Exhibit 10.3


 


FORM OF REPURCHASE AGREEMENT


(Two Step)


 


This
Repurchase Agreement (“Agreement”)
is entered into as of [                 ,
2009] (“Effective Date”) by and between THE TORO COMPANY, a Delaware corporation, a manufacturer (hereinafter  “Seller”), and RED IRON ACCEPTANCE, LLC,  a
Delaware limited liability company (“Red Iron”),
to set forth the terms and conditions under which Red Iron will provide
financing for certain dealers and distributors as set forth below. In
consideration of the matters and mutual agreements herein contained, Red Iron
and Seller agree as follows:


 


1.                                         Definitions.


 


(a) “Approval” herein shall mean Red Iron’s agreement, whether in
writing, by electronic transmission or orally (provided, however, that such
oral agreement be promptly confirmed in writing), to provide floorplan
inventory financing for the sale of Inventory by Seller or an affiliate of
Seller to a Dealer and/or Distributor, which agreement shall be in effect for a
period of sixty (60) days from the date issued.


 


(b) “Dealer” herein shall mean any person, firm or corporation
which buys Inventory at wholesale from Seller or an affiliate of Seller and
sells Inventory at retail.


 


(c) “Dealer Invoice” herein shall mean an invoice, bill of sale
or other evidence, whether in writing or electronically transmitted, of the
sale or delivery of Inventory by Seller or an affiliate of Seller to a Dealer.


 


(d) “Distributor” herein shall mean any person, firm,
corporation or buying group which buys Inventory from Seller or an affiliate of
Seller and sells Inventory at wholesale.


 


(e) “Distributor Invoice” herein shall mean an invoice, bill of
sale or other evidence, whether in writing or electronically transmitted, of
the sale or delivery of Inventory by Seller or an affiliate of Seller to a
Distributor.


 


(f) “Distributor to Dealer Invoice” herein shall mean an
invoice, bill of sale or other evidence, whether in writing or electronically
transmitted, of the sale or delivery of Inventory by a Distributor to a Dealer.


 


(g) “Inventory”
herein shall mean any and all products, including parts and accessories, software
and related services manufactured, distributed or sold at wholesale by Seller
or an affiliate of Seller.


 


(h) “Invoice” herein shall mean a Dealer Invoice, a Distributor
Invoice and/or a Distributor to Dealer Invoice, either collectively or
individually, as the case may be.


 


(i) “Wholesale Instrument” herein shall mean an Invoice, billing
statement, inventory schedule or other evidence of indebtedness, including the
books and records of Red Iron, arising out of the financing by Red Iron of an
Invoice.


 


2.                                         Financing
Program.


 


(a) If Seller or an
affiliate of Seller requests an Approval or sends to Red Iron an Invoice, and
the Dealer and/or Distributor related to such Approval or Invoice is eligible
for floorplan inventory financing in accordance with the credit and operational
policies of Red Iron, then Red Iron shall, from time to time in its commercially
reasonable discretion consistent with such credit and operational policies,
issue such Approvals and advance against such Invoices, all under the terms of
this Agreement. Upon issuance of an Approval by Red Iron, Seller shall (or, as
applicable, shall cause its affiliate to) deliver an original Invoice to Red
Iron. Provided Red Iron receives the Invoice within sixty (60) days of the date
Red Iron issued the Approval and within thirty (30) days of the ship date
referred to in the Invoice, Red Iron shall pay Seller or its affiliate, as
applicable, the amount of the Invoice, subject to the terms of the financing
program then in effect between Seller and Red Iron. If the Invoice is not
received within said 60- and 30-day periods, or is not acceptable in form or
content once received, Red Iron has the right, without notice to Seller or its
affiliate, as applicable, to cancel the Approval related to said Invoice. Prior
to funding any Approval, Red Iron has the right to cancel said Approval upon
oral or written notice (provided, however, that oral notice be promptly
confirmed in writing) to Seller or its affiliate, as applicable, should Dealer
or Distributor be in default of any of its obligations to Red Iron and provided
that Seller or its affiliate, as applicable, has not shipped Inventory in
reliance on Red Iron’s Approval. Advances on Invoices and Approvals for such
advances issued by Red Iron as provided hereunder shall constitute an
acceptance of the terms and conditions hereof by Seller (for itself or on
behalf of its affiliate, as applicable) and Red Iron as to each such advance,
and no other act or notice shall be required on the part of Red Iron or Seller (or
its affiliate, as applicable) to entitle such advances and Approvals to the
benefits of this Agreement. Red Iron may deduct, set-off, withhold and/or apply
any sums from payments due to Seller (either on behalf of


