MANUFACTURER'S/DISTRIBUTOR'S FINANCING AGREEMENT (ONE-STEP)
(CONSUMER PRODUCTS)
This Manufacturer's/Distributor's Financing Agreement is entered into as of
the 25 day of April, 1997 by and between Titan Motorcycle Co. of America, a
Arizona corporation ("Company") and TRANSAMERICA COMMERCIAL FINANCE CORPORATION,
a Delaware corporation, ("TCFC"), to set forth some of the terms and conditions
under which TCFC will provide financing for certain of the Company's dealers.
In consideration of the matters and mutual agreements herein contained,
TCFC and Company agree as follows:
1. DEFINITIONS.
(a) "Approval" herein shall mean TCFC's agreement, whether orally, in
writing or by electronic transmission, to finance the sale of Inventory by
Company to Dealer.
(b) "Dealer" herein shall mean any person, firm or corporation which
buys Inventory at wholesale from Company and sells Inventory.
(c) "Inventory" herein shall mean any and all products manufactured or
sold at wholesale by Company.
(d) "Invoice" herein shall mean an invoice, bill of sale or other
evidence, whether in writing or electronically transmitted, of the sale or
delivery of Inventory by Company to Dealer.
(e) "Wholesale Instrument" shall mean an Invoice, billing statement,
inventory schedule or other evidence of indebtedness, including the books and
records of TCFC, arising out of the financing by TCFC of an Invoice.
2. WHOLESALE FINANCING PROGRAM.
If Company requests an Approval or sends to TCFC an Invoice, then the
Dealer related to such Approval or Invoice shall be eligible for wholesale
financing, and TCFC may, from time to time in Its sole discretion. issue such
Approvals and advance against such Invoices, all under the terms of this
Agreement. If TCFC issues an Approval, Company shall deliver an original Invoice
to TCFC. Provided TCFC receives the Invoice within thirty (30) days of the date
TCFC Issued the Approval, TCFC shall pay Company the amount of the Invoice,
subject to the terms of the financing program then In effect between Company and
TCFC. If the Invoice is not received within said 30-day period, or is not
acceptable in form or content once received, TCFC has the right, without notice
to Company, to cancel the Approval related to said Invoice. Prior to funding any
Approval, TCFC has the right to cancel said Approval upon oral or written notice
to Company should Dealer be in default of any of its obligations to TCFC and
provided that Company has not shipped Inventory in reliance on TCFC's Approval.
Advances on Invoices and Approvals for such advances issued by TCFC as provided
hereunder shall constitute an acceptance of the terms and conditions hereof by
Company and TCFC as to each such advance, and no other act or notice shall be
required on the part of TCFC or Company to entitle such advances and Approvals
to the benefits of this Agreement. TCFC may deduct, set-off, withhold and/or
apply any sums or payments due from Company to TCFC, under this Agreement
against any sums or payments due from TCFC to Company from any advance to be
made by TCFC against any Invoice.
3. PURCHASE OF INVENTORY.
(a) If TCFC shall repossess or come into possession of any Inventory,
or any part thereof, covered by any Invoice. Company agrees to purchase such
Inventory from TCFC * and wherever located. Company shall pay TCFC, within
thirty (30) days of request therefor and in good funds, the original amount of
such Invoice (the "Purchase Price"). In addition to the Purchase Price, Company
shall pay TCFC for ** all out of pocket charges actually Incurred by TCFC in
taking possession or in the repossession of such Inventory, Including but not
limited to shipping, storage, fees. Company shall not assert any interest in or
title to such Inventory until it has paid TCFC the Purchase Price and other
charges as specified herein in full and in cash.
(b) If an Invoice delivered to TCFC by Company does not identify the
inventory covered thereunder by serial number, but only by model number, and
Company cannot prove to TCFC's reasonable satisfaction that an item of Inventory
is covered by a particular Invoice, then for purposes of determining the age or
price of an item of Inventory under this Agreement, the item of Inventory shall
be deemed to be covered by the most recent Invoice which has an item with the
same model number as the item of Inventory tendered for purchase.
