MANUFACTURER'S DISTRIBUTOR'S FINANCING AGREEMENT
(ONE-STEP) (Consumer Products)
The Manufacturer's Distributors Financing
Agreement is entered into as of the 16 day of
November, 1999, by and between PURE STEEL CUSTOM
CYLES, INC. a AZ corporation ("Company") and
TRANSAMERICA COMMERCIAL FINANCE CORPORATION, a
Delaware corporation ("TCFC"), to set forth some
of the terms and conditions under which TCFC will
provide financing for certain of the Company's
dealers.
In consideration of the mutual agreements herein
contained, TCFC and Company agree as follows:
1. Definitions.
(a) "Approval" herein shall mean, TCFC's
agreement, whether orally, in writing or by
electronic transmission, so finance the needs of
investor by Company to Dealer.
(b) "Dealer" herein shall mean any person, firm
or corporation which buys inventory at wholesale
from Company and sells inventory.
(c) "Inventory" herein shall mean any and all
products manufactured or sold at wholesale by
Company.
(d) "Invoice" herein shall mean an invoice, xxxx
of sale or other evidence, whether in writing or
electronically transmitted, of the delivery or
inventory by Company to Dealer.
(e) "Wholesale instrument" shall mean an invoice,
billing statement, inventory schedule or other
evidence of indebtedness, including the books and
records of TCFC arising out of the financing by
TCFC to the Company.
2. Wholesale Financing Program.
If Company requests an Approval or sends in FCFC
an invoice, then the Dealer related to such
Approval or invoice shall be eligible for
wholesale financing, and FCFC may, from time to
time in the sole discretion, issue such Approvals
and advance against such invoices, all under the
terms of this Agreement. If TCFC issues an
Approval, Company shall deliver an original
invoice to TCFC. Provided TCFC receives the
invoice within thirty (30) days of the date TCFC
issued the Approval, TCFC shall pay Company the
amount of the invoice, subject to the terms of the
financial program then in effect between company
and TCFC. If the invoice is not received within
said 30-day period, or is not acceptable in form
or confirm once received, TCFC has the right,
without notice to Company, to cancel the Approval
related is said invoice. Prior to funding any
Approval, TCFC has the right to cancel said
Approval upon oral or written notice to Company
should Dealer be in default of an of its
obligations to TCFC and provided that Company has
not shipped inventory in reliance to TCFC's
Approval. Advances on invoices and Approvals for
such advances issued by TCFC as provided hereunder
shall constitute an agreement of the terms and
conditions herein by Company and TCFC as to each
such advance, an no other act or notice shall be
required on the part of TCFC or Company to
anticipate such advances and Approvals to the
benefits of this Agreement. TCFC may deduct, add-
on withhold and/or apply any sums or payments due
from Company to TCFC, under this Agreement against
any sums or payments due from TCFC to Company from
any advance to be made by TCFC against any
invoice.
3. Purchase of Invoice.
(a) If TCFC shall repossess or come into
possession of any inventory, or any part thereof,
converted by any invoice, company agrees to
purchase such inventory from TCFC in whatever
condition and wherever indicated. Company shall
pay TCFC within thirty (30) days of request
therefore and in good hands, the original amount
of such invoice ("the Purchase Price"). In
addition to the Purchase Price, company shall pay
TCFC for all out of pocket charges incurred by
TCFC in taking possession or in the repossession
of such inventory, including but not limited to
shipping, storage, court costs and reasonable
attorney's fees. Company shall not assert any
interest in or site to such inventory until it has
paid TCFC the Purchase Price and other charges as
specified herein in full and in cash.
(b) If an invoice delivered to TCFC by Company
does not identify the inventory covered hereunder
by serial number, but only by model number, and
Company cannot prove to TCFC's reasonable
satisfaction that an item of inventory is covered
by a particular invoice, than for purposes of
determining the age or price of an item of
inventory under this Agreement, the item of
inventory shall be deemed to be covered by the
most recent invoice which has been and shall
determine the number of the item of inventory
tendered for purchase.
4. Representations and Warranties of Company
(a) company represents and warrants that at the
time of TCFC's approval of and/or advance against
any invoice as provided hereunder, that (i) all
invoices issued by Company represent valid
shipments of Dealer, are legally enforceable to
their terms and raise to benefits, original
acquisition sales of inventory by Company to
dealer without any claims, after or defense is
payment by Dealer and that Dealer requested that
the acquisition of inventory be financed by TCFC,
(ii) Company's title to all inventory and is free
and clear o fall terms and encumbrances when
transferred to Dealer and Company transfers to
Dealer all its right, title and interest in and to
the inventory, (iii) the inventory is in new and
unused condition, it is of the kind, quality and
condition represented and warranted to Dealer, it
meets or exceeds all applicable federal, state and
local safety, construction and other standards,
and if it is a type of inventory customarily
crated or boxed, such crate or box is factory
sealed.
