Exhibit 10.2


 


FORM OF
RECEIVABLE PURCHASE AGREEMENT


 


by and
among


 


[TORO
CREDIT COMPANY],


 


[TORO INTERNATIONAL COMPANY],


 


[EXMARK
MANUFACTURING COMPANY INCORPORATED]


 


and


 


THE
TORO COMPANY,


 


 


as
Sellers,


 


and


 


RED
IRON ACCEPTANCE, LLC


 


as Buyer


 


Dated as
of
[                              ,
2009]


 

















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I
  DEFINITIONS

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Other
  Interpretive Matters

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE II SALE

  	
  8

  
	
  2.1

  	
  Sale

  	
  8

  
	
  2.2

  	
  Acceptance by
  Buyer

  	
  9

  
	
  2.3

  	
  Purchase Price

  	
  9

  
	
  2.4

  	
  Additional Receivables

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
  CONDITIONS PRECEDENT

  	
  9

  
	
  3.1

  	
  Conditions to
  Transfer

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV
  REPRESENTATIONS, WARRANTIES AND COVENANTS

  	
  10

  
	
  4.1

  	
  Representations
  and Warranties of Seller

  	
  10

  
	
  4.2

  	
  Covenants of
  Seller

  	
  14

  
	
  4.3

  	
  Negative
  Covenants of Seller

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
  MISCELLANEOUS

  	
  16

  
	
  5.1

  	
  Notices

  	
  16

  
	
  5.2

  	
  No Waiver;
  Remedies

  	
  18

  
	
  5.3

  	
  Successors and
  Assigns

  	
  18

  
	
  5.4

  	
  No Buyer
  Liability for Contracts

  	
  18

  
	
  5.5

  	
  Survival

  	
  19

  
	
  5.6

  	
  Complete
  Agreement; Modification of Agreement

  	
  19

  
	
  5.7

  	
  Dispute
  Resolution

  	
  19

  
	
  5.8

  	
  Jury Trial

  	
  19

  
	
  5.9

  	
  Submission to
  Jurisdiction

  	
  19

  
	
  5.10

  	
  Counterparts

  	
  19

  
	
  5.11

  	
  Severability

  	
  20

  
	
  5.12

  	
  Section Titles

  	
  20

  
	
  5.13

  	
  No Setoff

  	
  20

  
	
  5.14

  	
  Further
  Assurances

  	
  20

  
	
  5.15

  	
  No Indirect or
  Consequential Damages

  	
  20

  
	
  5.16

  	
  No Assumption in
  Drafting

  	
  21

  
	
  5.17

  	
  Headings; Section
  and Article References

  	
  21

  



 

















 


FORM OF
RECEIVABLE PURCHASE AGREEMENT


 


This RECEIVABLE PURCHASE
AGREEMENT, dated as of [                              ,
2009] (this “Agreement”), is entered into by and between [TORO CREDIT COMPANY, a Minnesota corporation (“Toro Credit”)],
[TORO INTERNATIONAL COMPANY, a Minnesota
corporation (“Toro International”)], [EXMARK
MANUFACTURING COMPANY INCORPORATED, a Nebraska corporation (“Exmark”)].
THE TORO COMPANY, a Delaware
corporation  (“Toro” and together
with [Toro Credit], [Toro
International] and [Exmark], each
a “Seller” and collectively the “Sellers”) and RED IRON
ACCEPTANCE, LLC, a Delaware limited liability company (“Buyer”).


 


In consideration of the premises and the
mutual covenants hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


ARTICLE I


DEFINITIONS


 


1.1           Definitions.


 


“Account Debtor” means an obligor on a
Receivable.


 


“Additional Receivables” means those
Receivables described on Schedule 2 that Buyer has agreed to purchase
notwithstanding that such Receivables are not Eligible Receivables.


 


“Affiliate” means, with respect to any Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.  For purposes of this
definition, “Control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. “Controlling” and “Controlled” have meanings correlative thereto.


 


“Aggregate Repurchase Amount” means, for any
repurchase of an Ineligible Receivable pursuant to Section 4.1(d),
the Purchase Price paid for such Ineligible Receivable, less any Principal
Collections received by Buyer in respect of such Ineligible Receivable from the
Closing Date.


 


“Agreement” is defined in the preamble.


 


“Authorized Officer” means (a) with
respect to Toro, the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the General Counsel, the Secretary, the
Treasurer, the Corporate Controller and each other officer or employee of Toro
specifically authorized in resolutions of the Board of Directors of such
corporation to sign agreements, instruments or other documents on behalf of
such corporation in connection with the transactions contemplated by this
Agreement and the Related Documents; (b) with respect to Toro Credit, the
President, the Secretary, the Treasurer and each other officer or employee of
Toro Credit specifically authorized in resolutions of the Board of Directors of
such corporation to sign agreements, instruments or other documents on behalf
of such corporation in connection 


 

















 


with the transactions
contemplated by this Agreement and the Related Documents; (c) with respect
to Toro International, the President, the Secretary, the Treasurer and each
other officer or employee of Toro International specifically authorized in
resolutions of the Board of Directors of such corporation to sign agreements,
instruments or other documents on behalf of such corporation in connection with
the transactions contemplated by this Agreement and the Related Documents; and (d) with
respect to Buyer, its General Manager.


 


“Business Day” shall mean any day on which
commercial banks are not authorized or required to close in either Minneapolis,
Minnesota or Chicago, Illinois.


 


“Buyer” is defined in the preamble.


 


“Closing Date” means [                              ,
2009].


 


“Collateral Security” means, with respect to
any Receivable, (i) any security interest, granted by or on behalf of the
related Account Debtor with respect thereto, including a security interest in
the related Products or assets, (ii) all other security interests or liens
and property subject thereto from time to time purporting to secure payment of
such Receivable, whether pursuant to the agreement giving rise to such Receivable
or otherwise, together with all financing statements filed against an Account
Debtor describing any collateral securing such Receivable, (iii) all
guarantees, insurance and other agreements (including Financing Agreements and
subordination agreements with other lenders) or arrangements of whatever
character from time to time supporting or securing payment of such Receivable
whether pursuant to the agreement giving rise to such Receivable or otherwise,
and (iv) all Records in respect of such Receivable.


 


“Collections” means, without duplication, all
payments by or on behalf of Account Debtors received in respect of the
Receivables (including insurance proceeds and proceeds from the realization
upon any Collateral Security) in the form of cash, checks, wire transfers or
any other form of payment.


 


“Cure Period” is defined in Section 4.1(c).


