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[LOGO]
XXXX DEERE COMPANY
AUTHORIZED AGRICULTURAL DEALER
AGREEMENT
The Dealer whose signature appears on the last page hereby applies to the
undersigned Xxxx Deere Company (the "Company") for appointment as a Xxxx Deere
Authorized Agricultural Dealer for its Agricultural Line, and agrees that the
relationship between him and the Company will be governed by the Terms of
Appointment on the succeeding pages of this booklet. When it executes this
Agreement, the Company accepts the Dealer's application and also agrees to be
bound by the Terms of Appointment. This Agreement shall be effective upon
execution by the Company and shall as of that date supersede any prior
Agricultural Dealer Agreement between the parties hereto.
The Company distributes certain Xxxx Deere agricultural machines and equipment,
certain of its JDM and certain allied agricultural machines, which together are
classified by the Company as its Agricultural Line. These items, and
attachments and service parts for them, are collectively referred to as
"Goods." While the Company also distributes other types of equipment, this
Agreement pertains only to Goods. The Dealer is an independent retail merchant
who purchases Goods for resale for the principal benefit of the Dealer. It is
agreed that except as otherwise provided herein, individual orders, sales and
shipments of Goods are governed by the Company's published Conditions of Sale
in effect from time to time.
The Dealer accepts as his area of responsibility the town in which his place of
business is located and vicinity.
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TERMS OF APPOINTMENT / 1.
TERMS OF APPOINTMENT
1. OBLIGATIONS During the period of the Dealer's appointment as a
OF THE PARTIES Xxxx Deere Authorized Agricultural Dealer, the parties
accept the following obligations and duties:
(a) The Company agrees to accept orders placed by the
Dealer for Goods which the Company contemplates
will be shipped during the period of appointment,
subject to the Company's Conditions of Sale. Even
though an order has been accepted, the Company has the
right to refuse to ship Goods and shall have no
liability to the Dealer for such refusal or for any
delay or other failure to ship or deliver Goods as
provided in the Conditions of Sale or Section 4
hereof.
(b) The Company agrees that the Dealer will have the
benefit of any Finance Plans, Lease Plans, Floor
Plans, Parts Return Programs, Sales or Incentive
Programs or similar plans or programs which it, from
time to time, makes available to other Authorized
Agricultural Dealers. Such plans or programs may
contain standards, conditions or requirements of
uniform application which the Dealer must meet in
order to use or benefit from them. State or local
laws or regulations may require variations from
standard plans or programs.
(c) Without limiting the right of the Company to
choose those with whom it deals, the Company
may sell, loan or lease Goods as follows without
restriction:
(i) To Federal, state and local governments.
(ii) To educational institutions and agricultural
experiment stations.
(iii) To its competitors (for test purposes).
(iv) To equipment manufacturers.
(v) To its own employees.
(vi) Repossessed Goods (new or used).
(vii) To accounts classified by the Company as
national accounts.
(d) The Dealer agrees to use his best efforts to
promote, sell and service Goods. The Dealer
further agrees to achieve sales objectives and market
penetration within Dealer's Area of Responsibility
satisfactory to the Company and will maintain:
(i) A place of business approved by the Company,
with adequate space and facilities devoted to
sales, service, display and storage of Goods,
with appropriate identification for a Dealer
selling Goods;
(ii) Competent management and a sufficient staff of
well trained personnel devoted to the sale and
service of Goods and will cooperate with the
Company by sending such personnel to
conferences and training schools provided by
the Company;
(iii) Adequate working capital and capitalization;
(iv) Service equipment, an adequate stock of
service parts and those appropriate special
tools necessary to promptly fulfill the
warranty obligations of both the Dealer and the
Company, product improvement programs and the
non-warranty service needs of users of Goods in
his Area of Responsibility.
