EX.10.50
FLOORPLAN REPURCHASE AGREEMENT
To: ITT COMMERCIAL FINANCE CORP.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx, X.X.X. 00000
and
To: ITT COMMERCIAL FINANCE
a division of ITT Industries of Canada Ltd.
00 Xxxxxxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
We, the undersigned, sell various products ("Merchandise") at wholesale
to retail dealers or distributors in the United States of America and Canada
(collectively "Dealer") who may require financial assistance in order to make
such purchases from us. To induce you to finance the acquisition of
Merchandise by any Dealer and in consideration thereof, we agree that:
1. Whenever a Dealer shall request the shipment of Merchandise from
us and shall request the same be financed by you, we may deliver to you an
invoice or invoices describing the Merchandise and by delivery of an invoice
shall evidence and warrant the following:
a. That we transfer to the Dealer all rights, title and
interest in and to the Merchandise so described
contingent upon your approval to finance the transaction.
b. That our title to the Merchandise is free and clear of all
liens and encumbrances when transferred to the Dealer.
c. That the Merchandise is in salable condition, free of any
material defects.
d. That the Merchandise has been the subject of a bona fide
order by the Dealer placed with and accepted by us and that
the Dealer has requested that the transaction be financed
by you.
e. That the Merchandise subject to the transaction has been
shipped to the Dealer not more than ten (10) days prior to
the invoice date.
In the event of any breach of any of the above-described warranties, we
will immediately: (i) pay to you an amount equal to the total unpaid balance
(being principal, finance charges, and all service, delinquency and penalty
charges) owed to you on each item of such Merchandise as to which we have
breached any of the above-described warranties; and (ii) reimburse you for
all costs and expenses (including, but not limited to, attorney's fees and
legal fees on a solicitor and client basis) incurred by you as a result of
any such breach.
2. You shall only be bound to finance Merchandise which you have
accepted to finance (which acceptances shall be indicated by your issuance of
an approval number or a draft or other instrument to us in payment of the
invoice less the amount of your charges as agreed upon from time to time) and
only if: (i) the Merchandise is delivered to the Dealer within thirty (30)
days following your acceptance; (ii) you have received our invoice for such
Merchandise within ten (10) days from the date of delivery of the Merchandise
to the Dealer; and (iii) you have not revoked your acceptance prior to the
shipment of the Merchandise to the Dealer.
3. Whenever you deem it necessary in your sole discretion to
repossess or if you otherwise come into possession of any Merchandise
financed by you when originally shipped by us to a Dealer, in which you have
a security interest or other lien, we will be required to and will repurchase
each unit of such Merchandise from you upon your repossession or other
acquisition or possession thereof in accordance, and subject to compliance,
with the following terms and conditions:
a. We will repurchase each unit of such Merchandise in
whatever condition, at the point where you repossess it
or where it otherwise comes into your possession. You
agree to give us notice of the time and place to
repurchase such Merchandise.
b. Subject to the provisions of 3(c) hereinbelow, the
repurchase price that we will pay you for each unit of
such Merchandise will be an amount equal to the total
unpaid balance (being principal, finance charges and all
service, penalty and delinquency charges) owed to you on
such unit of Merchandise, and any costs and expenses paid
or incurred by you in connection with the repossession of
such unit of Merchandise including reasonable attorney's
fees and legal fees on a solicitor and client basis
("Repurchase Price"). We will pay you the Repurchase
Price for each unit of such Merchandise immediately upon
the earlier of (i) our disposition of such unit of
Merchandise, or (ii) the ninetieth (90th) day following
the date you repossess or otherwise come into possession of
such unit of Merchandise. We will also pay you interest
on the average daily unpaid Repurchase Price for each unit
of such Merchandise, from the date of your repossession or
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other acquisition or possession of such unit of Merchandise
until the Repurchase Price is paid in full. Interest will
accrue on the average daily unpaid Repurchase Price on each
unit of such Merchandise at the rate of interest equal to
the rate of interest charged by you to the particular
Dealer under your financing program with such Dealer.
