Exhibit 10.13
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TBC
CORPORATION
Distributor Agreement
TBC CORPORATION
0000 XXXXXXX XXXX XXXX
X.X. XXX 00000 XXXXXXX, XXXXXXXXX 00000-0000
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TBC CORPORATION
Distributor Agreement
AGREEMENT effective the date last set forth herein between TBC
Corporation, a Delaware corporation (hereinafter called "TBC"), P. 0. Xxx 00000,
Xxxxxxx, Xxxxxxxxx, and the distributor (hereinafter called "Distributor") whose
name and address are set forth at the end of this Agreement.
TBC is engaged in the business of having manufactured, purchasing, and
selling tires, tubes, batteries and other automotive products for all types of
vehicles. TBC sells such products to distributors for resale. Distributor is
engaged in business in, among other things, the purchase and resale of such
products. TBC and Distributor desire that Distributor purchase Products (as
defined in this Agreement) from TBC for resale, upon the terms and conditions
set forth in this Agreement.
TBC and Distributor agree as follows:
1. As used in this Agreement, the following terms have the following
respective meanings:
(a) "Products" means tires, tubes, batteries, and other automotive
products which TBC may from time to time in its sole discretion offer
for sale to Distributor.
(b) "Assigned Products" means Products bearing the TBC trademarks or brand
names set forth in Schedule A, but does not mean or include any other
Products; in particular, it does not mean or include similar or
otherwise identical Products that do not bear any of the TBC
trademarks or brand names that are set forth in said Schedule.
(c) "Territory" means the area described in Schedule B on the last page of
this Agreement.
(d) "Supplier" means any manufacturer for, or supplier to, TBC of tires,
tubes, batteries, or other automotive products.
(e) "Financial Institution" means any bank or other financial institution
with which TBC has entered into or is considering entering into a
credit or financial arrangement.
(f) "TBC's Manual" means the manual compiled and published by TBC under
the title "TBC Corporation Customer Procedure Manual," a copy of which
has been furnished by TBC to Distributor, including any amendments
thereto, or any like manual hereafter furnished by TBC to Distributor.
(g) "Distributor's sales quota" means the minimum number of units of
Products, as determined by TBC and communicated to Distributor, which
Distributor shall be required to buy from TBC for any period stated by
TBC in that connection.
(h) "Annual Fee" means $2500 per year or such other amount as may be
determined by TBC's Board of Directors.
(i) "Calendar Quarter" means each three month period commencing on January
1, April 1, July 1, and September 1, in each year.
2. TBC hereby appoints Distributor and Distributor hereby accepts appointment
as a distributor of Products in the Territory. It is understood that each
of the parties is responsible for the operation and success of its own
business.
3. Distributor shall:
(a) Actively promote the sale of Products throughout the Territory, and
take delivery of, purchase and pay for all Products ordered from TBC
at the applicable prices and under the applicable terms of payment.
(b) Provide a place or places of business and all necessary facilities in
the Territory to perform and discharge Distributor's functions and
obligations under this Agreement and keep the same in good, clean and
satisfactory condition for the conduct of Distributor's business.
(c) Purchase from TBC and at all times maintain in stock an inventory of
Products in such variety and amount as, in TBC's opinion, is needed to
meet Product sales requirements in the Territory
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(d) Meet or exceed Distributor's sales quota.
(e) Comply with TBC's Manual.
(f) Supply all users of Products purchased from Distributor with a copy of
TBC's applicable warranty with respect thereto.
(g) Furnish TBC (and, at TBC's request, any Financial Institution)
complete and accurate current financial reports, operating statements,
and other reports relating to Distributor's business, at such
intervals, in such forms, and containing such information as TBC may
reasonably request.
(h) Pay TBC the Annual Fee each year, in equal quarterly installments (pro
rata in the case of a period less than a Calendar Quarter) on the
effective date of this Agreement and the first day of each Calendar
Quarter thereafter.
(i) Not establish or acquire any places of business for the sale of
Products outside the Territory.
(j) Refrain from using the name "TBC Corporation" or any name, trademark,
trade name, brand name, logo, slogan, label or insignia now or
hereafter owned, adopted or used by TBC (whether registered or
unregistered) on or in connection with any place of business or other
facility which is located outside the Territory, or so as to suggest
or indicate that Distributor has any place of business or other
facility located outside the Territory that is used for the sale of
Products, or in or as part of the trade, corporate, or firm name or
style of Distributor or of any division, subsidiary or affiliate of
Distributor or so as to identify Distributor as the source or origin
of Products or as affiliated in any way, other than as a distributor,
with TBC.
(k) Handle all legitimate adjustments of Products in accordance with any
applicable warranty, regardless of where the Products were purchased.
(1) Properly complete and promptly return to TBC all required Product
registration forms.