 


“Debtor Relief Laws” means Title 11 of the
United States Code and all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership, insolvency,
reorganization, suspension of payments, readjustment of debt, marshalling of
assets or similar debtor relief laws of the United States, any state or any
foreign country from time to time in effect, affecting the rights of creditors
generally.


 


“Eligible Receivable” means a Receivable:


 


(a)           that was created pursuant to genuine and bona fide
transactions in the ordinary course of a Seller’s business and in compliance
with all applicable Requirements of Law, other than those Requirements of Law
the failure with which to comply could not reasonably be expected to have a
material adverse effect on Buyer or any assigns, and pursuant to a Financing
Agreement that complies with all applicable Requirements of Law, other than
those Requirements of Law the failure with which to comply could not reasonably
be expected to have a material adverse effect on Buyer or any of its creditors
or assigns;


 


2

















 


(b)           with respect to which all consents, licenses, approvals
or authorizations of, or registrations with, any Governmental Authority
required to be obtained or made by such Seller in connection with the creation
of such Receivable or the execution, delivery and performance by such Seller of
the related Financing Agreement, have been duly obtained or made and are in
full force and effect as of the date of creation of such Receivable, but
failure to comply with this clause (b) shall not cause a Receivable
not to be an Eligible Receivable if, and to the extent that, the failure to so
obtain or make any such consent, license, approval, authorization or
registration could not reasonably be expected to have a material adverse effect
on Buyer or its assigns;


 


(c)           that is not the subject of any Litigation that is
pending or has been threatened in writing;


 


(d)           as to which, at the time of its transfer to Buyer,
such Seller will have good and 
marketable title free and clear of all Liens (other than Permitted
Encumbrances);


 


(e)           that is freely assignable and is the subject of a
valid transfer and assignment from such Seller to Buyer of all of such Seller’s
right, title and interest therein;


 


(f)            that at and after the time of transfer to Buyer is,
and the Financing Agreement with respect thereto is, the legal, valid and binding
payment obligation of the Account Debtor thereof, legally enforceable against
such Account Debtor in accordance with its terms, except as enforceability may
be limited by applicable Debtor Relief Laws, and by general principles of
equity (whether considered in a suit at law or in equity);


 


(g)           that constitutes an “account”,
“chattel paper” or “general intangible” within the meaning of UCC Section 9-102;


 


(h)           as to which, at the time of its transfer to Buyer,
such Seller has not taken any action which, or failed to take any action the
omission of which, would, at the time of transfer to Buyer, impair Buyer’s
rights therein;


 


(i)            the obligations with respect to which, at the time
of its transfer to Buyer, have not been waived or modified except as permitted
by this Agreement;


 


(j)            that, at the time of its transfer to Buyer, except
as contemplated by Section 4.2(c), is not subject to any right of
rescission, setoff, counterclaim or any other defense of an Account Debtor
(including the defense of usury), other than defenses arising out of Debtor
Relief Laws and except as the enforceability of such Receivable may be limited
by general principles of equity (whether considered in a suit at law or
equity);


 


(k)           which, at the time of transfer to Buyer is secured
by, inter alia, a first priority perfected security interest (whether by prior
filing, purchase money security interest, subordination agreement from prior
filers or otherwise) in any related Product other than with respect to
Receivables due on an unsecured open account basis from Account Debtors in an
aggregate amount not to exceed $4,000,000 whether acquired by Buyer under the
terms of this Agreement or any other agreement with Seller or Seller’s 


 


3

















 


Affiliates; provided, that with respect to Receivables relating to
extended service contracts, such Receivables shall only be “Eligible
Receivables” within the scope of this clause (k) to the extent
Seller or Seller’s Affiliate has provided recourse or other credit support upon
such terms as Seller and Buyer shall agree prior to transfer;


 


provided, however, that a Receivable shall not be an “Eligible
Receivable”:


 


(l)            if it is an open account receivable that is due or
unpaid more than ninety (90) days after the original due date unless such past
due or unpaid amount is the subject of a bona fide dispute or represents less
than five percent (5%) of the original invoice amount for such Receivable;


 


(m)          if it is a floor plan receivable (x) that is
related to a Product that has been sold out of trust for more than ninety (90)
days, (y) as to which charges or fees are more than ninety (90) days past
due (in which case, neither such charges or fees nor the related receivable(s) shall
be an Eligible Receivable) or (z) as to which a scheduled payment is more
than ninety (90) days past due;


 


(n)           if the Account Debtor that is obligated on such
Receivable shall have (i) applied for, suffered, or consented to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property; (ii) admitted
in writing its inability, or be generally unable, to pay its debts as they
become due or cease operations of its present business, (iii) made a
general assignment for the benefit of creditors, (iv) suffered a
Bankruptcy Event; or (v) taken any action for the purpose of effecting any
of the foregoing;


 


(o)           if the sale to the Account Debtor that is obligated
on such Receivable is outside the United States or Canada;


 


(p)           if it is subject to any claim of offset (unless such
Seller has received a letter from the applicable Account Debtor in form and
substance satisfactory to Buyer indicating that such Account Debtor shall not
exercise its right of offset), deduction, defense, dispute, or counterclaim, or
is owed by an Account Debtor that is also a supplier of such Seller (but only
to the extent of such Seller’s obligations to such Account Debtor from time to
time) or the Receivable is contingent in any respect for any reason;


 


(q)           if any return, rejection or repossession of the
Product to which the Receivable relates has occurred and not reflected in the
determination of the Outstanding Balance of such Receivable; or


 


(r)            if such Receivable is not payable to such Seller or
one of its Affiliates.


 


“Exmark” is defined in the preamble.


 


“Financing Agreement” means any agreement
entered into between a Seller and an Account Debtor in order to finance
Products purchased by such Account Debtor from such Seller.


 


4

















 


“GAAP” means generally accepted accounting
principles as in effect in the United States of America from time to time,
consistently applied.


 


“Governmental Authority” means any domestic or
foreign national, state or local government, any political subdivision thereof,
any department, agency, authority or bureau of any of the foregoing, or any
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.


 


“Ineligible Receivable” is defined in Section 4.1(c).


 


“Insurance Proceeds” with respect to Collateral
Security means any amounts received pursuant to any policy of insurance related
thereto which are required to be paid to a Seller with respect thereto.


 


“Joint Venture Agreement” means that certain
Agreement to Form Joint Venture dated as of August 12, 2009 by and
between Toro and TCFIF.