Interest payments will be due and payable on the 10th day
of each month.
c. We may send you a written notice requesting you to obtain
possession, for repurchase by us, of all Merchandise of a
Dealer ("Action Notice") if such Dealer is in default to
you in the payment of any principal or interest payment
according to the terms of your financing agreement with
such Dealer. You shall then be required, within thirty
(30) days following your actual receipt of such Action
Notice ("Action Period") to initiate any action or motion
to obtain possession and the right to dispose of such
Merchandise. If you fail to initiate such action or motion
within the Action Period, the Repurchase Price on each such
unit of Merchandise of such Dealer shall be reduced by
(i) all principal payments that become more than ninety
(90) days past due after the date of your actual receipt of
such Action Notice ("Principal Reduction") and (ii) all
interest, finance charges and all service, penalty and
delinquency charges related to such Principal Reduction.
The Repurchase Price shall not be reduced by any principal
payment, or any finance charges or any service, penalty or
delinquency charges related thereto, that is ninety (90) or
more days past due as of the date of your actual receipt of
such Action Notice regardless of whether or not you
initiate such action or motion within the Action Period.
If you do initiate such action or motion within the Action
Period, we shall pay you one hundred percent (100%) of the
Repurchase Price in accordance with the terms of this
Agreement on each such unit of Merchandise financed by you
when originally shipped by us to Dealer. You agree to
apply payments from a Dealer in accordance with your normal
and customary practices consistently applied.
d. You warrant to us that your security interest or other lien
in each unit of such Merchandise that you repossess or that
otherwise comes into your possession is superior to all
other security interests and liens in such unit of
Merchandise as of the date by which you specify we must
take possession of such unit of Merchandise. We neither
take nor receive any rights, and we promise that there will
be no liens superior to yours, in any unit of such
Merchandise until the Repurchase Price for such unit of
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Merchandise is paid, as limited, if such limitation is
applicable, by 3(c) hereinabove.
4. Except as limited by 3(c) hereinabove, you may extend the time
of a Dealer in default to fulfill its obligations to you without notice to us
and without altering our obligations hereunder. We waive any rights we may
have to notice of: dishonor, any legal proceeding against a Dealer (except
under 3(c) hereinabove), and we waive any rights we may have to require you
to proceed against a Dealer or to pursue any other remedy in your power. Our
liability to you will not be affected by any change in the terms of any
agreement between you and Dealer, or the release, settlement or compromise of
or with any party liable for the payment or performance thereof other than
Dealer, the nonperfection of any security or lien thereunder, any change in
Dealer's financial condition, or the interruption of business relations
between you and Dealer. We have made an independent investigation of the
financial condition of Dealer and we do not rely on any representations made
by you as to the financial condition of Dealer. We acknowledge that we have
access to current and future Dealer financial information which will enable
us to continuously remain informed of Dealer's financial condition. We may,
however, rely upon written information that you supply to us as to the amount
and length of time that principal or interest payments are past due from a
Dealer to you.
5. Your failure to exercise any rights granted hereunder shall not
operate as a waiver of those rights.
6. This Agreement shall be binding upon and inure to the benefit of
your successors or assigns. You may perform or cause to be performed any or
all of your obligations hereunder by any of your subsidiary and/or affiliated
companies, and our obligations under this Agreement shall inure to the
benefit of any of your subsidiary and/or affiliated companies.
7. Either of us may terminate this Agreement by notice to the other
in writing, the termination to be effective thirty (30) days after receipt of
the notice by the other party, but the termination shall in no manner
terminate our liability with respect to financial transactions entered into
by you 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.
8. THIS AGREEMENT IS SUBMITTED BY US TO YOU (FOR YOUR ACCEPTANCE OR
REJECTION THEREOF) AT ITT COMMERCIAL FINANCE CORP.'S PRINCIPAL PLACE OF
BUSINESS IN THE CITY OF XXXXXXX, XX. XXXXX XXXXXX, XXXXX XX XXXXXXXX, X.X.X.
