Exhibit
10.1


 


Program
Agreement


 


This Program Agreement (“Agreement”)
is entered into by and between Monaco Coach Corporation
(“Monaco”) and GE Commercial Distribution
Finance Corporation (“CDF”).


 


WITNESSETH:


 


WHEREAS, Monaco desires
that CDF provide the Program to certain Dealers;


 


WHEREAS, Monaco and CDF
desire to agree upon terms and conditions pursuant to which CDF will provide
the Program to Dealers.


 


NOW, THEREFORE, for and
in consideration of the premises and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Monaco and CDF
agree as follows:


 


1.             Definitions.


 


“Business Day”
means any day the Federal Reserve Bank of Chicago is open for the transaction
of business


 


“Dealer”
means any retail dealer of Inventory in the United States of America, including
Risk Pool Dealers.


 


“Guaranty”
means the Guaranty by Monaco in Section 4 of this Agreement.


 


“Inventory”
means goods consisting of recreational vehicles of any type sold by Monaco.


 


“Prime Rate”
means for any calendar month the highest “prime rate” published in the “Money
Rates” column of the Wall Street Journal on the first Business Day of
such month.


 


“Program”
means the financing program for Risk Pool Dealers as set forth in this
Agreement.


 


“Risk Pool
Facilities” means Risk Pool A Facilities and Risk Pool B Facilities.


 


“Risk Pool A
Facilities” means the credit facilities designated for Risk Pool A Dealers,
provided by CDF to such Dealers and guaranteed by Monaco under this Agreement.


 


“Risk Pool A Dealers”
means Dealers which have been identified in writing by Monaco and accepted by
CDF for inclusion in a Risk Pool A Facility.


 


“Risk Pool A
Guaranty Limit” means for each Risk Pool A Dealer, an amount which is the
greater of (a) One Hundred Thousand Dollars ($100,000), and (b) twenty-five
percent (25%) of such Risk Pool A Dealer’s outstanding principal loan


 


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balance for
Inventory under a Risk Pool A Facility (subject to the limits on such loan
balance provided in Section 3.2 hereof).


 


“Risk Pool B
Facilities” means the credit facilities designated for a Risk Pool B
Dealers, provided by CDF to such Dealers and guaranteed by Monaco under this
Agreement.


 


“Risk Pool B
Dealers” means Dealers which have been identified in writing by Monaco and
accepted by CDF for inclusion in a Risk Pool B Facility.


 


“Risk Pool B
Guaranty Limit” means for each Risk Pool B Dealer, one hundred percent
(100%) of the Risk Pool B Dealer’s outstanding principal loan balance for Inventory
under a Risk Pool B Facility (subject to the limits on such loan balance
provided in Section 3.3 hereof).


 


“Risk Pool
Dealers” means Dealers which are Risk Pool A Dealers or Risk Pool B
Dealers.


 


“Risk Pool
Inventory” means Inventory financed for a Risk Pool Dealer and allocated to
a Risk Pool Facility.


 


“Terms Letter”
means that certain Terms Letter, dated as of the date hereof, executed by CDF
and acknowledged by Monaco.


 


2.             Financing Terms.


 


2.1           Program Terms. 
The terms for financing provided by CDF to Risk Pool Dealers shall be in
accordance with the terms set forth in the Terms Letter.


 


2.2           Credit Underwriting and Documentation. 
CDF will use its credit underwriting and documentation practices.  All decisions regarding the approval of
Dealers for financing, credit facility amounts, documentation requirements and
management of the Dealers’ lending relationship with CDF will be solely those
of CDF.


 


3.             Risk Pool Facilities.


 


3.1           General.  The
obligations of Risk Pool Dealers under the Risk Pool Facilities will be
guaranteed by Monaco in an amount not to exceed the Risk Pool A Guaranty Limit
or the Risk Pool B Guaranty Limit, as applicable.  These Dealers will be mutually agreed upon in
writing from time to time in the form of Exhibit A attached hereto or in
some other mutually acceptable writing between the parties from time to time.