 

















 


itself or its affiliate,
as applicable) from Red Iron under this Agreement any sums or payments due to
Red Iron from Seller and/or its affiliates in respect of any advance to be made
by Red Iron against any Invoice.  Seller
and Red Iron may from time to time enter into written agreements for any Seller
sponsored special financing program for Dealers and/or Distributors.


 


(b)  If Seller or
an affiliate of Seller delivers to Red Iron an original Invoice that is the subject
of open account financing of inventory and related items and the amount of such
Invoice is within (i) pre-established credit limits applicable to the
Dealer and/or Distributor related to such Invoice and (ii) unsecured
credit limits established by Red Iron from time to time (which shall not be
less than $4,000,000 in the aggregate at any time unless otherwise agreed by
the parties hereto), then Red Iron shall, from time to time in its commercially
reasonable discretion consistent with the credit and operational policies of
Red Iron, make an advance against such Invoice under the terms of this
Agreement.  Subject to the foregoing, if
Red Iron receives the Invoice within thirty (30) days of the ship date referred
to in the Invoice, Red Iron shall pay Seller or its affiliate, as applicable,
the amount of the Invoice, subject to the terms of the financing program then
in effect between Seller and Red Iron. 
Advances on Invoices issued by Red Iron as provided hereunder shall
constitute an acceptance of the terms and conditions hereof by Seller (for
itself or on behalf of its affiliate, as applicable) and Red Iron as to each
such advance, and no other act or notice shall be required on the part of Red
Iron or Seller (or its affiliate, as applicable) to entitle such advances to
the benefits of this Agreement.  Red Iron
may deduct, set-off, withhold and/or apply any sums from payments due to Seller
(either on behalf of itself or its affiliate, as applicable) from Red Iron
under this Agreement any sums or payments due to Red Iron from Seller and/or
its affiliates in respect of any advance to be made by Red Iron against any Invoice.


 


(c)  Upon payment
to Seller or an affiliate of Seller of the amount of an Invoice pursuant to the
terms of the preceding paragraphs (a) or (b), Seller or its affiliate, as
applicable, shall be deemed, without the necessity of any further action, to
have transferred, assigned, set over and otherwise conveyed to Red Iron,
without recourse except as provided herein, all its right, title and interest
in, to and under, such Invoice and any related Wholesale Instrument, any
collateral security securing payment thereof and any other credit support
together with all monies due or to become due and all amounts received or
receivable with respect thereto, including all rights to receive payments
thereon from any Dealer and/or Distributor. 
For accounting purposes, no Seller or affiliate of Seller, as
applicable, shall account for the transactions contemplated by this Agreement
in any manner other than, with respect to the sale of each Invoice, as a true
sale and absolute assignment of its full right, title and ownership interest
therein to Red Iron.  Seller and its
affiliates shall also maintain their respective records and books of account in
a manner which clearly reflects each such sale of Invoices to Red Iron.


 


(d)  Seller (on
behalf of itself and its affiliates) hereby grants to Red Iron a limited power
of attorney for the sole purpose of endorsing checks, drafts and other
instruments received by Red Iron payable to the order of Seller and its
affiliates and relating, in whole or in part, to receivables held by Red Iron.