(m) Execute and deliver to TBC such security agreement(s) and forms
required to be filed under the Uniform Commercial Code (as the same
shall be in effect in the Territory) or like statute as TBC may
request in order to perfect and protect TBC's security interest in
Products owned by Distributor or in its possession, custody, or
control.
(n) Not without the prior knowledge and consent of TBC grant to or permit
any third party to have any security interest in its inventory of
Products or file or permit to be filed any Form UCC-1 or like form in
that connection.
4. TBC shall:
(a) Not appoint any other distributor for Assigned Products in the
Territory, except to the extent otherwise set forth in Schedule A or
unless in TBC's opinion Distributor is not giving or is unable to give
adequate coverage for Assigned Products in the Territory or adequate
penetration of the market for tires, tubes, batteries and other
automotive products therein. TBC does not undertake to prevent others
from selling Assigned Products in the Territory. TBC may sell Products
that are similar or identical to Assigned Products which do not bear
any of the TBC trademarks or brand names set forth in Schedule A to
third parties for resale in the Territory.
(b) Publish current price lists for Products.
(c) Notify Distributor of changes in or additions to TBC's Manual.
(d) Comply with TBC's Manual.
(e) Supply Distributor (at TBC's regular charges therefore) copies of
TBC's warranty and registration forms applicable to Products.
5. TBC reserves the right to change at any time the lines, grades,
specifications, or other characteristics of Products, or add to or
discontinue the same, or to change Suppliers, without prior notice to
Distributor.
6. TBC reserves the right to change at any time previously announced prices
or payment terms for Products without prior notice to Distributor. Prices
and terms on all sales to Distributor shall be those in effect at the time
of shipment.
7. If Distributor shall fail to pay any indebtedness to TBC promptly when due
or if Distributor's financial condition shall at any time seem to TBC
inadequate to warrant a particular or further extension of credit, TBC
may, if it so elects, with or without demand for any payments past due and
without prejudice to any other rights or remedies available to it,
withhold further shipments until all Distributor's indebtedness to TBC
shall have been fully paid.
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8. All orders placed by Distributor shall be subject to and governed by TBC's
Manual.
9. In the event of termination of this Agreement, TBC will continue to honor
valid warranty claims presented by Distributor, pursuant to TBC's Manual,
until a date ninety days after the date of termination. Thereafter
Distributor will direct customers with warranty claims to other
distributors of TBC.
10. The relationship of Distributor with and to TBC under or in connection
with this Agreement is that of an independent contractor. Distributor is
in no respect the agent or legal representative of TBC hereunder, or
otherwise, and is without right or authority to create or assume in any
manner any obligation of any kind on behalf of TBC. Distributor assumes
responsibility for and will hold TBC harmless from and against all
liabilities, claims, demands, actions or causes of action of any kind
(including, but not limited to, those resulting from the negligent or
willful acts or omissions of Distributor or its agents, employees or
subcontractors) asserted against either TBC or Distributor which are, or
are alleged to be, occasioned by any act or failure to act by Distributor
or which arise in connection with the performance or nonperformance of any
obligation on Distributor's part contained in this Agreement or TBC's
Manual or required by law.
11. TBC's obligation to fill any order accepted by it shall be subject to
failure or delay caused by fire, accidents, acts of God or elements, war
or acts of war, strikes, lockouts, slowdown, picketing or other labor
controversies, sabotage, riots, civil commotion, default or failure of
carriers, shortages of labor, inability to obtain materials or parts from
regular sources, action or request of any government or governmental
authority, or any other happening or contingency beyond the control or
without the fault of TBC whether similar or dissimilar to the foregoing.
12. Unless previously extended or sooner terminated as hereinafter provided,
the term of this Agreement shall end, without notice or other action by
either party, on a date three years after the date last set forth below.
13. This Agreement may be terminated as follows:
(a) By Distributor at any time, with or without cause, by giving written
notice of such termination to TBC specifying the effective date
thereof, which date shall be not less than 90 days after the giving of
such notice.
(b) By TBC by giving written notice of such termination to Distributor,
effective immediately upon the giving of such notice to Distributor
or at such later date as TBC may specify in such notice, in the event
of the occurrence of any of the following which TBC shall deem
detrimental to its interest:
(1) the death or incapacity of Distributor if a natural person, or
if a partnership the death, incapacity or withdrawal of any
partner.
(2) any substantial change in the ownership, control or management
of Distributor; or the transfer of a substantial part of the
assets or property of Distributor.
(3) any dispute, disagreement or controversy between or among
principals, partners, officers, or stockholders of Distributor
which, in the unrestricted judgment of TBC, may adversely
affect the operation, management, or business of Distributor.
(4) failure of Distributor to pay any indebtedness to TBC when due
accompanied by failure, within 14 days after written demand
therefore, fully to pay the same or provide assurance of
payment satisfactory to TBC; or such evidence of financial
difficulty on Distributor's part as to give rise to a
reasonable apprehension on the part of TBC that Distributor
may be unable to pay any obligations to TBC when due.