(b) In the event of breach of any of the foregoing
representations and warranties, Company shall
purchase from TCFC the Wholesale instrument,
relating to the invoice or inventory with respect
to which the warranty was reached. Company shall
pay within thirty (30) days and in good funds, the
original amount of the invoice, plus all charges
owing the Dealer with respect thereto, and all of
TCFC's out of pocket cots and expenses rightfully
incurred in connection with such invoice.
5. Covenants of the Company
(a) All inventory financed by TCFC shall be
subject to applicable product warranties of
Company, and Company agrees to perform or cause to
be performed, all repairs, modifications and/or
other acts required by Company pursuant to said
product warranties. All expenses of performance
under this section shall be paid by Company.
(b) If Company accepts the return from any Dealer
of any inventory covered by any Wholesale
instrument, voluntarily or otherwise, whether or
not any substitution is made for such returned
inventory. Company will reimburse TCFC for the
original amount of the invoice, within thirty (30)
days of the return. In the event that Dealer
shall be to the payment by the Company of any
returns, reserves or incentives, Company shall
advise TCFC of the amount and nature of the
payment and shall obtain TCFC's approval (which
will not be unreasonably withheld) prior to
remitting such funds to Dealer.
6. Waivers
(a) Company waivers: notice of non-payment;
protest and dishonor and notice of protest and
dishonor of any Wholesale instrument, notice of
TCFC's acceptance of this Agreement; and all other
notices to which Company might otherwise be
entitled to by law. TCFC may, at any time,
without notice to or further concurrence of
Company, renew and extend the time of payment of
Wholesale instruments and compromise or actual
claims on Wholesale Instruments or inventory
covered hereby and waive or modify performance of
such terms and conditions of its financing
agreement with Dealers as TCFC may determine to be
reasonable, and no such renewal compromise,
adjustment, waiver of modification shall effect
the liability of Company hereunder.
(b) The failure of either party at any time to
require performance by the other party of any
provision of the Agreement shall not be construed
as a waiver of any continuing or succeeding breach
of any such provision, or a waiver of any right
under this Agreement.
7. Miscellaneous.
(a) This Agreement has been duly authorized and
executed by Company and TCFC and shall be binding
upon and inure to the benefit of the successors or
assigns of the parties hereto. Company may not
assign this Agreement without the prior written
consent of TCFC.
(b) This Agreement constitutes the entire
agreement between the parties the subject matter
hereof, and all prior writings, discussions,
and/or agreements are superseded by , and merged
into, the terms and provisions of this Agreement.
No modifications or amendments to this Agreement
shall be valid or binding unless required to in
writing and executed by the parties hereto.
Notwithstanding the foregoing, the parties
acknowledge that there may be other agreements
between them covering related matters such as
financing programs terms, manufacturers sponsored
create programs, interest free period programs and
electronic transmission witch shall continue in
full force and effect. This Agreement shall not
be deemed to create, or intend a joint venture,
partnership, or agency relationship between
Company and TCFC.
(c) Any written notices given under this Agreement
shall be deemed sufficiently given to a party
hereto three (3) days after it is mailed by
certified mail, return receipt requested so such
party at its addresses set forth after its
signature below.
(d) This Agreement shall be governed by and
construed in accordance with the internal laws (as
opposed to the conflicts law provisions) of the
State of Illinois, the principal place of business
of TCFC.
(e) The respective acts and obligations of the
parties under this Agreement shall be performed
solely by said parties, provided however, if any
act or obligation hereunder is performed by any
party's subsidiaries, affiliates or agents, than
such performance shall be deemed to be the act of
or obligation or Company or TCFC, ad applicable.
(f) Any amounts not paid when due under this
Agreement shall accrue interest at the rate of 1-
1/2% per month until paid in full. Company
further agrees to pay all reasonable out of pocket
costs and expenses, including attorney's fees,
actually incurred by TCFC in enforcing any of the
provisions of this Agreement.
(g) Either party hereto may cancel this Agreement
at any time upon thirty (30) days notice in
writing of its intension to cancel.
Notwithstanding the foregoing, either party may
elect to terminate the Agreement upon notice to
the other party of such other party is in default
under the terms of this 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 Company as to invoices approved or advances
against by TCFC prior to the effective date of
termination, or other obligation incurred prior to
such date.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed on , 1999.
TRANSAMERICA COMMERCIAL FINANCE CORPORATION
By: Xxxxxxx Stricklse
(Authorized Signature)
Print Name: Xxxxxxx Stricklse
Title: Vice President
Address:
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Vice President Operations
PURE STEEL CUSTOM CYCLES, INC.
By: Oscar Coca
(Authorized Signature)
Print Name: Oscar Coca
Title: President
Address:
0000 Xxxxx Xxx. #00
Xxx, XX 00000
Attn: Oscar Coca
