (ii) the title to
such Vehicle is not branded indicating that (A) it is a salvage vehicle, (B) the odometer has been rolled back, (C) such Vehicle has had significant flood
damage, (D) such Vehicleis a gray market vehicle, or (E) such Vel le has some other condition which hasa significant adverse effecton its value.
Down Payment, (i) Unless specifically disclosed on the Contract, the down payment with respect to the Contract was paid in full by the Buyer, in cash,
check, draft, immediately available funds, or in trade equity prior to Exeter's purchase of the Contract, and no part of such down payment was loaned
by Dealer or other third party, (ii) any check given to Dealer by Buyer has been or will be honored by Buyer's financial institution upon presentment by
Dealer and will not be returned to Dealer for any reason, (ii itis expressly acknowledged, understood and agreed by Dealer that, in the event Dealer
uses any third-party check-guarantee service or similar service in connection with any check given to Dealer by Buyer regarding the Contract, such
check must be honored by Buyer's financial institution prior to funding of the Contract by Exeter. Otherwise, the Contract shall be subject to immediate
repurchase by Dealer as defined in Section 12, and the Contract shall remain subject to repurchase for the life ofthe Contract.
Additional Products. (i) Dealer will inform Buyer that the purchase of Additional Products was not required to obtain credit (other than having
comprehensive and collision insurance for the Vehicle which the Buyer could obtain from its own insurance carrier), and that any insurance, gap or other
product may be obtained from anyone of Buyer's choice, (ii) upon prepayment in full ofthe Contract, Dealer shall remit to the Buyer within the time
required by law any unearned premium or charge for any Additional Products, (i) if Exeter is required by law to refund the unearned premium or
charge to the Buyer, then Dealer shall immediately upon request by Exeter remit such amounts to Exeter, and (iv) if an Additional Product is canceled or
a refund is otherwise required (except if a full prepayment), Dealer agrees to remit to Exeter any unearned premium or charge immediately upon
the earlier of (A) receipt or credit from the insurance or other company, or (B) Exeter's request, which shall be applied as a partial payment on the
Contract, tothe extent permitted by law.
uture Payments and Retums. (i) Dealer shall not accept any payments on the Contract after it is sold to Exeter, however, in the event a payment
should be made to, or inadvertently accepted by Dealer, Dealer shall be deemed to have received the payment in trust for Exeter, and shall
immediately remit it to Exeter and (ii) if a Dealer accepts a return of an Additional Product or it is cancelled, Dealer shall immediately remit to Exeter the
amount of the credit for such return or cancellation, for creditto the Contract balance.
Cash Price. (i) The cash price of the Vehicle as shown on the Contract is the “cash price” as defined by applicable law and (ii) the purchase price of the
Vehicle is the price charged by the Dealer for substantially similar vehicles in cash transactions and was not increased because the Vehicle was sold on
credit to a member of a protected class as defined under applicable law or because the Contract was to be sold at a discount.
Contract Location, The entire transaction occurred at the Dealer's place of business or at such other location permitted by all applicable laws
Dealer's Future Obligations. (i) Dealer will provide and maintain service on all Vehicles sold by it in accordance with any representations made to the
Buyers and in accordance with standard practices and policies as established by the manufacturers of such Vehicles, (ii) Exeter is not responsible for any
obligations, claims and/or liabilities that Dealer may have to the Buyer(s), and (ii) Dealer agrees that it will act in good faith to resolve any Buyer
disputes concerning any goods andjor services (including Vehicle and Additional Products) provided for in the Contract.
Fraud. (i) Possession of the Vehicle was not obtained by Buyer's use of any fraudulent scheme, trick or device and (ii) sale of the Contract to Exeter was
not effected by Dealer's use of any fraudulent scheme, trick or device.
Buyer Bankruptcy. At the time Exeter purchasesa Contract, the underlying Buyeris not the subjectof a pending bankruptcy proceeding.
Incorrect Contract Purchase Amount. The amount paid by Exeter for purchase of the Contract is the amount previously agreed to by the parties, and
in. the event of any overpayment of such amount by Exeter, Dealer shall reimburse Exeter the amount of such overpayment within one (a) business
day of ‘the Dealer becoming aware of such overpayment, via notice from Exeteror otherwise
Obligations of Each Party.
a. Adverse Action Notices and Compliance with Law. Dealer and Exeter each shall send any required adverse action notices and any other notices to the
applicant Buyer as may be required by applicable law, including, but not limited to, the Equal Credit Opportunity Act and Regulation B, and the Fair
Credit Reporting Act, as a result of its respective credit evaluation of a Credit Application.
b. rive nd Inform: mer Informatic In the course of its performance under this Agreement, Exeter and Dealer may disclose to
each other or may receive information that meets the definition of Nonpublic Personal Information. Exeter and Dealer agree that they will not use or
disclose such Nonpublic Personal Information to any nonaffiliated third party except (i) to the extent necessary to carry out the purpose or purposes for
which the party discloses such informationto the other party, (ii) in the ordinary course ofbusiness to carry out the purpose or purposes for which the
Nonpublic Personal Information was disclosed to the party under an exception to the GLB Act Privacy Regulations or other applicable law, or (ii) as
permitted by law and this Agreement. Exeter and Dealer agree that any affiliate of either party shall use and disclose Nonpublic Personal Information
to any nonaffiliated third party only to the extent that it may use and disclose such information. If Nonpublic Personal Information is disclosed to
Exeter or Dealer in connection with marketing, joint marketing or other promotional activities, whether by written or oral agreement, Exeter and
Dealer shall use and disclose such Nonpublic Personal Information only (i) to the extent necessaryto carry out the activity or activities for which
©2022 Exeter Finance LLC. All Rights Reserved. // Confidential and Proprietary // Version 2.4
DocuSign Envelope ID: 3E490496-092E-49D5-8768-43087131FE47
such Nonpublic Personal Information is disclosed to the party, (ii) in the ordinary course of business to carry out the purpose or purposes for wl
the Nonpublic Personal Information was disclosed to the party under an exception to the GLB Act Privacy Regulations or other applicable law, or (il) as
permitted by law and this Agreement.