(e) The purpose of the Dealer's obligations provided
for in Section 1 (d) is to assure that best efforts
and adequate resources are being committed to the sale
of Goods and to the performance of this Agreement. If
the Dealer undertakes to carry another major product
line or engage in another major business activity,
either of which involves an important commitment of
effort and resources, the Dealer agrees to make such
separation of the personnel, facilities, capital and
other resources devoted to that business as is
satisfactory to the Company.
(f) The Dealer agrees to thoroughly canvass his area
of responsibility, to actively promote the sale
of all Goods which are usable in his area of
responsibility, and to maintain an inventory of Goods
in proportion to the sales possibilities in such area.
(g) The Dealer agrees to cooperate with the Company in
implementing those programs recommended by the Company
with respect sales, service and parts promotion,
advertising, record keeping, and parts management
which the Dealer agrees will be beneficial to his
operations.
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TERMS OF APPOINTMENT / 2.
(h) The Dealer agrees to participate in the Company's
Transfer and Reacquisition Program described in the
Dealers Terms Schedule. The Dealer acknowledges
that the intent of this program, and his participation
in it from time to time, is to facilitate overall
dealer retail sales and to assist in maintaining
dealer inventories and the Company's receivables at
reasonable levels and that each such effect is to the
mutual benefit of the Dealer and the Company.
(i) In order that a satisfactory level of dealer
performance may be obtained, the Dealer agrees to
cooperate with the Company in periodic reviews of the
performance of his obligations under this Agreement
and to take appropriate action to correct deficiencies
discussed in such reviews.
(j) The Dealer agrees to maintain his principal place
of business at the location set forth on the signature
page of this Agreement, and will not, either directly
or indirectly, establish, maintain, or operate a
facility at any other location for displaying,
selling, renting, leasing, or servicing of new or used
goods, without the prior written approval of the
Company.
2. IMMEDIATE While it is the hope and expectation of the parties
that this Agreement will create a mutually profitable
and satisfactory relationship, the success of an
equipment dealership depends to a substantial degree
on the ability, energy and integrity of the
individual or group of associates who operate it.
Adequate financial resources are also essential. The
Company may, therefore, immediately cancel the
Dealer's appointment by giving notice to the Dealer at
any time after the happening of any of the
following:
(a) Death of an individual proprietor, partner, major
shareholder, or the manager of the dealership;
(b) Withdrawal of an individual proprietor, partner,
major shareholder, or the manager of the dealership
or a substantial reduction in interest of a partner
or major shareholder, without the prior written
consent of the Company;
(c) Closeout or sale of a substantial part of the
Dealer's business related to the handling of Goods,
the commencement of dissolution or liquidation of the
Dealer if a partnership or corporation, or a change,
without the prior written approval of the Company, in
the location of the Dealer's principal place of
business under this Agreement;
(d) Default by the Dealer under any Chattel Mortgage
or other Security Agreement between the Dealer and the
Company;
(e) Revocation or discontinuance of any guaranty of
the Dealer's present or future obligations to the
Company.
The Dealer shall promptly notify the Company in
writing of the occurrence of any of the events
enumerated in Subsection (a) or (b).
3. TERMINATION ON Unless the Dealer's appointment is canceled under
SPECIFIED DATE Section 2, it shall continue until it is terminated by
one or both of the parties as provided in this Section
3. The Dealer's appointment may be terminated at any
time:
(a) by the mutual written consent of the parties, with
the effective date of such termination to be such as
may be mutually agreed upon; or
(b) by written notice given by the Company to the
Dealer are least one hundred eighty (180) days
prior to the effective date specified in such notice
if the Company determines that the Dealer's area of
responsibility does not afford sufficient sales
potential to continue to reasonably support an
authorized dealer or if the Company believes the
Dealer is not fulfilling the requirements of his
appointment despite the opportunity to correct or to
take appropriate action toward correcting deficiencies
in his operations which have been called to his
attention by the Company; or
(c) by written notice given by the Dealer to the
Company at least one hundred eighty (180) days prior to
the effective date specified in such notice; or
(d) by the execution of a new Authorized Dealer
Agreement between the parties which is intended to
supersede this Agreement, or by the Dealer's failure to
execute a new Authorized Dealer Agreement within 30
days after it has been offered by the Company.
