Exhibit 10.11
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and
entered this 6th day of March 2001 between and among RDO Equipment Co., its
affiliates and subsidiaries, including RDO Agriculture Equipment Co.
(hereinafter collectively "RDO") and Salinas Equipment Distributors, Inc.
("SED") (hereinafter collectively "RDO Parties") and Xxxx Deere Company - a
Division of Deere & Company ("Xxxx Deere Ag").
WHEREAS, RDO and Xxxx Deere Ag have entered into certain agreements,
including dealership agreements and an October 1, 1996 agreement supplemental to
the dealership agreements ("Supplemental Agreement");
WHEREAS, certain claims, disputes and controversies have arisen between
and among the parties which have resulted in the filing in Chicago, Illinois of
Xxxx Deere Ag's arbitration demand under the Supplemental Agreement, entitled
Xxxx Deere Company - a Division of Deere & Company and RDO Equipment Co., AAA
Case No. 51 181 00083 00 ("this Arbitration");
WHEREAS, SED has conducted business at a store in Salinas, California,
the operation of which was the subject of this Arbitration;
WHEREAS, the RDO Parties, Xxxx Deere Construction Equipment Company,
and its affiliates and subsidiaries, and Nortrax, Inc., and its affiliates and
subsidiaries, entered into a Settlement Agreement and Mutual Release on December
28, 2000, the terms of which provide, among other things, that the "RDO Parties
shall effectuate the relief sought by Xxxx Deere Ag" in this Arbitration within
120 days or sign a confession of judgment satisfactory to Xxxx Deere Ag; and
WHEREAS, the RDO Parties and Xxxx Deere Ag desire to resolve such
claims, disputes and controversies, and avoid further costs of arbitration;
NOW, THEREFORE, in consideration of the parties' ongoing business
relationship under the parties' agreements, including dealership agreements and
the Supplemental Agreement, and Xxxx Deere Ag's dismissal of its claims in this
Arbitration, the parties hereby settle, release and agree as follows:
1. The RDO Parties shall not display, sell, rent, lease or service new
or used Xxxx Deere Ag equipment, parts or attachments at SED's store in Salinas,
California.
2. To the extent they have not yet done so, the RDO Parties shall
remove all new and used Xxxx Deere Ag equipment, parts, attachments, signs,
brochures and other sales literature, and repair and service manuals from SED's
store in Salinas, California within five business days of the date of this
Agreement.
3. The RDO Parties shall comply with all provisions of their Xxxx Deere
Company Authorized Agricultural Dealer Agreements, including paragraph 1.j.,
addressing their obligations concerning authorized locations.
4. Xxxx Deere Ag shall withdraw all claims pending in this Arbitration
and notify the American Arbitration Association that the matter has been settled
within five business days of the date of this Agreement.
5. Nothing contained in this Agreement shall be construed as any
admission of liability by any party or any concession with respect to the merits
or lack of merit of any claim or defense of any party.
6. The RDO Parties for themselves and their officers, directors,
agents, employees, attorneys, successors, heirs and assigns, for good and
valuable consideration, the receipt of which is hereby acknowledged, forever
remise, release and discharge Xxxx Deere Ag, and its past, present and future
parents, subsidiaries, divisions, affiliates, predecessors, shareholders,
officers, directors, agents, employees, representatives, attorneys, heirs,
successors and assigns (all of whom are collectively referred to as the "Deere
Releasees") of and from any and all claims, demands, causes and rights of
action, suits, defenses, debts, rights, sums of money, accounts, bills,
contracts, agreements, liabilities, damages, costs, expenses, attorneys' fees
and any other liabilities or obligations, known or unknown, alleged or
unalleged, now existing or hereafter arising, that could have been made in this
Arbitration, to and including the date of this Agreement, including but not
limited to any claim that has been made, provided, however, that this Agreement
shall not release or discharge the Deere Releasees from any obligations under
written agreements between any RDO Party and Xxxx Deere Ag, or any parent,
subsidiary, division or affiliate of Xxxx Deere Ag, including dealership
agreements and the Supplemental Agreement.
7. Xxxx Deere Ag for itself and its officers, directors, agents,
employees, attorneys, successors, heirs and assigns, for good and valuable
consideration, the receipt of which is hereby acknowledged, forever remise,
release and discharge the RDO Parties, and their past, present and future
parents, subsidiaries, divisions, affiliates, predecessors, shareholders,
officers, directors, agents, employees, representatives, attorneys, heirs
successors and assigns (all of whom are collectively referred to as the "RDO
Releasees") of and from any and all claims, demands causes and rights of action,
suits, defenses, debts, rights, sums of money, accounts, bills, contracts,
agreements, liabilities, damages, costs, expenses, attorneys' fees, and any
other liabilities or obligations, known or unknown, alleged or unalleged, now
existing or hereafter arising that could have been made in this Arbitration, to
and including the date of this Agreement, including but not limited to any claim
that has been made, provided, however, that this Agreement shall not release or
discharge the RDO Releasees from any obligations under written agreements
between Xxxx Deere Ag, or any parent, subsidiary, division or affiliate of Xxxx
Deere Ag, and any RDO Party, including dealership agreements and the
Supplemental Agreement.
8. Any dispute arising under this Agreement shall be resolved pursuant
to the terms of the arbitration agreement set forth in paragraph 6 of the
Supplemental Agreement.
9. The parties represent that all necessary corporate action has been
taken to authorize each of them to execute this Agreement and that each of them
has consulted with legal counsel before executing this Agreement. This Agreement
shall inure to the benefit of be binding upon the parties hereto and their
respective successors and assigns.
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10. Each party further represents and warrants that it has neither
relied upon nor been induced by any representation, statement, or disclosure of
another party, but has relied upon its own knowledge and judgment in entering
into this Agreement.
11. This Agreement cannot be modified except by consent of all parties
and the proper execution of another written instrument by the parties hereto.
This Agreement cannot be assigned, by operation of law or otherwise, without the
prior written consent of the parties, which consent may be withheld with or
without cause.
12. The failure of any party at any time to require performance by any
other party of any provision of this Agreement shall in no way affect the right
of such party to require performance of that provision, and any waiver by either
party of any breach of any provision of this Agreement shall not be construed as
a waiver of any continuing or succeeding breach of such provision, a waiver of
the provision itself, or a waiver of any right under this Agreement. The
remedies herein are cumulative and not exclusive of any remedies provided by
law.
13. Any provision of this Agreement that is declared invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability without invalidating the remaining provisions hereof, and the
remaining portions of this Agreement will be unaffected and continue in force
unless otherwise modified by the parties pursuant to Section 11 hereof.
14. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original for all purposes and all of which, when taken
together, shall constitute one and the same Agreement.
IN WITNESS HEREOF, the parties have executed this Agreement on the date
first above written.
RDO Equipment Co. Xxxx Deere Company - a Division of Deere & Co.
By /s/ Xxxxxxx Xxxxxx By /s/ Xxxxxxx X. XxXxxxx
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Its COO Its Senior Vice President Worldwide Marketing
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RDO Agriculture Equipment Co.
By /s/ Xxxxxxx Xxxxxx
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Its COO
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Salinas Equipment Distributors, Inc.
By /s/ Xxxxxxx Xxxxxx
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Its COO
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