EXHIBIT 10.13
VENDOR AGREEMENT
This Vendor Agreement ("Agreement") is made as of May 29, 2003 between GE
Commercial Distribution Finance Corporation ("CDF"), having a principal place of
business at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, and Viper
Motorcycle Company ("Vendor"), having a principal place of business located at
0000 Xxxxxxxxxxxxx Xxxxxxx, Xxx Xxxx, XX 00000.
Vendor sells various products ("Merchandise") to dealers and/or
distributors (individually and collectively "Dealer") who may require financial
assistance in order to make such purchases from Vendor. To induce CDF to finance
the acquisition of Merchandise by any Dealer and in consideration thereof,
Vendor and CDF agree that:
1. VENDOR'S WARRANTIES. Whenever a Dealer requests the shipment of
Merchandise from Vendor and that CDF finance such Merchandise, Vendor may
deliver to CDF an invoice(s) describing the Merchandise. By delivery of an
income, Vendor warrants the following:
a. That Vendor transfers to Dealer all right, title and
interest in and to the Merchandise so described, contingent upon
CDF's approval to finance the transaction;
b. That Vendor's title to the Merchandise is free and
clear of all liens and encumbrances when transferred to Dealer;
c. That the Merchandise is in salable condition
suitable for ordinary retail sale, free of any defects;
d. That the Merchandise is the subject of a bona fide
order by Dealer placed with and accepted by Vendor, and that
Dealer has requested the transaction be financed by CDF; and
e. That the Merchandise subject to the transaction has
been shipped to Dealer not more than ten (10) days prior to the
invoice date.
If Vendor breaches any of the above-described warranties, Vendor will
immediately: (i) pay to CDF an amount equal to the total unpaid balance (being
principal and finance charges) owed to CDF on all Merchandise related to the
breach; and (ii) reimburse CDF for all costs and expenses (including, but not
limited to, reasonable attorneys' fees) incurred by CDF as a result of the
breach.
2. FINANCING OF MERCHANDISE. CDF will only be bound to finance
Merchandise which CDF has accepted to finance (such acceptances will be
indicated by CDF's issuance of an approval number, draft or other instrument to
Vendor in payment of the invoice, less the amount of CDF's charges as agreed
upon from time to time) and only if: (a) the Merchandise is delivered to Dealer
within thirty (30) days following CDF's acceptance; (b) CDF has received
Vendor's invoice for such Merchandise within ten (10) days from the date of
delivery of the Merchandise to Dealer; (c) CDF's approval number is on the
invoice; and (d) CDF has not revoked its acceptance prior to the shipment of the
Merchandise to Dealer. With respect to any
invoice, if CDF has not advanced funds within forty-five (45) days of CDF's
issuance of an approval number for such invoice, the invoice shall be deemed not
received by CDF and CDF shall not be bound to finance such Merchandise.
3. PURCHASE OF MERCHANDISE. Whenever CDF deems it necessary in its
sole discretion to repossess or if CDF otherwise comes into possession, actual
or constructive, of any Merchandise in which it has a security interest or other
lien, Vendor will purchase such Merchandise from CDF at the time of CDF's
repossession or other acquisition of possession in accordance with the following
terms and conditions:
a. Vendor will purchase such Merchandise, regardless of
its condition, at the point where CDF repossesses it or where it
otherwise comes into CDF's possession;
b. The purchase price Vendor will pay to CDF for such
Merchandise will be due and payable immediately in full, and will
be an amount equal to (i) the total unpaid balance (being
principal and finance charges) owed to CDF with respect to such
Merchandise, or Vendor's original invoice price for such
Merchandise, whichever is greater, and (ii) all costs and expenses
(including, but not limited to, reasonable attorneys' fees) paid
or incurred by CDF in connection with the repossession of such
Merchandise; and
c. Vendor shall not assert or obtain any interest in or
to any Merchandise acquired by Vendor until the purchase price
therefore is paid in full.
4. ADDITIONAL TERMS OF PURCHASE. In addition to Vendor's obligations
set forth above, if CDF at any time repossesses or otherwise comes into
possession of any Merchandise from any Dealer who received the Merchandise from
a third party and not directly from Vendor, Vendor shall purchase such
Merchandise from CDF on demand, in accordance with the terms set forth above in
SECTION 3; and (b) if such third party fails to immediately purchase such
Merchandise from CDF, Vendor shall immediately purchase such Merchandise and pay
CDF a purchase price therefore in an amount equal to the total unpaid balance
(being principal and finance charges) owed to CDF with respect to such
Merchandise and all costs and expenses (including, without limitation,
reasonable attorneys' fees) paid or incurred by CDF in connection with its
repossession of such Merchandise, but in no event will Vendor's liability with
respect to any item of such Merchandise exceed Vendor's invoice price for such
item.