Each party shall maintain physical, electronic and procedural safeguards in compliance with applicable laws to protect the Nonpublic Personal
Information received from the disclosing party, including, but not limited to, the maintenance ofappropriate safeguards to restrict access to Nonpublic
Personal Information received from the disclosing party to those employees, agents or service providers of the receiving party who need such
information to carry out the purpose or purposes for which such Nonpublic Personal Information was disclosed to the disclosing party.
22. Contract Repurchase. In the event that any Dealer breaches a representation, warranty or covenant contained in Section g or 10 with respect to a Contract,
Dealer shall, if demanded by Exeter(i) repurchase such Contract from Exeter and (ii) reimburse Exeter for any fees and costs suffered by Exeter as a result of
such breach. To repurchase such Contract, Dealer shall pay to Exeter the Repurchase Price. Exeter shall provide Dealer notice and demand for a Contract
repurchase identifying the Contract and the breach. Exeter has no duty to repossess the covered Vehicle or to return such Vehicle to Dealer as a condition to
requiring any Contract repurchase. Upon Dealer's payment of the Repurchase Price, Exeter or its assignee shall sell, assign and endorse such Contract to
Dealer. Such sale, assignment and endorsement shall be “As Is", without any representation or warranty whatsoever as to condition, fitness for any
particular purpose, merchantability, or any other warranty, express or implied, concerning the Contract, the Vehicle or Additional Product. Any such
assignment shall be without recourse and without warranties of any kind. Exeter shall not be bound to exhaust its remedies against any security or any
Buyer, co-signer or obligor before being entitledto payment by Dealer.
23. Modifications, Extensions, Waivers and Compromises of Contracts. Dealer understands and agrees that Exeter may extend or otherwise change the due
dates of installment payments due or to become due under any Contract, amend any Contract by agreement with the Buyer, whether or not Dealer is
consulted with regard to the same. Dealer also agrees that Exeter may advance funds for the purchase of insurance, to pay any taxes, fees, or liens, or
otherwise to preserve a Vehicle and Exeter's interest therein, without notice to or consent of Dealer and without affecting Dealer's obligation to Exeter.
ah. Dealer Default. Dealer shall be in default under this Agreement in the event (i) t fails to pay Exeter any amounts due under this Agreement
within ten (10)
days of Exeter's demanding payment, whether by facsimile, mail or express delivery, (i) any representation or warranty contained in this Agreement
or hereafter made pursuant hereto, with the exception of representations and warranties made under Section 20, proves untrue or misleading in any
material respect, (iii) Dealer ceases to do business as a going concern, or (iv) Dealer becomes insolvent or makes any assignment for the benefit of
creditors, or any bankruptcy, reorganization, arrangement, receivership, insolvency or other state or federal proceeding for the relief of debtor is
commenced by or againstit and is not dismissed within 30 days of such filing. In the event of Dealer's default, Exeter shall have the right to collect any
and all payments that Dealer currently owes Exeter, or in the future may owe Exeter, and Dealer will forfeit any right, title or interestin any Participation,
reserve account or investment account or other funds Exeter maintains, if any such account is maintained by Exeter.
45. Indemnification. Dealer shall defend, indemnify, and hold Exeter, and its respective shareholders, directors, officers, employees, representatives, agents,
servants, successors and assigns, harmless from and against any and all threatened, alleged, or actual acts, omissions, claims, cross-claims, counterclaims,
losses, liabilities, demands, allegations, actions, lawsuits, proceedings, damages, injuries, costs, expenses, attorneys’ fees, court costs and any other
amounts relating to, arising out of, andjor resulting from, whether threatened, alleged, or actual: (i) any act or omission of Dealer in the performance of any
warranties, representations, andjor duties under this Agreement; (ii) Dealer's breach of andjor default under this Agreement, (ii) the failure of any
representation or warranty of Dealer contained in this Agreement to be accurate, (iv) Dealer's maintenance, use or disclosure of Buyer’s or applicant
Buyer's information, (v) evaluation of Buyer or applicant Buyer for financing, (vi) Dealer's denial of financing, or other adverse action (as such term is defined
by the Fair Credit Reporting Act andjorEqual Credit Opportunity Act), relating to a Buyeror applicant Buyer, or (vil) any actions of Dealer in connection with
the Credit Applications and Contracts sold byit_ underthis Agreement.
Exeter shall defend, indemnify, and hold Dealer, and its respective shareholders, directors, officers, employees, representatives, agents, servants, successors
and assigns, harmless from and against any and all threatened, alleged, or actual acts, omissions, claims, cross-claims, counterclaims, losses, liabilities,
demands, allegations, actions, lawsuits, proceedings, damages, injuries, costs, expenses, attorneys’ fees, court costs and any other amounts relating to,
arising out of, andjor resulting from, whether threatened, alleged, or actual (i) Exeter's breach of and/or default this Agreement and (i) the failure of any
representation or warranty of Exeter contained in this Agreementto be accurate.
26. Power of Attomey. Dealer hereby grants Exeter a limited power of attorney to do any and all things necessary or appropriate in Dealer's name to carry
out _ the intent of this Agreement, including, but not limited to, signing and endorsing the name of Dealer to any assignment of a Contract and endorsing
Dealer's name on payment checks applicable to Contracts purchased by Exeter. This power of attorney shall be irrevocable and shall remain in effect for
solong as there are Contracts outstanding that have been purchased pursuantto this Agreement.