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TERMS OF APPOINTMENT / 3.
4. EFFECT OF Cancellation of the Dealer's appointment under Section
CANCELLATION 2, or termination of such appointment under Section 3,
OR TERMINATION means that the obligations and duties of the parties
OF APPOINTMENT under Section 1 no longer apply. In either event, the
Company may refuse to fill accepted orders which have
not been shipped at the time of such cancellation or
termination. The Company may, but shall not be
obligated to, accept orders for Goods which the Company
contemplates will be shipped after the cancellation or
the effective date of termination of the Dealer's
appointment. Acceptance, shipment and terms
applicable to such accepted orders will be subject to
the Conditions of Sale then in effect. Submission or
acceptance of orders and shipment or acceptance of
goods does not have the effect of renewing or
reinstating the obligations of Section 1 and shall not
be construed as an extension or renewal of the period
of appointment or as a recision of any notice of
cancellation or termination. If the Dealer's period of
appointment is canceled or terminated and no new
Authorized Dealer Agreement is entered into, neither
party shall be entitled to any compensation or
reimbursement for loss of prospective profits,
anticipated sales or other losses occasioned by the
termination of the relationship, except as provided in
this Agreement. If the Dealer's appointment is
canceled or terminated, the Company may negotiate
and/or enter a Dealer Agreement with another party for
the Dealer's area of responsibility.
5. DEATH OF DEALER: If the Dealer's appointment is canceled because of the
COOPERATION death of one of the persons enumerated in Section 2(A),
WITH SURVIVORS it is agreed:
(A) That in order to facilitate orderly settlement of
the estate of the deceased and allow the heirs and/or
surviving associates (partners or shareholders) of the
deceased who have or will obtain a controlling
interest in the dealership to rearrange their affairs
and determine whether they wish to liquidate or to
continue to operate the dealership, the Company will,
for a period of at least 180 days after such death, be
willing to make shipments of orders previously received
and accept new orders from the Dealer corporation or
Dealer's estate and/or surviving partners, as the case
may be. The Company's obligations under this Section
to accept orders and make shipment shall be subject to
the provisions of Section 1(A) and the Company's
Conditions of Sale then in effect. Such obligations
are also subject to the Company's being satisfied that
the person executing any new order is legally
authorized to do so and that, with regard to the new
order or the shipment, the Dealer corporation or
Dealer's estate and/or surviving partners are legally
bound by these Terms of Appointment, the Conditions of
Sale, the Chattel Mortgage or the Security Agreement
executed by the Dealer and any filed Financing
Statements executed in connection therewith.
(b) That if such heirs and/or surviving associates
wish to continue operating the dealership, the Company
will cooperate with them in their effort to arrange to
do so, and will offer to execute a new Dealer Agreement
with the Dealer corporation or the heirs (or the
Dealer's estate, if appropriate due to anticipated
length of administration) and/or the surviving partners
if it believes them to be capable of carrying out the
obligations thereunder, and if the Company believes that
the area of responsibility assigned to the Dealer
affords sufficient sales potential to continue to
support an authorized Dealer. The Company will inform
the heirs and/or surviving associates in writing as
promptly as possible as to whether or not the Company
elects to offer a new Dealer Agreement to them, and if
the Company so elects, the major conditions, including
credit or financial conditions, if any, under which the
Company would deem them capable of carrying out the
obligations of the Dealer
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TERMS OF APPOINTMENT / 4.
Agreement. Any written commitment by the Company to the
Dealer which identifies the person(s) who will be acceptable
to the Company to operate the dealership will be honored by
the Company, provided the conditions set forth herein and
any other major conditions specified by the Company are met.