5. EXTENSION OF TIME; WAIVERS. CDF may extend the time of a Dealer in
default to fulfill its obligations to CDF without notice to Vendor and without
altering Vendor's obligations hereunder. Vendor waives any rights it may have to
notice of nonpayment, nonperformance, dishonor, the amount of indebtedness of a
Dealer outstanding at any time, any legal proceeding against a Dealer, and any
other demands and notices except as required by law, and any rights it may have
to require CDF to proceed against a Dealer or the Merchandise or to pursue any
other remedy in CDF's power. Vendor's liability to CDF is direct and
unconditional and will not be affected by any change in the terms of payment or
performance of any agreement between CDF and Dealer, or the release, settlement
or compromise of or with any party liable for the payment or performance
thereof, the release or non-perfection of any security interest granted CDF in
any
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agreement between CDF and Dealer, any change in Dealer's financial condition, or
the interruption of business relations between CDF and Dealer.
6. EXPENSES; RELEASE OF INFORMATION. Vendor will pay all CDF's
expenses (including, but not limited to, court costs, arbitration fees and
reasonable attorneys' fees) in the event CDF is required to enforce its rights
against Vendor. Vendor will release to CDF any credit, financial or other
information on any Dealer upon each request by CDF. Vendor will immediately
notify CDF if Vendor reasonably believes that Dealer has violated the terms of
any franchise, permission, license or right to sell or deal in the Merchandise.
7. INVOICES. Invoices submitted by CDF by Vendor should indicate that
the Merchandise is "Sold to (Name of Dealer) and "Financed by GE Commercial
Distribution Finance Corporation." However, if Vendor's invoices read "Sold to
GE Commercial Distribution Finance Corporation", and regardless of the invoice,
Vendor acknowledges and agrees that CDF is not purchasing Merchandise, but is
only financing said Merchandise for Dealer.
8. SUCCESSORS AND ASSIGNS; OBLIGATIONS. This Agreement will be
binding upon and inure to the benefit of CDF's successors and assigns. Vendor
cannot assign this Agreement without CDF's prior written consent. CDF may
perform or cause to be performed any or all of its obligations hereunder by any
of its subsidiaries and/or affiliated companies. Vendor's obligations under this
Agreement inure to the benefit of any of CDF's subsidiaries and/or affiliated
companies.
9. EVENTS OF DEFAULT. The occurrence of any of the following events
shall be deemed an "Event of Default" under this Agreement: (a) Vendor's failure
to pay when due any amount owed CDF hereunder or under any other agreement
between CDF and Vendor; (b) Vendor's failure to perform or observe any covenant,
term or provision hereunder or under any other agreement between CDF and Vendor;
(c) termination or impairment of any guaranty of Vendor's obligations hereunder;
(d) Vendor shall cease existence as a corporation, partnership, limited
liability company or trust, as applicable; (e) Vendor ceases or suspends
business; (f) Vendor makes a general assignment for the benefit of creditors;
(g) Vendor becomes insolvent or voluntarily or involuntary becomes subject to
the Federal Bankruptcy Code, any state insolvency law or similar law; (h) any
receiver is appointed for any assets of Vendor; (i) Vendor sells, transfers or
assigns all or substantially all of its assets; (j) Vendor merges its business
with another business, regardless of whether Vendor is the surviving entity; or
(k) there is any material adverse change in Vendor's financial condition.
10. REMEDIES UPON DEFAULT. Upon the occurrence of any Event of
Default, CDF shall have the right, at CDF's option, to immediately exercise one
or more of the following remedies: (a) refuse to extend any further financing to
Dealers; (b) terminate the Agreement; or (c) exercise any other rights it may
have under the laws of the state governing this Agreement.
11. TERMINATION. Either party may terminate this Agreement by notice
to the other in writing, the termination to be effective thirty (30) days after
receipt (which receipt is presumed to be five (5) business days after the same
is sent) of notice by the other party PROVIDED, HOWEVER, that CDF may terminate
this Agreement immediately if an Event of Default has occurred. In any
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event, no termination of this Agreement will affect any of Vendor's (or its
assignees, whether permitted or unpermitted) liability with respect to any
financial transactions entered into by CDF with any Dealer prior to the
effective date of termination, including, without limitation, transactions that
will not be completed until after the effective date of termination.