27. Right to Of set. Dealer agrees that, without notice of demand, Exeter has the ongoing rightto deduct from any funds, deposit, account, obligation or any
other amounts due Dealer by Exeter (or its subs ries or affiliates), any and all amounts Dealer owes to Exeter (or its subsi ries or affiliates), including,
without limitation, any Repurchase Price, any chargeback amount, failure to promptly and properly record Exeter's security interest in the vehicle, or other
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FILED 5/16/2024 2:37 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS 1 CITIES Dominique Gadberry DEPUTY DC-24-07248 CAUSE NO. EXETER FINANCE LLC, IN THE DISTRICT COURT Plaintiff, Vv. DALLAS COUNTY, TEXAS WRIGHT WAY MOTORS, LLC d/b/a AMAJAY MOTORS 162nd JUDICIAL DISTRICT Defendant. ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiff Exeter Finance LLC (“Plaintiff’ or “Exeter”) complaining of Wright Way Motors, LLC d/b/a Amajay Motors (“Defendant”), and in support thereof would show the Court as follows: I PARTIES 1 Exeter is a Delaware limited liability company with its principal place of business in Irving, Dallas County, Texas. 2. Defendant is an Indiana limited liability company with its principal place of business located at 7809 Taft Street, Merrillville, IN 46410. Defendant may be served through its owner and registered agent Willie Wright at 7809 Taft Street, Merrillville, IN 46410, or 126 N. Cline Ave, Griffith, IN 46319, or wherever he may be found. IL. JURISDICTION AND VENUE 3 Jurisdiction and venue are proper in Dallas County, Texas because the parties have agreed to the exclusive jurisdiction and venue of state courts located in Dallas County, Texas in any legal suit, action or proceeding arising out of, relating or based upon the subject contract ORIGINAL PETITION PAGE 1 between the parties giving rise to this action. Ti. DISCOVERY CONTROL PLAN 4 Exeter intends to conduct discovery under Level 3 in accordance with Texas Rule of Civil Procedure 190.4. IV. STATEMENT OF DAMAGES 5 Pursuant to Rule 47 of the Texas Rules of Civil Procedure, Exeter is seeking only monetary relief of $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs. iV; BACKGROUN D FACTS 6. Exeter is in the business of purchasing automobile retail installment sales contracts from automobile dealerships such as Defendant. 7 On or about March 15, 2023, Exeter and Defendant entered into a Non-Recourse Dealer Agreement, including its incorporated rate sheet and program guidelines (the “Agreement”), relating to the purchase of retail installment sales contracts for automobiles. A true and correct, redacted copy of the Agreement is attached hereto as Exhibit A. 8 The Agreement provides, inter alia, as follows: “This Agreement shall be governed by and interpreted in all respects by the laws of the state of Texas, without regard to any conflicts of law principles or choice of laws. Each party irrevocably submits to the exclusive jurisdiction and venue of state and federal courts located in Dallas County, Texas in any legal suit, action or proceeding arising out of, relating to or based upon this Agreement.” See Ex. A § 21(e). Thus, venue and jurisdiction are proper in this Court, and Texas law applies to this action. ORIGINAL PETITION PAGE 2 9 Under the Agreement, Defendant may submit proposals to sell/assign certain retail installment sales contracts (each a “Contract” and collectively, the “Contracts”) to Exeter. Jd. 4 3. 10. As part of the proposal process, Defendant submits a Contract to Exeter that describes the vehicle that is the subject of the Contract, including the condition and equipment options included with the vehicle. /d. 4 10. DE In connection with each proposed sale/assignment, Defendant makes several representations and warranties to Exeter concerning Defendant’s business practices, the vehicle that is the subject of the Contract, and the Contract itself. Jd. 12. Among Defendant’s representations and warranties to Exeter, Defendant agreed that it would take all necessary steps to ensure that Exeter will have a valid, perfected first-priority security interest in the vehicles relating to the Contracts and that title to the vehicles relating to the Contracts were not branded. Jd. §§ 10(d), (h). 13. Defendant further contractually agreed that each Contract accurately described the vehicle and all options therein. /d. 4 10(h). 14. Defendant further contractually agreed that in the event an additional/ancillary product, defined in the Agreement as an Additional Product, is cancelled or a refund is otherwise required, Defendant agreed to remit to Exeter any unearned premium and/or charge immediately upon receipt, credit, or Exeter’s request. /d. § 10(j). 15. In the event of a breach of any representations, warranties, and/or covenants identified in Section 10 of the Dealer Agreement, Defendant agreed that Exeter would have the right to demand that Defendant repurchase the vehicle contracts from Exeter at the Repurchase Price, as defined in the Dealer Agreement, and further reimburse Exeter for any fees and costs incurred by Exeter as a result of the breach, as well as pay Exeter the amounts owed for ancillary product cancellations. Jd. § 12. ORIGINAL PETITION PAGE 3 16. Defendant further agreed that, in the event Defendant was required to repurchase any Contract, Defendant would repay any participation chargebacks and/or other amounts required as part of the repurchase(s). /d. § 8. 17. Exeter has identified numerous contracts for which Defendant has breached the representations and warranties described above including, but not limited to, the representations and warranties contained in Paragraph 10 of the Agreement. Defendant’s breaches are the result of its: (a) misrepresentations to Exeter about the equipment options included with the vehicle by identifying equipment options and features that were not, in fact, included with the vehicle; (b) failures to remit to Exeter amounts for unearned premiums and additional/ancillary product cancellations; and (c) failures to satisfy title/lien deficiencies. 18. The acts and omissions described above violate Defendant’s representations and warranties under Paragraph 10 of the Agreement. Because of the breach of Defendant’s representations and warranties to Exeter, Defendant is required by the terms of the Agreement to repurchase each Contract identified by Exeter that contained missing equipment or for which Defendant failed to timely secure a valid, perfected first-priority security interest in the vehicles relating to the Contracts or contained branded title, pay Exeter the amounts owed for ancillary product cancellations, and reimburse Exeter for any fees and costs suffered as a result of the breaches. /d. §9 8, 12. 