 


“Knowledge” with respect to a Seller means the
actual knowledge of an Authorized Officer of such Seller.


 


“Lien” means, with respect to any property, any
security interest, mortgage, pledge, lien, claim, charge or other encumbrance
in, of, or on such property or the income therefrom, including the interest of
a vendor or lessor under a conditional sale agreement, capital lease or other
title retention agreement, or any agreement to provide any of the foregoing,
and the filing of any financing statement or similar instrument under the UCC
or comparable law of any jurisdiction.


 


“Litigation” means, with respect to any Person,
any action, claim, lawsuit, demand, investigation or proceeding pending or
threatened in writing against such Person before any court, board, commission,
agency or instrumentality of any Governmental Authority or before any
arbitrator or panel of arbitrators.


 


“LLC Agreement” means that certain Limited
Liability Company Agreement dated as of August 12, 2009 by and between
TCFIF Joint Venture I, LLC, a Minnesota limited liability company, and Red Iron
Holding Corporation, a Delaware corporation.


 


“Material Adverse Effect” means a material
adverse effect on (a) the ability of any Seller to perform any of its
obligations under this Agreement in accordance with the terms hereof, or (b) the
Transferred Receivables (including the collectability of the Transferred
Receivables and any Collateral Security).


 


“Officer’s Certificate” means, with respect to
any Person, a certificate signed by an Authorized Officer of such Person.


 


“Outstanding Balance” means, with respect to
any Receivable, the amount of such Receivable at the time of determination
reduced by any credit issued by a Seller as contemplated by Section 4.2(c).


 


5

















 


“Permitted Encumbrances” means the following: (a) Liens
for taxes or assessments or other governmental charges not yet due and payable;
(b) inchoate and unperfected workers’, mechanics’, suppliers’ or similar
Liens arising in the ordinary course of business; (c) presently existing
or hereinafter created Liens in favor of, or created by, Buyer; (d) any
Lien created or permitted by any agreement between Buyer and a Seller; (e) any
security interests in assets that are subordinate to the security interests
securing the related Receivables; and (f) Liens in favor of a Seller that
are assigned to Buyer in accordance with the terms of this Agreement.


 


“Person” means and includes an individual, a
partnership, a corporation (including a business trust), a limited liability
company, a joint stock company, an unincorporated association, a joint venture,
a trust, a Governmental Authority or other entity.


 


“Principal Collections” means Collections other
than Collections of interest and all other non-principal charges (including
insurance service fees and handling fees) on the Receivables.


 


“Products” means the commercial, consumer
goods, parts and accessories manufactured or distributed by Toro or one of its
Affiliates.


 


“Purchase Price” is defined in Section 2.3.


 


“Receivable” means all amounts payable
(including interest, finance charges and other charges), and the obligation to
pay such amounts, by the related Account Debtor from time to time in connection
with extensions of credit made by a Seller to Account Debtors in order to
finance Products and services purchased by Account Debtors from such Seller,
together with the group of writings evidencing such amounts and any related
Collateral Security and all of the rights, remedies, powers and privileges
thereunder (including under any related Financing Agreement).


 


“Records” means, with respect to any
Receivable, all Financing Agreements and other documents, books, records and
other information (including tapes, disks and related property and rights)
relating to such Receivable and the related Account Debtor.


 


“Related Documents” means any documents or
instruments evidencing Collateral Security.


 


“Repurchase Agreement” is defined in Section 4.2(f).


 


“Requirements of Law” means, as to any Person, (a) the
articles or certificate of incorporation or organization, bylaws, operating
agreement, limited liability company agreement, partnership agreement or other
organizational or governing documents of such Person, (b) any law, treaty,
rule or regulation applicable to such Person, (c) any license,
permit, approval or other authorization granted by any Governmental Authority to
or for the benefit of such Person and (d) any judgment, decision or
determination of any Governmental Authority or arbitrator, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.


 


“Seller”
and “Sellers” are defined in the preamble.


 


6

















 


“TCFIF” means TCF Inventory Finance, Inc.,
a Minnesota  corporation.


 


“Toro” is defined in the preamble.


 


“Toro Credit” is defined in the preamble.


 


“Toro International” is defined in the
preamble.


 


“Transferred Assets” is defined in Section 2.1(a).


 


“Transferred Receivables” means the Receivables
described on Schedules 1 and 2 attached hereto.  However, Receivables that are repurchased by
a Seller pursuant to this Agreement shall cease to be considered “Transferred
Receivables” from the date of such repurchase.


 


“UCC” means, with respect to any jurisdiction,
the Uniform Commercial Code as the same may, from time to time, be enacted and
in effect in such jurisdiction.


 


“United States” means the United States of
America, together with its territories and possessions.


 


1.2           Other Interpretive Matters.  All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in
any certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of this Agreement and all related certificates
and other documents, unless the context otherwise requires: (a) accounting
terms not otherwise defined in this Agreement, and accounting terms partly
defined in this Agreement to the extent not defined, shall have the respective
meanings given to them under GAAP; (b) unless otherwise provided,
references to any month, quarter or year refer to a calendar month, quarter or
year; (c) terms defined in Article 9 of the UCC as in effect in the
applicable jurisdiction and not otherwise defined in this Agreement are used as
defined in that Article; (d) references to any amount as on deposit or
outstanding on any particular date means such amount at the close of business
on such day; (e) the words “hereof,” “herein” and “hereunder” and words of
similar import refer to this Agreement (or the certificate or other document in
which they are used) as a whole and not to any particular provision of this
Agreement (or such certificate or document); (f) references to any
Section, Schedule or Exhibit are references to Sections, Schedules and
Exhibits in or to this Agreement (or the certificate or other document in which
the reference is made), and references to any paragraph, subsection, clause or
other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (g) the words “include” or “including” shall not be construed
to be limiting or exclusive; (h) references to any law or regulation refer
to that law or regulation as amended from time to time and include any
successor law or regulation; (i) references to any agreement refer to that
agreement as from time to time amended, restated or supplemented or as the
terms of such agreement are waived or modified in accordance with its terms; (j)
references to any Person include that Person’s successors and permitted assigns
and (k) the term “or” has the meaning represented by the phrase “and/or.”


