VENDOR AGREEMENT
Exhibit 10.3
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 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 invoice, 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 bonafide 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 changes) 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 to 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:
1
|
|
|
|
|
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 therefor 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: provided, however. (a) CDF will first request such third party to purchase such Merchandise from CDF; 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 therefor 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 agreement between CDF and Dealer, any change in Dealer’s financial condition, or the interruption of business relations between CDF and Deafer.
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 to 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.
2
8. Successors and Assigns: Obligations. This Agreement will be binding upon and incure 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 involuntarily becomes subject to the Federal Bankruptcy Code, any state insolvency law or any 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 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 affective 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 of 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 unenforceable in any respect under any law, the validity, legality 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.
3
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. 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 brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the party bringing or appealing such action or opposing confirmation of such award does not prevail, such party will pay all of the costs and expenses (including, without limitation, court costs, arbitrators fees and expenses and attorneys’fees) incurred by the other party in defending such action. Additionally, if either party brings any action for judicial relief in the first instance without pursuing arbitration prior thereto, the party bringing such action for judicial relief will be liable for and will immediately pay to the other party all of the other party’s costs and expenses (including, without limitation, court costs and attorneys’fees) to stay or dismiss such judicial action and/or remove it to arbitration. The failure of either party to exercise any rights granted hereunder shall not operate as a waiver of any of those rights. 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.
4
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE WAIVER PROVISIONS.
|
|
|
|
|
|
ATTEST: |
|
Viper Motorcycle Company |
|
|
|
|
|
|
|
|
|
By: |
|
|
3 |
|
|
2 |
|
Xxxxxx X. Xxxxxxx |
|
Name: |
Xxxx X. Flebelkom |
|
Secretary |
|
Title: |
President |
|
|
|
|
|
|
|
|
GE COMMERCIAL DISTRIBUTION FINANCE |
|
|
|
|
CORPORATION |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
Name: |
Xxxx R ??? |
|
|
|
Title: |
SR. VICE PRESIDENT |
|
|
|
|
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 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: __________________________ |
|
|
|
5
(SEAL)
___________________________________________________________GE Commercial Distribution Finance
GE Commercial Distribution Finance Corporation
???
May 29, 2003
Viper
Motorcycle Company
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX. 00000
Dear Xxxx X. Flebelkom:
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 ___: |
G5 CDF Approved Viper Dealers |
|
|
|
|
Subsidized Flooring Period: |
Zero, 30*, 60**, 90*** |
|
|
|
|
Funding: |
15 days |
|
|
|
|
Electronic Payment System (EPS): |
Yes |
|
|
|
|
Discount Rate: |
0%, .90%*, 1.70%**, 2.40%*** |
|
|
|
|
Prime Adjustment: |
The discount rate increases or decreases 4 basis points with each corresponding 30 basis points increase or decrease in the prime rate. |
|
|
|
|
Current Prime Rate: |
4.25% |
|
|
|
|
Definition of Prime: |
Prime means the highest prime 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 calender month, subject to 6.00% minimum prime. |
|
|
|
|
Advance Amount: |
100%, 99.10%*, 98.30%**, 97.60%*** |
|
|
|
|
???: |
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 ??? shall not form an enforceable contract between your company and GE CDF untill we have executed a Vendor Agreement on terms that are ??? agreeable to both parties. A fully executed Vendor Agreement is prerequisite to any ??? agreement between us.
If the above program terms and 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: |
|
|
|
|
|
Xxxxxxx X. ??? |
|
|
|
|
|
|
|
|
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: |
|
|
Page 2
|
|
|
|
|
|
Compass Bank |
X.X. Xxx 0000 |
|
|
|
Xxxxxxx, Xxxxx 00000-0000 |
|
|
|
000 000-0000 / Fax 000 000-0000 |
|
|
|
Toll Free 000 000-0000 / Fax 000 000-0000 |
|
|
|
xxx.xxxxxxxxxx.xxx |
|
|
|
|
|
|
|
International Trade Services |
AMENDMENT TO LETTER OF CREDIT NO. S26434Z
DATE: FEBRUARY 8, 2005
|
|
|
|
APPLICANT: |
BENEFICIARY: |
|
VIPER MOTORCYCLE COMPANY |
GE COMMERCIAL DISTRIBUTION |
|
0000 XXXXXXXXXXXXX XXXXXXX |
FINANCE CORPORATION |
|
XXX XXXX, XXXXXXXXX 00000 |
000 XXXXXXXXX XXXXXX XXXXX |
|
|
XX. XXXXX, XXXXXXXX 00000 |
|
|
|
|
AMENDMENT NUMBER ONE (1) |
|
|
|
|
|
GENTLEMEN: |
|
PLEASE BE ADVISED THAT THE SUBJECT LETTER OF CREDIT HAS BEEN AMENDED AS FOLLOWS:
|
|
|
|
• |
LETTER OF CREDIT AMOUNT HAS BEEN INCREASED BY USD100,000.00 (ONE HUNDRED THOUSAND AND NO/100 U.S. DOLLARS) TO A NEW TOTAL AMOUNT OF USD200,000.00 (TWO HUNDRED THOUSAND AND NO/100 U.S. DOLLARS). |
|
|
|
|
• |
LETTER OF CREDIT EXPIRY DATE HAS BEEN EXTENDED TO FEBRUARY 13, 2006. |
THIS AMENDMENT IS TO BE CONSIDERED AS PART OF THE ABOVE CREDIT AND MUST BE ATTACHED THERETO.
ALL OTHER TERMS AND CONDITIONS OF THE CREDIT REMAIN UNCHANGED.
THIS CREDIT IS SUBJECT TO INTERNATIONAL STANDBY PRACTICES, ISP98, AS PUBLISHED BY THE INSTITUTE OF INTERNATIONAL BANKING LAW & PRACTICE, BEARING INTERNATIONAL CHAMBER OF COMMERCE (ICC) PUBLICATION NO. 590.
TLC