(5) failure by Distributor to pay any indebtedness to TBC when due
or to comply within 14 days with any request by TBC referred
to in Paragraph 3(g), (1), and (m); or failure by Distributor
to cure any other default on its part under this Agreement
within 28 days after being notified thereof by TBC.
(6) repetition by Distributor of a failure the same or
substantially the same as one previously corrected by
Distributor after having been notified thereof as provided in
subparagraphs (4) or (5) above.
(7) the material inaccuracy of any information set forth in any
financial statement, claim, report or other document
heretofore or hereafter furnished by Distributor to TBC or to
any Financial Institution.
(8) the levy of an attachment or other distraint against
Distributor or any property of the Distributor which is not
released within 10 days.
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(9) the affiliation by Distributor as a distributor for, or member
or stockholder of, any corporation, firm, organization or
group other than TBC engaged in whole or in part in the
distribution of private brand tires, tubes, batteries, and/or
other automotive products involving the purchase and resale
thereof by Distributor.
14. This Agreement shall terminate forthwith, without the giving of notice or
any other action on the part of TBC, if Distributor ceases to function as
a going concern, or makes an assignment for the benefit of creditors, or
any proceeding under any federal or state bankruptcy, receivership or
insolvency laws is instituted by or against Distributor, or the
liquidation, dissolution, merger, or consolidation of Distributor occurs,
or a receiver or trustee for Distributor or any of the assets or property
of Distributor is appointed or applied for.
15. The following provisions shall govern the rights, duties and obligations
of the parties upon termination of this Agreement however occurring:
(a) Termination shall not release or affect, and this Agreement shall
remain fully operative as to, any obligations or liabilities incurred
by Distributor prior to the effective date of such termination;
provided that all indebtedness of Distributor to TBC of any kind shall
become immediately due and payable on the effective date of
termination, and TBC may deduct from any sums it owes to Distributor
any sums owed by Distributor to TBC.
(b) After the effective date of termination Distributor shall discontinue
the use in any manner of any name, trademark, trade name, slogan,
label, title or insignia, or anything else which so nearly resembles
any of the same owned, adopted or used by TBC as to be likely to lead
to confusion or uncertainty and/or make it appear that Distributor is
a distributor of TBC or of Products.
16. Neither TBC nor Distributor shall, by reason of the termination of this
Agreement, be liable to the other for any damage of any kind whether
direct or indirect or consequential.
17. Any notice or demand required or permitted under the terms of this
Agreement shall be sufficiently given to either party if sent by certified
or registered United States mail to such party at its address appearing in
this Agreement, or at such other address as such party may have designated
for such purpose by notice previously so given to the other party. Any
such notice or demand given by any other means (including other delivery
systems and facsimile transmission) shall be sufficiently given upon
receipt.
18. The failure of either party to insist in any one or more instances upon
performance of any of the provisions of this Agreement or to take
advantage of any of its rights hereunder shall not be construed as a
waiver of any such provisions or the relinquishment of any such rights,
and the same shall continue and remain in full force and effect. No single
or partial exercise by either party of any right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or
remedy.
19. None of Distributor's rights hereunder may be transferred or assigned by
Distributor and none of the obligations or duties imposed on Distributor
hereunder may be delegated to another or others without the consent in
writing of TBC signed by an officer of TBC.
20. This Agreement contains the entire agreement between the parties relating
to the distribution by Distributor of Products, and cannot be amended,
varied or abridged in any manner except by amendment in writing duly
signed by the parties (and, in the case of TBC, by an officer of TBC).
This Agreement supersedes any existing arrangements between the parties
relating to the subject matter hereof.
21. This Agreement shall be construed according to and the legal relations
between the parties governed by the laws of the state of Tennessee,
excluding those relating to conflict of laws. Any action or proceeding by
either of the parties against the other arising out of or relating to this
Agreement; the making, performance, nonperformance, or termination thereof;
or any transaction between the parties or obligation of either party or
both parties in that connection, may (and, in the case of any such action
or proceeding against TBC, may only) be brought in any court located in the
City of Memphis, Shelby County, Tennessee, and service therein may be made
upon any nonresident party at its address set forth in this Agreement in
accordance with the procedures provided for service upon nonresidents under
the laws of Tennessee.
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SCHEDULE A: Assigned Products and Brands
SCHEDULE B: Territory
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate as of
___________________
____________________________,19____. TBC CORPORATION
Witness:
___________________________________ By _______________________________
President
___________________________________
Name and Address of Distributor*:
_________________________________
_________________________________
_________________________________
Witness:
___________________________________ By _____________________________
___________________________________ ______________________________
Name and Title
*State if corporation, partnership, or proprietorship: if corporation, where it
is incorporated: _______________
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DA/97
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