 


3.             Repurchase
of Inventory; Extended Service Contract Recourse.


 


(a) Seller’s repurchase of Inventory sold by Seller or its affiliates directly
to a Dealer or Distributor. Subject to Section 4, if Red Iron
shall repossess or come into possession of any Inventory, or any part thereof,
covered by any Dealer Invoice or Distributor Invoice, Seller agrees to repurchase
such Inventory from Red Iron in a condition that is new and unused, subject to
normal wear and tear resulting from display or demonstration, and wherever
located. Seller shall pay Red Iron, within thirty (30) days of request therefor
and in good funds, the outstanding balance remaining unpaid under  such Invoice. In addition, Seller shall pay Red Iron for
all costs and expenses actually incurred by Red Iron in taking possession or in
the repossession of such Inventory, including shipping and storage costs (not
to exceed 10% of the original Invoice) plus reasonable attomeys’ fees and
courts costs actually incurred. Seller shall not assert any interest in or
title to such Inventory until it has paid Red Iron all amounts as specified
herein in full.


 


(b) Seller’s repurchase of Inventory sold by a Distributor to a Dealer.
Subject to Section 4, if Red Iron shall repossess or come into possession
of any Inventory, or any part thereof, covered by any Distributor to Dealer
Invoice, and Distributor fails to repurchase such Inventory from Red Iron
within thirty (30) days of Red Iron’s demand therefor, Seller agrees to repurchase
such Inventory from Red Iron in a condition that is new and unused, subject to
normal wear and tear resulting from display or demonstration, and wherever
located. Subject to Section 3(h), Seller shall pay Red Iron, within thirty
(30) days of request therefor and in good funds, the outstanding balance amount
remaining unpaid under such Distributor to Dealer Invoice. In addition, Seller
shall pay Red Iron for all costs and expenses actually incurred by Red Iron in
taking possession or in the repossession of such Inventory, including shipping
and storage costs 


 


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(not to exceed 10% of
the original Invoice) plus reasonable attorneys’ fees and court costs actually
incurred. Seller shall not assert any interest in or title to such Inventory
until it has paid Red Iron all amounts as specified herein in full.


 


(c) Seller and Red
Iron agree that the repurchase of Inventory hereunder shall not be deemed to be
a transfer subject to Sections 9-615(f) or 9-618 of the Illinois Uniform Commercial
Code or any similar provision of any other applicable law.


 


(d) If an Invoice
delivered to Red Iron by Seller does not identify the covered Inventory by
serial number, but only by model number, and Seller cannot prove to Red Iron’s
reasonable satisfaction that an item of Inventory is covered by a particular
Invoice, then 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 an item with the same model number
as the item of Inventory tendered for repurchase.


 


(e) Seller further
agrees that in the event Red Iron refinances Inventory pursuant to a buyout of
debt from another financing source or otherwise, such Inventory will be subject
to repurchase by Seller under this Section 3, notwithstanding the fact
that Red Iron did not finance the initial purchase of such Inventory from
Seller.


 


(f)  Seller agrees
(and Seller will cause its affiliates, as applicable) to execute any additional
agreements, instruments, and documents which Red Iron may reasonably require to
maintain Red Iron’s rights and interests in any Inventory.


 


(g)  To the extent
reasonably feasible, and without prejudicing Red Iron’s rights, Red Iron shall
provide Seller prior written notice of Red Iron’s intent to commence litigation
against a Dealer or Distributor.


 


(h) Red Iron shall
provide Seller contemporaneous written notice of any action by Red Iron against
a Dealer or Distributor with respect to any amounts unpaid under a Distributor
to Dealer Invoice.  Red Iron shall not
make a demand on Toro to perform its obligations under Section 3(b) above
until at least ten (10) days after providing such notice to Seller or, in
the case where the Dealer or Distributor disputes such amounts in good faith,
until at least thirty (30) days after providing such notice to Seller.


 


(i)  If an Invoice
for an extended service contract is not paid when due, then Red Iron shall have
the benefit of recourse to Seller with respect to such Invoice on such terms as
Red Iron and Seller shall mutually agree from time to time.