 


7
















 


ARTICLE II


SALE


 


2.1           Sale.


 


(a)           Each Seller does hereby transfer, assign, set over
and otherwise convey to Buyer, without recourse except as provided herein, all
its right, title and interest (and each Seller hereby agrees to cause each of
its Affiliates, if applicable, to transfer, assign, set over and otherwise
convey to Buyer, without recourse except as provided herein, all of their
respective right, title and interest) in, to and under, the following (the “Transferred
Assets”):


 


(i)            the Transferred Receivables;


 


(ii)           the Collateral Security with respect to all
Transferred Receivables transferred pursuant to clause (i), together
with all monies due or to become due and all amounts received or receivable
with respect thereto and Insurance Proceeds relating thereto;


 


(iii)          without limiting the generality of the foregoing or
the following, all of Seller’s rights to receive payments from any Account
Debtor in respect of such Transferred Receivables;


 


(iv)          all proceeds of all of the foregoing; and


 


(v)           all reports, data, notes, Account Debtor lists and
files and other books and records of Seller that relate exclusively to, or are
used exclusively in connection with, any of the foregoing.


 


The foregoing does not constitute and is not intended
to result in the creation or assumption by Buyer of any obligation of Seller or
any other Person in connection with the Transferred Receivables or under any
agreement or instrument relating thereto, including any obligation under the
Financing Agreements or any other obligation to any Account Debtor. The
foregoing conveyance shall be effective on the Closing Date, as to all
Transferred Assets then existing (it being understood and agreed that, in the
case of clause (iv), the Collections transferred to Buyer shall include
all Collections since [                              ,
2009]).


 


(b)           Each Seller shall irrevocably instruct all Account
Debtors under the Transferred Receivables to make all payments on account
thereof on and after the Closing Date to Buyer.


 


(c)           Any Collections received by a Seller after the
Closing Date with respect to the Transferred Receivables shall be deemed held
by such Seller in trust and as fiduciary for Buyer.  Such Seller shall pay the same over to Buyer
forthwith upon receipt.


 


8

















 


(d)           Buyer is hereby authorized and empowered (which
authorization and power, being coupled with an interest, is irrevocable unless
and until a Transferred Receivable is repurchased by a Seller pursuant to the
terms of this Agreement):


 


(i)            to request confirmation from any Account Debtor or
party obligated under or with respect to any Transferred Receivable of the
amount shown by the Transferred Receivable to be payable, or any other matter
stated therein;


 


(ii)           to endorse in a Seller’s name and to collect, any
chattel paper, checks, notes, drafts, instruments or other items of payment
tendered to or received by Buyer in payment of any Transferred Receivable;


 


(iii)          to notify any Account Debtor or other Person
obligated under or in respect of any Transferred Receivable of the sale thereof
to Buyer;


 


(iv)          to direct any Account Debtor or other Person
obligated under or in respect of any Transferred Receivable to make payment
directly to Buyer of any amounts due or to become due thereunder or with
respect thereto.


 


2.2           Acceptance by Buyer.  Buyer hereby acknowledges its acceptance of
all right, title and interest to the property, now existing and hereafter
created, conveyed to Buyer pursuant to Section 2.1.


 


2.3           Purchase Price.  Buyer shall pay a purchase price to each
Seller equal to the sum of (i) for the Transferred Receivables from such
Seller that are Eligible Receivables and the other Transferred Assets related
thereto, equal to the Outstanding Balance of such Transferred Receivables, and (ii) for
the Transferred Receivables from such Seller that are Additional Receivables
and the other Transferred Assets related thereto, the purchase price for such
Additional Receivables set forth in Schedule 2 (in each case, the “Purchase
Price”).


 


2.4           Additional Receivables.  Set forth on Schedule 2 is the reason
each Additional Receivable fails to qualify as an Eligible Receivable.
Warranties contained herein generally applicable to Receivables that are in
direct conflict with such reasons shall not apply to an Additional Receivable
to the extent of the reason expressly set forth in Schedule 2 for such
Additional Receivable.


 


ARTICLE III


CONDITIONS
PRECEDENT


 


3.1           Conditions to Transfer.  The sale by Sellers hereunder shall be
subject to satisfaction of each of the following conditions precedent (any one
or more of which may be waived in writing by Buyer) as of the Closing Date:


 


(a)           Documents. This Agreement or
counterparts hereof shall have been duly executed by, and delivered to, each
Seller and Buyer, and Buyer shall have received such documents, instruments and
agreements as Buyer shall reasonably request in connection 


 


9

















 


with the transactions contemplated by this Agreement, each in form and substance
reasonably satisfactory to Buyer.


 


(b)           Governmental Approvals. Buyer shall
have received satisfactory evidence that each Seller has obtained all consents
and approvals of all Persons, including all requisite Governmental Authorities,
if any, required for such Seller to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby.


 


(c)           Compliance with Laws. Each Seller shall be in
compliance with all applicable foreign, federal, state and local laws and
regulations, except to the extent that the failure to so comply, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.


 


(d)           Other Agreements.  The Joint Venture Agreement and the LLC
Agreement shall have been executed and delivered and the same shall be in full
force and effect.


 


(e)           Representations and Warranties.  The representations and warranties of each
Seller contained herein shall be true and correct in all material respects as
of the Closing Date, both before and after giving effect to such sale.


 


(f)            Covenants.  Each Seller shall be in compliance in all
material respects with each of its covenants and other agreements set forth
herein.


 


ARTICLE IV


REPRESENTATIONS,
WARRANTIES AND COVENANTS


 


4.1           Representations and
Warranties of Sellers.


 


(a)           To induce Buyer to accept the Transferred Assets,
each Seller, jointly and severally, makes the following representations and
warranties to Buyer, as of the Closing Date.


 


(i)            Valid Existence; Power and Authority. Each Seller (1) is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization; (2) is duly qualified to conduct business
and is in good standing in each other jurisdiction where its ownership or lease
of property or the conduct of its business requires such qualification and
where the failure to be so qualified or in good standing could not reasonably
be expected to have a Material Adverse Effect; (3) has all requisite power
and authority to execute, deliver and perform its obligations under this
Agreement; and (4) is able to perform its obligations under this
Agreement.


 


(ii)           Authorization of Transaction; No Violation. The
execution, delivery and performance by each Seller of this Agreement and the Related
Documents to which such Seller is a party and, without limiting the foregoing,
the creation of all ownership interests provided for herein: (1) have been
duly 


 


10

















 


authorized by all necessary action on the part of such Seller, and (2) do
not violate any provision of any law or regulation of any Governmental
Authority, or contractual or other restrictions binding on such Seller, except
where such violations, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.


 


(iii)          Enforceability. Each Seller is in
compliance with all material provisions of this Agreement and any Related
Documents to which such Seller is a party. 
This Agreement and any Related Documents to which such Seller is a party
have been duly executed and delivered by such Seller and constitutes a legal,
valid and binding obligation of such Seller enforceable against it in
accordance with its terms.