 


3.2           Risk Pool A Dealers. 
Without limiting the ability of CDF and Monaco to mutually agree on
designating a Dealer as a Risk Pool A Dealer or the amount of the Dealer’s
obligations to be guaranteed, the Risk Pool A Dealers will generally have the
following characteristics:  (a) need for
a temporary increase in their CDF credit facility; (b) have satisfactory
experience with Monaco or CDF; (c) have a minimum of two years RV sales
experience; and (d) have a CDF credit facility or obtain a primary credit
facility with CDF, subject to CDF’s credit underwriting approval and complete
documentation, prior to the Dealer’s designation as a Risk Pool A Dealer.  The amount of the credit facility dedicated
to financing Inventory


 


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for each Risk Pool
A Dealer will not be more than $5,000,000, unless agreed by Monaco and
CDF.  The total amount of Risk Pool A
Facilities outstanding at any time with respect to Risk Pool A Dealers will not
exceed $15,000,000, unless agreed by Monaco and CDF.


 


3.3           Risk
Pool B Dealers.  Without limiting the
ability of CDF and Monaco to mutually agree on designating a Dealer as a Risk
Pool B Dealer or the amount of the Dealer’s obligations to be guaranteed, the
Risk Pool B Dealers will generally have the following characteristics:  (a) unable to obtain a credit facility in an
amount desired by the Dealer; (b) have satisfactory experience with Monaco or
CDF; (c) have a minimum of two years RV sales experience; and (d) may or may
not have a CDF credit facility, however, the Dealer must obtain a credit
facility with CDF, subject to CDF’s credit underwriting approval and complete
documentation, prior to the Dealer’s designation as a Risk Pool B Dealer.  The amount of the credit facility dedicated
to financing Inventory for each Risk Pool B Dealer will not be more than
$2,000,000, unless agreed by Monaco and CDF. 
The total amount Risk Pool B Facilities outstanding at any time with
respect to Risk Pool B Dealers will not exceed $10,000,000, unless agreed by
Monaco and CDF.


 


3.4           Risk Pool Inventory.


 


3.4.1        Purpose of Risk Pool Facilities. 
The purpose of establishing a credit facility for a Dealer under a Risk
Pool Facility is to permit the Dealer to obtain financing for greater amounts
of Inventory that CDF would not otherwise provide without the guaranty of
Monaco.  A Dealer may have a credit
facility for Inventory which is not part of a Risk Pool Facility.


 


3.4.2        Identification of Risk Pool Inventory. 
Inventory sold to Risk Pool Dealers will be identified by Monaco as Risk
Pool Inventory on a good faith basis to accomplish the purposes of this
Agreement.  Such identification will be
made at the time that the approval for the financing of the Inventory is
obtained.  In addition, Monaco will
identify the Risk Pool Inventory on the invoice, provided, that the failure to
make such designation will not reduce Monaco’s obligations.


 


3.4.3        Term in Risk Pool. 
Inventory financed under Risk Pool A Facilities will generally remain
financed under Risk Pool A Facilities for 180 days from the original invoice
date and after such period, at CDF’s discretion, Inventory in Risk Pool A
Facilities will be transferred from Risk Pool A Facilities to the Dealer’s
credit facility outside of a Risk Pool A Facility.  Inventory financed under Risk Pool B
Facilities will remain in Risk Pool B Facilities until the Dealer has paid CDF
indefeasibly in full.


 


4.             Guaranty of Risk Dealers.  Monaco guarantees the full and punctual payment and
performance when due, whether upon demand, at maturity or earlier by reason of
acceleration or otherwise, and at all times thereafter, of the outstanding
principal amount of the indebtedness of each Risk Pool Dealer to CDF for the
Risk Pool Inventory, whether such indebtedness is direct, indirect, acquired,
joint and/or several, existing, future, arising before or after a bankruptcy of
a Risk Pool Dealer, contingent or otherwise in an amount not to exceed: (a) the
Risk Pool A Guaranty Limit with respect to Risk Pool A Dealers; and (b) the
Risk Pool B Guaranty Limit with respect to Risk Pool B Dealer (collectively,
the “Liabilities”).