 


4.
            Net
Repurchase Limit; Remarketing.


 


(a) Neither Seller nor
any affiliate of Seller shall have any obligation under Section 3 or under
the terms of any other repurchase agreement entered into by and between Seller
or an affiliate of Seller, on the one hand, and Red Iron on the other, to
repurchase any additional Inventory in a Calendar Year once the aggregate
amount of repurchase obligations fully and finally paid hereunder to Red Iron
during such Calendar Year equals or exceeds the Net Repurchase Limit for such
Calendar Year.  “Net
Repurchase Limit” shall mean Seven and One-Half Million Dollars
($7,500,000) for each Calendar Year during the term of this Agreement.  The foregoing Net Repurchase Limit shall not relieve
Seller or its affiliates from (i) any obligation to repurchase or
otherwise acquire any Inventory pursuant to any separate agreement between
Seller or an affiliate of Seller and any Distributor or (ii) any other
recourse obligation Seller or an affiliate of Seller may have to Red Iron
(including the recourse described in Section 3(i) hereof).


 


(b) Once the Net
Repurchase Limit has been reached in a Calendar Year, Seller agrees to use its
best efforts to remarket any additional repossessed Inventory on behalf of Red
Iron on a non-discriminatory, non-priority basis for an amount not less than
the outstanding balance remaining due Red Iron on such Inventory.  As used herein, such best efforts shall
include advertising and using the same methods to market such Inventory as
Seller uses to market similar products in the course of conducting its own business,
subject to Red Iron’s rights to approve all aspects of any resale of such
Inventory.  Red Iron acknowledges that
Seller in the ordinary course of its business will be engaged in the marketing
of other similar Inventory and that such activity shall not constitute a breach
of any duty of Seller under the terms of this Section 4(b) so long as
Seller complies with the two immediately preceding sentences.  Red Iron will reimburse Seller for reasonable
out-of-pocket, third party expenses, including reasonable commissions (if any),
incurred by Seller in providing remarketing services pursuant to this Section 4(b).


 


5.             Seller
Representations and Warranties.


 


(a) Seller
represents and warrants, at the time of any Red Iron Approval and/or advance
against any Invoice as provided hereunder, that: (i) each and every
Invoice issued by Seller or its affiliate, as applicable, represents valid
obligations of a Dealer and/or Distributor, is legally enforceable according to



 


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its terms and relates to
bona fide, original acquisition sales of Inventory by Seller or its affiliate,
as applicable, to a Dealer and/or Distributor without any claim, offset or
defense to payment by Dealer and/or Distributor and that Dealer and/or
Distributor requested that the acquisition of Inventory be financed by Red Iron;
(ii) Seller’s (or, as applicable, its affiliate’s) title to all Inventory
is free and clear of all security interests, liens and encumbrances when
transferred to Dealer and/or Distributor and Seller or its affiliate, as
applicable, transfers to Dealer and/or Distributor 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 or warranted to
Dealer and/or Distributor; it meets or exceeds all applicable federal, state
and local safety, manufacturing 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 or warranties, Seller will,
immediately upon demand, purchase from Red Iron the Wholesale Instrument
relating to the Invoice or Inventory with respect to which the representation/warranty
was breached and pay, in good immediately available funds, the unpaid balance
amount of the Wholesale Instrument, plus all charges owing by Dealer and/or
Distributor with respect thereto, and all of Red Iron’s costs and expenses,
including reasonable attorneys’ fees, actually incurred in connection with such
breach.


 


6.             Seller
Covenants and Indemnity.


 


Seller covenants as
follows:


 


(a)  All Inventory
financed by Red Iron shall be subject to applicable product warranties of Seller
(or its affiliate, as applicable), and Seller agrees to perform, or cause to be
performed, all repairs, modifications and/or other acts required of Seller or
its affiliate, as applicable, pursuant to said product warranties. All expenses
of performance under this covenant shall be paid by Seller.


 


(b)  If Seller or
its affiliate, as applicable, accepts the return from any Dealer and/or
Distributor of any Inventory covered by any Wholesale Instrument, voluntarily
or otherwise, whether or not any substitution is made for such returned Inventory,
Seller will reimburse Red Iron for the unpaid balance amount of the Wholesale
Instrument within thirty (30) days of the return.