 


(iv)          No Proceedings. There are no proceedings or,
to the best Knowledge of each Seller, investigations, pending or threatened in
writing against such Seller, before any Governmental Authority (i) asserting
the invalidity of this Agreement, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement, (iii) seeking
any determination or ruling that, in the reasonable judgment of such Seller,
could reasonably be expected to materially and adversely affect the performance
by such Seller of its obligations under this Agreement or (iv) seeking any
determination or ruling that could reasonably be expected to materially and
adversely affect the validity or enforceability of this Agreement.


 


(v)           Accuracy of Certain Information. All written
factual information heretofore furnished by each Seller to Buyer with respect
to the Transferred Receivables for the purposes of, or in connection with, this
Agreement was true and correct in all material respects on the date as of which
such information was stated or certified.


 


(vi)          Transferred Receivables. With respect
to each Transferred Receivable, the Seller of such Transferred Receivable
represents and warrants that as of the Closing Date:


 


(1)             each
Transferred Receivable satisfies the criteria for an Eligible Receivable as of
the Closing Date, except, with respect to an Additional Receivable, to the
extent expressly set forth in Schedule 2 for such Additional Receivable;
and


 


(2)             all
authorizations, consents, orders or approvals of or  registrations or declarations with any
Governmental Authority required  to be
obtained, effected or given by such Seller in connection with the conveyance by
such Seller of such Transferred Receivable to Buyer have been duly obtained,
effected or given and are in full force and effect.


 


(vii)         Products.  All Products relating to Transferred
Receivables are of merchantable quality and are in conformance with the terms
and conditions of any 


 


11

















 


applicable Financing Agreement. 
The original price paid by the Account Debtor for the Products does not
include any amount in respect of other goods or services provided by the
applicable Seller to the Account Debtor, other than for any delivery charges.


 


(viii)        Perfection. Each Seller has caused the
filing of all appropriate financing statements in the proper filing office in
the appropriate jurisdictions under applicable law in order to perfect any
security interest granted by any Account Debtor in property securing the
related Receivables.


 


(ix)           Priority. Other than the ownership
interests transferred to Buyer pursuant to this Agreement, no Seller has
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any of the Transferred Assets except as permitted by this Agreement. No Seller
has authorized the filing of and no Seller is aware of any financing statements
against such Seller that include a description of collateral covering the
Transferred Assets other than any financing statement that has been terminated.
None of the chattel paper that constitutes or evidences the Receivables has any
marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than Buyer. No Seller is aware of any
judgment lien in excess of $100,000 that is final, binding and not subject to
appeal or ERISA lien or tax lien filings against it.


 


(x)            Performance.  Each Seller has performed or, to the extent
applicable, will timely perform, all of its material obligations relating to
the Transferred Receivables and, in particular and without limitation, it has
delivered all Products to the Account Debtor as are due and required with
respect to the Outstanding Balance of the Transferred Receivable.


 


(xi)           Account Debtor Performance.  No amounts due with respect to the
Transferred Receivables have been paid in advance.  No Account Debtor is in breach or default
under any Financing Agreement.


 


(xii)          Financing Agreements.  The Financing Agreement and any other
documents provided to Buyer in connection with a Transferred Receivable (A) constitute
the entire agreement between the applicable Seller and the Account Debtor in
relation to the financing of Products underlying such Transferred Receivable; (B) represent
the legal, valid, binding and enforceable obligation of such Seller and the Account
Debtor; (C) comply with all applicable Requirements of Law and other
requirements for their validity and enforceability; and (D) represent a
final sale.


 


(b)           Upon discovery by any Seller or Buyer of a breach of
any of the representations and warranties by a Seller set forth in this Section 4.1,
the party discovering such breach shall give prompt written notice to the
others. Each Seller, jointly and
severally, agrees to undertake forthwith to cure any such breach and diligently
prosecute such cure to completion.


 


12

















 


(c)           If (i) any representation or warranty of a
Seller contained in Section 4.1(a) is not true and correct in
any material respect as of the date specified therein with respect to any
Transferred Receivable and as a result of such breach Buyer’s interest in such
Transferred Receivable is materially and adversely affected, including if Buyer’s
rights in, to or under such Transferred Receivables or the proceeds of such
Transferred Receivables are impaired or such proceeds are not available for any
reason to Buyer free and clear of any Lien other than Permitted Encumbrances,
unless cured within thirty (30) days after the earlier to occur of the
discovery thereof by a Seller or receipt by such Seller of notice thereof given
by Buyer (in either case, the “Cure Period”) or (ii) any
Transferred Receivable other than an Additional Receivable was not an Eligible
Receivable on the Closing Date or any Transferred Receivable identified as an
Additional Receivable does not meet any requirement for an Eligible Receivable
other than those expressly identified on Schedule 2 with respect to such
Additional Receivable, then such Transferred Receivable shall be designated an “Ineligible
Receivable;” provided, that any such Transferred Receivable that becomes an
Ineligible Receivable under clause (i) will not be deemed to be an
Ineligible Receivable but will be deemed an Eligible Receivable or a qualifying
Additional Receivable if on any day prior to the end of the Cure Period, (i) the
relevant representation and warranty shall be true and correct in all material
respects as if made on such day and (ii) such Seller shall have delivered
an Officer’s Certificate describing the nature of such breach and the manner in
which the relevant representation and warranty became true and correct.


 


(d)           Sellers shall repurchase such Ineligible Receivable
(as to which the Cure Period has expired, as applicable) from Buyer as provided
below, which repurchase, subject to Sellers’ performance thereof, shall be
Buyer’s sole and exclusive remedy for a breach of Sections 4.1(a), 4.2(a),
4.2(b), 4.3(a) or 4.3(c) as to individual
Transferred Receivables. In connection with such repurchase, Sellers shall pay
to Buyer in immediately available funds not later than five (5) Business
Days after Sellers’ receipt from Buyer of notice of such Ineligible Receivable’s
ineligibility, in payment for such repurchase, an amount equal to the Aggregate
Repurchase Amount. The payment of such deposit amount in immediately available
funds shall otherwise be considered payment in full of all of such Transferred
Receivables.  Each Seller’s obligation to
repurchase an Ineligible Receivable hereunder is joint and several with each
other Seller.