 


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This Guaranty is a guarantee of
payment and not of collection.  Subject
at all times to the Risk Pool A Guaranty Limit and the Risk Pool B Guaranty
Limit, Monaco agrees that the obligations of Monaco under this Guaranty shall
be unconditional irrespective of, at any time, (1) the invalidity or
unenforceability of the Liabilities or any agreement or instrument relating to
any of the Liabilities (collectively, the “Transaction Documents”), (2)
any law, regulation or order in effect in any jurisdiction affecting any of the
terms or the rights of CDF with respect to the Liabilities or the Transaction
Documents, (3) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Liabilities, or any other amendment or waiver
of or any consent to departure from any Transaction Document, (4) the absence
of any attempt to collect the Liabilities from any Risk Pool Dealer or from any
other person primarily or secondarily liable with respect to the Liabilities or
of any attempt to realize upon any collateral (whether securing the
Liabilities, this Guaranty or otherwise), (5) any exchange, release,
non-perfection or other impairment of any collateral or other security, whether
relating to any Risk Pool Dealer, Monaco, another guarantor or otherwise, (6)
any release of or settlement with any person (including, without limitation,
any Risk Pool Dealer and any other guarantor) liable in whole or in part, or
any release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Liabilities, (7) CDF’s acceptance at any time
of any additional collateral, guarantees or other credit support relating to
the Liabilities or this Guaranty, (8) any dispute between CDF and any Risk Pool
Dealer, or any termination of credit of any Risk Pool Dealer or modification of
the terms thereof, (9) the disallowance in bankruptcy or other proceedings of
all or any part of CDF’s claim against any Risk Pool Dealer or any other person
liable for any Liabilities, and (10) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, any Risk Pool
Dealer, a guarantor or a surety.


 


Without limiting the foregoing,
but at all times subject to the Risk Pool A Guaranty Limit and the Risk Pool B
Guaranty Limit, CDF is hereby authorized, without notice (which is hereby
waived by Monaco) and without limiting or otherwise impairing the liability of
Monaco hereunder, from time to time to (1) renew, extend, accelerate or
otherwise change the time, place or manner for payment of, or other terms relating
to, the Liabilities, or otherwise modify, amend, change or waive compliance
with the terms of the Liabilities or any of the Transaction Documents, (2)
accept partial payments on the Liabilities, (3) take collateral for the
Liabilities and the obligations of any other person primarily or secondarily
liable on the Liabilities, and exchange, release, realize upon or institute any
proceeding to realize upon or liquidate any such collateral, (4) apply such
collateral and direct the order or manner of sale thereof as CDF may determine
in its discretion, (5) release or compromise, in any manner, or collect or
initiate any proceeding to collect the Liabilities or any portion thereof, (6)
extend additional loans, credit and financial accommodations and otherwise
create additional Liabilities, and (7) enforce or institute any proceeding to
enforce any other Guaranty of the Liabilities or release, or compromise in any
manner the obligations of, any other person primarily or secondarily liable on
the Liabilities.


 


Upon a default under any
Transaction Document, CDF may proceed directly and at once against Monaco to
collect the full amount of all or any portion of the liability of Monaco
hereunder, without notice and without first proceeding against any Risk Pool Dealer
or any other person primarily or secondarily liable on the Liabilities.  CDF shall have the exclusive right to
determine the application of payments and credits, if any, from Monaco, any
Risk Pool Dealer, or any other person primarily or secondarily liable on the
Liabilities.


 


Until the Liabilities and other
obligations of any Risk Pool Dealer to CDF shall have been indefeasibly paid
and discharged in full and all Transaction Documents (including any commitments
with respect to any Liabilities) have been terminated, Monaco’s claims against
any Risk Pool Dealer or any other person primarily or secondarily liable on the
Liabilities with respect to or on account of any payment which Monaco may make
on account of its obligations


 


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under this Guaranty, including
without limitation, any right of subrogation, contribution or indemnification
or other reimbursement right will be subordinate to CDF’s claims.  Nothing herein shall waive, and Monaco
expressly reserves, all rights of subrogation with respect to CDF’s rights and
remedies under the Risk Pool A Facilities and the Risk Pool B Facilities at all
times after satisfaction in full of the Liabilities and other obligations of
any Risk Pool Dealer to CDF.


 


Monaco waives all right of set
off and all notices, presentments, protests and demands of any kind with
respect to the Liabilities and this Guaranty (including without limitation
demands for performance, notices of non-payment or non-performance, notices of
protest, notices of dishonor and notices of acceptance of this Guaranty) and
promptness and diligence with respect to the Liabilities.


 


Monaco agrees that the sale of
inventory collateral by CDF to a person who is liable to CDF under a guaranty,
endorsement, repurchase agreement or the like shall not be deemed to be a
transfer subject to Section 9-618 of the Uniform Commercial Code as in effect
in any applicable jurisdiction or any similar provision of any other applicable
law, and Monaco waives any provision to the contrary of such laws.  Monaco shall be liable to CDF for any
deficiency resulting from CDF’s disposition, regardless of the subsequent
disposition of the inventory by the purchaser. Any notice of a disposition
shall be deemed reasonable and properly given if given to Monaco at least 10
days before such disposition in accordance with the notice provision below.