19. Exeter notified Defendant and demanded that it comply with its repurchase and reimbursement obligations under the Agreement relating to the contracts, but Defendant has failed to repurchase and reimburse Exeter as required by the Agreement. Consequently, Defendant is in breach of the Agreement. 20. The amount owed to Exeter for the Contracts at issue currently totals an amount no less than $168,918.67, exclusive of attorney’s fees and costs. ORIGINAL PETITION PAGE 4 21. Exeter is entitled to recover its attorney’s fees and costs resulting from Defendant’s breach pursuant to Paragraph 12 of the Agreement and § 38.001(8) of the Texas Civil Practice & Remedies Code. 22. Exeter has performed all conditions precedent to the bringing of this action or said conditions precedent have been waived or excused. 234 Exeter has retained the law firm of Polsinelli PC to prosecute this action and is obligated to pay the undersigned law firm reasonable attorney fees for its services. VI. CAUSES OF ACTION COUNT I- BREACH OF CONTRACT 24. Exeter incorporates the foregoing paragraphs as if fully set forth herein. 25. The Parties have a valid and binding Agreement with respect to Exeter’s purchase of Contracts and, where applicable, Defendant’s repurchase of such Contracts. 26. Defendant represented to Exeter that all vehicles collaterally securing the Contracts were identified correctly in all respects and that they contained certain features and/or packages that purportedly increased the value of the vehicles (as collateral); that Defendant would ensure Exeter would receive valid, perfected first-priority security interests in all vehicles collaterally securing the Contracts and that title to the vehicles were not branded; and that Defendant would remit to Exeter reimbursements for unearned premiums and charges for canceled ancillary/additional products for the vehicles at issue. 27. Exeter relied, and premised its purchase of the Contracts at issue, upon Defendant’s aforementioned representations and warranties in the Agreement. 28. With respect to each such Contract at issue, Defendant’s representations and warranties were false. ORIGINAL PETITION PAGES 29. Because Defendant falsely represented the condition, features and/or value of the vehicles collaterally securing the Contracts, the terms of the Agreement expressly require Defendant to repurchase each such Contract at issue. 30. Because Defendant failed to secure a valid, perfected first-priority security interest in the vehicles collaterally securing the Contracts and vehicles contained branded title, the terms of the Agreement expressly require Defendant to repurchase each such Contract at issue. 31. Because Defendant failed to remit required reimbursements to Exeter for unearned premiums and charges for canceled ancillary/additional products, the terms of the Agreement expressly require Defendant to repurchase each such Contract at issue and/or pay Exeter amounts owed thereunder. 32. Despite Exeter’s full performance of all obligations under the Agreement, and written demand, Defendant has failed to repurchase each Contract at issue and/or pay Exeter amounts owed thereunder, thereby further breaching the Agreement. 33. Exeter has suffered damages as a result of Defendant’s failure to comply with the terms of the Agreement as described herein. 34. Exeter seeks damages for Defendant’s breaches of the Agreement, in an amount no less than $168,918.68, exclusive of attorney fees, costs, and interest. 35. Pursuant to Paragraph 12 of the Agreement and § 38.001(8) of the Texas Civil Practice & Remedies Code, Exeter demands an award of attorney fees and costs from Defendant. WHEREFORE, Exeter demands entry of a judgment in its favor against Defendant for damages, together with attorney fees and costs of suit, and such other and further relief as the Court may deem proper. COUNT Il—- FRAUD 36. Exeter incorporates the foregoing paragraphs as if fully set forth herein. ORIGINAL PETITION PAGE 6 37. Defendant represented to Exeter for certain of the Contracts at issue that the vehicles contained certain equipment options that purportedly increased the value of the vehicles (as collateral). The equipment options on the vehicles were a material component of the Contracts at issue. 38. Defendant’s representations regarding the vehicle equipment options were known to be false, or at minimum, recklessly made without knowledge of the truth as a positive assertion. 39. Defendant’s representations regarding the vehicle equipment options were made with the intent to entice Exeter into overpaying for the value of each Contract, to the benefit of Defendant. 40. Exeter acted in reliance upon Defendant’s representations and, in fact, overpaid Defendant for each Contract, by paying for equipment options that did not exist, thereby suffering damages. WHEREFORE, Exeter demands entry of a judgment in its favor against Defendant for damages, together with attorney fees and costs of suit, and such other and further relief as the Court may deem proper. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that Defendant be cited to appear, and that Plaintiff have judgment against Defendant for: (a) actual damages in an amount no less than $168,918.67, exclusive of fees and costs; (b) pre- and post-judgment interest at the maximum rate permitted by law; (c) reasonable and necessary attorney’s fees and costs; and (d) such other and further relief, both at law and in equity, to which Plaintiff is entitled. ORIGINAL PETITION PAGE7 Respectfully submitted, /s/ Mare D. Cabrera Mare D. Cabrera State Bar No. 24069453 meabrera@polsinelli.com Polsinelli PC 2950 N. Harwood Street, Suite 2100 Dallas, TX 75201 T: (214) 397-0030 F: (214) 397-0033 ATTORNEYS FOR EXETER FINANCE LLC ORIGINAL PETITION PAGE 8 Exhibit A DocuSign Envelope ID: 3E490496-092E-49D5-8768-43087131FE47 x Exeter Dealer Agreement Thisisa Non-Recourse Dealer Agreement by and among Exeter Finance LLC, a Delaware limited lability company ("Exeter"), and the undersigned automobile dealer, on behalfof itself and each affiliate and subsidiary dealership set forth on the signature page hereto (individually and collectively referred to as “Dealer’): 1 Definitions. The following capitalized terms shall have the meaning ascribed to each as follows: a. “Agreement” means this agreement and any schedules and addenda thereto, as may be amended from time to time. b. “Additional Product" means, with respect to each Contract, each product and service sold in connection with the sale of a Vehicle, including, theft deterrent products, audio or video products, GPS systems, electronic equipment, surface protection products, extended warranties (otherwise known as, mechanical repair, service or repair contracts), GAP, property insurance, credit insurance, debt protection or any other insurance products. “Buyer” means, with respect to