4. REPRESENTATIONS AND WARRANTIES OF COMPANY.
(a) Company represents and warrants that at the time of TCFC'S
approval of and/or advance against any Invoice as provided hereunder, that: (i)
all Invoices issued by Company represent valid obligations of Dealer, are
legally enforceable according to their terms and relate to bonafide, original
acquisition sales of Inventory by Company to Dealer without any claim, offset or
defense to payment by Dealer and that Dealer requested that the acquisition of
Inventory be financed by TCFC; (ii) Company's title to all Inventory is free and
clear of all liens and encumbrances when transferred to Dealer and Company
transfers to Dealer all its right, title and interest in and to the Inventory;
(iii) the Inventory is in new and unused condition; it is of the kind, quality
and condition represented or warranted to Dealer; it meets or exceeds all
applicable federal, state and local safety, construction and other standards;
and if it is a type of Inventory customarily crated or boxed, such crate or box
is factory sealed.
- ----------
* New and Unused condition but subject to wear and tear incident to display
and demonstration.
** One half
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(b) In the event of breach of any of the foregoing representations or
warranties, Company shall purchase from TCFC the Wholesale Instrument relating
to the Invoice or Inventory with respect to which the warranty was breached.
Company shall pay within thirty (30) days and in good funds, the original amount
of the Invoice, plus all charges owing by Dealer with respect thereto, and all
of TCFCs out of pocket costs and expenses actually Incurred in connection with
such breach.
5. COVENANTS OF THE COMPANY. Company covenants as follows:
(a) All Inventory financed by TCFC shall be subject to applicable
product warranties of Company, and Company agrees to perform, or cause to be
performed, all repairs, modifications and/or other acts required by Company
pursuant to said product warranties. All expenses of performance under this
section shall be paid by Company.
(b) If Company accepts the return from any Dealer of any Inventory
covered by any Wholesale Instrument, voluntarily or otherwise, whether or not
any substitution is made for such returned Inventory, Company will reimburse
TCFC for the original amount of the Invoice, within thirty (30) days of the
return. In the event that Dealer shall be entitled to the payment by Company of
any rebates, reserves or incentives. Company shall advise TCFC of the amount and
nature of the payment and shall obtain TCFC'S approval (which will not be
unreasonably withheld) prior to remitting such funds to Dealer.
6. WAIVERS.
(a) Company waives notice of non-payment; protest and dishonor and
notice of protest and dishonor of any Wholesale Instrument; notice of TCFC's
acceptance of this Agreement; and all other notices to which Company might
otherwise be entitled to by law. TCFC may, at any time or times, without notice
to or further consent of Company, renew and extend the time of payment of
Wholesale Instruments and compromise or adjust claims on Wholesale Instruments
or Inventory covered thereby and waive or modify performance of such terms and
conditions of its financing arrangement with Dealers, as TCFC may determine to
be reasonable, and no such renewal, extension, compromise, adjustment, waiver or
modification shall affect the liability of Company hereunder.
(b) The failure of either party at any time to require performance by
the other party of any provision of this Agreement shall in no way affect the
right of such party to require performance of that provision. Any waiver by
either party of any breach of any provision of this Agreement shall not be
construed as a waiver of any continuing or succeeding breach of any such
provision, or a waiver of any right under this Agreement.
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7. MISCELLANEOUS.
(a) This Agreement has been duly authorized and executed by Company
and TCFC and shall be binding upon and inure to the benefit of the successors or
assigns of the parties hereto. Company may not assign this Agreement without the
prior written consent of TCFC.
(b) This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof, and all prior writings,
discussions and/or agreements are superseded by, and merged into, the terms and
provisions of this Agreement. No modification or amendment to this Agreement
shall be valid or binding unless reduced to writing and executed by the parties
hereto. Notwithstanding the foregoing, the parties acknowledge that there may be
other agreements between them coveting related matters such as financing program
terms, manufacturer sponsored rate programs, interest free period programs and
electronic invoice transmission which shall continue in full force and effect.
This Agreement shall not be deemed to create, or Intend, a joint venture,
partnership, or agency relationship between Company and TCFC.
(c) Any written notice given under this Agreement shall be deemed
sufficiently given to a party hereto three (3) days after it is mailed by
certified mail. return receipt requested, to such party at its address set forth
after its signature below.
(d) This Agreement shall be governed by and construed in accordance
with the internal laws (as opposed to the conflicts of law provisions) of the
State of Illinois, the principal place of business of TCFC.
(e) The respective acts arid obligations of the parties under this
Agreement shall be performed Solely by said parties; provided, however, if any
act or obligation hereunder is performed by any party's subsidiary, affiliate or
agent, then such performance shall be deemed to be the act or obligation of
Company or TCFC, as applicable.
(f) Any amounts not paid when due under this Agreement shall accrue
interest at the rate of 1-1/2% per month until paid in full. Company further
agrees to pay all reasonable out of pocket costs and expenses, including
attorneys fees, actually incurred by TCFC in enforcing any of the provisions of
this Agreement.