(c) That the Company shall have discharged its
obligations under Subsections (a) and (b) and may
discontinue shipments to the Dealer corporation, Dealer's
estate, or surviving partners, as the case may be, under any
of the following conditions:
(i) The Company informs the Dealer corporation or the
heirs and/or surviving partners of the deceased in
writing (by notification sent to the Dealer
corporation, the Dealer's estate, the heirs, or
one of the surviving partners, as is appropriate
in the circumstances) that it will not execute a
new Dealer Agreement and 180 days shall have
elapsed since such death.
(ii) The Company receives written notification that the
Dealer corporation or the heirs and/or
surviving partners of the deceased do not wish to
enter into a new Dealer Agreement.
(iii) The heirs and/or surviving associates of the
deceased cannot agree on appropriate
arrangements for carrying on the business.
(iv) Any of the events enumerated in Subsections (d)
and (e) of Section 2 has occurred or shall occur.
6. REPURCHASE If any of the following events occur, the Company
OF GOODS agrees to buy and the Dealer agrees to sell Goods as
provided in Section 7:
(a) The Dealer's appointment is canceled under Section
2 (and in the case of cancellation because of death of one
of the persons enumerated in Section 2(a), one of the
conditions enumerated in Section 5(c) has occurred).
(b) The Dealer's appointment is terminated under
Section 3(a), 3(b) or 3(c); or
(c) The Dealer has not executed a new Authorized
Dealer Agreement within 30 days after it has been offered by
the Company.
The Company shall be relieved of this obligation if a
default occurs or has occurred under an Chattel Mortgage or
Security Agreement between the Company and the Dealer, and
the Company elects to exercise its rights under such Chattel
Mortgage or Security Agreement to take possession of Goods.
7. TERMS OF Except where otherwise provided by the laws of the
REPURCHASE state where the Dealer is located, if the Company becomes
obligated to repurchase Goods under Section 6, then the
Company will buy and the Dealer will sell (or may sell
subject to Subsection (c)) free and clear of all liens and
encumbrances the following Goods, provided they were either
originally purchased by the Dealer from the Company or
purchased from other dealers with the written approval of
the Company, and are listed in the Company's published price
list for the category of Goods, in effect on the date of
cancellation or termination of the Dealer's appointment.
(a) All current complete machines and attachments in the
Dealer's possession unsold (which category excludes all
items listed in the JDM Price List or the Xxxx Deere Parts
Price List) which are new, unused, complete and in good
condition. The prices to be paid for such items will be the
invoice prices (but not more than current dealer prices),
plus freight from the factory to the Dealer's location at
truckload (24,000#) rates for items on which freight was
paid by the Dealer, less any discounts from invoice price
which have been allowed and less the reduction in value,
if any, resulting from deterioration.
(b) All current parts in the Dealer's possession unsold
which are new, unused, in
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TERMS OF APPOINTMENT / 5.
good condition and are resalable as new parts without
repackaging or reconditioning. The price to be paid for
such items will be the current wholesale price as listed in
the Xxxx Deere Parts Price List, less a discount of:
(i) 15% on items on the current returnable list
furnished by the Company under the parts return
program; and
(ii) 50% on all other items.
(c) Such current JDM products in the Dealer's
possession unsold which the Dealer may elect to sell to the
Company and which are new, unused, in good condition and are
resalable as new products without repackaging or
reconditioning. The Company shall have no obligation to
repurchase such products unless the Dealer furnishes the
Company with a list of the products which wishes to sell to
the Company within thirty (30) days after the effective date
of cancellation or termination of his appointment. The
price to be paid for such products will be the current
wholesale price listed in the JDM Price List less a discount
of:
(i) 50% on products identified by an asterisk;
(ii) 15% on items listed as returnable under the
Company's parts return policy; and
(iii) 25% on all other JDM products.
At the written request of the Company, the Dealer will
list, tag, pack, load and transport all repurchased Goods to
the nearest location regularly maintained by the Company for
the storage of such Goods or to such closer location as may
be designated by the Company or pay for the cost of
transportation to such location. The risk of loss shall be
on the Dealer until the vehicle transporting such Goods
reaches the designated destination. Should the Dealer fail
to fulfill the above obligation within 60 days after he has
been requested to do so, the Company may enter the Dealer's
premises, perform these duties and charge the Dealer's
account for any expenses incurred in so doing.