 


(e)           Upon the payment, if any, required to be made to
Buyer as provided in Section 4.1(d), Buyer shall automatically and
without further action be deemed to transfer, assign, set over and otherwise
convey to the applicable Seller or its designee, without recourse,
representation or warranty, except as set forth in the following sentence, all
the right, title and interest of Buyer in and to the applicable Ineligible
Receivables, all moneys due or to become due and all Collateral Security with
respect thereto and all amounts received with respect thereto and all proceeds
thereof. Such transfer shall be free and clear of any Liens created by or
through Buyer.  Any collections received
by Buyer with respect to any Ineligible Receivables transferred to a Seller, as
well as any amounts received by Buyer from an Account Debtor at any time which
do not constitute Collections, shall be deemed held by Buyer in trust and as
fiduciary for such Seller and Buyer shall pay the same over to such Seller
forthwith upon receipt.  Buyer will
irrevocably instruct all Account Debtors with respect to such Ineligible
Receivables 


 


13

















 


to make all payments on account thereof after such assignment to such
Seller.  Buyer shall execute such
documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by a Seller to effect the conveyance of such
Ineligible Receivables pursuant to this Section.


 


(f)            Notwithstanding any other provision of this
Agreement or any Related Document, the representations contained in Section 4.1(a) shall
be continuing and remain in full force and effect.


 


4.2           Covenants of Sellers.


 


(a)           Product Warranties.  All Products underlying the Transferred
Receivables shall be subject to applicable product warranties of Toro and Toro
agrees to perform, or cause to be performed, all repairs, modifications and/or
other acts required by Toro pursuant to the product warranties.  All expenses of performance by Toro under
this Section 4.2(a) shall be paid by Toro.  If Toro does not perform, or cause to be
performed, any act required by Toro pursuant to such product warranties on any
Product underlying a Transferred Receivable or pay the expenses therefor within
a reasonable time after demand therefor, such Transferred Receivable shall
become an “Ineligible Receivable,” immediately subject to the repurchase
obligations set forth under Section 4.1(d), without giving effect
to the Cure Period.


 


(b)           Returns.  If a Seller accepts the return from any
Account Debtor of any Product covered by any Transferred Receivable,
voluntarily or otherwise, whether or not any substitution is made for such
returned Product, such Seller will pay to Buyer the Outstanding Balance of such
Transferred Receivable or the portion thereof attributable to the returned
Product within ten (10) Business Days of the approval by Toro of the
return of the Product by an Account Debtor. 
If such Seller does not pay to Buyer the Outstanding Balance (or portion
thereof) of such Transferred Receivable as required by this Section 4.2(b),
such Transferred Receivable shall become an “Ineligible Receivable,”
immediately subject to the repurchase obligations set forth under Section 4.1(d),
without giving effect to the Cure Period.


 


(c)           Credits.  If a Seller in the ordinary course of
business issues any credit to any Account Debtor that reduces any amount due
with respect to a Transferred Receivable, such Seller shall pay to Buyer an
amount equal to such credit within two (2) Business Days of the issuance
thereof.


 


(d)           Notification and Resolution of Disputes.  Each Seller shall promptly notify Buyer of
all facts or circumstances of which such Seller has Knowledge and are material
to Buyer’s interests under this Agreement in relation to the terms and
conditions of any Financing Agreement, a Transferred Receivable and/or the
relevant Products including any dispute or threatened dispute with an Account
Debtor in relation thereto of which such Seller has Knowledge.  Each Seller will, if requested to do so by
Buyer, use commercially reasonable efforts to assist Buyer, at no cost to such
Seller, in resolving any disputes between Buyer and any Account Debtor and in
collecting the Transferred Receivables of such Seller.


 


14

















 


(e)           Repossession of Products.  If an Account Debtor defaults on any of its
obligations to Buyer, Buyer may appoint a Seller as its agent (without
compensation) to recover possession of the relevant Products from the Account
Debtor and such Seller shall, if it accepts such appointment in its sole
discretion, on such appointment, at its own risk, cost and expense, repossess,
transport, store and insure such Products. 
Such Seller shall keep any Products repossessed by it in a safe and
suitable environment.  In case a Seller
declines to act as Buyer’s agent, such Seller shall cooperate with Buyer to
appoint a third party, at such Seller’s cost and expense, in connection with
the repossession, transportation, storage and insurance of such Products.


 


(f)            Limited Repurchase Obligation.  With respect to the Transferred Receivables,
Buyer shall be entitled to the benefits to which Red Iron is entitled described
in Sections 3 and 4(b) of the form of Repurchase Agreement attached as Exhibit A
hereto (the “Repurchase Agreement”), subject to the limits set forth in Section 4(a) of
the Repurchase Agreement, and the Sellers jointly and severally agree to
perform any obligations of Seller (as defined in the Repurchase Agreement) set
forth in Sections 3 and 4(b) of the Repurchase Agreement, subject to the
limits set forth in Section 4(a) of the Repurchase Agreement.


 


4.3           Negative Covenants of
Sellers.  Each Seller covenants and
agrees that, without the prior written consent of Buyer:


 


(a)           Liens. Sellers shall not create,
incur, assume or permit to exist any Lien, other than Permitted Encumbrances,
on or with respect to the Transferred Assets. 
If a Transferred Receivable is subject to such a Lien and such Lien is
not released within the Cure Period, such Transferred Receivable shall become
an “Ineligible Receivable,” immediately subject to the repurchase obligations
set forth under Section 4.1(d), without giving effect to the Cure
Period.


 


(b)           Amendments to Financing Agreements. Sellers shall
not amend the Financing Agreements.


 


(c)           Non Disturbance of Buyer’s Rights. Sellers shall
not take any action over the Transferred Receivables and, in particular, except
as contemplated by Section 4.2(c), will not grant discounts or
grace periods to the Account Debtors nor will they agree to any compromise with
respect to the Transferred Receivables. 
If a Seller takes any of the foregoing actions with respect to a
Transferred Receivable, such Transferred Receivable shall become an “Ineligible
Receivable,” immediately subject to the repurchase obligations set forth under Section 4.1(d) without
giving effect to the Cure Period.


 


(d)           Sale Characterization. For accounting purposes,
no Seller shall account for the transactions contemplated by this Agreement in
any manner other than, with respect to the sale of each Transferred Receivable,
as a true sale and absolute assignment of its full right, title and ownership
interest in the related Transferred Assets to Buyer. Sellers shall also
maintain their respective records and books of account in a manner which
clearly reflects each such sale of the Transferred Receivables to Buyer.