00000 AND SHALL NOT BE BINDING OR BECOME EFFECTIVE UNLESS AND UNTIL ACCEPTED
BY YOU IN THE MANNER SET FORTH BELOW. IF SO ACCEPTED, THIS AGREEMENT SHALL
BE DEEMED TO HAVE BEEN MADE AT ITT COMMERCIAL FINANCE CORP.'S PRINCIPAL PLACE
OF BUSINESS. THIS AGREEMENT SHALL BE
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GOVERNED AND CONTROLLED AS TO INTERPRETATION, ENFORCEMENT, VALIDITY,
CONSTRUCTION, EFFECT AND IN ALL OTHER RESPECTS BY THE LAWS, STATUTES AND
DECISIONS OF THE STATE OF MISSOURI, U.S.A. WE, IN ORDER TO INDUCE YOU TO
ACCEPT THIS AGREEMENT, UNCONDITIONALLY CONSENT TO THE TERMS OF BINDING
ARBITRATION HEREINAFTER SET FORTH. IN THE EVENT THE TERMS OF SUCH BINDING
ARBITRATION ARE INVALID OR UNENFORCEABLE, WE UNCONDITIONALLY CONSENT AND
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE UNITED STATES OF AMERICA
WHEREVER LOCATED, AND AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING DIRECTLY
OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO OR FROM THIS AGREEMENT
MAY BE LITIGATED, AT YOUR SOLE DISCRETION AND ELECTION, IN ANY STATE OR
FEDERAL COURTS HAVING SITUS ANYWHERE WITHIN THE STATE OF MISSOURI, U.S.A. WE
HEREBY FURTHER UNCONDITIONALLY CONSENT AND SUBMIT TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF MISSOURI, U.S.A. WE
HEREBY WAIVE ANY RIGHT WE MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY
LITIGATION BROUGHT AGAINST US BY YOU IN ACCORDANCE WITH THIS PARAGRAPH.
9. BINDING ARBITRATION. All actions, disputes, claims and
controversies heretofore or hereafter arising out of or relating to (a) this
Agreement and/or any amendments and addenda hereto, (b) any subsequent
agreement entered into between the parties hereto, (c) any previous agreement
entered into between the parties hereto and/or (d) any relationship or
business dealings between the parties hereto (collectively the "Disputes"),
shall be subject to and resoled by binding arbitration in accordance with and
pursuant to the Code of Procedure in effect from time to time ("Code") of the
National Arbitration Forum ("NAF"), currently located at 0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. If the code is cancelled and/or the
NAF dissolves or disbands, all arbitrable Disputes under this Agreement shall
be subject to and resolved by binding arbitration in accordance with and
pursuant to the Code and shall be administered by the American Arbitration
Association.
a. The parties to this Agreement agree that the locale and
situs of all arbitration provided for herein shall be in
the Eastern Division of the Federal Judicial District for
the Eastern District of Missouri. When the jurisdictional
requirements of the Federal Arbitration Act, 9 U.S.C.,
Sections 1-14 (1982), ("FAA") are satisfied, the FAA shall,
with respect to all Disputes within the scope of the FAA,
govern the arbitration hereunder and be applied by the
arbitrator(s). The parties recognize and agree that this
Agreement evidences transactions involving commerce among
the several states.
