10000000601

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Richard M. Pachulski (CA Bar No. 90073)
James I. Stang (CA Bar No. 94435)
Dean A. Ziehl (CA Bar No. 84529)
Linda F. Cantor (CA Bar No. 153762)
Debra I. Grassgreen (CA Bar No. 169978)
PACHULSKI STANG ZIEHL & JONES LLP
10100 Santa Monica Blvd., Suite 1300
Los Angeles, CA 90067-4114
Telephone: 310/277-6910
Facsimile: 310/201-0760
E-mail: rpachulski@pszjlaw.com
jstang@pszjlaw.com
dziehl@pszjlaw.com
lcantor@pszjlaw.com
dgrassgreen@pszjlaw.com

Proposed Attorneys for Debtor and
Debtor in Possession

UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SANTA ANA DIVISION

In re:

American Suzuki Motor Corporation,
1

Debtor.
Case No.: 12- ( )

Chapter 11

NOTICE OF EMERGENCY MOTION AND
EMERGENCY MOTION FOR AN ORDER
AUTHORIZING THE DEBTOR (I) TO
ASSUME CERTAIN SERVICES
AGREEMENT WITH SHEFFIELD
FINANCIAL AND (II) PENDING
ASSUMPTION, TO OPERATE (INCLUDING
PAYMENT OF PREPETITION
OBLIGATIONS) UNDER THE AGREEMENT
PURSUANT TO 11 U.S.C. 105(A), 362, 363,
365 AND 503(b); MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT
THEREOF

[Declaration of M. Freddie Reiss, Proposed Chief
Restructuring Officer, in Support of Emergency
First Day Motions Filed Concurrently Herewith]

TO THE HONORABLE UNITED STATES BANKRUPTCY JUDGE, THE DEBTORS
PREPETITION AND POSTPETITION LENDER, SHEFFIELD FINANCIAL, THE
CREDITORS APPEARING ON THE LIST FILED IN ACCORDANCE WITH RULE
1007(D) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE, PARTIES

1
The last four digits of the Debtors federal tax identification number are (8739). The Debtors address is: 3251 East
Imperial Highway, Brea, CA 92821.
Case 8:12-bk-22808-CB Doc 5 Filed 11/05/12 Entered 11/05/12 17:37:03 Desc
Main Document Page 1 of 53
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REQUESTING SPECIAL NOTICE, AND THE OFFICE OF THE UNITED STATES
TRUSTEE:
PLEASE TAKE NOTICE that American Suzuki Motor Corporation, the above-captioned
debtor and debtor in possession (the Debtor), hereby moves this Court, on an emergency basis, for
entry of an order, pursuant to sections 105(a), 362, 363, 364(a), 365 and 503(b) of title 11 of the
United States Code (the Bankruptcy Code) and Rules 2002, 4001, 6004, 6006 and 9014(1) of the
Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), authorizing the Debtor (i) to
assume that certain prepetition Confidential Financing Services Agreement (the Agreement, which
is described further below) with Sheffield Financial, a division of BB&T Financial FSB (including
its successors and assigns, Sheffield), and (ii) pending assumption under section 365 of the
Bankruptcy Code, to continue operating its business on the terms and conditions of the Agreement
(including payments on account of prepetition obligations) during this chapter 11 case, subject to
further or other Court orders. A copy of the Agreement with Sheffield is attached hereto as Exhibit
A. Although the Agreement has certain confidentiality requirements therein, Sheffield has
consented to the disclosure of the information contained herein subject to redaction of the
Agreement to protect commercially proprietary information, and a copy of the redacted Agreement
being attached hereto.
Prior to the commencement of this case, Sheffield offered financing to consumer purchasers
of the Debtors Suzuki-brand products, including motorcycles and all-terrain vehicles (ATVs), from
the Debtors authorized dealers. The continued provision of consumer financing by Sheffield is
essential to the Debtors business operations. Absent Sheffield continuing to provide such financing
and other arrangements postpetition, many of the Debtors customers would be unable to finance the
purchase of Suzuki vehicles and products distributed by the Debtor and the Debtors flow of revenue
would be substantially harmed. By its Motion, the Debtor seeks to assume the Agreement to ensure
that Sheffield continues to perform under the Agreement and provide customer financing in
connection therewith. Pending assumption, the Debtor seeks an order to ensure Sheffield that the
Debtor intends to and will continue operating its business on the terms and conditions of the parties
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prepetition arrangements, in order to incentivize Sheffield to continue to furnish services described
in the Agreement until the Agreement is assumed.
PLEASE TAKE FURTHER NOTICE that the Motion is based on this Notice and Motion,
the Notice of Emergency Motions that will be filed and served after obtaining a hearing date for the
Debtors First Day Motions, the annexed Memorandum of Points and Authorities, the Declaration
of M. Freddie Reiss, Proposed Chief Restructuring Officer, in Support of Emergency First Day
Motions (the Reiss Declaration), the arguments of counsel, and other admissible evidence properly
brought before the Court at or before the hearing on this Motion.
PLEASE TAKE FURTHER NOTICE that pursuant to Local Bankruptcy Rule 2081-1, this
Motion may be heard on less than two court days notice. The Debtor requests that the relief sought
herein be granted on an emergency basis because obtaining or otherwise facilitating services by
Sheffield under or in connection with the Agreement on an uninterrupted basis is essential to the
Debtors business operations. Granting the relief requested in this Motion on an emergency basis
will benefit the estate immediately by assuring that the Debtors ordinary course of business is able
to continue uninterrupted postpetition and that customers are able to purchase the Debtors products.
The Debtor respectfully requests that the Court schedule a hearing on this Motion at the same time
as other emergency first day motions.
PLEASE TAKE FURTHER NOTICE that the Debtor will serve this Notice and Motion
and the attached Memorandum of Points and Authorities on: (a) the Office of the United States
Trustee, (b) the creditors appearing on the list filed in accordance with Rule 1007(d) of the Federal
Rules of Bankruptcy Procedure (the Bankruptcy Rules), (c) counsel to Suzuki Motor Corporation,
the Debtors prepetition and postpetition lender, (d) Sheffield, and (e) the parties that file with the
Court requests for notice of all matters in accordance with Bankruptcy Rule 2002. To the extent
necessary, the Debtor requests that the Court waive compliance with Local Bankruptcy Rule 9075-1
and approve service (in addition to the means of service set forth in such Local Bankruptcy Rule) by
overnight or electronic delivery. In the event that the Court grants the relief requested by the
Motion, the Debtor shall provide notice of the entry of the order granting such relief upon each of
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the foregoing parties and any other parties-in-interest as the Court directs. The Debtor submits that
such notice is sufficient and that no other or further notice be given.
PLEASE TAKE FURTHER NOTICE that any opposition or other response to the Motion
must be filed with the Court and served on proposed counsel for the Debtor at the above address any
time before the hearing or presented at the hearing on the Motion at the time and place set forth in
the Notice of Hearing on Emergency Motions. Your failure to timely object may be deemed by the
Court to constitute consent to the relief requested herein.
WHEREFORE the Debtor respectfully requests that the Court grant this Motion and enter
an order (i) authorizing the Debtor to assume the Agreement; and (ii) in the event that the Court does
not authorize immediate assumption, authorizing the Debtor to continue operating its business on the
terms and conditions (including payment of prepetition obligations) of the Agreement pending
assumption; and (iii) granting the Debtor such other relief as the Court deems necessary and
appropriate.
Dated: November 5, 2012 PACHULSKI STANG ZIEHL & JONES LLP
By: /s/ Debra I. Grassgreen
Richard M. Pachulski
James I. Stang
Dean A. Ziehl
Debra I. Grassgreen
Linda F. Cantor

Proposed Attorneys for Debtor
and Debtor in Possession
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TABLE OF CONTENTS
I. BACKGROUND ........................................................................................................................ 2
A. Jurisdiction and Venue ........................................................................................... 2
B. General Background .............................................................................................. 2
C. PrePetition Arrangements with Sheffield .............................................................. 4
II. RELIEF REQUESTED ............................................................................................................. 6
III. DEBTORS ASSUMPTION OF THE AGREEMENT IS BASED ON SOUND
BUSINESS JUDGMENT .................................................................................................. 7
IV. PENDING ASSUMPTION, DEBTORS CONTINUED PERFORMANCE UNDER
THE AGREEMENT IS AMPLY JUSTIFIED .................................................................. 9
V. COMPLIANCE WITH BANKRUPTCY RULE 6003(B) AND WAIVER OF
BANKRUPTCY RULE 6004 .......................................................................................... 11
VI. CONCLUSION...................................................................................................................... 12

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TABLE OF AUTHORITIES
Cases
Control Data Corp. v. Zelman (In re Minges)
602 F.2d 38 (2d Cir. 1979) ............................................................................................................... 7
Equity Funding Corp. of Am. v. Fin. Assocs. (In re Equity Funding Corp.)
492 F.2d 793 (9th Cir. 1974) .......................................................................................................... 10
In re Canyon Partnership
55 B.R. 520 (Bankr. S.D. Cal. 1985) ................................................................................................ 9
In re Chrysler, LLC, et al.
Case No. 09-50002 (AJG) (Docket No. 789) (Bankr. S.D.N.Y. 2009) .......................................... 10
In re Continental Airlines, Inc.
780 F.2d 1223 (5th Cir. 1986) ........................................................................................................ 10
In re Curlew Valley Assocs.
14 B.R. 506 (Bankr. D. Utah 1981) ................................................................................................ 10
In re G Survivor Corp.
171 B.R. 755 (Bankr. S.D.N.Y. 1994) .............................................................................................. 8
In re General Motors Corp., et al.
Case No. 09-50026 (REG) (Docket No. 178) (Bankr. S.D.N.Y. 2009) ......................................... 10
In re III Enterprises, Inc.
163 B.R. 453 (Bankr. E.D. Pa. 1994) ............................................................................................... 7
In re Lionel Corp.
722 F.2d 1063 (2d Cir. 1983) ......................................................................................................... 10
In re Moore
110 B.R. 924 (Bankr. C.D. Cal. 1990) .............................................................................................. 9
In re Riodizio, Inc.
204 B.R. 417 (Bankr. S.D.N.Y. 1997) .............................................................................................. 8
Meyers v. Martin (In re Martin)
91 F.3d 389 (3d Cir. 1996) ............................................................................................................. 10
NLRB v. Bildisco & Bildisco
465 U.S. 513 (1984) .......................................................................................................................... 7
Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion Pictures Corp.)
4 F.3d 1095 (2d Cir. 1993) ............................................................................................................... 7
Sharon Steel Corp. v. Natl Fuel Gas Distrib. Corp. (In re Sharon Steel Corp.)
872 F.2d 36 (3d Cir. 1989) ............................................................................................................... 7
Walter v. Sunwest Bank (In re Walter)
83 B.R. 14 (B.A.P. 9th Cir. 1988) .............................................................................................. 9, 10
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Statutes
11 U.S.C. 1107 ................................................................................................................................... 2
11 U.S.C. 363 ..................................................................................................................................... 9
11 U.S.C. 365 ................................................................................................................................. 7, 9
28 U.S.C. 1334 ................................................................................................................................... 2
28 U.S.C. 1408 ................................................................................................................................... 2
28 U.S.C. 1409 ................................................................................................................................... 2
28 U.S.C. 157 ..................................................................................................................................... 2
Rules
Fed. R. Bankr. P. 6003 ........................................................................................................................ 11
Fed. R. Bankr. P. 6004 ........................................................................................................................ 11

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Telephone: 310/277-6910
Facsimile: 310/201-0760
jstang@pszjlaw.com
dziehl@pszjlaw.com
lcantor@pszjlaw.com


SANTA ANA DIVISION

In re:

1

Debtor.
Case No.: 12-_____ (___)

Chapter 11

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
EMERGENCY MOTION AUTHORIZING
THE DEBTOR (I) TO ASSUME CERTAIN
SERVICES AGREEMENT WITH
SHEFFIELD FINANCIAL AND
(II) PENDING ASSUMPTION, TO
OPERATE (INCLUDING PAYMENT OF
PREPETITION OBLIGATIONS) UNDER
THE AGREEMENT PURSUANT TO 11
U.S.C. 105(a), 362, 363, 365 AND 503(B)