(g) Either party hereto may cancel this Agreement at any time upon
thirty (30) days notice in writing of its intention to cancel. Notwithstanding
the foregoing, either party may elect to terminate the Agreement immediately
upon notice to the other party if such other party Is in default under the terms
of the Agreement, is insolvent, in receivership or is not paying its debts when
due. The termination of this Agreement shall in no manner affect, limit or
modify the obligations of Company as to Invoices approved or advanced against by
TCFC prior to the effective date of termination, or other obligations incurred
prior to such date.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on APRIL 25, 1997.
TRANSAMERICA COMMERCIAL
FINANCE CORPORATION TITAN MOTORCYCLE CO. OF AMERICA
(COMPANY)
By: By:
-------------------------------- --------------------------------
(Authorized Signature) (Authorized Signature)
Print Name: Christopher C. Meals Print Name: Patrick F. Keery
Title: Vice President Credit Title: President
Address: Address:
Two Continental Towers
1701 Golf Road 2222 West Peoria
Rolling Meadows, Illinois 60008 Phoenix, AZ 85029
Attention; Vice President Operations Attn: Patrick F. Keery
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CERTIFIED COPY OF JOINT RESOLUTIONS
OF BOARD OF DIRECTORS
AND SHAREHOLDERS (MFR/DIST)
The undersigned, Barbara Keery hereby certifies to Transamerica Commercial
Finance Corporation that: (s)he is the duly elected, qualified and acting
SECRETARY of TITAN MOTORCYCLE CO. OF AMERICA a corporation duly existing and in
good standing under the laws of the State of ARIZONA (the "Corporation"); as
such officer (s)he has custody of the corporate records of the Corporation,
including the minutes of the meetings of, and actions taken by consent of, its
Board of Directors and shareholders; (i) at a joint meeting of said Board of
Directors and shareholders duly called, convened and held, at which there was
present and acting throughout a quorum of the Board of Directors and all of the
shareholders, or (ii) pursuant to a written consent duly executed by all
directors and shareholders of the Corporation, the following resolutions were
duly adopted by both the Board of Directors of the Corporation and all of the
Corporation's shareholders; and said resolutions have not been amended or
rescinded, and presently are in full force and effect and do not in any manner
contravene the charter or by-laws of the Corporation:
RESOLVED, that this Corporation is hereby authorized to establish and
maintain financing arrangements with TRANSAMERICA COMMERCIAL FINANCE
CORPORATION, and its successors and assigns ("TCFC"), in such amounts and
upon such terms as any officer of this Corporation (including any such
officers successors in office) may approve, such approval to be
conclusively evidenced by the execution by any officer (including any such
officer's successors in office) or agent of this Corporation, or any parson
now or hereafter designated by any of them (each such officer, agent and
other person, an "Authorized Person"), of any agreement or other document
or documents which provide for such financing arrangements.
FURTHER RESOLVED, that each Authorized Person is authorized and
directed to do the following in the name and on behalf of this Corporation,
namely, (a) to incur obligations pursuant to such financing arrangements,
directly or Indirectly, with TCFC at any time and from time to time, (b) to
execute and deliver such agreements, powers of attorney, program letters,
guaranties, and other agreements, instruments, financial reports,
certifications and other documents, and all renewals, extensions,
supplements and modifications thereof, as TCFC shall require to establish
and continua such financing arrangements, in each case upon such terms as
any officer of this Corporation (including any such officer's successors in
office) may approve, such approval to be conclusively evidenced by the
execution thereof by any Authorized Person, and (c) to do all such other
acts and things as any Authorized Person deems necessary or advisable to
establish and continue such financing arrangements and to carry out the
intent of these resolutions and the transactions contemplated herein, with
all such acts and things previously done by them to establish and continue
financing arrangements for this Corporation with TCFC being hereby ratified
and approved.
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IN WITNESS WHEREOF, the undersigned has set his or her hand as such
Secretary or Assistant Secretary and the corporate seal of the Corporation on
April 25, 1997.
(Corporate Seal) ________________________________________
(Signature of Secretary or
Assistant Secretary)
Confirmed by the Assistant
Secretary, Secretary, President
(if also a Director) or a
Director of the Corporation: Print Name: Barbara Keery
___________________________________
Print Name: Patrick F. Keery
Title/Position: President
If same person signs in the capacity of both the President and Secretary his/her
signatures must be witnessed by a non-related third party.
WITNESS:
___________________________________
Print Name:________________________
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