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b. Nothing in this Agreement shall be construed to prevent
either party's use of any prejudgment or provisional action
or remedy relating to any collateral or security for any
contractual debts now or hereafter owed by either party to
the other under this Agreement, any previous agreement
entered into between the parties, any subsequent agreement
entered into between the parties and/or any renewals,
extensions, changes, amendments, addenda, additions or
modifications thereto. The institution and maintenance of
an action for judicial relief in pursuit of any such
prejudgment or provisional remedies shall not constitute a
waiver of the right of any party, including the plaintiff,
to compel arbitration of any Disputes subject to
arbitration as provided herein. If, however, either party
brings any other action for judicial relief with respect to
any Disputes that the parties have agreed to arbitrate
under the terms and provisions of this Agreement, the party
who brought such action shall be liable for and shall
immediately pay to the other party all of the other party's
costs and expenses (including attorney's fees) incurred by
the other party to stay such action and remove or refer
such Disputes to arbitration. Without limiting the
foregoing, the parties hereto further specifically and
expressly agree that all Disputes arising under common law,
statutory law and in equity shall be subject to binding
arbitration pursuant to the terms stated herein.
c. In any Disputes arbitrated pursuant to the terms of this
Agreement, the arbitrator(s) is(are) specifically empowered
to hear and decide pre-hearing motions to dismiss such
Disputes and for summary judgment on such Disputes. The
parties agree to permit discovery proceedings of the type
provided by the Federal Rules of Civil Procedure both in
advance and during recesses of the arbitration hearings,
but only with respect to any Disputes arbitrated where the
amount in controversy is at least $250,000.00. All
arbitration proceedings conducted hereunder will be
conducted on a confidential basis and all awards granted
thereunder shall be kept confidential. Any award, judgment
or order rendered by the arbitrator(s) pursuant to the
terms of this Agreement may be entered and enforced by
either party in any state or federal court having competent
jurisdiction. Each party agrees to submit to the
jurisdiction of any such court for purposes of enforcement
of any such award, order or judgment. Any award, judgment
or order rendered by the arbitrator(s) pursuant to such
arbitration shall be included in a written decision signed
by the arbitrator(s) joining therein, which will specify
the reasons
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upon which the award, judgment or order was based,
including all of the elements involved in the calculation
of any award of damages.
d. All notices you send to us will be sufficiently given when
actually received by us at our address specified below. All
notices we send to you will be sufficiently given if mailed
or delivered to you, and actually received by you, at:
0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
General Counsel, or such other address as you may specify
from time to time. In the event either party brings legal
action to vacate or modify the arbitrator's(s') award and
such party does not prevail, such party will pay all costs
and expenses, including attorney's fees, incurred by the
other party in defending such action. Such costs and
expenses shall also be assessed against the petitioning
party who does not prevail in any subsequent appellate
action. If the arbitration provisions contained in this
Agreement are invalid or their application is invalid or
unenforceable, thereby allowing the parties to resolve
their Disputes outside of arbitration, we hereby agree that
any legal proceeding with respect to any Disputes in which
we or you or any of your affiliates, or our successors or
assigns are parties, will be tried in a court of competent
jurisdiction by a judge without a jury. We hereby waive
any right to a jury trial in any such proceeding.
10. This Agreement will only apply to Merchandise that you agree to
finance for a Dealer after the date hereof. All Merchandise that you agreed
to finance prior to the date hereof, whether or not such financing is
complete as of the date hereof, will be governed by any agreement(s) in
effect between you and us as of the date that you previously agreed to
provide such financing, and we hereby ratify all terms of such prior
agreements with respect to such Merchandise that you agreed to finance prior
to the date hereof.
11. This document contains the full agreement of the parties
concerning the financing by you, and the repurchase by us, of Merchandise,
and can be varied only by a document signed by all parties hereto. However,
we may agree to execute a Guaranty to ITT Commercial Finance Corp. or to
execute a Guarantee to ITT Commercial Finance, a division of ITT Industries
of Canada Ltd. as to transactions with specific Dealers (individually and
collectively "Guaranty"). The terms of that certain letter from Xx. Xxxxxxxx
X. Xxxx to Xx. Xxxxx Stiff dated September 19, 1990 and any such Guaranty
shall not limit or amend, but shall be in addition to and wholly separate
from, this Agreement.
12. Notice of the acceptance of this Agreement is hereby waived.
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EACH OF THE UNDERSIGNED HEREBY REQUESTS THAT THIS AGREEMENT BE DRAWN IN
ENGLISH.