[Declaration of M. Freddie Reiss in Support of
Emergency First Day Motions Filed
Concurrently Herewith]
American Suzuki Motor Corporation, the above-captioned debtor and debtor in possession
(the Debtor), hereby files this Memorandum of Points and Authorities in support of its Emergency
Motion for an Order Authorizing the Debtor (I) to Assume Certain Services Agreement with
Sheffield Financial and (II) Pending Assumption, to Operate Its Business (Including Payment of

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Prepetition Obligations) Under the Agreement Pursuant to 11 U.S.C. 105(a), 362, 363, 365 and
503(b), and respectively represents as follows:
I.
BACKGROUND
A. Jurisdiction and Venue
The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334. This is a
core proceeding pursuant to 28 U.S.C. 157(b)(2). Venue is proper pursuant to 28 U.S.C.
1408 and 1409.
B. General Background
On the date hereof (the Petition Date), the Debtor filed a voluntary petition for relief under
chapter 11 of title 11 of the United States Code (the Bankruptcy Code). The Debtor continues to
operate and manage its affairs as a debtor in possession pursuant to sections 1107(a) and 1108 of the
Bankruptcy Code. No trustee, examiner, or committee has been appointed in this chapter 11 case.
The Debtor was established in 1986 as the sole distributor in the continental United States of
Suzuki automobiles, motorcycles, all-terrain vehicles, and marine outboard engines (the Suzuki
Products). Suzuki Motor Corporation (SMC), the 100% interest holder in the Debtor,
manufacturers substantially all of the Suzuki Products
2
and is not a debtor in this or any other
insolvency proceeding. As of the Petition Date, the Debtor has approximately 295 employees across
three divisions: automotive (the Automotive Division), motorcycles and all-terrain vehicles (the
Motorcycles/ATV Division), and outboard marine motors and related products (the Marine
Division).
In the operation of its business, the Debtor purchases Suzuki Products from SMC and certain
other non-debtor affiliates. In turn, the Debtor wholesales virtually its entire inventory through a
network of independently owned and unaffiliated dealerships located throughout the continental
United States. The dealers then market and sell the Suzuki Products to retail customers. As of the

2
The ATVs are manufactured by an 80% owned affiliate of the Debtor. An overview of the Suzuki Products
manufactured by SMC, its affiliates, and certain unaffiliated entities is included in the Declaration of M. Freddie Reiss,
Proposed Chief Restructuring Officer, in Support of Emergency First Day Motions.
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Petition Date, there are approximately 220 automotive dealerships, over 900 motorcycle/ATV
dealerships, and over 780 outboard marine dealerships.
Through dealers, the Debtor also sells a portion of its automotive inventory (less than 10%)
to car rental companies and others (less than 2%) that lease the vehicles to retail customers. The
Debtor also purchases the majority of its automotive parts from SMC and certain unaffiliated
companies and resells them to the automotive dealers and authorized warranty service providers.
The Debtor determined that its Automotive Division is facing and will continue to face a
number of serious challenges in the highly regulated and competitive automotive industry in the
continental U.S. market. The challenges include unfavorable foreign exchange rates,
disproportionally high and increasing costs associated with meeting more stringent state and federal
automotive regulatory requirements unique to the continental U.S. market, low sales volumes, a
limited number of models in its line-up, and existing and potential litigation costs. The Debtor has
exhausted all available means to reduce the cost of operating the Automotive Division for it to
operate profitably. Accordingly, the Debtor determined that the best way to preserve and enhance
the value of its overall business is to wind down new sales of the Automotive Division in the
continental U.S. and realign its business focus on the long-term growth of its Motorcycles/ATV and
Marine Divisions.
Contemporaneous with the filing of this case, the Debtor filed a plan of reorganization (the
Plan). Under the proposed Plan, the Motorcycles/ATV and Marine Divisions will remain largely
unaffected including the warranties associated with such products. As part of its restructuring,
NounCo, Inc., a wholly owned subsidiary of SMC, will purchase the Motorcycles/ATV and Marine
Divisions and the parts and service components of the Automotive Division. The restructured
Automotive Division intends to honor automotive warranties and authorize the sale of genuine
Suzuki automotive parts and services to retail customers through a network of parts and service only
dealerships that will provide warranty services.
The Debtors Motorcycles/ATV Division is strong and competitively positioned in its
market, allowing for long-term growth as economic conditions improve. Similarly, the Marine
Division has remained competitive during the recent challenging economic times and the Debtor is
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working to further build its market share in the marine industry through continued investment in new
product development and resuming large-scale marketing events focused on attracting new marine
customers. The strategy embodied in the proposed Plan returns the business to its roots in the U.S.
market, which began with motorcycles, and is intended to position the overall business for success in
the continental U.S. for the benefit of all parties in interest.
The Suzuki name is recognized around the world as a brand of quality products that offer
reliability and originality. SMC has informed the Debtor that it continues to invest in its operations,
improve its overall performance worldwide, and remains committed to manufacturing Suzuki
Products for customers around the world. SMCs manufacturing and world-wide distribution of
Suzuki automobiles will continue despite the Debtors wind down of the continental U.S.
Automotive Division.
Additional factual background regarding the Debtor, including its current and historical
business operations and the events precipitating its chapter 11 filing, is set forth in detail in the
Declaration of M. Freddie Reiss, Proposed Chief Restructuring Officer, in Support of Emergency
First Day Motions (the Reiss Declaration) filed contemporaneously with this Motion and
incorporated herein by reference.
C. PrePetition Arrangements with Sheffield
The Debtor and Sheffield Financial, a division of BB&T Financial FSB (including its
successors and assigns, "Sheffield"), are parties to that certain Confidential Financing Services
Agreement dated as of February 15, 2011 (a redacted
3
copy of which is attached hereto as Exhibit
A). As of the Petition Date, the parties arrangement provided, among other things, the following
4
:
(i) Background/Purpose: Sheffield is engaged in providing open-end credit financing to
the Debtors motorcycle/ATV/scooter/UTV dealers retail customers; Sheffield will continue to offer

3
The Agreement has been redacted to protect commercially proprietary and sensitive information. An unredacted copy
of the Agreement will be provided to the Court and to counsel for parties in interest, other than competitors of Sheffield,
who are willing to execute an appropriate confidentiality agreement.
4
The description provided above of the parties pre-petition arrangement is a summary only. If and to the extent there is
any discrepancy between the summary above and the specific terms and conditions of the Agreement, the latter shall
control. Capitalized terms that are not defined herein are defined in the Agreement.
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such open-end credit and also offer installment loans and other financing products to such
customers.
(ii) Marketing: The Debtor agrees with Sheffield to establish a marketing program
whereby the Debtor is to provide Sheffield access to and information regarding the Debtors dealer
network so that Sheffield may offer its financing options through dealers to customers. Sheffield
will operate under its own business / trade name, and the Debtor will publicly endorse and encourage
its dealers to participate in the financing programs, through written materials and oral promotions to
dealers and customers.
(iii) Financing Plans: Sheffields financing plans are generally developed/marketed by
Sheffield in its sole discretion. Dealers are not party to the Agreement. Financing plans include
open-end credit through issuance of Sheffield Revolving Credit Cards through participating dealers
to retail customers (Sheffield to generally provide 6 months prior notice to the Debtor of intent to
terminate offering such financing services); installment loans to customers; and other financing
services agreed upon by Sheffield and the Debtor. Generally, Sheffield and the Debtor are to
mutually agree on specific rates, terms and provisions applicable to financing plans, subject to
certain conditions and qualifications (secs. 6.2, 6.7).
(iv) Cooperation/Reports: The Debtor is to deliver information regarding its business and
operations reasonably requested by Sheffield to enable Sheffield to evaluate the financing programs
and other matters. The Debtor is to use reasonable efforts to direct inquiries to Sheffield and
cooperate in connection with the resolution of disputes with Suzuki dealers/customers. Sheffield is
to provide reports containing approval ratio information, dealer volume information, and other
information as relating to the financing of Suzuki products. An operating committee with respective
representatives of the Debtor and Sheffield are to meet annually (or more frequently) to discuss the
marketing program, pricing adjustments and other aspects of the financing plans. Generally, the
parties are to use good faith efforts to renegotiate on an annual basis.
(v) Payments: After Sheffield gives the Debtor each month a listing of Suzuki products
being financed under the financing programs for the prior month and promotion, amount financed
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and other information, the Debtor is to pay within 30 days amounts calculated as being owed by it
under the Agreement (sec. 6.6).
II.
RELIEF REQUESTED
A substantial portion of the retail and other related product financing received by the
Debtors dealers customers is provided through Sheffield. Absent Sheffield continuing to provide
such financing and other arrangements postpetition, many of the Debtors customers would be
unable to finance the purchase of Suzuki vehicles and products distributed by the Debtor and the
Debtors flow of revenue would be substantially harmed. Thus, by the Motion, the Debtor seeks
authorization to assume the Agreement pursuant to section 365 of the Bankruptcy Code in order to
facilitate the provision of such critical financing to customers, redounding to the benefit of the
Debtor and its estate. Pending assumption, the Debtor seeks an order to ensure Sheffield that the
Debtor intends to and will continue operating its business on the terms and conditions of the
Agreement in order to incentivize Sheffield to continue to furnish services on the terms and
conditions of the Agreement. The continuation of this relationship is vital to the preservation and
maintenance of the going concern value of the Debtor, and the Debtors ability to continue operating
would be considerably tested without the continued support of Sheffield. The granting of the Motion
will assure Sheffield of continued performance under the Agreement.
More specifically, the Debtor has an immediate and critical need to continue such
arrangements with Sheffield in order to, among other things, (i) permit the orderly continuation of
the operation of its business, (ii) maintain business relationships with dealerships, customers, and
other parties, and (iii) provide certain retail financing to the Debtors and dealers customers.
Absent the relief requested by this Motion, the Debtor understands that Sheffield may not agree to
continue to provide financing to the dealers retail customers postpetition.
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such financing by Sheffield, the Debtors sales of vehicles and products would likely substantially

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If the Court does not approve assumption on an emergency basis, Sheffield is not willing to continue to operate under
the Agreement beyond the date on which the Court can consider the assumption of the Agreement on regular notice. The
Debtor reserves all of its rights in respect to any actions that Sheffield may attempt to take in respect to the Agreement if
the Debtors request to assume the Agreement is denied.
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drop, as consumers would have fewer financing options to purchase Suzuki products. This would
have a devastating impact on the Debtors businesses and would jeopardize its ability to continue as
a going concern at this critical juncture. Accordingly, granting of the Motion is vital to the Debtors
operations during its chapter 11 case and is therefore in the best interests of the Debtor, its creditors
and all parties in interest. A proposed form of order is annexed hereto as Exhibit B.
III.