any Contract, any person, including any co-Buyer, co-signeror guarantor(s) who enters into such Contract with the Dealer for the purchase of a Vehicle, together with any Additional Products, ifany. “Contract” means a retail installment sale contract, conditional sale contract, security agreement or other document providing for the payment by Buyerto Dealer of monies in connection with a credit sale to Buyerof a Vehicle owned by Dealer, together with any Additional Products. “Credit Application” means a written and completed form of application seeking credit submitted to Dealer by Buyer. “GLB Act Privacy Regulations” means the regulations promulgated under Title V of the Gramm-Leach-Bliley Act of 1999, as amended from time to time, 15 U.S.C. 6801 to 6809. "Nonpublic Personal Information” shall have the same meaning ascribed to this term under the GLB Act Privacy Regulations Participation” means, with respect to a Contract, an amount in addition to the Purchase Price that Exeter may pay to Dealeras specifically described in Section 8. “Purchase Price” means, with respect to a Contract, the sum amountto be paid by Exeter for such Contract. “Repurchase Price” means, with respect to any Contract at any time, the then remaining unpaid amounts owing with respect to such Contract, including, without limitation, all unpaid principal, all accrued and unpaid interest and all other amounts due and payable under or pursuant to such Contract. “Stipulations” means condition(s) and/or requirement(s) with respect to a Credit Application, determined by Exeter, which must be fulfilled before Exeter will purchase the related Contract from Dealer. Such conditions or requirements may include, for example, requiring a copy of the customer's insurance card, proof of residency,or a copy of the customer's pay stubs I “Vehicle” means, with respect to any Contract, the new or used motor vehicle that is the subject of such Contract. Applicability. This Agreement shall apply to all transactions related to the purchase of Contracts by Exeter from Dealer. Purchase and Sale of Contracts. Dealer may, from time to time, submit Credit Applications to Exeter for Exeter to evaluate for purposes of making an offer to purchase the related Contract. Dealer is not obligated to submit any Credit Applications to Exeter, and Exeter is not obligated to offer to purchase or purchase any Contract from Dealer. The Contracts will arise from the sale of Vehicles and Additional Products on credit by Dealer. Credit Application Process. In its sole discretion, Exeter shall determine which Credit Applications it approves and provides Dealer with an offer to purchase the related Contract. Exeter's offerto purchaseis conditional on Dealer satisfying all Stipulations provided in the offerand the conditions and requirements set forth in Section 5. Exeter's offerto purchase will be valid for thirty (30) days. If Dealer accepts Exeter's offerto purchase, it shall promptly notify Exeterof such decision. All Credit Applications submitted to Exeter shall be with the consent of Buyer and shall contain an authorization which complies with the Fair Credit Reporting Act and all other applicable laws that will enable Exeterto obtain a consumer report regarding the Buyer. Dealer shall notify each Buyer applicant that his/her Credit Application is being submitted to Exeter and that Exeter may obtain a consumer report regarding the Buyer. Conditions to the Purchase of Contracts. Exeter shall purchase a Contract upon satisfaction, in the sole discretion of Exeter, of each of the following conditions: (i) receipt of such Contract, the related Credit Application, and any other documentation associated with such Contract as required by Exeter and communicated to Dealer; (ii) receipt of proof of the satisfaction of Stipulation(s) specified by Exeter (hereinafter collectively included in the term “Contract”), if applicable; (il) confirmation by Exeter that such Contract is properly completed and executed; (iv) the Vehicle shall have been delivered to, and accepted without dispute or claim by, the Buyer; (v) each of the Contract representations, warranties and covenants set forth in Section 10 are true and correct as to such Contract; and (vi) the Dealer is not in default of this Agreement. Exeter will have no obligation to purchase a Contract if, after approval but prior to paying the Purchase Price: (i) a Buyer dies; (i) a Buyer files for bankruptcy protection; (i) the Vehicle is lost, stolen or damaged; (iv) a Buyeris in a dispute with Dealer; or (v) Exeter determines, in its sole discretion that a change in circumstance has occurred that puts repayment of the Contract at risk. Nonrecourse. Notwithstanding anything to the contrary contained in any Contract, Contracts shall be sold to Exeter pursuant to this Agreement without credit recourse to Dealer, except as otherwise agreed and except with respect to the representations, warranties, repurchase obligations and other obligations, and agreementsof, and indemnification by, Dealer set forthin this Agreement. ©2022 Exeter Finance LLC. All Rights Reserved. // Confidential and Proprietary // Version 2.4 DocuSign Envelope ID: 3E490496-092E-49D5-8768-43087131FE47 Assignment. Upon Dealer’s acceptance of Exeter's offer to purchase any Contract, Dealer shall promptly assign such Contract to Exeter. Any such assignment shall include all right, title and interest held by Dealer regarding such Contract, including, but not limited to, a security interest or lien on the Vehicle. Participation. During the term of this Agreement, Exeter may, in its sole discretion, pay Dealer a Participation for certain Contracts purchased by Exeter from Dealer. The Participation, if any, for a particular Contract purchased by Exeter will be either a fixed amount, or an amount based upon a specified percentage ofthe difference by which the Contract rate exceeds the buy rate, which shall be set forth from time to time in program sheets, notices, or other communications from Exeter. IFa Participation is payable, Exeter will compute and pay such Participation on a transaction basis. Exeter shall have the right to discontinue or modify the Participation provisions described in this Agreement or in any program sheet, notice or other communication. Communication ofthe foregoing changes may occur via facsimile, email, phone call, regular mail or hand delivery. If this Agreement is terminated for any reason, whether by Exeter or Dealer, no further Participation shall be paid to Dealer. If Dealeris required to repurchase any Contract, Dealer will remit to Exeter the full amount of any Participation paidto Dealer with respect to such Contract along with any other amounts Dealer is required to pay for such repurchase. Representations and Warranties of Dealer. At all times during the term