 


Any
termination of the Agreement shall not affect the liability of Monaco under
this Guaranty with respect to Liabilities created or incurred prior to the
effective date of such termination. 
Without limiting the foregoing, any such termination shall not relate to
any approval for Risk Pool Facilities given by CDF to or for the benefit of any
Risk Pool Dealer prior to the effective date of such termination and upon any
such termination, Monaco shall nevertheless remain liable with respect to all
Liabilities, and the performance of all duties, created or arising theretofore
or based on a commitment theretofore entered into or any approval theretofore
given to or for the benefit of any Risk Pool Dealer (the “Prior Obligations”)
to the full extent of Monaco’s liability therefor as provided herein; provided
that once such Prior Obligations as to any Risk Pool Dealer have been repaid,
Monaco’s liability with respect to the Guaranty of the obligations of such Risk
Pool Dealer shall be terminated in full, and CDF shall not extend further
credit to such Risk Pool Dealer under the Risk Pool Facilities .


 


To the
extent that Monaco or any Risk Pool Dealer makes a payment or payments to CDF
or CDF enforces its security interests or exercises its rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred.


 


Notwithstanding
anything in this Guaranty to the contrary, the right of recovery against Monaco
under this Guaranty is limited to the extent it is judicially determined with
respect to Monaco that entering into this Guaranty would violate Section 548 of
the United States Bankruptcy Code or any comparable federal, state or other
laws relating to fraudulent transfers or the like, in which case Monaco shall
be liable under this Guaranty only for amounts aggregating up to the largest
amount that would not render Monaco’s obligations under this Guaranty subject
to avoidance under Section 548 of the United States Bankruptcy Code or any such
comparable laws.


 


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Monaco
has made an independent investigation of the financial condition of each Risk
Pool Dealer and gives this Guaranty based on that investigation and not upon
any representation made by CDF.  Monaco
has access to current and future to the financial information of each Risk Pool
A Dealer and Risk Pool B Dealer which enables Monaco to remain continuously informed
the financial condition of each Risk Pool A Dealer and Risk Pool B Dealer.


 


5.             Repurchase Agreement. 
All Inventory, whether financed for Dealers under the Program or
otherwise, remains subject to the terms of the Floorplan Agreement dated May
14, 1993, as amended (“Repurchase Agreement”), and the Terms Letter, in
addition to the Guaranty.  Inventory
financed under Risk Pool Facilities will be subject to the Repurchase Agreement
and the Terms Letter and CDF will not request repurchase of the Risk Pool
Inventory separately from all other Inventory that is subject to the Repurchase
Agreement and the Terms Letter.


 


6.             Trademark/Name License.


 


6.1           Monaco Marks.  Subject to the provisions of this Agreement,
Monaco hereby grants CDF a limited, nonexclusive license to use those marks,
tradestyles, trademarks, service marks, logos or similar proprietary
designations of Monaco as from time to time permitted in writing by Monaco (the
“Monaco Marks”) in connection with the establishment, administration and
operation of the Program and financing programs provided under the Repurchase
Agreement.  Monaco represents and
warrants to CDF that Monaco has the right to grant the foregoing license.  CDF shall only use the Monaco Marks in
connection with the administration, marketing and promotion of the Program and
financing programs provided under the Repurchase Agreement.  As between the parties, Monaco owns all
rights in the Monaco Marks, and CDF shall not contest Monaco’s rights in the
Monaco Marks, either during the term of this Agreement or thereafter.  CDF’s use of the Monaco Marks, and the
goodwill associated with such use, shall inure to the sole and exclusive
benefit of Monaco.  CDF’s use of the
Monaco Marks shall be limited to the materials necessary to CDF’s
administration of the Program and financing programs provided under the
Repurchase Agreement, as well as to printed, electronic and broadcast matter
advertising and promotion of the Program and financing programs provided under
the Repurchase Agreement (collectively, “Program Materials”).  Use of the Monaco Marks in connection with
any Program Materials shall be subject to Monaco’s prior written approval,
which such approval shall not be unreasonably withheld, and such Program
Materials shall be used by CDF in all material respects as approved by Monaco; provided,
that once such approval is received, and in the absence of a material
alteration thereto by CDF, no further review or approval shall be required for
the continued use (including re-printing and re-distribution) of such Program
Materials by CDF.  The parties
acknowledge and agree that the quality control necessary to support the license
granted hereby is found in the terms and conditions of this Agreement.  Anything in the foregoing to the contrary not
withstanding, CDF shall cease use of Monaco Marks upon the termination of this
Agreement.  The foregoing to the contrary
notwithstanding, CDF may refer in any promotional materials or advertisements
to “Monaco,” “Monaco Coach” or “Monaco Coach Corporation” in a nominative sense
and to the extent necessary to make any disclosures in connection therewith and
any such use shall not constitute a use of Monaco’s name or logo type otherwise
prohibited hereby.