 


(c) At any time at
which Seller is not required to file reports with the U.S. Securities Exchange
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, Seller will, upon request,
promptly provide Red Iron with Seller’s year-end balance sheet and annual
profit and loss statement for each fiscal year prepared in accordance with generally
accepted accounting principles, consistently applied.


 


(d)  All
transactions of Seller and its affiliates related to the sale of Inventory
financed by Red Iron shall comply with all applicable laws, rules, regulations
and orders of all governmental entities having jurisdiction over such
transactions.  Seller agrees to indemnify
and hold Red Iron harmless from and against any and all claims, damages, costs,
expenses, penalties and judgments asserted or imposed upon, or incurred by, Red
Iron as a result of breach by Seller or its affiliates of any provision of this
Section 6.


 


(e)  Seller will
notify Red Iron promptly (i) if Seller or its affiliate, as applicable, terminates,
or gives notice of its intent to terminate, its agreement with any Distributor
or (ii) if any Distributor terminates, or gives notice of its intent to
terminate, its agreement with Seller or one of its affiliates.


 


7.             Waivers.


 


(a) Seller
(on behalf of itself and its affiliates) waives: notice of non-payment; protest
and dishonor and notice of protest and dishonor of any Wholesale Instrument;
notice of Red Iron’s acceptance of this Agreement; and all other notices to
which Seller or its affiliates might otherwise be entitled to by law. Red Iron
may, at any time or times, without notice to or further consent of Seller or
its affiliates, renew and extend the time of payment of Wholesale Instruments
and compromise or adjust claims on Wholesale Instruments or Inventory covered
thereby and waive or modify performance of such terms and conditions of its
financing arrangement with Dealers and/or Distributors, as Red Iron may determine
to be reasonable, and no such renewal, extension, compromise, adjustment,
waiver or modification shall affect the obligations or liabilities of Seller
hereunder.


 


(b) No waiver of
any provision of this Agreement shall be implied, and no waiver shall be valid,
unless it is in writing and signed by the person or party to be charged.  No waiver of any breach of any of the terms,
provisions or conditions of this Agreement shall be construed as or held to be
a waiver of any other breach, or a waiver of, acquiescence in, or consent to,
any further or succeeding breach hereof.


 


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8.             Term
and Termination.


 


(a)  Initial Term.  The
initial term of this Agreement shall commence on the Effective Date and,
provided this Agreement is not terminated earlier as otherwise provided herein,
shall continue until October 31, 2014 (the “Initial Term”) and thereafter
shall be extended automatically for additional two-year terms (each, an “Additional
Term”) unless at least one year prior to the expiration of the Initial Term or
Additional Term (as applicable) either party gives notice to the other party of
its intention not to extend the term, in which event the Agreement shall
terminate at the end of the then current Initial Term or Additional Term.  Notwithstanding the foregoing, this Agreement
shall automatically terminate upon the final dissolution, winding up and
liquidation of Red Iron.


 


(b)  Default Termination.  
If Seller (or, as applicable, one of its affiliates) is in default of
any of the provisions of this Agreement and Seller shall fail to cure (or cause
the cure of) such default within thirty (30) days after notice by Red Iron of
such default (or such longer period of time as is reasonably necessary to allow
Seller to cure (or cause the cure of) such default but, in any event, not more
than seventy-five (75) days after notice by Red Iron of such default), Red Iron
shall then have the right to terminate this Agreement without further notice
and without penalty and the right to exercise all remedies available to Red
Iron under applicable law.


 


(c)  Effect of Termination.  
The termination of all or any part of this Agreement shall not affect
the obligations of Seller or its affiliates with respect to Invoices approved
or advanced against by Red Iron, or other obligations incurred by either party,
prior to the effective date of such termination.


 


9.             General.


 


(a) This Agreement
has been duly authorized and executed by Seller and Red Iron and shall be
binding upon and inure to the benefit of the successors and/or assigns of the
parties hereto. Neither party may assign this Agreement without the prior
written consent of the other (which consent shall not be unreasonably
withheld), unless such assignment is to a successor-in-interest to the
assigning party.  This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, subject to the limitations of this Section 9(a).