of this Agreement, Dealer hereby represents and warrants to Exeter the following a Organization. Dealers duly organized, validly existing, qualified and authorized to transact business in, and is in good standing under the laws of the jurisdiction of its organization and each jurisdictionin which it performs or will perform its obligations under this Agreement. Capacity Authority. Dealer has the power, authority and legal right to execute, deliver, and perform this Agreementand its obligations hereunder. The execution, delivery and performance of this Agreement by Dealer have been duly authorized by all necessary action. Licenses. Dealer's, and throughout the term of this Agreementwill remain, duly authorized and properly licensed under all applicable laws to transact businessas presently conducted, and to perform the transactions contemplated under this Agreement. Compliance with Law. All business practices, acts and operations of Dealer (including, without limitation, all forms and documents used by Dealer and the sale and financing of Vehicles and Additional Product) are in compliance with all applicable federal, state and local laws, regulations, rules and ordinances. Books and Records. Dealer shall maintain complete and accurate records concerning the following: (i) Credit Applications forwarded to Exeter for consideration; (i) any Contract sold to Exeter, as well as the interest in the covered Vehicle; and (ii) all other transactions affecting the sale and finance of the covered Vehicle and Additional Products. Exeter has the right to review and inspect Dealer's records relating to the Credit Applications, Contracts, covered Vehicles and Additional Products, and all matters and transactions relating to the sale and finance of the covered Vehicle and Additional Products, upon reasonable notice to Dealer (which shall in no event be less than two (2) business days), during normal business hours. Dealer shall reasonably cooperate with Exeter during such review and inspection. 10. Representations and Warranties of Dealer as to Each Contract. At all times during the term of this Agreement, Dealer hereby represents and warrants to Exeter the following regarding each Contract being purchased: a Credit Applications. Dealer has provided to Exeter copies of the Credit Application and any credit information received by Dealer with respect to the Contract, and to the best of Dealer's knowledge, the Credit Application and such credit information are true, complete and accurate. Dealer agrees to perform the due diligence required under the Fair Credit Reporting Act to confirm the identity ofsuch Applicant. Contracts. (i) There is only one Contract in connection with the sale of the Vehicle to the Buyer(s) named therein, (ii) the Contract is valid and represents a genuine obligation of the Buyer(s) named therein, (ii) Dealer knows of no defenses the Buyer(s) might have to avoid payment of the amounts due under the Contract, (iv) Dealer is unaware of any fact that indicates the uncollectibility of all or any portion of the Contract, (v) the Contractis legitimate, valid and bindingin accordance with its termsand complies with ll applicablefederal, state and local laws, rules, regulations and ordinances, (vi) the Contract fully and accurately states the terms ofthe transaction between Dealer and Buyer, (vii) Dealer has not made any representations, warranties or agreements not contained in the Contract, (vill) to the best of Dealer's knowledge after reasonable investigation, each signature on the Contract and on all other documents is genuine, (ix) to the best of Dealer's knowledge after reasonable investigation, each Buyer has, atthe time of entering into the Contract, the full legal capacity to do so, (x) to the best ofDealer's knowledge, no suit or legal action or proceeding has been or will be brought or threatened to be brought by or against it in connection with the Contract, and (xi) the Contract is enforceable by Exeter and_ its assigns. Vehic Deliv ind Assignment. (i) Dealer has good and marketable title to the Vehicle, and such Vehicle is free from all liens or encumbrances, except those which will be in favorof Exeter, (ii) Dealer has the right to make an assignment of the Contract, (ii) such Vehicle, together with any Additional Products, has been delivered to the Buyer in good condition and has been accepted by the Buyer, and (iv) such Vehicle has been purchased for use by the Buyer. itle, Security Interest and Lien. (i) Dealer shall cause an application for title of the Vehicle that is the subject of the Contract to be submitted to the appropriate government agency within the time periods required by applicable law, including, without limitation, the time periods necessary to prevent the avoidance of the lien ina bankruptcy proceeding of the applicable Buyer and (i) Dealer shall take all steps necessary under applicable law to ensure that Exeter will havea valid and properly perfected first priority security interest in such Vehicle, and that such lien shall be enforceable. Disclosures. (i) All disclosures and notices required by law to be made to each Buyer were complete, accurate and properly and timely made, (ii) all documents required to be delivered at the time of signing the Contract have been delivered, and (ii) a completely filled-in and legible copy of the Contract was delivered to the Buyer at the time of execution. ©2022 Exeter Finance LLC. All Rights Reserved. // Confidential and Proprietary // Version 2.4 DocuSign Envelope ID: 3E490496-092E-49D5-8768-43087131FE47 Counterclaims and Defenses. Dealer has performed all of its obligations under the Contract, and Buyer has no offsets or counterclaims against or defenses to the enforcement of the Contract, except as enforcement may be affected by bankruptcy and similar laws affecting creditors’ rights generally. Insurance. (i) At the time of Buyer’s execution of the Contract, the Vehicle that is the subject of the Contract shall be covered by comprehensive and collision insurance protecting Exeter's interest in such Vehicle; and Exeter shall be named lien holder and loss payee under such Insurance Coverage, (ii) Dealer shall provide to Exetera copy of an insurance binderor a declaration page insuring such Vehicle in the name of the Buyer(s) with Exeter named as loss payee, and (ii) the evidence of insurance shall contain a valid addressfor Exeter and confirm an active comprehensive/ collision insurance policy with a deductible not to be greater than five hundred dollars ($500.00) or such other amount agreed to by Exeter in its sole discretion Vehicle Branding. To the best of Dealer's knowledge, (i) the Vehicle and all options therein are accurately described in such Contract, and (ii) the title to such Vehicle is not branded indicating that (A) it is a salvage