MANUFACTURER'S REPURCHASE AGREEMENT
This AGREEMENT is between POLARIS ACCEPTANCE, an Illinois General
Partnership, with its principal address at 0000 Xxxx Xxxx, Xxxxxxx Xxxxxxx,
XX 00000 ("PA") and POLARIS INDUSTRIES PARTNERS L.P. a limited partnership,
with its principal address at 000 Xxxxx Xxxxxxx 000, Xxxxxxxxxxx, XX 00000
("Manufacturer").
In consideration of PA advancing against or otherwise acquiring Invoices
(as herein defined), and in consideration of the promises herein contained
the parties hereby agree as follows:
1. (a) "Inventory" herein shall mean all snowmobiles, all terrain
vehicles (ATV's), or personal watercraft vehicles (PWC's) manufactured or
sold by Manufacturer.
(b) "Distributor" herein shall mean X.X. Xxxxxxx, Inc.
(c) "Dealer" herein shall mean any person, firm or corporation
which bought or buys inventory at wholesale from Manufacturer and sells
inventory at retail or otherwise.
(d) "Distributor's Dealer" herein shall mean any person, firm or
corporation which bought or buys inventory from Distributor and sells
inventory.
(e) "Dealer Invoice" shall mean a note, invoice, xxxx of sale,
inventory schedule or other evidence of indebtedness or obligation arising
out of and contemporaneously with the sale or delivery of inventory by
Manufacturer to Dealer.
(f) "Distributor's Dealer Invoice" shall mean a note, invoice,
xxxx of sale, inventory schedule or other evidence of indebtedness or
obligation arising out of and contemporaneously with the sale or delivery of
inventory by Distributor to Dealer.
(g) "Invoice" shall mean both Dealer Invoice and Distributor
Invoice.
2. PA, from time to time, may advance against, otherwise acquire or
enter into Invoices acceptable to PA, executed by or on behalf of Dealers in
accordance with PA's plan or plans of financing in effect from time to time.
Such Dealers shall be of acceptable credit and financial responsibility to PA.
3. (a) If PA shall repossess or come into possession of any
inventory covered by any Dealer Invoice. Manufacturer will purchase from PA
upon demand, such repossessed inventory as may be repossessed, wherever
located, and will pay therefor in cash or by credit memo and within thirty
(30) days, an amount equal to the unpaid balance of the original Dealer
Invoice with respect to such Inventory, if such Inventory is in new and
unused condition, or is in new and unused condition but subject to wear and
tear incident to display or demonstration. In addition, Manufacturer shall
pay PA all reasonable costs and expenses, including reasonable attorneys'
fees, incurred by PA with respect thereto. Manufacturer will not assert any
interest in or title to such repossessed inventory until the said purchase
price therefor has been paid in full, in cash or by credit memo.
(b) If PA shall repossess or come into possession of any
inventory covered by any Distributor's Dealer Invoice, and if Distributor
within ten days after demand made upon Distributor by PA to purchase such
inventory fails to so purchase, then Manufacturer will purchase from PA upon
demand, such repossessed inventory as may be repossessed, wherever located,
and will pay therefor in cash and within (30) days, an amount equal to the
unpaid balance of the original Distributor's Dealer Invoice with respect to
such Inventory, if such Inventory is in new and unused condition, or is in
new and unused condition, but subject to wear and tear incident to display or
demonstration. In addition, Manufacturer shall pay PA all reasonable costs
and expenses, including reasonable attorneys' fees, incurred by PA with
respect thereto.
Manufacturer shall not assert any interest in or title to such repossessed
inventory until the said purchase price has been paid in full, in cash.
(c) Notwithstanding the terms in paragraphs 3(a) and 3(b) above,
Manufacturer's purchase obligation under this Agreement shall not exceed
fifteen percent (15%) of the average month-end balance of total outstanding
for Inventory financed by PA the prior calendar year. The calendar year in
which PA tenders the Inventory to Manufacturer for purchase shall be the
calendar year in which Manufacturer incurs the purchase obligation. However,
Manufacturer's purchase limit relates only to Inventory PA repossesses or
comes into possession of because a Dealer is in default to PA under the terms
of its financing arrangement or because Dealer is experiencing some type of
financial difficulty.