12. MISCELLANEOUS. Vendor will notify CDF of any change in its name or
business structure. Vendor waives notice of CDF's acceptance of this Agreement.
This Agreement is not intended, nor shall it be deemed to, directly or
indirectly, benefit any person or entity, including any Dealer, who is not a
party hereto. If at any time any one or more of the provisions of this Agreement
becomes invalid, illegal or enforceable in any respect under any law, the
validity, legally and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby. CDF's failure to exercise any
rights granted hereunder shall not operate as a waiver of those rights. The
rights of CDF under this Agreement are cumulative, may be exercised as often as
it considers appropriate, and are in addition to its rights under the general
law.
13. NO ORAL AGREEMENTS. There are no oral or unwritten agreements
between CDF and Vendor regarding the subject matter hereof. Vendor and CDF
acknowledge and agree that all agreements and understandings between them are
set forth in this Agreement and any terms letter(s) executed in connection
herewith (as the same may be revised from time to time without necessitating an
amendment of this Agreement) ("Terms Letter(s)") or in any other writing between
the parties relating hereto. The Terms Letter(s) are hereby incorporated into
this Agreement by reference and form a part of this Agreement.
14. BINDING ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, the relationship resulting in or from this
Agreement, the breach of any duties hereunder or any other relationship,
transaction or dealing between the parties (collectively "Disputes") will be
settled by binding arbitration in accordance with the Commercial Arbitration
Rules of either: (a) The American Arbitration Association ("AAA"); or (b) United
States Arbitration & Mediation ("USA&M"). The party first filing an arbitration
claim shall designate which arbitration forum and rules are to be applied for
all disputes between the parties. The arbitration rules are found at xxx.xxx.xxx
for AAA, and at xxx.xxxx-xxxxxxx.xxx for USA&M. AAA claims may be filed in any
AAA office. Claims filed with USA&M shall be filed in their Midwest office
located at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000.
Notwithstanding the foregoing, the parties agree that either party may pursue
claims against the other that do not exceed Fifteen Thousand Dollars ($15,000)
in the aggregate in a court of competent jurisdiction. Except as otherwise
stated herein, all notices, arbitration claims, responses, requests and
documents will be sufficiently given or served if mailed or delivered: (a) to
CDF at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention:
General Counsel; and (b) to any other party at the address specified herein; or
such other address as the parties may specify from time to time in writing. The
parties agree that all arbitrators selected will be attorneys with at least five
(5) years secured transactions experience. Each party hereby consents to a
documentary hearing for all arbitration claims, by submitting the dispute to the
arbitrator(s) by written briefs and affidavits, along with relevant documents.
However, arbitration claims will be submitted by way of an oral hearing, if any
party requests an oral hearing within forty (40) days after service of the
claim, and that party remits the appropriate deposit for AAA's fees and
arbitrator compensation within ten (10) days of making the request.
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The site of all oral arbitration hearings will be in the Division of the Federal
Judicial District in which AAA or USA&M maintains a regional office that is
closest to Vendor. Any award rendered by the arbitrator(s) may be entered as a
judgment or order and confirmed or enforced by either party in any state or
federal court having competent jurisdiction thereof. Nothing herein will be
construed to prevent CDF's or Vendor's use of bankruptcy, receivership,
injunction, repossession, replevin, claim and delivery sequestration, seizure
attachment, foreclosure, and/or any other prejudgment or provisional action or
remedy relating to any Merchandise for any current or future debt owed by either
party to the other. Any such action or remedy will not waive CDF's or Vendor's
right to compel arbitration of any Dispute. The non-prevailing party will pay
all of the costs and expenses (including, without limitation, reasonable
attorneys' fees) incurred by the prevailing party in any arbitration proceeding.