DEBTORS ASSUMPTION OF
THE AGREEMENT IS BASED ON SOUND BUSINESS JUDGMENT
Section 365(a) of the Bankruptcy Code authorizes a debtor in possession to assume an
executory contract or unexpired lease subject to bankruptcy court approval. Section 365(a) of the
Bankruptcy Code provides:
Except as provided in sections 765 and 766 of this title and in subsections (b), (c), and
(d), the trustee, subject to the courts approval, may assume or reject any executory
contract or unexpired lease of the debtor.
11 U.S.C. 365(a).
The appropriate standard to determine whether the assumption of an executory contract
should be approved is the business judgment standard. The business judgment standard requires
only that the assumption be in the best interest of the Debtor. See NLRB v. Bildisco & Bildisco, 465
U.S. 513, 523 (1984); Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion Pictures Corp.),
4 F.3d 1095, 1098-99 (2d Cir. 1993); Control Data Corp. v. Zelman (In re Minges), 602 F.2d 38, 42
(2d Cir. 1979). This test is fundamentally identical to the standard for the use, sale, or lease of
property of the Debtor outside the ordinary course of business pursuant to section 363(b) of the
Bankruptcy Code. See Sharon Steel Corp. v. Natl Fuel Gas Distrib. Corp. (In re Sharon Steel
Corp.), 872 F.2d 36, 40 (3d Cir. 1989); In re III Enterprises, Inc., 163 B.R. 453, 469 (Bankr. E.D.
Pa. 1994) (stating that [g]enerally, a court will give great deference to a Debtors decision to
assume or reject a contract. A debtor need only show that its decision to assume or reject the contract
is an exercise of sound business judgment a standard which we have concluded many times is not
difficult to meet.). Upon finding that the debtor has exercised sound business judgment in
determining that the assumption of an executory contract is in the best interests of the debtor, the
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court should approve such assumption under section 365(a) of the Bankruptcy Code. See, e.g., In re
Riodizio, Inc., 204 B.R. 417, 424 (Bankr. S.D.N.Y. 1997); In re G Survivor Corp., 171 B.R. 755,
757 (Bankr. S.D.N.Y. 1994).
In the instant matter, the number of lenders available to provide the financing to customers
necessary to support the Debtors businesses is limited. Prepetition, Sheffield was a significant
source of financing for the Debtors dealers customers to purchase Suzuki products; in 2011,
Sheffield provided financing to approximately 13,000 such customers. The loss of the financing and
other arrangements provided by Sheffield would likely be devastating, resulting in great harm to the
Debtors businesses and the estate. Indeed, absent the requested relief, many of the Debtors
customers would be left without any other comparable or viable financing options, which could
result in irreparable harm to the Debtors businesses and significantly jeopardize the Debtors ability
to maximize its value as a going concern. Moreover, the continuation of the Debtors relationship
with Sheffield pursuant to the Agreement will preserve and restore confidence to the Debtors
dealers and consumers, as well as its employees and vendors, thereby further preserving and
enhancing the value of the Debtors estate.
Accordingly, the Debtor has determined, in its reasonable business judgment, that it is critical
to its business to assume and continue honoring the Agreement in order for the Debtor to be able to
continue to offer or facilitate requisite financing to its customers during the chapter 11 case. The
Debtor is informed and understands that Sheffield consents to the Debtors proposed assumption of
the Agreement.
Further, the Debtor is current with respect to its monetary obligations under the Agreement
but owes Sheffield for services rendered in October and the prepetition portion of November 2012,
and no adequate assurance has been requested of the Debtor. To the extent that any amounts are
owed to Sheffield as of the Petition Date (for example, on account of prepetition services that had
not yet been billed as of the Petition Date), the Debtor will cure defaults as required by section 365
of the Bankruptcy Code by making payment to Sheffield upon entry of an order approving
assumption of the Agreement and in accordance with the terms and conditions of the Agreement.
Under these terms and conditions, Sheffield consents to the Debtors assumption of the Agreement.
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Based on the foregoing, the assumption of the Agreement is reasonable and in the best
interests of the Debtor, the estate and its creditors under the circumstances.
IV.

PENDING ASSUMPTION, DEBTORS
CONTINUED PERFORMANCE UNDER THE AGREEMENT IS AMPLY JUSTIFIED
The Debtor believes that it can immediately assume the Agreement under section 365 of the
Bankruptcy Code, particularly given that Sheffield consents to such assumption. Notwithstanding
the foregoing, if assumption is delayed for any reason, the Debtor seeks express authorization to
continue to perform under the Agreement and honor all obligations thereunder in the ordinary
course, including the payment of any obligations that may be considered prepetition in nature,
pending assumption of the Agreement under section 365 of the Bankruptcy Code.
Given the history of prior performance under the Agreement, the Debtor believes that its
planned continued performance under the Agreement postpetition constitutes transactions in the
ordinary course of business under section 363(c)(1) of the Bankruptcy Code. Nonetheless, out of an
abundance of caution, the Debtor submits that its actions are proper and warranted under section
363(b) if applicable.
Section 363(b) of the Bankruptcy Code provides, in relevant part, that a debtor in possession,
after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business,
property of the estate. 11 U.S.C. 363(b)(1). A debtors application of its sound business judgment
in the use, sale, or lease of property is subject to great judicial deference. See, e.g., In re Moore, 110
B.R. 924 (Bankr. C.D. Cal. 1990); In re Canyon Partnership, 55 B.R. 520 (Bankr. S.D. Cal. 1985);
see also Walter v. Sunwest Bank (In re Walter), 83 B.R. 14, 19-20 (B.A.P. 9th Cir. 1988) ([T]here
must be some articulated business justification for using, selling, or leasing the property outside the
ordinary course of business . . . whether the proffered business justification is sufficient depends on
the facts of the case. As the Second Circuit held in Lionel, the bankruptcy judge should consider all
salient factors pertaining to the proceeding and, accordingly, act to further the diverse interests of the
debtor, creditors and equity holders, alike.).
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In interpreting section 363(b)(1) of the Bankruptcy Code, courts have held that a transaction
involving property of the estate generally should be approved where the debtor or trustee can
demonstrate some articulated business justification for using, selling, or leasing property outside of
the ordinary course of business. In re Continental Airlines, Inc., 780 F.2d 1223, 1226 (5th Cir.
1986); accord In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir. 1983); Walter, 83 B.R. at 19-20; In
re Curlew Valley Assocs., 14 B.R. 506, 513-14 (Bankr. D. Utah 1981); Meyers v. Martin (In re
Martin), 91 F.3d 389, 395 (3d Cir. 1996) (approval where a sound business purpose exists). Among
other factors, courts should consider the consideration to be paid, the financial condition and needs
of the debtor, the qualifications of the buyer, and whether a risk exists that the assets proposed to be
sold would decline in value if left in the debtors possession. See Equity Funding Corp. of Am. v.
Fin. Assocs. (In re Equity Funding Corp.), 492 F.2d 793, 794 (9th Cir. 1974) (affirming trial courts
finding that the proposed sale of the debtors assets would be in the best interest of the estate in light
of impending deterioration of market value of debtors assets).
Here, the Debtor is clearly exercising its sound business judgment in determining to continue
to perform under the Agreement. As noted above, the Debtors ability to continue to operate its
businesses and successfully reorganize is dependent to a significant extent on Sheffield continuing to
provide the financing to customers and other arrangements postpetition pursuant to or in connection
with the Agreement. In other automobile and similar industry cases, various bankruptcy courts have
granted relief similar or analogous to the relief requested in this Motion. See, e.g., In re General
Motors Corp., et al., Case No. 09-50026 (REG) (Docket No. 178) (Bankr. S.D.N.Y. 2009)
(authorizing debtors to enter into a ratification agreement with GMAC LLC that ratified prepetition
agreements and the debtors continued performance thereunder); In re Chrysler, LLC, et al., Case
No. 09-50002 (AJG) (Docket No. 789) (Bankr. S.D.N.Y. 2009) (approving debtors request to enter
into a master financial services agreement with GMAC). Absent authority to continue to honor the
Agreement (to the extent not already authorized under the Bankruptcy Code) pending assumption,
numerous consumers will likely be left unable to promptly finance their purchase of the Debtors
vehicles and products. Accordingly, the Debtor respectfully requests that the Court authorize it to
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perform its obligations under the Agreement, pursuant to section 363 of the Bankruptcy Code,
pending final consideration of the Debtor's request to assume it.

V.

COMPLIANCE WITH
BANKRUPTCY RULE 6003(B) AND WAIVER OF BANKRUPTCY RULE 6004
Pursuant to Rule 6003(b) of the Federal Rules of Bankruptcy Procedure, a motion to pay all
or part of a claim that arose before the filing of the petition shall not be granted by the Court within
21 days of the Petition Date [e]xcept to the extent that relief is necessary to avoid immediate and
irreparable harm . . . . Fed. R. Bankr. P. 6003(b).
The Debtor believes that there are no material monetary defaults for which payments to
Sheffield are due and owing under the Agreement as of the Petition Date, except potentially with
respect to amounts owed for prepetition services that had not yet been billed as of the Petition Date.
Nonetheless, if and to the extent any of the above-described obligations under the Agreement may be
determined to be claims against the estate that arose prior to the Petition Date, for the reasons
described herein and in the Reiss Declaration, the Debtor submits that the requirements of
Bankruptcy Rule 6003 have been met and that the relief requested in the Motion is necessary to
avoid immediate and irreparable harm to the Debtor and its estate. If the Debtor is not able to honor
its obligations under the Agreement, the Debtors ability to offer or facilitate competitive financing
to its customers will be significantly impacted, which will negatively impact the Debtors revenue
and greatly harm the estate.
Further, to implement the foregoing successfully, the Debtor seeks a waiver of the notice
requirements under Bankruptcy Rule 6004(a) and the fourteen-day stay of an order authorizing the
use, sale, or lease of property under Bankruptcy Rule 6004(h), if and to the extent these rules are
applicable.

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VI.
CONCLUSION
Based on the foregoing, the Debtor respectfully requests that the Court grant this Motion and
enter an order (i) authorizing the Debtor to assume the Agreement; (ii) pending assumption in the
event that the Court does not authorize immediate assumption, authorizing the Debtor to continue to
perform, honor and pay obligations in the ordinary course (including obligations that may be
prepetition in nature), under the Agreement; and (iii) granting the Debtor such other relief as the
Court deems necessary and appropriate.

Dated: November 5, 2012 PACHULSKI STANG ZIEHL & JONES LLP
By /s/ Debra I. Grassgreen
Richard M. Pachulski
James I. Stang
Dean A. Ziehl
Linda F. Cantor
Debra I. Grassgreen

Proposed Attorneys for Debtor and Debtor
in Possession

DOCS_LA:260148.8
EXHIBIT A
(Sheffield Agreement)