 


6.2           CDF Name.  Monaco may not, without CDF’s prior written
consent, use CDF’s name or logo type (or the name or logo type of any Affiliate
of CDF) in any advertisement, press release or promotional materials.  The foregoing to the contrary
notwithstanding, Monaco may refer in any promotional materials or advertisements
to “GE,” “GE CDF” or “GE Commercial Distribution Finance” in a nominative sense
and to the extent


 


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necessary to make any
disclosures in connection therewith and any such use shall not constitute a use
of CDF’s name or logo type otherwise prohibited hereby.


 


7.             Termination/Exclusivity. 
This Agreement shall be for an initial term commencing on the date of
this Agreement and ending on August 1, 2007, and for successive two (2) year
terms thereafter, unless at least 180 days prior to the last day of the initial
or any renewal term, either party gives notice to the other of the termination
of the Agreement to be effective on the last day of the then current term.  During the term of this Agreement, Monaco
shall not enter into any agreement or arrangement with any other financial
institution to offer any financing program to any Dealer which is as favorable
or more favorable to the Dealers than the Program (other than existing
floorplan financing arrangements for specific Dealers and extensions, renewals
or refinancing thereof); provided, however, if CDF is unable to
provide financing to a particular Dealer in an amount satisfactory to the
Dealer, Monaco may enter into agreements or arrangements with another financial
institution to assist that Dealer to obtain the financing in an amount
exceeding that made available by CDF to such Dealer.  Monaco agrees to identify CDF as Monaco’s “preferred
financial source,” or other similar designation as mutually agreed upon, in
Monaco’s advertisements and other Dealer communications.


 


8.             Confidentiality. 
The proprietary business information provided by one party to the other
regarding the implementation of this Agreement and the financing programs
provided under the Repurchase Agreement (together, the “Confidential
Information”) is intended to be confidential and shall not be made
available to third parties; provided, however, Monaco and CDF may
provide the Confidential Information to their respective agents,
representatives, employees, officers, directors, attorneys, accountants or
advisers (“Agents”) and to their respective corporate affiliates or
their Agents as may be necessary to evaluate the Confidential Information.  The term “Confidential Information” does not
include information which: (a) becomes generally available to the public, other
than a result of an unauthorized disclosure by either party; (b) becomes
available to either party on a non-confidential basis from a source (other than
the parties to this Agreement) which is to such party’s knowledge entitled to
disclose it; or (c) is either known by the disclosing party prior to the date
of this Agreement (other than solely as a result of the negotiations with
respect to this Agreement) or is developed by the disclosing party independent
of the Confidential Information.  Nothing
herein shall be construed to prohibit either party from disclosing the
Confidential Information pursuant to any court or governmental order, decree,
regulation or statute.


 


Each party agrees that
the terms and conditions, but not the existence, of this Agreement shall be
treated as the other’s Confidential Information and that no reference to the
terms and conditions of this Agreement may be made in any manner without the
prior written consent of the other party; provided, however, that each party
may disclose the terms and conditions of this Agreement:  (i) as required by any court or other
governmental body; (ii) as otherwise required by law; (iii) to legal counsel of
the parties; (iv) in connection with a securities filing (provided that Monaco
will consult with CDF to redact terms that CDF reasonably determines to be
sensitive to CDF’s business); (v) in confidence, in connection with the
enforcement of this Agreement or rights under this Agreement; (vi) in
confidence, in connection with a merger or acquisition or proposed merger or
acquisition, or the like; or (vii) consisting of the program rates set forth
herein to Dealers.