If either party opposes the confirmation of such award and the party bringing or
appealing such action or opposing confirmation of such award does not prevail,
such party will pay all of the cots and expenses (including, without limitation,
court costs, arbitrators fees and expense and attorneys' fees) incurred by the
other party in defending such action. Additionally, if either party brings any
action for judicial relief in the first instance without pursuing arbitration
prior thereto, the party bringing such action for judicial relief will be liable
for and will immediately pay to the other party all of the other party's costs
and expenses (including, without limitation, court costs and attorneys' fees) to
stay or dismiss such judicial action and/or remove it to arbitration. The
failure of either party to exercise any rights granted hereunder shall not
operate as a waiver of any of those rights. THE LAWS OF THE STATE OF Missouri
WILL GOVERN THIS AGREEMENT AND ALL TRANSACTIONS HEREUNDER AS TO INTERPRETATION,
ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT AND IN ALL OTHER RESPECTS; PROVIDED,
HOWEVER, THAT THE FEDERAL ARBITRATION ACT ("FAA"), TO THE EXTENT INCONSISTENT,
WILL SUPERSEDE THE LAWS OF SUCH STATE AND GOVERN. This Agreement concerns
transactions involving commerce among the several states. The arbitrators will
not be empowered to award punitive damages. The agreement to arbitrate will
survive termination of this Agreement. IF THIS AGREEMENT IS FOUND TO BE NOT
SUBJECT TO ARBITRATION, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE COURTS LOCATED WITHIN SUCH STATE AND AGREE THAT ALL LEGAL PROCEEDINGS WILL
BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT A JURY. EACH
PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
ATTEST: Viper Motorcycle Company
/s/ Xxxxxx X. Xxxxxxx 3 By: /s/ Xxxx X. Xxxxxxxxxx 2
--------------------------------------- ---------------------------------
Xxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxxxxx
Secretary Title: President
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GE COMMERCIAL DISTRIBUTION
FINANCE CORPORATION
By: /s/ Xxxx X. P
-------------------------------
Name: Xxxx X. P
-------------------------------
Title: Sr. Vice President
-------------------------------
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(1) Name of Vendor
(2) Signature of Vendor's Authorized Representative, if Vendor is a
corporation, an officer must sign
(3) Signature of Vendor's Secretary or Assistant Secretary, if Vendor is a
Corporation; if Vendor is a Sole Proprietor, the signature must be either
witnessed by a CDF employee or notarized; if Vendor is a member-managed
Limited Liability Company, all members must sign and the signature must
be either witnessed by a CDF employee or notarized; if Vendor is a
Partnership, also complete the Partnership Certificate - Vendor
Agreement; if Vendor is a Limited Liability Company, also complete the
Limited Liability Company Certificate - Vendor Agreement
DO NOT COMPLETE THE NOTARY BELOW IF THE VENDOR IS A CORPORATION
NOTARY STATEMENT
On this ____ day of ___________, 20__, before me, the subscriber, a Notary
Public, personally appeared ______________________ known to me to be the
person(s) described in and who executed the above Vendor Agreement, and who
acknowledged the execution thereof to be their free act and deed.
Notary Public:
--------------------------------------
My Commission Expires: ____________, 20__ (SEAL)
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GE Commercial Distribution Finance
------------------------------------------------
GE Commercial Distribution Finance Corporation
000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, XX 00000
000 000-0000, Fax 000-000-0000
May 29, 2003
Viper Motorcycle Company
0000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Dear Xxxx X. Xxxxxxxxxx:
As we discussed, I have outlined the following financing terms, which will apply
to the inventory-financing program for motorcycles (manufactured/distributed) by
Viper Motorcycle Company financed by General Electric Commercial Distribution
Finance. (GE CDF)
Program Name: Viper Motorcycle Company Zero 30, 60 and 90
Day Plans
Program Effective: Ongoing
Eligible Dealers: GE CDF Approved Viper Dealers
Subsidized Flooring Period: Zero, 30* 60**, 90***
Fundings 15 Days
Electronic Payment System (EPS): Yes
Discount Rate: 0%, 90%*, 1.70%, 2.40%***
Price Adjustment: The discount rate increase or decreases 4
basis points with each corresponding 50
basis points increase or decrease in the
prime rate.
Current Prime Rate: 4.25%
Definition of Prime: Prime means the highest rime rate or
reference rate of interest publicly
announced from time to time by Chase
Manhattan Bank, N.A. and Citibank, N.A.,
and such rate in effect on the last
business day of any calendar month will be
prime for the following calendar month,
subject to 6.00% minimum prime.
Advance Amount: 100%, 99.10%*, 98,30%**, 97.60%***
Curtailments: N/A
Maturity: 365 days
Your invoices submitted to GE CDF should indicate that the inventory is sold to
[NAME OF DEALER] and Financed by GE CDF. However, if your invoices say, Sold To
GE CDF Corporation, you hereby acknowledge the fact that GE CDF is not
purchasing the inventory, but is only financing the inventory for the particular
dealer.
As you know, execution of this Terms Letter shall not form an enforceable
contract between your company and GE CDF until we have executed a Vendor
Agreement on terms that are mutually agreeable to both parties. A fully executed
Vendor Agreement is prerequisite to any binding agreement between us.