Confidential Financing Services Agreement
THIS CONFIDENTIAL FINANCING SERVICES AGREEMENT (this "Agreement") is made
and entered into as of the 15th day of February, 2011 between AMERICAN SUZUKI MOTOR
CORPORATION, a California corporation ("ASMC") with its principal place of business at
3251 E. Imperial Highway, Brea, California, 92821, Telephone No.: (714) 996-7040, Facsimile
No. (714) 970-6005, and SHEFFIELD FINANCIAL ("Sheffield"), a division of BB&T
Financial, FSB, a Federal Savings Bank with its principal place of business at 6010 Golding
Center Drive, Winston-Salem, NC, 27103, Telephone No.: (800) 438-8892, Facsimile No. (336)
766-1392.
RECITALS
WHEREAS, the Motorcycle/ATV division of ASMC distributes motorcycles, scooters,
ATV s and UTV s manufactured and sold under the Suzuki name in the United States through a
network of dealers ("Dealers") authorized by ASMC; and
WHEREAS, Sheffield is engaged in providing financial services cunently consisting of
open-end credit financing to such dealers' Customers (as defined below) and desires to continue
to offer and to expand such open-end credit and to offer installment loans to such Customers;
and
WHEREAS, ASMC desires to enter into this Agreement to assist Sheffield in making
financing services available to Customers on the terms set forth herein.
NOW, THEREFORE, the parties agree to the following:
1. FINANCING PROGRAM
1.1 General. Sheffield and ASMC agree to establish a marketing program (the
"Marketing Program") whereby ASMC will provide to Sheffield access to and
information regarding ASMC's dealer network in the United States so that Sheffield may
offer its financing options through such Dealers to Customers. Through this Agreement,
Sheffield will operate under its own business and trade name, and ASMC will publicly
endorse, and encourage its dealers to participate in, the Financing Plans (as defined
below) through the use of written materials and through oral promotions to its Dealers
and their Customers in the United States.
1.2 Definitions. For purposes of this Agreement, the following terms, when used
herein with initial capital letters, shall have the following respective meanings:
(a) The term "Applicable Laws" shall mean all applicable federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive
orders, and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
WCSR 4514608v5
with the enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force oflaw.
(b) The term "ASMC Marks" shall mean the Marks in which ASMC has rights, and
those Marks in which ASMC has rights that ASMC may elect, in its sole
discretion, to introduce in the future in the United States.
(c) The term "Cardholder Agreement" means the agreement between Sheffield and
any Customer governing the Sheffield Revolving Credit Card, the terms and
conditions of which may be modified from time to time in Sheffield sole
discretion in accordance with Applicable Laws.
(d) The term "Change in Law" shall mean the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any
Applicable Law, (b) any change in any Applicable Law or, to the extent having
the force of law, any change in the administration, interpretation or application
thereof by any Govemmental Authority or (c) the making or issuance of any
request, guideline or directive (having the force of law) by any Govemmental
Authority, with the understanding that the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith shall be deemed to constitute a
Change in Law made on or after the date of this Agreement, regardless of the date
enacted, adopted or issued.
(e) The term "Customer Agreement" shall have the definition given in Section 2 and
shall include without limitation any Cardholder Agreement.
(f) The term "Customers" shall mean retail customers purchasing Suzuki Products
from Dealers.
(g) The term "Dealer Agreement" shall have the definition given in Section 2.
(h) The tetm "Dealer" shall have the definition given in the Recitals.
(i) The term "Financing Plans" shall mean the plans for financing and related
services developed and marketed by Sheffield or to be developed and marketed in
its sole discretion in the ordinary course of business to Customers pursuant to this
Agreement.
G) The term "Governmental Authority" shall mean the government of the United
States of America, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
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WCSR 4514608v5
(k) The term "Indemnified Persons," with respect to any person or entity, shall mean
such person's or entity's directors, officers, employees, subsidiaries, affiliates
(including, without limitation, any parent corporation that owns such person or
entity), agents and advisers and their respective successors in interest, permitted
transferees and assigns.
(1) The term "Marketing Program" shall have the definition given in Section 1.1.
(m) The term "Marks" shall mean the trade names, trademarks, service marks,
domain names and logos in which a person or entity has rights from time to time.
(n) The term "Participating Dealer" shall mean a Dealer authorized by ASMC to sell
Suzuki Products in the United States and which has signed a Dealer Agreement
with Sheffield.
( o) The term "Sheffield Data" shall mean the lists of any credit applicants, credit
applications and related consumer, credit and personal information of any
applicant and loan transaction data (including payment records) owned, developed
or maintained by Sheffield or any of its affiliates.
(p) The term "Sheffield Marks" shall mean the Marks in which Sheffield has rights,
and those Marks in which Sheffield has rights that Sheffield may elect, in its sole
discretion, to introduce in the future.
(q) The term "SMC Marks" shall mean the Marks in which Suzuki Motor
Corporation ("SMC") or one of its affiliates has rights, and those Marks in which
SMC or one of its affiliates has rights that SMC may elect, in its sole discretion,
to introduce in the future in the United States.
(r) The term "Sheffield Revolving Credit Card" shall mean the revolving credit card
provided by Sheffield on the terms and conditions set forth herein and in the
Cardholder Agreement.
(s) The term "Suzuki Products" shall mean new, unused Suzuki motorcycles,
scooters, A TV s and UTV s identified by the model codes and VIN prefix ranges in
Attachment 1.
(t) The term "Suzuki Property" shall mean the ASMC Marks and the SMC Marks,
conjunctively.
(u) The te1m "Term" shall mean the period from the Effective Date until this
Agreement expires or terminates pursuant to its terms (including giving effect to
any applicable extensions or renewals).
1.3 Terms Generally. The definitions of tem1s herein shall apply equally to the
singular and plural fmms of the terms defined. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation." The word
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"will" shall be construed to have the same meaning and effect as the word "shall."
Unless the context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any person shall be construed to include such
person's successors and assigns, (c) the words "herein," "hereof'' and "hereunder," and
words of similar import, shall be construed to refer to this Agreement in its entirety and
not to any particular provision hereof, (d) all references herein to Sections, Attachments
and Schedules shall be construed to refer to Sections of, and Attachments and Schedules
to, this Agreement, (e) any reference to any law or regulation herein shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time; and (f) titles of Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this Agreement.
2. EXECUTION OF AGREEMENTS TO FINANCE. Dealers are not parties to this
Agreement. Financing Plans will be provided to Participating Dealers and Customers through
agreements executed directly between Sheffield and such Dealers (the "Dealer Agreements") or
between Sheffield and such Customers (the "Customer Agreements"). ASMC is not and will not
be a party to such Dealer Agreements or Customer Agreements. Notwithstanding anything to
the contrary contained herein, Sheffield shall have the right to reject any proposed Dealer or to
te1minate a Dealer's participation in the Financing Plans, or to decline to provide Financing
Plans to any Customer.
3. PROMOTIONAL MATERIAL AND TRADE NAMES
3.1 Promotional Material. Sheffield and ASMC expressly understand and agree
that all Financing Plans developed and marketed under this Agreement will be endorsed
by both companies. Sheffield and ASMC further agree that all promotional materials as
well as all informational materials, discussions and meetings relating to any Financing
Plans for Financing Plans developed under this Agreement will bear both the Sheffield
and Suzuki name and/or any associated Marks of Sheffield and ASMC as is mutually
agreed upon. Neither party's name nor any of their Marks may be used in any materials
by the other party that have not previously been approved in writing by the owner of the
applicable name or Mark (such approval not to be unreasonably withheld, conditioned or
delayed). Use of any Dealer name, with the express written consent of such Dealer, is
permissible under this Agreement. These materials may reference that Sheffield has a
relationship with ASMC and that any Financial Services for Suzuki products are being
offered in conjunction with ASMC. The terms of this Agreement are strictly confidential
and shall remain as such through the length ofthis Agreement and for ten (10) years after
the termination of this Agreement, or any amendment thereto, whichever is later in time.
As set forth in Section 3.5, Sheffield shall provide ASMC reasonable opportunity to
review promotional materials as developed by Sheffield for use in connection with the
Financing Plans. Unless otherwise agreed upon in writing, Sheffield shall be solely
responsible for and pay all costs of preparing, printing, and distributing promotional
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materials deemed necessary by Sheffield and ASMC to be used pursuant to this
Agreement, and consistent with other Financing Programs offered by Sheffield.
3.2 No License Grants. Sheffield shall not make any use, directly or indirectly,
without the express written approval of ASMC, of any Suzuki Property or any term,
phrase, or design that is confusingly similar to, or a colorable imitation or translation of,
the Suzuki Property, or any portion of the same, in any manner whatsoever, including but
not limited to: (a) as part of a mark (including but not limited to trademarks or service
marks); (b) as a trade name, assumed name, corporate name or product or service name
or identifier; (c) in advertising or promotional activities; (d) on promotional materials; or
(e) in connection with, or in relation to, any activity or agreement with a third pa11y.
Neither ASMC nor Suzuki shall make any use, directly or indirectly, without the express
written approval of Sheffield, of any Sheffield Marks or any term, phrase, or design that
is confusingly similar to, or a colorable imitation or translation of, the Sheffield Marks, or
any portion of the same, in any manner whatsoever. Sheffield shall not make any use,
directly or indirectly, without the express written approval of ASMC, of any of the
Suzuki Property or any term, phrase, or design that is confusingly similar to, or a
colorable imitation or translation of the Suzuki Property, or any portion of the same, in
any manner whatsoever.
Except as provided in Section 15, Sheffield shall not sublicense, transfer, or
assign any of its rights under this Agreement to any other person or entity (including any
Dealer) without approval of ASMC, and any attempted sublicense, transfer, or
assignment without the express written approval of ASMC shall be null and void and
shall give ASMC the right, in its sole discretion, to immediately terminate this
Agreement and the licenses granted hereunder. ASMC shall enter into separate
agreements with any Dealer participating in the Financing Plans for the use of Suzuki
Property.
3.3 Sheffield Acknowledgment. No rights or licenses, express or implied, are
granted by this Agreement to Sheffield under any intellectual property (including the
Suzuki Property) owned or controlled by ASMC or SMC.
Sheffield hereby acknowledges and expressly understands that all right, title, and
interest in and to the Suzuki Property, and goodwill associated therewith, and in and to
any other Marks in which ASMC, SMC, or any of their affiliates has rights, now or in the
future, are the sole and exclusive property of ASMC, SMC, or their affiliates. All right,
title, and interest in and to the Suzuki Property, and goodwill associated therewith, which
may accrue to the benefit of, or be acquired by, Sheffield as a result of its exercise of the
rights granted hereunder shall inure to the sole benefit of the respective property owner,
ASMC or SMC. Sheffield shall not assert any claim of ownership of, or any claim to any
goodwill associated with, the Suzuki Property or to any other Mark in which ASMC,
SMC, or one of their affiliates has rights now or in the future, by reason of Sheffield's
use thereof or otherwise.
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Sheffield shall not take and, to the extent reasonably within Sheffield's power to
control, shall not permit any action or omission in derogation of any of the rights of
ASMC or SMC in the Suzuki Property, either during the Term or thereafter.
3.4 ASMC Acknowledgment. No rights or licenses, express or implied, are granted
by this Agreement to ASMC in any intellectual property owned or controlled by
Sheffield.
ASMC hereby acknowledges and expressly understands that all right, title, and
interest in and to the trade name "Sheffield" as well as any and all variations thereof, and
the related Sheffield Marks, and goodwill associated therewith, and in and to any other
Marks in which Sheffield or any of its affiliates has rights, now or in the future, are the
sole and exclusive property of Sheffield, or its affiliates. ASMC shall not assert any
claim of ownership of, or any claim to any goodwill associated with, the Sheffield Marks
or to any other Marks in which Sheffield or any one of its affiliates has rights now or in
the future, by reason of ASMC's use thereof or otherwise.
ASMC shall not take and, to the extent reasonably within ASMC's power to
control, shall not permit any action or omission in derogation of any of the rights of
Sheffield in the Sheffield Marks, either during the Term or thereafter.
3.5 Advertising. ASMC shall have the right to review and approve any promotional
materials proposed to be issued by Sheffield which pettain to any Financing Plans
engaged in between Sheffield and ASMC, or between Sheffield and Dealers or between
Sheffield and Customers of Dealers. Sheffield acknowledges and expressly agrees that it
has no right to issue promotional materials bearing any of the Suzuki Property without
the express written approval of ASMC. ASMC shall respond within five (5) business
days to any request from Sheffield for a review of any Promotional Material. Failure of
ASMC to respond within such five (5) business day period shall be deemed express
written approval by ASMC. Sheffield shall have the right to review any promotional or
similar materials proposed to be issued by ASMC which use any Sheffield Marks under
the same timeline and terms established for ASMC in this Section 3.5.
3.6 Rights in Intellectual Prooertv. Sheffield and its affiliates shall own
exclusively: (A) any and all technology owned by Sheffield or any of its affiliates at the
time that it is provided for use in establishing, developing or administering the Financing
Plans (the "Sheffield Technology"); (B) any and all changes or other modifications made
by Sheffield or any of its affiliates to the Sheffield Technology; (C) any and all new
technology created by Sheffield or any of its affiliates in connection with establishing,
developing or administering the Financing Plans, (D) all Sheffield Data; and (E)
promotional materials, documents or forms of any type and in any media relating to any
Financing Plans.
4. QUALITY CONTROL.
4.1 Quality Standard. Any and all Financing Plans that Sheffield agrees to provide
under this Agreement shall meet at least the same professional standards as, and be
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consistent with or better then the quality of, the financial services that Sheffield offers
under its own similar financial plans. Subject to requirements of Applicable Law and
subject to Sheffield's obligations to preserve and secure the confidentiality and privacy of
Sheffield's Customers and other persons and entities with which Sheffield does business,
and subject to ASMC's obligations under Section 11.3, ASMC may, at its own expense
and upon five (5) business days' written notice, audit Sheffield's records and processes
relating to the Financing Plans and their implementation and operation, and inspect
Sheffield's facilities upon reasonable prior notice and during normal business hours to
determine whether Sheffield is maintaining the standards set forth in Section 4.1;
provided that (x) ASMC shall not be entitled to undertake more than one (1) such audit
and inspection in any 12-month period and (y) if ASMC elects to use a third party to
conduct such audit and inspection, such third party shall be reasonably acceptable to
Sheffield.
4.2 Operating Committee. An operating committee constituted of at least one
member of upper management of each party (as selected by such party) shall meet at least
once per year to discuss the Marketing Program and any proposed adjustments in the
pricing or other aspects of the Financing Plans.
5. TERM. Subject to any remaining payment obligations owed by either party to the other
that are accrued but unpaid as of such date under the Confidential Financial Services Agreement
between ASMC and Sheffield dated December 10, 2008 (the "2008 Agreement") and any other
obligations expressly stated to survive the termination thereof, this Agreement shall become