 


9.             Default/Remedies. 
The occurrence of any of the following events shall be deemed a “Default”
under this Agreement:  (a) any party’s
failure to pay when due any amount owed to another party hereunder or under any
other agreement between CDF and Monaco within ten (10) days after receipt of
notice from the other party of such default; (b) any party’s failure to perform
or observe any material covenant, term or provision hereunder, and, if such
default is capable of cure, such party fails to make effect a cure of the
default within thirty (30)


 


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days after receipt of
notice from the other party of such default; (c) termination of the Guaranty or
the Repurchase Agreement; (d) any party shall cease existence; (e) any party
ceases or suspends all or a all or substantially all of its business to which
this Agreement relates; (f) any party makes a general assignment for the
benefit of creditors; (g) any party becomes voluntarily or involuntarily files
a petition for bankruptcy under the Federal Bankruptcy Code, any state, federal
or provincial insolvency law or any similar law; (h) any receiver is appointed
for all or substantially all of the assets of any party; or (i) there is any
material adverse change in any party’s financial condition.  Upon the occurrence of any Default, any party
shall have the right, at its option, to immediately exercise one or more of the
following remedies: (a) in the case of CDF, refuse to extend any further
financing to Dealers; (b) terminate this Agreement; or (c) exercise any other
rights it may have under the laws of the state governing this Agreement.


 


10.           Amendment, Changes and Modification. 
This Agreement may be amended, changed or modified only as may be agreed
upon in writing by Monaco and CDF from time to time.  The express terms of this Agreement will not
be modified by any course of dealing, usage of trade, or custom of trade which
may deviate from the terms hereof.


 


11.           Binding Effect. 
This Agreement will be binding upon the parties, their successors and
assigns, provided, however, that Monaco shall not assign or attempt to assign
this Agreement, any other agreement or any of its interests under this
Agreement, without the prior written consent of CDF, which consent will not be
unreasonably withheld.


 


12.           Entire Agreement. 
This Agreement and the Terms Letter embodies the entire agreement of the
parties relating to the subject matter contained herein.  There are no promises, terms, conditions,
obligations or warranties other than those contained in this Agreement and the
Terms Letter.  This Agreement and the
Terms Letter supersede all prior communications, representations or agreements,
verbal or written, between the parties relating to this Agreement.


 


13.           Headings.  The headings
to the sections of this Agreement are included only for the convenience of the
parties and will not have the effect of defining, diminishing or enlarging the
rights of the parties or affecting the construction or interpretation of any
portion of this Agreement.


 


14.           Interpretation. 
For the purpose of construing this Agreement, unless the context otherwise
requires, words in the singular will be deemed to include words in the plural,
and vice versa.


 


15.           Notices.  Any notice
under the Agreement, will be in writing. 
Any notice to be given or document to be delivered under the Agreement
will be deemed to have been duly given upon delivery, if delivered in person or
by any expedited delivery service which provides proof of delivery, upon tested
telex or facsimile transmission, or on the fifth Business Day after mailing, if
mailed by certified mail, return receipt requested, postage prepaid mail,
addressed to CDF or Monaco at the appropriate addresses.  The addresses for notices are those set forth
below or such other addresses as may be hereafter specified by written notice
by the parties:


 


	
  to CDF

  	
   

  	
  GE Commercial
  Distribution Finance Corporation

  
	
   

  	
   

  	
  2625 South Plaza Drive

  
	
   

  	
   

  	
  Suite 201

  
	
   

  	
   

  	
  Tempe, Arizona 85282

  
	
   

  	
   

  	
  Attention: Leonard
  Buchan

  
	
   

  	
   

  	
  Facsimile No.: (480)
  829-3963

  



 


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  with a copy to:

  	
   

  	
  GE Commercial Distribution
  Finance Corporation

  
	
   

  	
   

  	
  5595 Trillium Boulevard

  
	
   

  	
   

  	
  Hoffman Estates,
  Illinois 60192

  
	
   

  	
   

  	
  Attention: General
  Counsel

  
	
   

  	
   

  	
  Facsimile No.: (847)
  747-7455

  
	
   

  	
   

  	
   

  
	
  to Monaco:

  	
   

  	
  Monaco Coach
  Corporation

  
	
   

  	
   

  	
  91320 Industrial Way

  
	
   

  	
   

  	
  Coburg, Oregon 97408

  
	
   

  	
   

  	
  Attention: Chief
  Financial Officer

  
	
   

  	
   

  	
  Facsimile No.: (541)
  681-8039

  



 


16.           No Third Party Beneficiary Rights and
Reliance.  No person or entity not a party to this
Agreement, including any Dealer, will have any benefit under this Agreement nor
have third-party beneficiary rights as a result of any of this Agreement, nor
will any party be entitled to rely on any actions or inactions of CDF or Monaco
or their agents, respectively, all of which are done for the sole benefit and
protection of CDF or Monaco, respectively.