CHACUN DES SOUSSIGNES EXIGENT QUE CE DOCUMENT SOIT REDIGE EN ANGLAIS.
Dated: October 2, 1990
ATTEST: TRAK INTERNATIONAL, INC.
/s/ /Illegible Signature/ By: /s/ X. Xxxxx Stiff
----------------------------- ---------------------------
Title: President
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Title: Controller
(If a corporation, two authorized
officers must sign).
Business Address:
ACCEPTED: 000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
ITT COMMERCIAL FINANCE CORP.
By:
--------------------------
Title:
-----------------------
ITT COMMERCIAL FINANCE
a division of ITT Industries of Canada Ltd.
By:
--------------------------
Title:
-----------------------
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ADDENDUM TO FLOORPLAN REPURCHASE AGREEMENT
This Addendum is made to that certain Floorplan Repurchase Agreement
entered into by and between TRAK INTERNATIONAL, INC. ("TRAK") and ITT
Commercial Finance Corp. and ITT Commercial Finance, a division of ITT
Industries of Canada Ltd. ("ITT") on October 2, 1990 ("Agreement").
FOR VALUE RECEIVED, TRAK and ITT agree that the following paragraph is
incorporated into the Agreement as if originally set forth therein:
"Notwithstanding anything to the contrary in Section 3(d), in addition to
all our other obligations set forth in this Agreement, if, after
reasonable efforts, you are unable for any reason to obtain a
subordination of a prior filing creditor's interest in a Dealer's
Merchandise financed by you when originally shipped by TRAK to a Dealer,
or any proceeds thereof, we will be liable for and indemnify you for
One Hundred percent (100%) of any Loss you suffer as a result of your
inability to obtain such subordination (including, without limitation,
any Loss resulting from your inability to exercise your perfected
Purchase Money Security Interest ("PMSI") in Merchandise or your
inability to obtain any proceeds of, or chattel paper or general
intangibles arising from, any PMSI Merchandise); provided, however,
that this indemnification shall be of no force or effect as to any Loss
you suffer regarding Merchandise or any proceeds thereof, of any Dealer
against whom you have not obtained, as to Dealers located in the United
States, a first perfected PMSI in accordance with Section 9-312 of the
Uniform Commercial Code as enacted in the applicable jurisdiction
("UCC"), timely filed UCC continuation statements and sent
re-notification letters to maintain such priority and, as to Canadian
Dealers, complied with comparable Canadian legislation as enacted in the
applicable province regarding perfection of PMSI's. The amount of any
Loss and the decision as to when a Loss has occurred will be in your sole
discretion, provided you use your standard procedure for the
determination of a Loss. The term "Loss" as used in this paragraph will
mean: the principal balance and any finance charges due and owing to you
by the Dealer for Merchandise financed by you when originally shipped by
us to a Dealer, and all costs and expenses (including, without
limitation, reasonable attorneys' fees) incurred by you in attempting to
collect such Loss from the Dealer. We will immediately pay you the
amount owed under the terms of this paragraph on receipt of notice from
you that you have incurred a Loss with respect to any Dealer."
The above provision is in addition to and separate from, and in no way
a limitation on or amendment to, any other provision of the Agreement.
All other terms as they appear in the Agreement are ratified and shall
remain unchanged and in full force and effect.
IN WITNESS WHEREOF, TRAK and ITT have executed this Addendum to
Floorplan Repurchase Agreement by their duly authorized representatives all
as of the 14th day of June, 1993.
TRAK INTERNATIONAL, INC. ITT COMMERCIAL FINANCE CORP.
By: /s/ Xxxxx X. Xxxx By: /s/ /Illegible Signature/
------------------------- ---------------------------
Title: VP[cad 228]Finance & CFO Title: RVP
ITT COMMERCIAL FINANCE,
a division of ITT Industries of Canada Ltd.
By: /s/ /Illegible Signature/
------------------------------
Title: RVP
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