effective on February 1, 2011 (the "Effective Date") and on the Effective Date shall replace the
2008 Agreement in its entirety, and, unless terminated earlier pursuant to the provisions of
Section 12, shall expire on December 31, 2013; provided, however, that the term will
automatically renew for successive twelve-month periods unless terminated by either party upon
written notice of at least six months prior to the expiration of the Term then in effect. Expiration
or termination of this Agreement shall not affect the obligation of ASMC to pay any accrued but
unpaid amounts owing to Sheffield under this Agreement.
6. FINANCING SERVICES.
6.1 General. The Financing Plans made available by Sheffield under this Agreement
pertain solely to Suzuki Products and, as of the Effective Date, shall consist of (x) for so
long as Sheffield is willing to offer financing services of such type under this Agreement,
the extension of open-end credit through the issuance of Sheffield Revolving Credit
Cards through Participating Dealers and to Customers; provided, however, that, except in
connection with termination under Section 6. 7 or Section 12.5, Sheffield shall provide six
(6) months prior written notice to ASMC of its intent to terminate under this section
6.1 (x) (y) the extension of installment loans to Customers and (z) any other financing
services agreed upon by Sheffield and ASMC. Subject to the express provisions of this
Agreement, ASMC and Sheffield shall mutually agree on the specific rates, terms and
provisions applicable to any such Financing Plans.
6.2 Financing Plans.
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WCSR 45 I 4608v5
(b) Sheffield further agrees to offer to Customers Financing Plans on Suzuki Products
at non-promotional rates through the Sheffield Revolving Credit Card on such
tetms and conditions as are outlined in any applicable Cardholder Agreement or
installment standard rates that will be mutually agreed upon by Sheffield and
ASMC from time to time; provided, however, that any such Financing Plans at
non-promotional rates shall terminate upon any termination under Section 6.1,
Section 6.7 or Section 12.5.
(c) Any other Financing Plan involving ASMC or its Dealers relating to the financing
of Suzuki Products are currently outside of the scope of this Agreement; however,
if such other Financing Plans are subsequently agreed upon by the parties, they
may be addressed by a separate agreement, by an addendum to this Agreement,
or, if appropriate, by a revised Attachment 1 or other attachment hereto.
The terms of each Financing Plan are subject to change only upon written agreement by
the parties hereto.
Financing Plans may include a fixed equal payment promotion or other finance options as
may be mutually agreed upon by both parties, including low payment promotion. Low
introductory promotions are defined as a low payment and/or interest rate for a set promotional
term with a later increase to a higher interest rate and payment at the end of the promotional
tetm.
6.3 Other Financing Programs. This Agreement sha1l not limit or impair
Sheffield's right to offer and/or provide, furnish, acquire or own any financial service,
program or plan to any other person or entity, including a competitor of ASMC or
Suzuki, or to finance competitive products for any dealer, including, but not limited to,
8
WCSR 4514608v5
Dealers, or to offer, furnish, acquire, own or perform the same type or similar agreements
with any other person or entity.
6.4 Program Credit Guidelines. Sheffield shall determine the creditworthiness of a
potential Customer using its standard credit guidelines. ASMC acknowledges that those
guidelines may be modified from time to time by Sheffield in Sheffield's sole discretion.
Sheffield takes full responsibility for its credit decisions and acknowledges that ASMC
has no liability for Sheffield's credit decisions. Should a Customer default that, upon its
own volition Sheffield chose to extend credit to, ASMC shall have no liability
whatsoever pertaining to the recovery of those funds and, except as otherwise provided in
Section 13, Sheffield shall have no recourse against ASMC for anything pertaining to that
account. Should a Customer to whom Sheffield chose to extend credit default, ASMC
shall have no liability whatsoever pertaining to the recovery of those funds and, except as
otherwise provided in Section 13, Sheffield shall have no recourse against ASMC for
anything pertaining to that account. Subject to Section 6.7, Sheffield shall use
reasonable efforts to notify ASMC of any material changes in its credit guidelines at least
two (2) weeks prior to effectiveness.
6.5 Credit Decision Timetable. By the end of the next business day following
receipt of a completed application and all necessary information required by Sheffield in
connection with its determination of the creditworthiness of any application, Sheffield
will advise the party submitting the application of Sheffield's credit decision or the need
for additional infmmation required to make a decision. Sheffield will use commercially
reasonable efforts to tum around credit decisions for financing applications within 15
minutes and will not have any turnaround time for credit decisions longer than four (4)
hours. The parties anticipate that the average turnaround time for a credit decision
concerning financing applications will be four (4) hours or less. Sheffield will comply in
all material respects with all Applicable Laws concerning credit decisions.
6.6 Disclosure of Information. Sheffield shall provide to ASMC, within three (3)
business days after the end of each month (to the extent disclosure of such information or
data is not prohibited by Applicable Law), a listing of any and all Suzuki Products
financed under the Financing Plans for such month, indicating the model number and
Vehicle Identification Number ("YIN"), FICO score, Participating Dealer, Participating
Dealer's state, promotion and amount financed, together with a calculation of amounts
payable by ASMC to Sheffield under this Agreement. ASMC shall pay Sheffield within
30 days of receipt of each invoice the full amount of such invoice. ASMC shall have the
right to audit Sheffield's business records pertaining to the financing of Suzuki Products
upon five (5) business days' written notice for purposes of verifying any billings by
Sheffield to ASMC. ASMC acknowledges that all of the information delivered by
Sheffield to ASMC pursuant to this Section 6.6 shall be deemed Sheffield Confidential
Information. Suzuki shall provide to Sheffield all YIN ranges of the Suzuki Products as
set forth on Attachment 1 hereto.
6. 7 Effect of Changes in Law.
9
WCSR 4514608v5
(a) Notwithstanding any other provision of this Section 6, Sheffield may amend,
supplement or otherwise modify its standard credit guidelines, the application
process for credit and the terms of any Financing Plans or any contracts governing
or evidencing any such Financing Plans without ASMC's consent or approval if,
in Sheffield's reasonable determination, such changes are necessary to comply
with any Change in Law; provided, however, that, Sheffield will provide ASMC
with as much prior notice as is reasonably practicable under the circumstances of
any such amendment, supplement or modification.
(b)
(c)
6.8 Ownership of Payment Obligations and Instruments. Notwithstanding any
other provision of this Agreement, subject to assignments permitted by Section 15.2(c),
Sheffield shall be the sole and exclusive owner of all rights arising under the Financing
Plans or under any agreement with any Customers or any rights to payment under any
Financing Plan or any chattel paper or other instrument evidencing any such rights to
payment and shall be entitled to receive and deposit to its own account all payments
made by any Customer in respect of any financing anangements or services provided by
Sheffield.
7. NON-EXCLUSIVITY
7.1 Non-Exclusive Arrangement..
(a) Nothing herein shall be construed so as to restrict Sheffield from performing the
same type or similar services or entering into the same type or similar agreements
with any other company or organization. ASMC acknowledges that Sheffield can
IO
WCSR 4514608v5
offer similar financing services to its Dealers and other dealers under the Sheffield
Marks.
(b) Sheffield agrees that ASMC is free to pursue financing services of a type similar
to those outlined in this Agreement, either with Sheffield or with other parties, for
the Suzuki Products or any other products which ASMC may distribute in the
future. ASMC is not restricted in any manner from seeking and/or engaging in
any agreement with any other entity that may offer or provide financing services
for or on behalf of ASMC specifically pe11aining to motorcycles, scooters, ATVs
and/or UTVs. As such, this is not an exclusive arrangement between ASMC and
Sheffield.
(c) The parties hereto agree that Sheffield is not, and shall not be, the exclusive
source of financing for ASMC or its Customers and Dealers. Sheffield
acknowledges and agrees that Dealers and Customers are entitled to secure
financing from other sources. ASMC shall not require any Dealer to execute a
Dealer Agreement.
7.2 ASMC Agreement Regarding Other Financing Services. During the Term,
ASMC agrees that if it is party to any other agreement or arrangement for the provision
of financing services with any pru1y other than Sheffield (an "Alternate Provider"):
(a) ASMC will provide Sheffield the opportunity to offer promotions that are of
similar discount or market interest rate as the promotions offered by such
Alternate Provider; provided, however, that the foregoing shall not obligate
Sheffield to offer any such promotion;
(b) ASMC shall market, support and promote Sheffield' s Financing Plans to Dealers
and Customer on a basis no less favorable than for financing services of any
Alternate Provider; and
(c) ASMC shall provide to Sheffield, on a substantially concurrent basis, at least the
same or substantially the same data and information regarding the Suzuki
Products and ASMC's and Suzuki's business and operations (including in respect
of market share) as it provides to any Alternate Provider as long as it is in
confmmru1ce with Applicable Laws.
8. SHEFFIELD AND DEALER RELATIONS
8.1 General. The parties hereto recognize that the Financing Plans offered pursuant
to this Agreement are standard programs offered through Sheffield that ASMC may
represent to its Dealers as being made available by Sheffield to qualified Customers.
Dealer and Customer participation in all or some of the Financing Plans is contingent
upon each credit applicant satisfying Sheffield's credit requirements and entering into
appropriate agreements with Sheffield to which ASMC is not, nor will it be, a pat1y.
1 I
WCSR 45 I 4608v5
8.2 Sheffield Participation in ASMC and Industry Functions. In order to promote
the implementation of this Agreement and the Financing Plans, ASMC agrees that, in its
reasonable discretion, Sheffield will be notified of, and invited to, national and district
Suzuki Motorcycle/ATV meetings and functions where either ASMC Motorcycle/ATV
Sales Managers or Dealers are assembled.
8.3 Termination of Financing Services to Dealers and Customers. It is understood
that Sheffield reserves the right to terminate any Financing Plan, Dealer Agreement or
Customer Agreement or other agreement with any party, whether Dealer, Customer or
other person, upon breach of any such agreement between such party and Sheffield, or for
any other reason set forth in any agreement with such party. It is understood that
Sheffield will not incur any financial obligation to ASMC in the event of any such
termination. Sheffield shall notify ASMC in writing if Sheffield terminates any Dealer
Agreement, with such notice to be provided at least two (2) weeks prior to termination;
provided that, in the case of any fraud or alleged fraud by a Dealer, no prior notice shall
be required, but Sheffield shall notify ASMC promptly upon taking such termination
action.
8.4 Termination of Dealer Agreement by ASMC. It is understood that ASMC
reserves the right to terminate its dealer agreement or arrangements with any Dealer
without incurring any financial obligation to Sheffield. ASMC shall notify Sheffield in
writing if ASMC terminates its relationship with any Dealer with such notice to be
provided at least three (3) business days prior to such termination; provided that, in the
case of any fraud or alleged fraud by a Dealer, no prior notice shall be required but
ASMC shall notify Sheffield promptly upon taking such termination action.
9. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF SHEFFIELD
Sheffield hereby represents, warrants and covenants to and with ASMC that:
9.1 Compliance With Governing Laws. Throughout the Term, it shall continue to
comply in all material respects with all Applicable Laws in connection with providing the
Financing Plans and its other obligations under this Agreement.
9.2 Business Entity Status. Sheffield is a division of BB&T Financial, FSB, a
Federal Savings Bank duly organized, validly existing and in good standing under federal
law and has: (1) all necessary and material licenses, authorizations, registrations and
approvals; and (2) full power and authority to carry out its business as it is being
conducted on the date of this Agreement and as required in order to consummate the
transactions contemplated by this Agreement.
9.3 Qualification. Sheffield is or will be duly qualified to perform and offer each of
the Financing Plans as in effect on the date of this Agreement and will be qualified to
offer any future Financing Plans that it may agree to provide after such date, as of the
time that Sheffield offers such Financing Plan, in each jurisdiction where such
qualification is required.
12
WCSR 4514608v5
9.4 Document Preparation. As between the parties to this Agreement, Sheffield
shall be solely responsible for assuring that all documents prepared or used in connection
with any of the Financing Plans and all promotional materials prepared by Sheffield, as
well as all acts and practices of Sheffield in servicing accounts generated under this
Agreement, including all collection and repossession acts and practices, shall comply
with all Applicable Laws in all material respects.
9.5 Authorization; Enforceability. Sheffield has the power to enter into this
Agreement and to perform its obligations hereunder, and the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action of Sheffield, and constitute the legal, valid, and
binding agreement of Sheffield, enforceable against Sheffield in accordance with its
terms.
9.6 No Conflicts. The execution and delivery of this Agreement by Sheffield and
performance by Sheffield of its obligations under this Agreement is not in conflict with
any provision of Applicable Law or any material agreement, instrument, or document, or
any court order or other ruling binding upon Sheffield.
9. 7 Protection of ASMC Reputation. Sheffield hereby acknowledges that
substantial goodwill exists with respect to the Suzuki Property and that ASMC's
reputation in the ATV, UTV, Motorcycle, Automotive, and Marine business is of
substantial value and importance to the operations of ASMC. Accordingly, Sheffield in
performing under this Agreement shall not knowingly or willfully act in any manner that
would reasonably be expected to detract from ASMC's goodwill in any material respect.
9.8 Customer Satisfaction. Sheffield acknowledges that for purposes of customer
satisfaction with regard to Financing Plans it shall provide customer service in a manner
consistent with or better than industry standards and shall respond to customer inquiries
or resolve customer complaints in a prompt and reasonable manner.
9.9 Reports. Sheffield shall provide repm1s in its standard form containing approval
ratio information, dealer volume information, and information as to availability and
utilization of consumer credit developed and distributed by Sheffield in the normal course
of business. Any competitive information contained in such reports shall have been
developed by Sheffield in its normal course of business from publicly available
information. From time to time upon request of ASMC, Sheffield will provide ASMC
reporting on losses, repossessions, operation costs and profit and loss statement as related
to financing of Suzuki Products.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ASMC
ASMC hereby represents, warrants and covenants to and with ASMC that:
10.1 Corporate Status. ASMC is a corporation, duly organized, validly existing, and
in good standing under the laws of the State of California and has: (1) all necessary
licenses, authorizations, registrations, and approvals; and (2) full power and authority to
13
WCSR 4514608v5
carry out its business as it is presently being conducted and as required in order to
consummate the transactions contemplated by and fulfill its obligations under this
Agreement.
10.2 Authorization; Enforceability. ASMC has the corporate power to enter into this
Agreement and to perform its obligations hereunder, and the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action of Sheffield, and constitute the legal,
valid, and binding agreement of ASMC, enforceable against ASMC in accordance with
its terms.
10.3 No Conflicts. The execution and delivery of this Agreement by ASMC and
performance by ASMC of its obligations under this Agreement is not in conflict with any
provision of Applicable Law or any agreement, instrument, or document, or any court
order or other ruling binding upon ASMC.
10.4 Protection of Sheffield Reputation. ASMC hereby acknowledges that
substantial goodwill exists with respect to the Sheffield Marks and that the reputation of
Sheffield is of substantial value and importance to the operations of Sheffield. The
Sheffield Marks are the Property of Sheffield and any and all uses by ASMC shall inure
to the benefit of Sheffield and all goodwill arising from such use by ASMC shall revert to
