1
EXHIBIT 10(Y)
SECOND AMENDMENT TO
JOINT VENTURE AGREEMENT
THIS SECOND AMENDMENT TO JOINT VENTURE AGREEMENT is dated the 24th day of
February, 2000 (the "Second Amendment") and is between Polaris Industries Inc.,
a Minnesota corporation ("Polaris"), and Transamerica Commercial Finance
Corporation, a Delaware corporation ("TCFC") (collectively, Polaris and TCFC,
the "Parties" and individually, a "Party") and amends, in part, the Joint
Venture Agreement (the "JV Agreement") dated the 7th day of February, 1996
between Polaris and TCFC and as previously amended. All capitalized terms herein
shall have the same meaning as in the JV Agreement unless otherwise defined
herein.
RECITALS
WHEREAS, Polaris and TCFC caused their respective subsidiaries, Polaris
Acceptance Inc., a Minnesota corporation ("PAI") and Transamerica Joint
Ventures, Inc. ("TJV"), a Delaware corporation (collectively, PAI and TJV the
"Partners"), to enter into a Partnership Agreement dated February 7, 1996, as it
may be amended from time to time (the "Partnership Agreement") to form an
Illinois general partnership (the "Partnership") or "PA" or "Polaris
Acceptance") for the ownership and operation of a commercial finance business
and related finance businesses within the United States and other countries
supporting the business of Polaris and its affiliates from time to time and such
other businesses as the Parties subsequently may agree, as further described
therein.
WHEREAS, PA desires to extend the initial term of the Partnership Agreement
and of the JV Agreement; and
WHEREAS, it is a condition of the extension of the initial term of the JV
Agreement that Polaris and TCFC amend the terms of the JV Agreement as set forth
in this Second Amendment, and
WHEREAS, the Parties or their affiliates are also executing amendments to
other of The Amended Definitive Agreements,
NOW, THEREFORE, in consideration of the premises, recitals and mutual
covenants, undertakings and obligations hereinafter set forth or referred to
herein, the Parties mutually covenant and agree as set forth below.
AGREEMENT
1. Definitions.
(a) The definitions of the following terms, when used in the JV
Agreement, shall, from and after the effective date of this Second Amendment, be
hereby amended as follows:
(i) The term "Agreement" shall mean the Joint Venture Agreement
as amended by this Second Amendment; and
(b) The following new terms shall be added to the JV Agreement as of
the effective date of this Second Amendment:
(i) The term "Second Amendment" shall mean the Second Amendment
to the JV Agreement executed by Polaris and TCFC dated the 24th day of
February, 2000;
(ii) The term "Amended Definitive Agreements", shall have the
same meaning as in the First Amendment, and shall also include this
Second Amendment and the various amendments to the Definitive
Agreements being executed concurrently with this Second Amendment and
as any of those Definitive Agreements may be amended from time to
time;
1 of 4
2
2. Amended Term. Section 1.4 is hereby deleted in its entirety and is
hereby replaced with the following:
1.4 Term. The Partnership shall begin on March 1, 1996 and, unless
sooner dissolved or terminated under the provisions of the Partnership
Agreement, shall continue until February 29, 2004, and thereafter
shall be extended automatically for additional one-year terms unless
at least one year prior to the expiration of the initial or additional
term (as applicable) either Partner gives notice to the other Partner
of its intention not to extend the term, in which event the
Partnership shall dissolve in accordance with the terms of the
Partnership Agreement upon expiration of the then current term.
3. Amended Capital Contribution. The existing paragraph of Section 1.5,
Initial Capital Contribution, is hereby amended by adding the prefix "(A)" prior
to the phrase "Initial Capital Contribution" and new paragraphs (B) and (C) are
hereby added to Section 1.5 which shall read as follows:
1.5(B) Ongoing Capital Contributions. Pursuant to the amended Section
2.2 of the Partnership Agreement entitled "Additional Capital
Contributions", each of PAI and TJV is required to make certain
payments from time to time to maintain capital requirements. In the
event PAI does not make any such payment in full when due, Polaris
shall within 5 business days make or cause one of its affiliates to
make such required payment on behalf of PAI. In the event TJV does not
make any such payment in full when due, TCFC shall within 5 business
days make or cause one of its affiliates to make such required
payments on behalf of TJV.