vehicle, (B) the odometer has been rolled back, (C) such Vehicle has had significant flood damage, (D) such Vehicleis a gray market vehicle, or (E) such Vel le has some other condition which hasa significant adverse effecton its value. Down Payment, (i) Unless specifically disclosed on the Contract, the down payment with respect to the Contract was paid in full by the Buyer, in cash, check, draft, immediately available funds, or in trade equity prior to Exeter's purchase of the Contract, and no part of such down payment was loaned by Dealer or other third party, (ii) any check given to Dealer by Buyer has been or will be honored by Buyer's financial institution upon presentment by Dealer and will not be returned to Dealer for any reason, (ii itis expressly acknowledged, understood and agreed by Dealer that, in the event Dealer uses any third-party check-guarantee service or similar service in connection with any check given to Dealer by Buyer regarding the Contract, such check must be honored by Buyer's financial institution prior to funding of the Contract by Exeter. Otherwise, the Contract shall be subject to immediate repurchase by Dealer as defined in Section 12, and the Contract shall remain subject to repurchase for the life ofthe Contract. Additional Products. (i) Dealer will inform Buyer that the purchase of Additional Products was not required to obtain credit (other than having comprehensive and collision insurance for the Vehicle which the Buyer could obtain from its own insurance carrier), and that any insurance, gap or other product may be obtained from anyone of Buyer's choice, (ii) upon prepayment in full ofthe Contract, Dealer shall remit to the Buyer within the time required by law any unearned premium or charge for any Additional Products, (i) if Exeter is required by law to refund the unearned premium or charge to the Buyer, then Dealer shall immediately upon request by Exeter remit such amounts to Exeter, and (iv) if an Additional Product is canceled or a refund is otherwise required (except if a full prepayment), Dealer agrees to remit to Exeter any unearned premium or charge immediately upon the earlier of (A) receipt or credit from the insurance or other company, or (B) Exeter's request, which shall be applied as a partial payment on the Contract, tothe extent permitted by law. uture Payments and Retums. (i) Dealer shall not accept any payments on the Contract after it is sold to Exeter, however, in the event a payment should be made to, or inadvertently accepted by Dealer, Dealer shall be deemed to have received the payment in trust for Exeter, and shall immediately remit it to Exeter and (ii) if a Dealer accepts a return of an Additional Product or it is cancelled, Dealer shall immediately remit to Exeter the amount of the credit for such return or cancellation, for creditto the Contract balance. Cash Price. (i) The cash price of the Vehicle as shown on the Contract is the “cash price” as defined by applicable law and (ii) the purchase price of the Vehicle is the price charged by the Dealer for substantially similar vehicles in cash transactions and was not increased because the Vehicle was sold on credit to a member of a protected class as defined under applicable law or because the Contract was to be sold at a discount. Contract Location, The entire transaction occurred at the Dealer's place of business or at such other location permitted by all applicable laws Dealer's Future Obligations. (i) Dealer will provide and maintain service on all Vehicles sold by it in accordance with any representations made to the Buyers and in accordance with standard practices and policies as established by the manufacturers of such Vehicles, (ii) Exeter is not responsible for any obligations, claims and/or liabilities that Dealer may have to the Buyer(s), and (ii) Dealer agrees that it will act in good faith to resolve any Buyer disputes concerning any goods andjor services (including Vehicle and Additional Products) provided for in the Contract. Fraud. (i) Possession of the Vehicle was not obtained by Buyer's use of any fraudulent scheme, trick or device and (ii) sale of the Contract to Exeter was not effected by Dealer's use of any fraudulent scheme, trick or device. Buyer Bankruptcy. At the time Exeter purchasesa Contract, the underlying Buyeris not the subjectof a pending bankruptcy proceeding. Incorrect Contract Purchase Amount. The amount paid by Exeter for purchase of the Contract is the amount previously agreed to by the parties, and in. the event of any overpayment of such amount by Exeter, Dealer shall reimburse Exeter the amount of such overpayment within one (a) business day of ‘the Dealer becoming aware of such overpayment, via notice from Exeteror otherwise Obligations of Each Party. a. Adverse Action Notices and Compliance with Law. Dealer and Exeter each shall send any required adverse action notices and any other notices to the applicant Buyer as may be required by applicable law, including, but not limited to, the Equal Credit Opportunity Act and Regulation B, and the Fair Credit Reporting Act, as a result of its respective credit evaluation of a Credit Application. b. rive nd Inform: mer Informatic In the course of its performance under this Agreement, Exeter and Dealer may disclose to each other or may receive information that meets the definition of Nonpublic Personal Information. Exeter and Dealer agree that they will not use or disclose such Nonpublic Personal Information to any nonaffiliated third party except (i) to the extent necessary to carry out the purpose or purposes for which the party discloses such informationto the other party, (ii) in the ordinary course ofbusiness to carry out the purpose or purposes for which the Nonpublic Personal Information was disclosed to the party under an exception to the GLB Act Privacy Regulations or other applicable law, or (ii) as permitted by law and this Agreement. Exeter and Dealer agree that any affiliate of either party shall use and disclose Nonpublic Personal Information to any nonaffiliated third party only to the extent that it may use and disclose such information. If Nonpublic Personal Information is disclosed to Exeter or Dealer in connection with marketing, joint marketing or other promotional activities, whether by written or oral agreement, Exeter and Dealer shall use and disclose such Nonpublic Personal Information only (i) to the extent necessaryto carry out the activity or activities for which ©2022 Exeter Finance LLC. All Rights Reserved. // Confidential and Proprietary // Version 2.4 DocuSign Envelope ID: 3E490496-092E-49D5-8768-43087131FE47 such Nonpublic Personal Information is disclosed to the party, (ii) in the ordinary course of business to carry out the purpose or purposes for wl the Nonpublic Personal Information was disclosed to the party under an exception to the GLB Act Privacy Regulations or other applicable law, or (il) as permitted by law and this Agreement. Each party shall maintain physical, electronic and procedural safeguards in compliance with applicable laws to protect the Nonpublic Personal Information received from the disclosing party, including, but not limited to, the maintenance ofappropriate safeguards to restrict access to Nonpublic Personal Information received from the disclosing party to those employees, agents or service providers of the receiving party who need such information to carry out the purpose or purposes for which such Nonpublic Personal Information was disclosed to the disclosing party. 