Sheffield upon termination of this Agreement. Accordingly, ASMC will use its best
efforts in performing under this Agreement in order not to detract from Sheffield's
goodwill and standing and will not otherwise damage the reputation of Sheffield.
10.5 Customer Satisfaction. ASMC shall use reasonable efforts to promptly direct
any inquiries or complaints regarding Financing Plans to the Sheffield Customer
Relations Department and shall cooperate with Sheffield in connection with the
resolution of disputes with Customers and Dealers.
10.6 Inform Dealers. ASMC shall use reasonable effmts to make known to Sheffield
the names and contact information of all Dealers, which information shall be treated as
ASMC Confidential Infom1ation by Sheffield in accordance with Section 11.2. It is
Sheffield's sole responsibility to contact any and all such Dealers in connection with the
offering of the Financing Plans.
10.7 Additional Information. ASMC shall deliver to Sheffield, promptly upon
request and to the extent ASMC is not prohibited from doing so under Applicable Law,
any information regarding ASMC' s business and operations as reasonably requested by
Sheffield from time to time for the purpose of enabling Sheffield to evaluate the
Financing Plans and Sheffield's compliance with its obligations under this Agreement
and Applicable Laws.
11. CONFIDENTIALITY
11.1 ASMC Confidential Information. Sheffield acknowledges the confidential and
proprietary nature and value to ASMC of information relating to the terms of this
14
WCSR 4514608v5
/
Agreement that are not otherwise public, and any non-public ideas, concepts, inventions,
designs, developments, procedures, processes, data, know-how, or other matters
concerning ASMC, its products, or any Dealer, which may be disclosed to Sheffield or
otherwise acquired by Sheffield in the course of its duties under this Agreement that is of
a type normally understood to be confidential or that is expressly designated as
confidential at the time of disclosure (collectively, "ASMC Confidential Information").
Sheffield shall maintain the confidentiality of such ASMC Confidential Information in
accordance with the terms of this Agreement and, except as otherwise permitted by this
Agreement, shall not disclose such ASMC Confidential Information, except to its
affiliates and its and their respective employees, subcontractors, agents, advisers and
representatives who have a demonstrated need to know such ASMC Confidential
Information in order to carry out Sheffield's obligations under this Agreement hereto and
incorporated by reference. Except as expressly permitted herein, Sheffield shall not
disclose ASMC Confidential Information to any third party without the prior written
consent of ASMC. Sheffield shall maintain the ASMC Confidential Information with at
least the same degree of care as it uses to protect its own confidential or proprietary
information, but shall use no less than reasonable care under the circumstances. As such,
Sheffield agrees that all ASMC Confidential Information is the sole and exclusive
property of ASMC. Upon termination of this Agreement, Sheffield will deliver to ASMC
all property of ASMC, including any written material of, or documents relating to, the
ASMC Confidential Information described above, in whatever manner maintained or
stored.
Sheffield further understands and expressly agrees that the provisions of this
Section 11.1 shall survive termination of this Agreement regardless of how or by whom
the Agreement is tetminated. Sheffield further understands and agrees that in the event
of any violation of this confidentiality provision by it, or any person associated with it,
and in addition to any relief or remedies to which ASMC is entitled, ASMC shall have
the right to an immediate injunction and shall have the right to recover ASMC's
reasonable attorney's fees and court costs expended in connection with any litigation
instituted to enforce this confidentiality provision. All of ASMC's remedies for violation
of this provision shall be cumulative and the pursuit of one remedy shall not be deemed
to exclude any other remedies.
In the event Sheffield is required to disclose ASMC Confidential Information
pursuant to any legal process, or judicial or governn1ent order, Sheffield shall promptly
notify ASMC to allow intervention in response thereto. Sheffield shall advise ASMC in
writing within twenty-four (24) hours of a responsible officer of Sheffield obtaining
actual knowledge of any misappropriation or misuse of any ASMC Confidential
Information. Sheffield shall, at its own expense, take all commercially reasonable steps,
including initiation and prosecution of actions at law or in equity, necessary to prevent
disclosure of any of the ASMC Confidential Infmmation by any employees,
representatives, subcontractors, advisers or agents of Sheffield and its affiliates or prevent
the unauthorized use or disclosure of any ASMC Confidential Information by another
party who gained the ASMC Confidential Inforn1ation from Sheffield or its affiliates or
15
WCSR 45 I 4608v5
its or their respective employees, subcontractors, representatives, advisers or agents in
violation of this Agreement.
Without limiting the foregoing, Sheffield shall comply with all Applicable Laws
with respect to consumer privacy in its receipt and use of any Consumer personal
information (including addresses, account numbers and phone numbers) provided to it by
ASMC and/or dealers and agrees that it shall use any such information solely for the
purpose contemplated in this Agreement.
11.2 Sheffield Confidential Information. ASMC acknowledges the confidential and
proprietary nature and value to Sheffield of information relating to the tetms of this
Agreement, and any non-public ideas, concepts, inventions, designs, developments,
procedures, processes, data, know-how, or other matters concerning Sheffield or its
financial services which may be disclosed to ASMC in the course of its duties under this
Agreement that is of a type normally understood to be confidential or that is expressly
designated as confidential at the time of disclosure (collectively, "Sheffield Confidential
Information"). ASMC shall maintain the confidentiality of such Sheffield Confidential
Information in accordance with the terms of this Agreement and, except as otherwise
permitted by this Agreement, shall not disclose such Sheffield Confidential Information,
except to its employees, subcontractors, agents, advisers and representatives who have a
demonstrated need to know such Sheffield Confidential Information in order to carry out
ASMC's obligations under this Agreement hereto and incorporated by reference. Except
as expressly permitted herein, ASMC shall not disclose Sheffield Confidential
Information to any third party without the prior written consent of Sheffield. ASMC
shall maintain the Sheffield Confidential Information with at least the same degree of
care as it uses to protect its own confidential or proprietary information, but shall use no
less than reasonable care under the circumstances. As such, ASMC agrees that all
Sheffield Confidential Information is the sole and exclusive property of Sheffield,
irrespective of whether such information was created or prepared by ASMC or others.
Upon termination of this Agreement, ASMC will deliver to Sheffield all property of
Sheffield, including any written material of, or documents relating to, the Sheffield
Confidential Information described above, in whatever manner maintained or stored.
ASMC fmiher understands and expressly agrees that the provisions of this
Section 11.2 shall survive termination of this Agreement regardless of how or by whom
the Agreement is terminated. ASMC further understands and agrees that in the event of
any violation of this confidentiality provision by it, or any person associated with it, and
in addition to any relief or remedies to which Sheffield is entitled, Sheffield shall have
the right to an immediate injunction and shall have the right to recover Sheffield's
reasonable attorney's fees and court costs expended in connection with any litigation
instituted to enforce this confidentiality provision. All of Sheffield's remedies for
violation of this provision shall be cumulative and the pursuit of one remedy shall not be
deemed to exclude any other remedies.
In the event ASMC is required to disclose Sheffield Confidential Information
pursuant to any legal process or judicial or government order, ASMC shall promptly
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WCSR 4514608v5
notify Sheffield prior to disclosure of such documents in order to allow intervention in
response thereto. ASMC shall advise Sheffield in writing within twenty-four (24) hours
of a responsible officer of ASMC obtaining actual knowledge of any misappropriation or
misuse of any Sheffield Confidential Information. ASMC shall, at its own expense, take
all steps, including initiation and prosecution of actions at law or in equity, necessary to
prevent disclosure of any of the Confidential Information by any employees,
representatives, subcontractors, advisers or agents of ASMC or prevent the unauthorized
use or disclosure of any Sheffield Confidential Information by another party who gained
the Sheffield Confidential Information from ASMC or its employees, subcontractors,
representatives, advisers or agents in violation of this Agreement.
Without limiting the foregoing, ASMC shall comply with all Applicable Laws
with respect to consumer privacy in its receipt and use of any Customer personal
information (including addresses, account numbers, phone numbers) provided to it by
Sheffield and agrees that it shall use any such information solely for the purposes
contemplated in this Agreement.
11.3 Securities Filings. In the event that any of this Agreement, portions thereof,
and/or Schedules hereto, is required by Applicable Laws to be made a part of a public
filing with the United States Securities and Exchange Commission or otherwise, ASMC
agrees that it shall submit to Sheffield for review a copy of the portion of any proposed
public filing relating to or disclosing any terms of this Agreement prior to making such
filing.
12. TERMINATION
12.1 General. This Agreement shall tem1inate on the expiration of the Term unless
earlier terminated pursuant to this Agreement.
12.2 Termination. This Agreement may be terminated only as set out below.
12.3 Termination by ASMC for Cause. Notwithstanding anything to the contrary
contained in Sections 12.1 or 12.2, this Agreement may be terminated by ASMC, upon
thirty (30) days prior written notice by ASMC to Sheffield, "for cause." For the purposes
of this Section 12.3, "for cause" shall be defined as follows:
(a) Dissolution or liquidation of Sheffield.
(b) Announcement by Sheffield that it shall cease offering financing services in the
United States of the type contemplated under this Agreement, or Sheffield
actually ceasing to offer such financing services (excluding, so long as Sheffield
continues to offer installment loans, the cessation of open end and similar credit
services).
(c) Announcement by ASMC that it shall permanently cease distributing
motorcycles, scooters, ATV s and/or UTV s for sale within the United States, or
ASMC actually permanently ceasing to distribute Suzuki Products.
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WCSR 4514608v5
(d) Announcement by Sheffield that it shall undergo a change of operational control,
or Sheffield actually undergoes a change of operational control. For purposes of
this Section 12.3, "change of operational control" shall be defined as any merger,
consolidation or sale of ownership which results in (x) the shareholders holding a
majority of voting power sufficient to elect a majority of the board of directors of
BB&T Corporation immediately prior to such event not holding a voting power
sufficient to elect a majority of the board of directors ofBB&T Corporation or the
surviving entity immediately after such event or (y) BB&T Corporation (or its
successors) ceasing to hold, directly or indirectly, sufficient voting power to elect
a majority of the board of directors of the BB&T Corporation affiliate that is a
party to this Agreement; provided, however, that ASMC must deliver written
notice oftermination under this clause (d) within 30 days of the effective date of a
change of operational control.
(e) Insolvency of Sheffield, or the voluntaty institution by Sheffield of any
proceeding under any statute of any governmental authority for the relief of
debtors, seeking relief from or readjustment of its indebtedness, either through
reorganization, composition, extension, or otherwise, or the involuntary institution
against Sheffield of any such proceeding which is not vacated within thirty (30)
days from the institution thereof, or the appointment of a receiver, custodian, or
other officer having similar powers for Sheffield or for Sheffield's business who
is not removed within thirty (30) days after such appointment.
12.5 Termination by Sheffield for Cause. Notwithstanding anything to the contrary
contained in Sections 12.1 or 12.2, this Agreement may be terminated by Sheffield "for
cause," upon not less than thirty (30) days prior written notice by Sheffield to ASMC in
the case of clauses (a) through (e) and as specified in such notice in the case of clauses (t)
and (g) below. For the purposes of this Section 12.5, "for cause" shall be defined as
follows:
(a) Dissolution or liquidation of ASMC;
(b) Announcement by Sheffield thaHt shall cease offering financing services in the
United States, or Sheffield actually ceasing to offer financing services to Dealers.
(c) Announcement by Sheffield that it shall cease offering open-end and close-end
credit.
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WCSR 4514608v5
(d) Insolvency of ASMC, or the voluntary institution by ASMC of any proceeding
under any statute of any governmental authority for the relief of debtors, seeking
relief from or readjustment of its indebtedness, either through reorganization,
composition, extension, or otherwise, or the involuntary institution against ASMC
of any such proceeding which is not vacated within thirty (30) days from the
institution thereof, or the appointment of a receiver, custodian, or other officer
having similar powers for ASMC or for ASMC's business who is not removed
within thirty (30) days after such appointment.
(e) Any breach or violation by ASMC of any obligation contained in this Agreement,
which breach or violation has a material and adverse effect on ASMC's
performance under the terms of this Agreement and which breach or violation is
not corrected within forty-five (45) days of receipt of written notice thereof.
(t) Any Change in Law occurs that has the effect of prohibiting or materially and
adversely altering, impairing, inhibiting or frustrating Sheffield's ability to offer
or provide financing arrangements of the type contemplated by this Agreement.
(g) Any Change in Law materially and adversely affects the return on assets (as
determined by Sheffield) and (i) Sheffield has sought to engage ASMC in a good-
faith renegotiation of the terms of this Agreement to reduce or eliminate such
effect; and (ii) the parties hereto have not agreed to modifications to the terms of
this Agreement that Sheffield reasonably believes necessary to prevent a material
adverse effect on Sheffield, its ability to perfom1 the transactions contemplated by
this Agreement or the economic benefits to be obtained by Sheffield under this
Agreement resulting from such Change in Law.
13. INDEMNIFICATION
13.1 Indemnification by Sheffield. Sheffield hereby agrees to defend, indemnify, and
hold ASMC and its Indemnified Persons, harmless from and against any and all claims,
demands, damages, actions, suits, proceedings, assessments, settlements, arbitrations,
judgments, costs, and expenses, including attorney's fees and court costs, or assertions of
liability (collectively, "Claims") resulting from:
(a) Any breach of any of Sheffield's representations, wmTanties, and covenants
contained within Section 9 of this Agreement hereto, or any of the terms,
covenants, conditions, or other provisions hereof; any action or omission by
Sheffield hereunder; any misuse by Sheffield of any of the Suzuki Property;
(b) Any failure by Sheffield to comply with all applicable federal, state, or local
statutes, regulations, ordinances, administrative rulings, or requirements of law
respecting or relating to consumer credit or leasing, credit discrimination, the
obtaining, use or mishandling of credit reports and other infonnation concerning
individuals, usury, collection of debts, credit, or credit balances, and all other
Applicable Laws including, but not limited to, those relating to unfair, deceptive,
or unconscionable acts and practices;
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WCSR 4514608v5
(c) Any action between Sheffield, a Customer, and a Dealer or any combination of
such parties which arise in relation to the Financing Plans;
(d) Any claim of a third party that the Sheffield Marks or other intellectual property
of Sheffield infringes any trademark or other intellectual property rights of a third
party;
(e) The misfeasance, malfeasance, or fraudulent acts or omissions of any officers,
directors, employees or agents of Sheffield; and
(f) Any allegation of any of the foregoing matters, whether or not any final
determination is made with respect to the merits of such allegation(s).
Notwithstanding the foregoing, the indemnification obligations of Sheffield under
this Section 13.1 shall not apply to the extent any Claim is determined by final
nonappealable judgment of a court of competent jurisdiction to result from the gross
negligence or willful misconduct of ASMC or any Indemnified Person of ASMC.
13.2 Notice of Claim. If a claim is made by ASMC under this Section 13, ASMC will
give notice to Sheffield in writing of any such action or claim covered by this indemnity
within sixty (60) days following ASMC's knowledge thereof. The failure to notify will