 


(b) This
Agreement constitutes the entire agreement between the parties and contains all
of the agreements between the parties with respect to the subject matter
hereof.  This Agreement supersedes any
and all other agreements, either oral or written, between the parties hereto
with respect to the subject matter hereof. 
No amendment or modification of this Agreement shall be valid unless the
same shall be in writing and signed by the parties hereto.  Notwithstanding the foregoing, the parties
acknowledge that there may be other agreements between them from time to time
covering related matters such as financing program terms, Seller sponsored rate
programs or electronic invoice transmission which shall continue in full force
and effect. This Agreement shall not be deemed to create, or intend, a joint
venture, partnership, agency or other similar relationship between Seller and Red
Iron.


 


(c)  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 (i) when personally
delivered, (ii) 72 hours after having been deposited into the custody of
the U.S. Postal Service, sent by first class certified mail, postage prepaid, (iii) one
business day after deposit with a national overnight courier service, (iv) upon
receipt of a confirmation of facsimile transmission or (v) upon receipt of
electronic mail (with a notice contemporaneously given by another method
specified in this Section 9(c)); in each case addressed as follows:


 


	
  If to Red Iron:

  	
  Red Iron Acceptance,
  LLC

  
	
   

  	
  8111 Lyndale Avenue
  South

  
	
   

  	
  Bloomington, MN 55420

  
	
   

  	
  Attention: General
  Manager

  
	
   

  	
  Telephone: (952)
  888-8801

  
	
   

  	
  Facsimile: (952)
  887-8258

  
	
   

  	
  Email:

  
	
   

  	
   

  
	
  If to Seller:

  	
  The Toro Company

  
	
   

  	
  8111 Lyndale Avenue
  South

  
	
   

  	
  Bloomington, MN 55420

  
	
   

  	
  Attention: Treasurer

  



 


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  Telephone: 952-887-8449

  
	
   

  	
  Facsimile: 952-887-8920

  
	
   

  	
  Email:
  Tom.Larson@toro.com

  



 


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


 


(d) This Agreement
shall be subject to and governed by the laws of the state of Illinois, without
regard to conflicts of law principles.


 


(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 subsidiary, affiliate or agent, then such
performance shall be deemed to be the act or obligation of Seller or Red Iron,
as applicable.


 


(f) Seller agrees
to pay all reasonable out of pocket costs and expenses, including attorneys’
fees, actually incurred by Red Iron in enforcing any of the provisions of this
Agreement.


 


(g) EACH OF SELLER
AND RED IRON, 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 IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY.  THIS WAIVER IS A MATERIAL
INDUCEMENT FOR OUR ENTERING INTO THIS AGREEMENT.


 


(h)  Each of Seller
and Red Iron hereby irrevocably submits to the non-exclusive jurisdiction of
the Federal courts and the courts of the state of Minnesota 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 transactions contemplated
hereby or any matters related thereto. 
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 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 9(c) above.  Nothing herein shall affect the right to
serve process in any other manner permitted by law.


 


(i)  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.


 


(j)  If any portion
or portions of this Agreement shall be, for any reason, invalid or
unenforceable, the remaining portion or portions shall nevertheless be valid,
enforceable and carried into effect, unless to do so would clearly violate the
present legal and valid intention of the parties hereto.


 


(k)  This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
agreement.  This Agreement may be
executed by facsimile signature or electronic transmission, as directed by Red
Iron.


 


(l)  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: (i) 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.”


 


[Signature
page follows]


 


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IN WITNESS WHEREOF,
the parties have caused this Agreement to be executed as of the Effective Date.


 


	
  The Toro Company

  	
   

  	
  Red Iron Acceptance, LLC

  
	
  Seller

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  Print Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
  Tax ID No.:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  Address for Notices:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile No.

  	
   

  	
   

  	
  Facsimile No.

  	
   

  



 


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