The Company may pay for repurchased Goods in cash or by
giving the Dealer credit to be applied to any indebtedness
then owned by the Dealer to the Company or to any other
company having a corporate affiliation with the Company
whether or not such indebtedness is then due and payable.
If there is still a balance owing by the Dealer after the
price of the repurchased Goods, less any Company incurred
expenses of recovery, including all reasonable attorney's
fees and legal expenses, has been credited to the Dealer,
such balance shall be immediately due and payable to the
Company regardless of the original terms of payment thereon.
Amounts payable to the Dealer under this Section will
not be paid until the Dealer has complied with all
applicable laws governing bulk transfers of inventory. Any
volume discount paid or payable to the Dealer shall be
subject to adjustment, in accordance with the Company's
Schedule of Volume Discount (Agricultural), for Goods
repurchased by the Company.
8. PREPARATION Unless and until the Dealer's appointment has been
OF GOODS, canceled or terminated, and the Company has discontinued
WARRANTY AND shipment of Goods to the Dealer, the following provisions
POSTDELIVERY apply:
SERVICE
(a) The Company's published Service Administration
Manual (hereafter called "Manual") designates Xxxx Deere New
Equipment Warranties applicable to various types of sales
and some leases of new Goods and to certain used Goods. As
to all transactions specified in the Manual, the Dealer
agrees to extend the designated warranties to retail
purchasers and lessees, and to use retail purchase orders,
delivery receipts, lease agreements and other forms
specified in the Manual. The Dealer agrees to be solely
responsible for any warranties given by him to his customers
which exceed the warranty provided by the Company and for
any liability in cases where the Dealer has failed to use
the prescribed forms in the manner specified.
(b) The Dealer agrees to properly assemble and prepare
all new Goods sold, leased, or rented by him and shall
perform such inspections, adjustments and service prior to
delivery to users as required in the Manual to insure proper
operation of the Goods. The Dealer agrees to instruct users
in the proper use, safe operation, and maintenance of such
Goods, to review the warranty provisions, and
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TERMS OF APPOINTMENT / 6.
to furnish each user with the appropriate operator's manuals
furnished by the Company. The Dealer will also perform the
postdelivery inspections and adjustments, prescribed in the
Manual, on such Goods.
(c) The Dealer agrees and is authorized to perform all
warranty service on new Goods and on used Goods for which
the Company becomes obligated pursuant to the Xxxx Deere New
Equipment Warranties, including Goods not sold, leased or
rented by him, if presented with proper evidence that the
Goods are entitled to warranty service under the Xxxx Deere
New Equipment Warranties. The Dealer shall also perform
product improvements on such Goods when requested to do so
by the Company. Warranty service and product improvements
will be performed in the manner and for the compensation
specified in the Manual in effect at the time the service is
performed. The Dealer will notify the Company of all
warranty claims in accordance with the Manual.
9. VOLUME Subject to the terms and conditions of the Schedule of
DISCOUNT Volume Discount (Agricultural) issued by the Company, the
Company will pay or credit to the Dealer on or after 30
November a volume discount computed in accordance with
the Schedule.
10. USE OF The Dealer agrees not to use the names "Xxxx Deere" or
TRADEMARKS, "Deere" or any other trade names or trademarks owned by the
NAMES AND Company or any of its affiliated corporations as a part of
SIGNS his firm, trading or corporate name, and shall not display
or use such trade names or trademarks except in a form or
manner approved by the Company. The Dealer further agrees
that if he ceases to be an Authorized Dealer, he will remove
all signs bearing such trade names and trademarks used in
connection with any business conducted by him and will
remove from his vehicles any distinctive Xxxx Deere vehicle
identification.