not relieve Sheffield from any liability which it may have to ASMC under this Section 13
of this Agreement hereto, except to the extent that Sheffield is materially prejudiced by
reason of such failure. With respect to each such notice, Sheffield shall immediately take
all action Sheffield deems necessary and take other actions as are necessary, if possible,
to discharge the indemnity obligations hereunder. Sheffield may, at its option and own
expense, after consulting with ASMC, retain competent counsel to defend ASMC, and
Sheffield shall not thereafter be obligated to reimburse ASMC for any additional
attorney's fees incurred; provided, however, that Sheffield shall be obligated to reimburse
ASMC for separate counsel if representation of both Sheffield and ASMC by the same
counsel would be inappropriate due to conflicting interests. Neither party shall settle or
compromise any such suit or legal action without the express written consent of the other
party, which consent shall not be unreasonably withheld, conditioned or delayed.
Sheffield and ASMC shall fully cooperate with each other in fulfilling the intent of this
Section 13.
13.3 Indemnification by ASMC. ASMC hereby agrees to defend, indemnify, and
hold Sheffield and its Indemnified Persons harmless from and against any and all Claims
resulting from:
(a) Any breach of ASMC's representations, warranties, and covenants contained
within Section 10 of this Agreement hereto, or any of the terms, covenants,
conditions, or other provisions hereof; any action or omission by ASMC
hereunder; any misuse by ASMC of any ofthe Sheffield Marks;
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WCSR 4514608v5
(b) Any failure by ASMC to comply with all Applicable Law including, but not
limited to, those relating to federal and state A TV safety requirements,
manufacturing requirements, and unfair, deceptive, or unconscionable acts and
practices;
(c) Personal injury or property damage claims based on product or design defect
claims, product liability claims, lemon law claims, federal or state warranty
claims, or express or implied contract warranty claims made against Sheffield
with respect to Suzuki Products;
(d) Any claim of a third party that the Suzuki Prope11y or other intellectual property
of ASMC or SMC infringes any trademark or other intellectual property rights of
a third party;
(e) The misfeasance, malfeasance, or fraudulent acts or omissions of any officers,
directors, employees or agents of ASMC; and,
(f) Any allegation of any of the foregoing matters, whether or not any final
determination is made with respect to the merits of such allegations.
Notwithstanding the foregoing, the indemnification obligations of ASMC under
this Section 13.3 shall not apply to the extent any Claim is determined by final
nonappealable judgment of a court of competent jurisdiction to result from the gross
negligence or willful misconduct of Sheffield or any Indemnified Person of Sheffield.
13.4 Notice of Claim. If a claim is made by Sheffield under this Section 13, Sheffield
will give notice to ASMC in writing of any such action or claim covered by this
indemnity within sixty (60) days following Sheffield's knowledge thereof. The failure to
notify will not relieve ASMC from any liability which it may have to Sheffield under this
Section 13 of this Agreement hereto, except to the extent that ASMC is materially
prejudiced by reason of such failure. With respect to each such notice, ASMC shall
immediately take all action ASMC deems necessary and take other actions as are
necessary, if possible, to discharge the indemnity obligations hereunder. ASMC may, at
its option and own expense, after consulting with Sheffield, retain competent counsel to
defend Sheffield, and ASMC shall not thereafter be obligated to reimburse Sheffield for
any additional attorney's fees incurred; provided, however, that ASMC shall be obligated
to reimburse Sheffield for separate counsel if representation of both Sheffield and ASMC
by the same counsel would be inappropriate due to conflicting interests. Neither party
shall settle or compromise any such suit or legal action without the express written
consent of the other party, which consent shall not be unreasonably withheld, conditioned
or delayed. Sheffield and ASMC shall fully cooperate with each other in fulfilling the
intent ofthis Section 13.
13.5 ASMC Product-Related Indemnities. ASMC will hold Sheffield hannless from
any loss, cost, damage, liability, claim, or expense, including reasonable attorney's fees
and expenses, incurred by Sheffield as a result of any allegation of breach, or breach by
ASMC or any of its affiliates of any express or implied manufacturer's warranty, or
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WCSR 4514608v5
product liability claim with respect to Suzuki Products which are the subject of this
Agreement.
13.6 Limitation on Indemnities. Notwithstanding anything to the contrary in this
Agreement:
(a) ASMC will not indemnify Sheffield against consequential damages of any type or
against any loss of Sheffield's ability to collect on its Financing Plans unless that
loss is directly attributable to an event giving rise to a product liability claim with
respect to Suzuki Products which are the subject of this Agreement.
(b) ASMC shall have no obligation of any type to Sheffield as a result of mistake,
fraud, omission, breach, bankruptcy, nonpayment, or any other type of default, act
or omission, or allegation of such default, act, or omission, by either a Dealer,
Customer, or other non-ASMC party (other than its Indemnified Persons) m
connection with the Financing Plans.
(c) Except as expressly provided otherwise in this Section 13, neither party shall be
obligated to indemnify the other party for any consequential, incidental, indirect,
punitive or special damages.
14. INTERNET and ELECTRONIC TRANSMISSIONS. Without limiting any other
provision of this Agreement, ASMC agrees that, provided Sheffield has acted prudently,
Sheffield shall not be liable under this Agreement for (i) any failure, inability to access or delay
in the performance of, or any interception or interruption of any communications through, or
changes to or losses of data through, the internet or any other electronic platform used by
Sheffield in connection with, or performance of its obligations under, this Agreement or (ii) for
any unauthorized, inadvertent, fraudulent access by third parties to any information or data
transmitted through or maintained on the internet or such electronic platform, except in each case
to the extent any such liability arises as the result of Sheffield's failure to maintain data security
measures in accordance with the requirements of Applicable Law and in material compliance
with applicable standards customarily maintained by financial institutions of Sheffield's type.
15. MISCELLANEOUS
15.1 No Agency Relationship. Except as otherwise noted herein, nothing in this
Agreement or in the course of performance under this Agreement shall be construed to
create a relationship of principal and agent. Nothing in this Agreement or in the course
of performance under this Agreement shall be deemed to create the relationship of joint
venture or partnership between Sheffield and ASMC. ASMC agrees that neither it nor
any of its agents or employees shall represent themselves as an agent of Sheffield and
ASMC shall use reasonable efforts to encourage each Dealer to refrain in all aspects from
representing themselves or any of their employees or agents as an agent of Sheffield.
Sheffield agrees that neither it nor any of its agents or employees shall represent
themselves as an agent of ASMC or a Dealer.
15.2 Assignment.
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WCSR 4514608v5
(a) Except as otherwise provided in this Section 15.2, neither ASMC nor Sheffield
may assign this Agreement or any obligation or right hereunder without the prior
written consent of the other party, which consent will not be unreasonably
withheld. This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by and against the respective heirs, executors, administrators, legal
representatives, successors, and assigns of the parties hereto.
(b) Each party may, upon written notice to the other party, assign all but not a portion
of its rights, duties and obligations to a third party that is under common control
with the assigning party that agrees to assume all obligations of such assigning
party hereunder.
(c) Nothing in this Section 15.2 shall prevent Sheffield from transferring (by sale,
assignment or otherwise) to any person or entity all or a portion of its rights to
receive payments from the other party under this Agreement.
15.3 Severability. If any provision of this Agreement is found to be illegal, invalid, or
unenforceable, such provisions shall be enforced to the maximum extent permitted, but if
fully unenforceable, such provisions shall be severable, and this Agreement shall be
construed as if such provisions had never been part of this Agreement, and the remaining
provisions shall continue in full force and effect.
15.4 Notices. Any written notice to be given hereunder by either party to the other
may be effected by personal delivery, by overnight mail, or by registered or certified
mail, postage prepaid, return receipt requested, at the addresses or facsimile numbers
noted in the introductory paragraph ofthis Agreement. Notices shall be deemed received
(a) if delivered personally or by overnight mail, upon date of delivery to the address of
the person to receive such notice if delivered before 5:00 p.m., or othetwise on the
business day following such delivery; or (b) if mailed, five (5) business days after deposit
in the U.S. mail. For ASMC, notices shall be sent to the attention of the
Motorcycle/ATV Finance Department. For Sheffield, notices shall be sent to the
attention of Jack Snow at the address listed in the opening paragraph of this Agreement.
Each party may change its address and other noticing information by giving the other
party written notice of such change in accordance with this section.
15.5 Waivers. The failure of either party at any time or times hereafter to require
perfonnance by the other party of any of the provisions, representations, warranties,
covenants, terms, and conditions contained in this Agreement or in any other agreement
or document executed in connection herewith or attached to or made a part hereof shall
not waive, affect, or diminish any right of such party at any time or time hereafter to
demand performance thereof, and such rights shall not be deemed to have been waived
by any act or knowledge of either party or its agents, officers, or employees, unless such
waiver was given under signature of an officer of the party so waiving and directed to the
party requesting such waiver.
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15.6 Survival of Indemnification and Confidentiality_ All obligations relating to the
indemnification and confidentiality provisions contained in this Agreement or any
schedule to this Agreement shall, regardless of any investigation made by or on behalf of
any party, survive the expiration or termination of this Agreement.
15.7 Arbitration. Except in the case of an action for specific perfmmance or
injunctive relief to enforce the provisions of Section 11, if a dispute arises out of or
relates to this Agreement, or the breach thereof, and if such dispute cannot be settled
through direct discussions between the parties within thirty (30) days of first entering into
such discussions or as otherwise mutually agreed upon by the parties, then either party
may initiate mediation and/or arbitration upon thirty (30) days' written notice to the other
party. Any dispute between Sheffield and ASMC arising out of, or relating to, this
Agreement that cannot be resolved through mediation will be settled by arbitration to be
conducted in accordance with the Judicial Arbitration and Mediation Services ("JAMSn)
Comprehensive Arbitration Rules. The parties expressly agree to attempt to resolve any
dispute through the mediation process described in Rule 28 of JAMS Comprehensive
Arbitration Rules at least 30 days before the arbitration hearing. The Federal Arbitration
Act, 9 U.S.C. Section 1-16, not state law, will govern the arbitrability of disputes. This
Agreement will otherwise by governed by the laws of the State of California without
regard to its choice of law principles; provided, however, that each party will bear the
cost of preparing and presenting its own claims and/or defenses (including its own
attorneys' fees). The venue for arbitration shall be in Orange County, California. A
single arbitrator engaged in the practice of law, who is knowledgeable about the subject
matter of this Agreement, will conduct the arbitration. The arbitrator is bound to apply
and enforce the terms of this Agreement. The arbitrator's decision will be final, binding,
and enforceable in a court of competent jurisdiction. The parties expressly agree to Rule
34 of JAMS Comprehensive Arbitration Rules and agree to comply with JAMS Optional
Arbitration Appeal Procedure in the event either party elects to appeal the arbitrator's
decision In any action in a court of law to enforce compliance with this Section, the
prevailing party shall be entitled to recover reasonable costs and expenses incurred in
addition to any other available remedy. THE PARTIES EXPRESSLY WAIVE AND
FOREGO ANY RIGHT TO TRIAL BY JURY.
15.8 Governing Law. This Agreement shall be governed by, interpreted under and
enforced in accordance with the laws of the State of California. Any action brought to
enforce or interpret this Agreement shall be filed in Orange County, California.
15.9 Entire Agreement; Amendments. This Agreement, including the Attachments
hereto, set forth the entire Agreement between the parties hereto and supersede any and
all other agreements, either oral or in writing, between the parties hereto pertaining to the
subject matter hereof. Each party to this Agreement acknowledges that no
representations, inducement, promises, or agreements, oral or otherwise, have been made
by any party, or anyone acting on behalf of any party, that are not embodied herein, and
that no other agreement, statement, or promise not contained in this Agreement shall be
valid or binding. Any modification of this Agreement shall be effective only if it is in
writing signed by both parties hereto.
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WCSR 4514608v5
15.10 Enforcement Expenses. In the event of any legal action or other proceeding
between the parties arising out of this Agreement or the transactions contemplated herein,
the prevailing party in such legal action or proceeding shall be entitled to have and
recover from the other party all costs and expenses incurred therein, including reasonable
attorney's fees.
15.11 Counterparts; Facsimile Signatures. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of which,
together shall constitute one and the same instrument. Facsimile signatures shall be
binding upon receipt, and the parties agree to exchange original signatures within five (5)
days of facsimile transmission.
15.12 Headings; Cross-References. The headings and captions used in this Agreement
are for convenience and ease of reference only and shall not be used to construe,
interpret, expand, or limit the terms of this Agreement. All cross-references in this
Agreement, unless expressly directed to another agreement or document, shall refer to the
provisions in this Agreement and shall not be deemed to be references to any other
agreements or documents.
15.13 Advice of Counsel/Joint Drafting. Each party hereto has had the opportunity to
have advice of legal counsel regarding this Agreement, and fully understands and accepts
its terms. This Agreement was fully negotiated and bargained "at arms length" and shall
be deemed to have been jointly drafted by the parties hereto.
15.14 Execution. This Agreement shall not be binding upon Sheffield until executed by
an authorized representative of Sheffield, and shall not be binding upon ASMC until it is
executed by a duly authorized corporate officer of ASMC.
15.15 Force Majeure. Neither party shall be considered in default of its obligations
under this Agreement if the performance of its obligations are prevented or delayed by
any cause beyond its reasonable control including, without limitation, acts of God, acts or
omissions of governmental authorities, strikes, lockouts or other industrial disturbances,
acts of public enemy, wars, blockades, riots, civil disturbances, epidemic, natural
disasters, interruption of power, terrorists acts, or shutdown of modes of transportation
pursuant to an act of the federal government.
15.16 Further Assurances. Each party hereto agrees to execute all such further
documents and instruments and to do all such further things as any other party may
reasonably request in order to give effect to and to consummate the transactions
contemplated hereby.
15.17 DISCLAIMER OF WARRANTIES. EXCEPT FOR ANY WARRANTY
EXPRESSLY SET FORTH IN THIS AGREEMENT, SHEFFIELD EXPRESSLY
DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED (INCLUDING ANY
WARRANTY REGARDING THE MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, INTERFERENCE WITH ENJOYMENT, NON-
INFRINGEMENT OR RESULTS TO BE DERIVED) WITH RESPECT TO ANY
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WCSR 45 I 4608v5
MATERIALS, SERVICES OR PRODUCTS (INCLUDING THE FINANCING PLANS)
PROVIDED BY SHEFFIELD UNDER THIS AGREEMENT.
(INTENTIONALLY LEFT BLANK)
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Section
References
1.1
6.2
WCSR 4514608v5
Attachment 1
"Suzuki Products" identified by model codes and YIN prefix ranges are as
follows
Terms of Financing Plans
[To be provided]
6.2 Tenns of Anar1cln.g Plans Effective 2115/11
Fb:ad E:qu.al Payment Grid
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last
set forth below by their duly authorized representative.
Date:._ __..!.,.f_:e_b_(l_l-v_l_l_
__ ._\_{'_,_\ __ u __
WCSR 4514608v5
AMERICAN SUZUKI MOTOR CORPORATION