 


15
















 


ARTICLE V


MISCELLANEOUS


 


5.1           Notices.  Notices and all other communication provided
for herein shall be in writing and shall be deemed to have been given to a
party at the earlier of (a) when personally delivered, (b) 72 hours
after having been deposited into the custody of the U.S. Postal Service, sent
by first class certified mail, postage prepaid, (c) one business day after
deposit with a national overnight courier service, (d) upon receipt of a
confirmation of facsimile transmission, or (e) upon receipt of electronic
mail (with a notice contemporaneously given by another method specified in this
Section 5.1); in each case addressed as follows:


 


	
  If to Buyer:

  	
  Red Iron Acceptance, LLC

  
	
   

  	
  8111 Lyndale Avenue South

  
	
   

  	
  Bloomington, MN
  55420

  
	
   

  	
  Attention:
  General Manager

  
	
   

  	
  Telephone: (952)
  888-8801

  
	
   

  	
  Facsimile: (952)
  887-8258

  
	
   

  	
  Email:

  
	
   

  	
   

  
	
   

  	
  with copies to:

  
	
   

  	
   

  
	
   

  	
  TCF Inventory Finance, Inc.

  
	
   

  	
  2300 Barrington Road, Suite 600

  
	
   

  	
  Hoffman Estates, IL 60169

  
	
   

  	
  Attention: Vincent E. Hillery, General Counsel

  
	
   

  	
  Telephone: (847) 252-6616

  
	
   

  	
  Facsimile: (847) 285-6012

  
	
   

  	
  Email:
  vhillery@tcfif.com

  



 


16

















 


	
   

  	
  and:

  
	
   

  	
   

  
	
   

  	
  TCF National Bank

  
	
   

  	
  200 E. Lake Street

  
	
   

  	
  Wayzata, MN 55391

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
  Telephone: (952) 475-6498

  
	
   

  	
  Facsimile: (952) 475-7975

  
	
   

  	
  Email: jgreen@tcfbank.com

  
	
   

  	
   

  
	
   

  	
  and:

  
	
   

  	
   

  
	
   

  	
  Kaplan, Strangis and Kaplan, P.A.

  
	
   

  	
  5500 Wells Fargo Center

  
	
   

  	
  90 South Seventh Street

  
	
   

  	
  Minneapolis, MN 55402

  
	
   

  	
  Attention: Harvey F. Kaplan, Esq.

  
	
   

  	
  Telephone: (612) 375-1138

  
	
   

  	
  Facsimile: (612) 375-1143

  
	
   

  	
  Email:
  hfk@kskpa.com

  
	
   

  	
   

  
	
  If to Sellers:

  	
  The Toro Company

  
	
   

  	
  Toro Credit Company

  
	
   

  	
  Toro International Company

  
	
   

  	
  8111 Lyndale Avenue South

  
	
   

  	
  Bloomington, MN 55420

  
	
   

  	
  Attention: Treasurer

  
	
   

  	
  Telephone: (952) 887-8449

  
	
   

  	
  Facsimile: (952) 887-8920

  
	
   

  	
  Email:
  Tom.Larson@toro.com

  
	
   

  	
   

  
	
   

  	
  With copies to:

  
	
   

  	
   

  
	
   

  	
  The Toro Company

  
	
   

  	
  8111 Lyndale Avenue South

  
	
   

  	
  Bloomington, MN 55420

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
  Telephone: (952) 887-8178

  
	
   

  	
  Facsimile: (952) 887-8920

  
	
   

  	
  Email:
  Tim.Dordell@toro.com

  
	
   

  	
   

  
	
   

  	
  and

  
	
   

  	
   

  
	
   

  	
  Oppenheimer
  Wolff & Donnelly LLP

  
	
   

  	
  3300 Plaza VII
  Building

  
	
   

  	
  45 South Seventh
  Street

  
	
   

  	
  Attention: C. Robert
  Beattie, Esq.

  



 


17

















 


	
   

  	
  Telephone: 
  (612) 607-7395

  
	
   

  	
  Facsimile: 
  (612) 607-7100

  
	
   

  	
  Email: 
  RBeattie@Oppenheimer.com

  



 


or to such other
address as any party hereto may have furnished to the other party hereto in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.


 


5.2           No Waiver; Remedies.


 


(a)           The failure of any party hereto, at any time or
times, to require strict performance by any other party hereto of any provision
of this Agreement shall not waive, affect or diminish any right of such party
thereafter to demand strict compliance and performance with this Agreement. Any
suspension or waiver of any breach or default hereunder shall not suspend,
waive or affect any other breach or default whether the same is prior or
subsequent thereto and whether of the same or a different type. None of the
undertakings, agreements, warranties, covenants and representations of any
party contained in this Agreement, and no breach or default by any party under
this Agreement, shall be deemed to have been suspended or waived or amended by
any other party hereto unless such waiver or suspension or amendment is by an
instrument in writing signed by an officer of or other duly authorized
signatory of such party and, in the case of a suspension or waiver, directed to
the defaulting party specifying such suspension or waiver.


 


(b)           Each party’s rights and remedies under this
Agreement shall be cumulative and nonexclusive of any other rights and remedies
that such party may have under any other agreement, including the Related
Documents, by operation of law or otherwise.


 


5.3           Successors and Assigns.  This Agreement shall be binding upon and
shall inure to the benefit of Sellers and Buyer and their respective successors
and permitted assigns, except as otherwise provided herein. No party may
assign, transfer, hypothecate or otherwise convey its rights, benefits,
obligations or duties hereunder without having obtained the prior express
written consent of the other party. Any such purported assignment, transfer,
hypothecation or other conveyance by any Seller without the prior express written
consent of Buyer shall be void. The terms and provisions of this Agreement are
for the purpose of defining the relative rights and obligations of Sellers and
Buyer with respect to the transactions contemplated hereby and, except as set
forth in Section 7.10 of the Joint Venture Agreement, no Person shall be a
third-party beneficiary of any of the terms and provisions of this Agreement.


 


5.4           No Buyer Liability for
Contracts.  Sellers
hereby acknowledge and agree that Buyer shall not be in any way responsible for
the performance of any contract for the sale of Products by any Seller to an
Account Debtor giving rise to any Transferred Receivable and Buyer shall not
have any obligation to intervene in any dispute arising out of the performance
of any such contract. Sellers shall, jointly and severally, indemnify Buyer and
hold Buyer harmless from and against any and all losses, damages, penalties,
costs, expenses (including reasonable attorneys’ fees) and liabilities
(including  product liabilities) incurred
by Buyer in connection with any claim or demand by an Account Debtor or any
third party arising directly or indirectly 


 


18

















 


from the design, manufacture or sale of the
Products, any warranty with respect to the Products or any failure of the
Products to comply with the terms and conditions of this Agreement.