 


17.           Relationship of the Parties. 
Neither CDF on the one hand nor Monaco on the other hand will be deemed
a partner, joint venturer or related entity of the other by reason of this
Agreement.


 


18.           Severability. 
If any provision of this Agreement (either generally, or as to a
specific application to a set of facts) will be held to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability will not affect
any other provision of this Agreement (either in its entirety, or as to or the
application of such provision to any other set of facts), but this Agreement
will be construed as if such invalid, illegal or unenforceable provision never
had been included in this Agreement.


 


19.           Counterparts. 
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and the
parties hereto may execute this Agreement by signing any such counterpart.


 


20.           BINDING ARBITRATION. 
Any controversy or claim arising out of or relating to this Agreement,
the relationship resulting in or from this Agreement, the breach of any duties
hereunder or any other relationship, transaction or dealing between the parties
(collectively “Disputes”) will be settled by binding arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”).  Any arbitration proceeding must be
instituted, with respect to any Dispute, within two (2) years after the date
the incident giving rise thereto occurred, whether or not any damage was
sustained or capable of ascertainment or either party knew of such
incident.  Failure to institute an
arbitration proceeding within such period will constitute an absolute bar and
waiver to the institution of any proceeding, whether arbitration or a court
proceeding, with respect to such Dispute. 
Notwithstanding the foregoing, this limitations provision will be
suspended temporarily as of the date any of the following events occur with
respect to Dealer or either party hereto and will not resume until the date the
Dealer or either party hereto is no longer subject to:  (i) bankruptcy, (ii) receivership, (iii) any
proceeding regarding an assignment for the benefit of creditors, or (iv) any
legal proceeding, civil or criminal, which prohibits either party from
foreclosing any interest it might have in the collateral of the Dealer.  Arbitration claims may be filed in any AAA
office.  Notwithstanding the foregoing, the
parties agree that either party may pursue claims against the other that do not
exceed Fifteen Thousand Dollars ($15,000) in the aggregate in a court of
competent jurisdiction.  Except as
otherwise stated herein, all notices, arbitration claims, responses, requests
and documents will be sufficiently given or served if mailed or delivered: (a)
to CDF at 5595 Trillium


 


9





















 


Boulevard, Hoffman
Estates, Illinois. 60192, Attention: 
General Counsel; and (b) to any other party at the address specified
herein; or such other address as the parties may specify from time to time in
writing.  The parties agree that all
arbitrators selected will be attorneys with at least five (5) years secured
transactions experience.  A panel of
three arbitrators shall hear all claims exceeding One Million Dollars
($1,000,000), exclusive of interest, costs and attorneys’ fees.  Each party hereby consents to a documentary
hearing for all arbitration claims, by submitting the dispute to the
arbitrator(s) by written briefs and affidavits, along with relevant documents.  However, arbitration claims will be submitted
by way of an oral hearing, if any party requests an oral hearing within forty
(40) days after service of the claim, and that party remits the appropriate
deposit for AAA’s fees and arbitrator compensation within ten (10) days of
making the request.  Each party agrees
that failure to timely pay all fees and arbitrator compensation billed to the
party requesting the oral hearing will be deemed such party’s consent to
submitting the Dispute to the arbitrator on documents and such party’s waiver
of its request for oral hearing. The site of all oral arbitration hearings will
be in the Division of the Federal Judicial District in which AAA maintains a
regional office that is closest to Monaco. 
Any award rendered by the arbitrator(s) may be entered as a judgment or
order and confirmed or enforced by either party in any state or federal court
having competent jurisdiction thereof. 
Nothing herein will be construed to prevent CDF’s or Monaco’s use of
bankruptcy, receivership, injunction, repossession, replevin, claim and
delivery, sequestration, seizure, attachment, foreclosure, and/or any other
prejudgment or provisional action or remedy relating to any Inventory for any
current or future debt owed by either party to the other.  Any such action or remedy will not waive CDF’s
or Monaco’s right to compel arbitration of any Dispute.  The non-prevailing party will pay all of the
costs and expenses (including, without limitation, reasonable attorneys’ fees)
incurred by the prevailing party in any arbitration proceeding.  If either party brings or appeals any
judicial action to vacate or modify any award rendered pursuant to arbitration
or opposes the confirmation of such award and the party bringing or appealing
such action or opposing confirmation of such award does not prevail, such party
will pay all of the costs and expenses (including, without limitation, court
costs, arbitrators fees and expenses and attorneys’ fees) incurred by the other
party in defending such action. 
Additionally, if either party brings any action for judicial relief in
the first instance without pursuing arbitration prior thereto, the party
bringing such action for judicial relief will be liable for and will immediately
pay to the other party all of the other party’s costs and expenses (including,
without limitation, court costs and attorneys’ fees) to stay or dismiss such
judicial action and/or remove it to arbitration.  The failure of either party to exercise any
rights granted hereunder shall not operate as a waiver of any of those
rights.  This Agreement concerns
transactions involving commerce among the several states.  The arbitrators will not be empowered to
award exemplary or punitive damages.  The
arbitrator(s) will decide if any inconsistency exists between the rules of the
applicable arbitral forum and the arbitration provisions contained herein.  If such inconsistency exists, the arbitration
provisions contained herein will control and supersede such rules. The
agreement to arbitrate will survive termination of this Agreement.