Executive Vice President,
Motorcycle Division
SHEFFIELD FINANCIAL, a division ofBB&T

Von Jackson Sn
President- Sheffield
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DOCS_LA:260148.8
EXHIBIT B

(Proposed Order)

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Telephone: 310/277-6910
Facsimile: 310/201-0760
jstang@pszjlaw.com
dziehl@pszjlaw.com
lcantor@pszjlaw.com


SANTA ANA DIVISION

In re:

1

Debtor.
Case No.: 12-_____ (___)
Chapter 11

ORDER AUTHORIZING THE DEBTOR
(I) TO ASSUME CERTAIN SERVICES
AGREEMENT WITH SHEFFIELD
FINANCIAL AND (II) PENDING
ASSUMPTION, TO OPERATE
(INCLUDING PAYMENT OF
PREPETITION OBLIGATIONS)
UNDER THE AGREEMENT
PURSUANT TO 11 U.S.C. 105(A), 362,
363, 365 AND 503(b)

Hearing Date:
Date: ___________, 2012
Time: ___: _.m.
Place: U.S. Bankruptcy Court
411 West Fourth Street
Courtroom __
Santa Ana, CA 92701-4593
Judge: Honorable ______________

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Upon the motion (the Motion)
2
of the above-captioned debtor and debtor in possession (the
Debtor) for entry of an order, pursuant to sections 105(a), 362, 363, 364(a), 365 and 503(b) of title
11 of the United States Code (the Bankruptcy Code) and Rules 2002, 4001, 6004, 6006 and
9014(1) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), authorizing the
Debtor (i) to assume that certain prepetition Confidential Financing Services Agreement (the
Agreement, which is described further below) with Sheffield Financial, a division of BB&T
Financial FSB (including its successors and assigns, Sheffield), and (ii) pending assumption under
section 365 of the Bankruptcy Code, to continue operating its business on the terms and conditions
of the Agreement (including payments on account of prepetition obligations) during this chapter 11
case, subject to further or other Court orders as set forth in greater detail in the Motion; and the
Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28
U.S.C. 157 and 1334; and consideration of the Motion and the relief requested therein being a
core proceeding pursuant to 28 U.S.C. 157(b)(2); and venue being proper pursuant to 28 U.S.C.
1408 and 1409; and it appearing that the relief requested in the Motion is in the best interests of the
Debtors estate, its creditors, and all other parties in interest; and the Debtor having provided
adequate and appropriate notice of the Motion and the opportunity for a hearing on the Motion under
the circumstances and no other or further notice need be provided; and the Court having reviewed
the Motion and having heard the statements in support of the relief requested therein at a hearing
before the Court (the Hearing); and the Court having considered the Motion, all pleadings and
papers filed in connection with the Motion, including the Declaration of M. Freddie Reiss, Proposed
Chief Restructuring Officer, in Support of Emergency First Day Motions and the Memorandum of
Points and Authorities filed in support thereof, and the arguments of counsel and evidence proffered
at the hearing on the Motion; after due deliberation and sufficient cause appearing therefor, it is
HEREBY ORDERED THAT:
1. The Motion is GRANTED.
2. Pursuant to section 365 of the Bankruptcy Code, the Agreement is assumed by the
Debtor effective as of the date of this Order.

2
Capitalized terms not defined herein shall have the meanings used in the Motion.
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DOCS_LA:260148.8 3
P
A
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S
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A
N
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3. [Alternative relief:]
4. The Debtor is authorized to operate its business on the terms and conditions of the
under the Agreement, subject to further or other Court order. The Debtor is authorized, in its
discretion, to take all actions, including, without limitation, making any payments to Sheffield or
other parties (including any payments that may be on account of pre-petition obligations) in the
ordinary course, pursuant to the Agreement, pending the Court's consideration of assumption of the
Agreement under section 365 of the Bankruptcy Code.
5. The automatic stay of section 362(a) of the Bankruptcy Code is hereby modified to
the extent (but only to the extent) necessary to enable Sheffield to participate in, perform its
obligations, exercise its rights and take actions in accordance with the Agreement; provided,
however, Sheffield may not terminate the Agreement without further Court order.
6. Bankruptcy Rule 6003(b) and (c) are satisfied because the relief described in this
Order is necessary to avoid immediate and irreparable harm to the estate.
7. The requirements set forth in Bankruptcy Rule 6004(a) are waived.
8. The stay imposed pursuant to Federal Rule of Bankruptcy Procedure 6004(h) is
waived.
9. This Court shall retain jurisdiction with respect to all matters arising from or related
to the implementation of this Order.
# # #


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