If the above program terms are acceptable, please sign and return this letter to
my attention. If you wish to discuss any elements of the program I can be
reached at (000) 000-0000. My fax number is (000) 000-0000.
Sincerely,
GE CDF
By: /s/ Xxxxxxx X. Echermann
------------------------------------
Xxxxxxx X. Echermann
Title: Regional Sales Manager
The terms as stated above are agreed to and accepted on this 29th day of May,
2003
Viper Motorcycle Company By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
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IRREVOCABLE LETTER OF CREDIT ADENDUM
(Vendor)
This Irrevocable Letter of Credit Addendum is hereby made to that certain
Vendor Agreement between Viper Motorcycle Company ("Vendor") and GE COMMERCIAL
DISTRIBTUION FINANCE CORPORATION ("CDF"), bearing the effective date of May 29,
2003, as amended ("Agreement").
The following paragraphs are hereby incorporated into the Agreement as if
fully set forth therein (all capitalized terms shall have the same meaning used
in the Agreement unless otherwise defined herein):
1. "Viper Motorcycle Company ("Vendor") hereby agrees to cause an
institution acceptable to GE Commercial Distribution Finance
Corporation ("CDF") to issue in favor of CDF one or more
Irrevocable Letters of Credit, in a total amount, form, substance
and with expiration dates, satisfactory to CDF.
2. Vendor hereby agrees that: (a) if at least sixty (60) days prior
to the expiration of the above-referenced Irrevocable Letter(s) of
Credit or any subsequent Letter(s) of Credit issued for the
account of Vendor in favor of CDF, such Irrevocable Letter of
Credit is not extended for a term of twelve (12) months or longer,
or a new Irrevocable Letter of Credit in a total amount, form,
substance and from an institution acceptable to CDF and for a term
of twelve (12) months or longer is not provided to CDF, an event
of default shall have occurred under this Agreement and all other
agreements between Vendor and CDF; and (b) if Vendor fails to
honor any of its obligations or liabilities under this Agreement,
then an event of default shall have occurred under this Agreement
and all other agreements between Vendor and CDF. Upon any such
default, CDF may: (i) exercise any and all of its rights under
this Agreement and all other agreements between Vendor and CDF;
and/or (ii) exercise any and all of its rights to draw upon any
Irrevocable Letter of Credit issued for the account of Vendor in
favor of CDF.
3. Any monies collected by CDF upon presently of any Irrevocable
Letter of Credit shall be applied to satisfy any outstanding
obligations and liabilities of Vendor. If the monies collected
exceed the outstanding obligations owed at the time of drawing on
the Irrevocable Letter of Credit, then CDF shall hold such excess
funds in a loss reserve ("Loss Reserve") until such time that
Vendor is no longer liable to CDF under this Agreement or any
other agreement. If at any time, Vendor fails to perform any of
its liabilities and/or obligations under this Agreement, or any
other agreement, CDF may, in its sole discretion, apply the funds
in the Loss Reserve to satisfy such obligations or liabilities.
The funds in the Loss Reserve shall be held as security for the
performance of Vendor under this Agreement and all other
agreements, and not in lieu of performance. Vendor hereby grants
and pledges to CDF a continuing security interest in the Loss
Reserve and all proceeds thereof, regardless of whether said Loss
Reserve is classified as accounts, money, instruments, general
intangibles or otherwise under
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the Uniform Commercial Code whether now existing or hereafter
created. Vendor agrees that possession by CDF of the Loss Reserve
constitutes perfection therein.
4. CDF shall forward all sums remaining in the Loss Reserve to Vendor
upon the payment and/or performance in full of any and all
contingent, non-contingent, liquidated and unliquidated
obligations and liabilities of Vendor under this Agreement, and
all other agreements, if any. The Loss Reserve need not be kept
separate from CDF's funds but may be set up in CDF's accounts and
recorded on their books and records as a credit to Vendor. Any
interest or income that is or could be earned on the Loss Reserve
shall accrue solely to the benefit of CDF, and Vendor shall make
no claim or demand upon CDF for any such interest or income."
Vendor hereby waives notice of CDF's acceptance of this Addendum. All
other terms and conditions of the Agreement are ratified and shall remain
unchanged and in full force and effect.
Dated: February 23, 2004 Viper Motorcycle Company
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------------
Print Name: Xxxx X. Xxxxxxxxxx
-----------------------------
Its: President
------------------------------------
ACCEPTED:
GE COMMERCIAL DISTRIBUTION
FINANCE CORPORATION
By:
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Print Name:
-----------------------------------------
Its:
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