22. Contract Repurchase. In the event that any Dealer breaches a representation, warranty or covenant contained in Section g or 10 with respect to a Contract, Dealer shall, if demanded by Exeter(i) repurchase such Contract from Exeter and (ii) reimburse Exeter for any fees and costs suffered by Exeter as a result of such breach. To repurchase such Contract, Dealer shall pay to Exeter the Repurchase Price. Exeter shall provide Dealer notice and demand for a Contract repurchase identifying the Contract and the breach. Exeter has no duty to repossess the covered Vehicle or to return such Vehicle to Dealer as a condition to requiring any Contract repurchase. Upon Dealer's payment of the Repurchase Price, Exeter or its assignee shall sell, assign and endorse such Contract to Dealer. Such sale, assignment and endorsement shall be “As Is", without any representation or warranty whatsoever as to condition, fitness for any particular purpose, merchantability, or any other warranty, express or implied, concerning the Contract, the Vehicle or Additional Product. Any such assignment shall be without recourse and without warranties of any kind. Exeter shall not be bound to exhaust its remedies against any security or any Buyer, co-signer or obligor before being entitledto payment by Dealer. 23. Modifications, Extensions, Waivers and Compromises of Contracts. Dealer understands and agrees that Exeter may extend or otherwise change the due dates of installment payments due or to become due under any Contract, amend any Contract by agreement with the Buyer, whether or not Dealer is consulted with regard to the same. Dealer also agrees that Exeter may advance funds for the purchase of insurance, to pay any taxes, fees, or liens, or otherwise to preserve a Vehicle and Exeter's interest therein, without notice to or consent of Dealer and without affecting Dealer's obligation to Exeter. ah. Dealer Default. Dealer shall be in default under this Agreement in the event (i) t fails to pay Exeter any amounts due under this Agreement within ten (10) days of Exeter's demanding payment, whether by facsimile, mail or express delivery, (i) any representation or warranty contained in this Agreement or hereafter made pursuant hereto, with the exception of representations and warranties made under Section 20, proves untrue or misleading in any material respect, (iii) Dealer ceases to do business as a going concern, or (iv) Dealer becomes insolvent or makes any assignment for the benefit of creditors, or any bankruptcy, reorganization, arrangement, receivership, insolvency or other state or federal proceeding for the relief of debtor is commenced by or againstit and is not dismissed within 30 days of such filing. In the event of Dealer's default, Exeter shall have the right to collect any and all payments that Dealer currently owes Exeter, or in the future may owe Exeter, and Dealer will forfeit any right, title or interestin any Participation, reserve account or investment account or other funds Exeter maintains, if any such account is maintained by Exeter. 45. Indemnification. Dealer shall defend, indemnify, and hold Exeter, and its respective shareholders, directors, officers, employees, representatives, agents, servants, successors and assigns, harmless from and against any and all threatened, alleged, or actual acts, omissions, claims, cross-claims, counterclaims, losses, liabilities, demands, allegations, actions, lawsuits, proceedings, damages, injuries, costs, expenses, attorneys’ fees, court costs and any other amounts relating to, arising out of, andjor resulting from, whether threatened, alleged, or actual: (i) any act or omission of Dealer in the performance of any warranties, representations, andjor duties under this Agreement; (ii) Dealer's breach of andjor default under this Agreement, (ii) the failure of any representation or warranty of Dealer contained in this Agreement to be accurate, (iv) Dealer's maintenance, use or disclosure of Buyer’s or applicant Buyer's information, (v) evaluation of Buyer or applicant Buyer for financing, (vi) Dealer's denial of financing, or other adverse action (as such term is defined by the Fair Credit Reporting Act andjorEqual Credit Opportunity Act), relating to a Buyeror applicant Buyer, or (vil) any actions of Dealer in connection with the Credit Applications and Contracts sold byit_ underthis Agreement. Exeter shall defend, indemnify, and hold Dealer, and its respective shareholders, directors, officers, employees, representatives, agents, servants, successors and assigns, harmless from and against any and all threatened, alleged, or actual acts, omissions, claims, cross-claims, counterclaims, losses, liabilities, demands, allegations, actions, lawsuits, proceedings, damages, injuries, costs, expenses, attorneys’ fees, court costs and any other amounts relating to, arising out of, andjor resulting from, whether threatened, alleged, or actual (i) Exeter's breach of and/or default this Agreement and (i) the failure of any representation or warranty of Exeter contained in this Agreementto be accurate. 26. Power of Attomey. Dealer hereby grants Exeter a limited power of attorney to do any and all things necessary or appropriate in Dealer's name to carry out _ the intent of this Agreement, including, but not limited to, signing and endorsing the name of Dealer to any assignment of a Contract and endorsing Dealer's name on payment checks applicable to Contracts purchased by Exeter. This power of attorney shall be irrevocable and shall remain in effect for solong as there are Contracts outstanding that have been purchased pursuantto this Agreement. 27. Right to Of set. Dealer agrees that, without notice of demand, Exeter has the ongoing rightto deduct from any funds, deposit, account, obligation or any other amounts due Dealer by Exeter (or its subs ries or affiliates), any and all amounts Dealer owes to Exeter (or its subsi ries or affiliates), including, without limitation, any Repurchase Price, any chargeback amount, failure to promptly and properly record Exeter's security interest in the vehicle, or other