11. MAILING LIST The Dealer agrees to supply to the Company and keep current
FOR THE FURROW as to names and addresses, a mailing list of all full-time
farmers in his area of responsibility. The Dealer should
also include in his mailing list part-time farmers who have
income from other sources, absentee owners, schools,
bankers, agricultural representatives, and others who may
influence agricultural equipment purchases in his area of
responsibility. This mailing list shall become the sole
property of the Company and the Company shall have no
liability to the Dealer for any use it makes of such mailing
list. The Dealer authorizes the Company to mail THE FURROW
to those on the mailing list. The Company will furnish THE
FURROW (both regular and special editions) free of charge
but the Dealer agrees to reimburse the Company for postage.
The Company shall advise the Dealer in advance of any other
use it makes of such list during the Dealer's period of
appointment.
12. DEALER NOT The Dealer is not an employee, agent or representative of
AN AGENT the Company for any purpose other than giving the Company's
warranty as provided in Section 8; he has no other authority
to bind the Company by any representations, statements,
agreements, or in any manner whatsoever. In performing
service work as provided in Section 8, the Dealer is an
independent contractor and assumes full responsibility for
such work.
13. AMENDMENT OF This Agreement cannot be altered or amended, or any of its
AGREEMENT provisions waived, on behalf of the Company except in
writing by a duly authorized officer of the Company. The
Company may amend these Terms of Appointment at any time
without the consent of the Dealer if the same amendment is
made to the Terms of Appointment of all other Authorized
Agricultural Dealer Agreements with the Company. Any such
amendment shall be effective on the date specified in a
notice mailed to all Authorized Agricultural Dealers, which
date shall be at least one hundred eighty (180) days
following the date of such mailing.
14. ASSIGNMENT This Agreement cannot be assigned by the Dealer without the
prior written consent of the Company.
15. METHOD OF Without limitation on any other method of giving notice, the
GIVING NOTICE deposit of written notice in the United States mails, in an
envelope certified or registered with postage prepaid and
addressed to the Dealer at the address shown herein, or to
the
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TERMS OF APPOINTMENT / 7.
Company at the office designated herein, shall
constitute notice pursuant to this Agreement.
16. SECURITY IN The Dealer has or concurrently herewith will execute
GOODS in favor of the Company a Chattel Mortgage or other
Security Agreement on his inventory of Xxxx Deere Goods
and certain other items as outlined therein. The
Dealer will execute such additional Security Agreements
and Financing Statements, and amendments and additions
thereto or to existing instruments, as the Company
requests, in order that it may have at all times a
first lien in Goods in the Dealer's possession securing
his indebtedness to the Company.
17. ENTIRE No promise or representation not contained herein was
AGREEMENT an inducement to either party or was relied on by
either party in entering into this Agreement. The
Dealer understands that, except as provided in Section
13, no agent or employee of the Company has authority
to vary or add to the provisions of this Agreement, or
make any representation going beyond its provisions.
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XXXX DEERE AUTHORIZED AGRICULTURAL DEALER AGREEMENT
The Dealer agrees to operate only from the following authorized location:
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0000 Xxxxx Xxxxxxx
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Xxxxxxxx, Xxxxx 00000
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Texas Equipment Co., Inc.
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Dealer (Firm Name)
Seminole, Texas
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Address
[X] Corporation By /s/
[ ] Partnership -------------------------------------------------
[ ] Proprietorship Title President
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(Authorized officer, owner or partner)
Date 15 March 1993
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Signature of -----------------------------------------------------
Other Partner(s)
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Received, subject to acceptance at the Company's
Office in Dallas, Texas
XXXX DEERE COMPANY - a Division of Deere & Company
By C.A. Xxxxxxxx Title Territory Manager
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Accepted:
XXXX DEERE COMPANY - a Division of Deere & Company
00000 Xxxxx Xxxxx Xxxx. Xxxxxx Xxxxx
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(Address) (City) (State)
By /s/ W R Hubleud Title General Manager
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Date 22 April 93
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