4. Manufacturer warrants: that all Dealer Invoices issued by
Manufacturer represent valid obligations of Dealer, are legally enforceable
according to their terms and relate to bonafide, original acquisition sales
of Inventory by Manufacturer to Dealer without any claim, offset or defense
to payment by Dealer, that all Inventory is in new and unused condition and
is of the kind, quality and condition represented or warranted to Dealer, and
that Dealer requested that the acquisition of Inventory be financed by PA;
that Manufacturer's title to all Inventory is free and clear of all liens and
encumbrances when transferred to Dealer; that all Inventory subject to this
Agreement meets or exceeds any and all applicable federal and state safety
standards and that Manufacturer transfers to Dealer all its right, title and
interest in and to the Inventory. In the event of breach of any of the above
warranties, Manufacturer will, upon written request, purchase from PA the
Invoice covering the Inventory with respect to which the warranty has been
breached, and will pay therefor in cash or by credit memo, an amount equal to
the original amount of the Invoice or related Invoice, together with all
reasonable costs and expenses including reasonable attorneys fees, incurred
by PA in connection with such breach.
5. Manufacturer covenants as follows: all Inventory by PA shall be
subject to applicable product warranties of Manufacturer, and Manufacturer
agrees to perform, or cause to be performed, all repairs, modifications
and/or other acts required by Manufacturer pursuant to said product
warranties. All expenses of performance under this section shall be paid by
Manufacturer.
6. Manufacturer waives: notice of non-payment; protest and dishonor
and notice of protest and dishonor of any Invoice purchased, otherwise
acquired or entered into by PA; notice of PA's acceptance of this Agreement;
and all other notices to which Manufacturer might otherwise be entitled by
law. PA may, at any time or times without notice to or further consent of
Manufacturer, renew and extend the time of payment of Invoices or Inventory
covered thereby and waive or modify performance of such terms and conditions
of its financing arrangements with the Distributor or Dealers, as PA may
determine to be reasonable, and no such renewal, extension, compromise,
adjustment, waiver or modification shall affect the liability of Manufacturer
hereunder.
7. The terms and conditions of this Agreement and the obligations of
Manufacturer under this Agreement shall apply to (i) all Invoices which
relate to the accounts receivable transferred by Transamerica Commercial
Finance Corporation ("TCFC") to PA pursuant to that certain Contribution
Agreement between TCFC and PA dated February 7, 1996; and (ii) to all
Inventory held by TCFC as collateral relating to such Invoices and
transferred to PA pursuant to the Contribution Agreement.
8. This Agreement is not intended to supersede any agreements
between TCFC and Manufacturer, TCFC Canada and Manufacturer, PA and X.X.
Xxxxxxx or between TCFC and X.X. Xxxxxxx.
9. This Agreement shall be binding upon and inure to the benefit of
the successors or assigns of the parties hereto. PA may assign this
Agreement, in whole or in part, to any of its subsidiary or affiliated
companies or other assignee and, upon such assignment, any such assignee
shall be subject to the obligations and be entitled to the benefit of all of
the covenants and obligations of the Manufacturer herein set forth.
Manufacturer may not assign this Agreement without PA's written consent.
10. 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 Manufacturer as to Invoices purchased,
otherwise acquired or entered into by PA prior to the effective date of
termination, or other obligation incurred prior to such date.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed this 7th day of February, 1996.
POLARIS INDUSTRIES PARTNERS L.P.
("Manufacturer")
By: Polaris Industries Inc.
Its General Partner
By:
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Title: Executive Vice President & Chief
Financial Officer
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POLARIS ACCEPTANCE ("PA")
By: Polaris Acceptance Inc.
Its General Partner
By:
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Title:
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By: Transamerica Joint Ventures, Inc.
Its General Partner
By:
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Title: Vice President
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