1.5(C) General Reserve Obligations. Pursuant to Section 2.6 of the
Partnership Agreement entitled "Establishment of Reserves" each of PAI
and TJV may be required to make certain payments from time to time to
maintain general reserves established by the Management Committee. In
the event PAI does not make any such required payment in full when
due, Polaris shall within 5 business days make or cause one of its
affiliates to make such required payments on behalf of PAI. In the
event TJV does not make any such required payment in full when due,
TCFC shall within 5 business days make or cause one of its affiliates
to make such required payments on behalf of TJV.
4. Amended Agreements. Section 1.6, Agreements, is hereby amended by
deleting the following words from the 9th and 10th lines of the paragraph: "the
Guarantee from Polaris given on behalf of PAI dated February 7, 1996 (the
"Polaris Guarantee"),".
5. Amended Technology. Section 7.18, Technology, is hereby amended to
delete the phrase "or 8.14 of the Partnership Agreement" from the thirteenth
line of the section.
6. Representations and Warranties. Each Party represents and warrants to
the other Party with respect to itself and its respective Partner subsidiary
that all representations and warranties in the JV Agreement made as of the
Closing (as defined in the JV Agreement) are made again as of the effective date
of this Second Amendment.
7. Entire Agreement. The JV Agreement as amended by this Second
Amendment, together with the other Definitive Agreements and the Amended
Definitive Agreements, as of the date hereof contain all of the understandings
and agreements of whatsoever kind and nature existing between the Parties hereto
and their respective affiliates with respect to the JV Agreement, the other
Definitive Agreements and the Amended Definitive Agreements, regarding the
subject matter hereof and the subject matter of the other Definitive Agreements
and Amended Definitive Agreements and the rights, interests, understandings,
agreements and obligations of the Parties and their respective affiliates
pertaining to the subject matter hereof and thereof and the Partnership, and
supersedes any previous agreements between the Parties and their respective
affiliates.
8. Notices. Section 7.2 of the JV Agreement is hereby deleted in its
entirety and is replaced with the following: Notices. All notices, documents,
written deliveries and other communications hereunder shall be in
2 of 4
3
writing and shall be deemed to have been given (i) when delivered in person,
(ii) one business day after deposit with a nationally recognized overnight
courier service, (iii) five business days after being deposited in the United
States mail, postage prepaid, first class, registered or certified mail, or (iv)
the business day on which sent and received by facsimile as follows:
To: Polaris
c/o Polaris Industries Inc.
0000 Xxxxxxx 00
Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile Number: 000-000-0000
With a copy to:
Xxxxxx, Xxxxxxxx and Xxxxxx, P.A.
0000 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile Number: 612-375-1143
To: TCFC
c/o Transamerica Commercial Finance Corporation
0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Vice President, Operations
Facsimile Number: 000-000-0000
With a copy to:
General Counsel
Transamerica Commercial Finance Corporation
0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Facsimile Number: 000-000-0000
9. Governing Law. This Second Amendment shall be governed by, and construed
and enforced under, the laws of the State of Illinois without regard to conflict
of law principles.
Except as otherwise set forth herein, all terms and conditions of the JV
Agreement are hereby ratified and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Second Amendment as of
the date first above written, it being understood and agreed that it shall be
effective as of the execution hereof by all Parties hereto.
POLARIS INDUSTRIES INC., A MINNESOTA
CORPORATION
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------------
Title: Vice President - Chief Financial Officer
----------------------------------------
3 of 4
4
TRANSAMERICA COMMERCIAL FINANCE
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
----------------------------------------
Title: Senior Vice President
----------------------------------------
4 of 4