 


5.5           Survival.  Except as otherwise expressly provided herein
or in any Related Document, all undertakings, agreements, covenants, warranties
and representations of or binding upon Sellers and Buyer, and all rights of
Sellers and Buyer hereunder shall not terminate or expire upon the closing of
the transactions contemplated hereby, but rather shall survive.


 


5.6           Complete Agreement;
Modification of Agreement.  This
Agreement and the Related Documents  constitute the
complete agreement between the parties with respect to the subject matter
hereof, supersede all prior agreements and understandings relating to the
subject matter hereof and thereof, and may not be modified, altered or amended
except by written agreement of the parties hereto.


 


5.7           Dispute Resolution.  In the event the parties hereto cannot
mutually reach a decision on an issue arising under this Agreement, then such
dispute shall be deemed to be an “Arbitrable Dispute” subject to the dispute
resolution procedures set forth in Article VI of the Joint Venture
Agreement.


 


5.8           Jury Trial.  EACH OF SELLERS AND BUYER, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING TO THIS AGREEMENT OR
ANY RELATED DOCUMENT IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY RELATED DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY. THIS WAIVER IS A MATERIAL INDUCEMENT FOR OUR ENTERING
INTO THIS AGREEMENT.


 


5.9           Governing Law; Submission to
Jurisdiction.  This
Agreement shall be subject to and governed by the laws of the state of
Minnesota, without regard to conflicts of laws principles. Each of Sellers and
Buyer hereby irrevocably submits to the non-exclusive jurisdiction of the
Federal courts sitting in Minneapolis or St. Paul, Minnesota or any state court
located in Hennepin County, Minnesota, and by execution and delivery of this
Agreement, each party hereto accepts for itself and in connection with its
properties, generally and unconditionally, the non-exclusive jurisdiction of
such courts with respect to any Litigation concerning this Agreement or the
Related Documents or the transactions contemplated hereby and thereby or any
matters related thereto not subject to the provisions of Section 5.7.
Each party hereto irrevocably waives any objection (including  any objection to the laying of venue or any
objection on the grounds of forum non conveniens) which it may now or hereafter
have to the bringing of any proceeding with respect to this Agreement or the
Related Documents to the courts set forth above. Each party hereto agrees to
the personal jurisdiction of such courts and that service of process may be
made on it at the address indicated in Section 5.1 above. Nothing
herein shall affect the right to serve process in any other manner permitted by
law.


 


5.10         Counterparts.  This Agreement may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one agreement.


 


19

















 


5.11         Severability.  Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.


 


5.12         Section Titles.  The section titles and table of contents
contained in this Agreement are provided for ease of reference only and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto.


 


5.13         No Setoff.  Each Seller’s obligations under this
Agreement shall not be affected by any right of setoff, counterclaim,
recoupment, defense or other right such Seller might have against Buyer, all of
which rights are hereby expressly waived by such Seller.


 


5.14         Further Assurances.


 


(a)           Each Seller shall, at its sole cost and expense,
upon request of Buyer, promptly and duly authorize, execute and/or deliver, as
applicable, any and all further instruments and documents and take such further
actions that Buyer may reasonably request to carry out more effectively the
provisions and purposes of this Agreement or to obtain the full benefits of
this Agreement and of the rights and powers herein granted, including
authorizing and filing amendments to financing statements under the UCC with
respect to the ownership interest of Buyer created by this Agreement. Each
Seller hereby authorizes Buyer to file any such financing statements without
the signature of such Seller to the extent permitted by applicable law. A
carbon, photographic or other reproduction of this Agreement or of any notice
or financing statement covering the Transferred Assets or any part thereof
shall be sufficient as a notice or financing statement where permitted by law.
If any amount payable under or in connection with any of the Transferred Assets
is or shall become evidenced by any instrument, such instrument, other than
checks and notes received in the ordinary course of business, shall be duly
endorsed in a manner satisfactory to Buyer immediately upon such Seller’s
receipt thereof and promptly delivered to or at the direction of Buyer.


 


(b)           If a Seller fails to perform any agreement or
obligation under this Section 5.14, Buyer may (but shall not be
required to) itself perform, or cause performance of, such agreement or
obligation, and the reasonable expenses of Buyer incurred in connection
therewith shall be payable by such Seller upon demand of Buyer.


 


5.15         No Indirect or Consequential
Damages.  NO PARTY TO THIS AGREEMENT
SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT, ANY
SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR PUNITIVE,
EXEMPLARY OR, EXCEPT IN THE CASE OF FRAUD, BAD FAITH, WILLFUL MISCONDUCT OR
GROSS NEGLIGENCE, INDIRECT OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS
A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER.


 


20

















 


5.16         No Assumption in Drafting.  The parties hereto acknowledge and agree that
(a) each party has reviewed and negotiated the terms and provisions of
this Agreement and has had the opportunity to contribute to its revision, and (b) each
party has been represented by counsel in reviewing and negotiating such terms
and provisions.  Accordingly, the rule of
construction to the effect that ambiguities are resolved against the drafting
party shall not be employed in the interpretation of this Agreement.  Rather, the terms of this Agreement shall be
construed fairly as to both parties hereto and not in favor or against either
party.


 


5.17         Headings; Section and Article References.  The headings in this Agreement are inserted for
convenience only and are not to be considered in the interpretation or
construction of the provisions hereof. 
Unless the context of this Agreement otherwise clearly requires, the
following rules of construction shall apply to this Agreement: (a) the
words “hereof,” “herein” and “hereunder” and words of similar import shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement; (b) the words “include” and “including” and words of similar
import shall not be construed to be limiting or exclusive and (c) the word
“or” shall have the meaning represented by the phrase “and/or.”  Any pronoun used herein shall be deemed to
cover all genders.


 


[Signature
page follows]


 


21

















 


IN WITNESS WHEREOF, Sellers and Buyer have
caused this Agreement to be duly executed as of the day and year first above
written.


 


 


	
   

  	
  [TORO CREDIT COMPANY, as Seller]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE TORO COMPANY, as Seller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [TORO INTERNATIONAL COMPANY, as Seller]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [EXMARK MANUFACTURING COMPANY INCORPORATED, as Seller]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RED IRON ACCEPTANCE, LLC, as Buyer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


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