 


21.           JURY
TRIAL WAIVER; CONSENT TO JURISDICTION; PUNITIVE DAMAGE WAIVER. IF THIS
AGREEMENT IS FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL PROCEEDING WITH
RESPECT TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE WITHOUT A JURY.  MONACO AND CDF
WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING. SIMILARLY, IF THIS
AGREEMENT OR A PARTICULAR DISPUTE HEREUNDER IS NOT SUBJECT TO ARBITRATION,
MONACO HEREBY CONSENTS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT
LOCATED WITHIN ILLINOIS AND WAIVES ANY OBJECTION WHICH MONACO MAY HAVE BASED ON
IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY ACTION OR
PROCEEDING IN ANY SUCH COURT. THE PARTIES HEREBY WAIVE ANY RIGHT TO PUNITIVE
DAMAGES OF ANY


 


10





















 


KIND AGAINST THE OTHER IN ANY
PROCEEDING OR AWARD, WHETHER IN ARBITRATION OR LITIGATION.


 


22.           Governing Law. The laws of the state of Illinois will
govern this agreement and all transactions hereunder as to interpretation,
enforcement, validity, construction, effect and in all other respects;
provided, however, that the Federal Arbitration Act (“FAA”), to the
extent inconsistent, will supersede the laws of such state and govern all arbitration
proceedings hereunder.


 


IN WITNESS WHEREOF, the
parties have, by their duly authorized officers, executed this Agreement as of
the 28th day of June, 2005.


 


THIS AGREEMENT CONTAINS BINDING
ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGES WAIVER PROVISIONS


 


 


MONACO COACH CORPORATION


 


 


	
  By: 

  	
  /s/: John W. Nepute

  	
   

  
	
   

  
	
  Print Name: John W.
  Nepute

  
	
   

  
	
  Title: President

  
	
   

  
	
   

  
	
  GE COMMERCIAL
  DISTRIBUTION FINANCE CORPORATION

  
	
   

  
	
   

  
	
  By: 

  	
  /s/: Leonard F. Buchan

  	
   

  
	
   

  
	
  Print Name: Leonard F.
  Buchan

  
	
   

  
	
  Title: President, RV Group

  
				



 


11





















 


Exhibit A


 


Risk Pool
Designation


 


Dealer Name: 


 


Pursuant to the Program
Agreement between Monaco Coach Corporation and GE Commercial Distribution
Finance Corporation, Dealer is placed in (check ý the applicable option):


 


ý                 Risk
Pool A


 


ý                 Risk
Pool B


 


The amount of Dealer’s
credit facility for the indicated Risk Pool is $


 


Date:                      ,
20


 


 


	
  MONACO COACH
  CORPORATION

  	
  GE COMMERCIAL
  DISTRIBUTION

  
	
   

  	
  FINANCE CORPORATION

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
											



 


12