EXHIBIT 10.17
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MARKETING AGREEMENT
AGREEMENT, made this 1st day of September, 1988, by and
between XXXXXXX-XXXXXXXX INC., a Florida corporation, hereinafter
referred to as "COMPANY," and XXXXXXXX INC., hereinafter referred
to as "SALES AGENT."
WHEREAS, COMPANY is engaged in the packing of tomatoes, and
WHEREAS, the SALES AGENT is currently acting as an
independent sales representative of the COMPANY, and
WHEREAS, the parties desire to affirm such relationship for a
one year period;
NOW, THEREFORE, in consideration of the foregoing and of the
joint and mutual promises and undertakings, herein contained, and
for other good and valuable considerations, the parties do hereby
agree as follows:
1. Exclusive Sales Representative: THE COMPANY hereby
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retains SALES AGENT as its exclusive sales agent for the COMPANY'S
tomatoes for a period of one (1) year from the date of this
Agreement. This Agreement shall automatically renew on a year to
year basis absent its termination by either party in accordance
with Paragraph 6 hereof.
2. Agent's Compensation: THE COMPANY shall pay the SALES
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AGENT a commission of twenty cents ($.20) per twenty-five pound
box of regular tomatoes and twenty-five cents ($.25) per flat of
cherry tomatoes sold by SALES AGENT on behalf of COMPANY. COMPANY
agrees to pay sales agent's full commission to SALES AGENT when
SALES AGENT sells tomatoes through a secondary broker. COMPANY
further agrees to pay such secondary broker its full brokerage fee
or commission. A "sale" for purposes of this Agreement shall
occur upon receipt of the sales price by the COMPANY.
3. Expenses: The SALES AGENT shall pay all of its expenses
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in connection with the selling of COMPANY's tomatoes in accordance
with the established custom by and between COMPANY and SALES
AGENT.
4. Customer's Failure to Pay Account: In the event of
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nonpayment of a customer's account resulting in a loss to the
COMPANY, the SALES AGENT shall not be liable for such loss, but
does hereby agree to devote his best efforts to obtain the full
satisfaction of such account by the delinquent customer. SALES
AGENT or secondary broker shall not receive any commission as
provided herein for any portion of an unsatisfied account.
5. SALES AGENT's Status: It is further agreed by and
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between the parties hereto that the SALES AGENT shall perform
under this Agreement as an independent agent, and nothing herein
contained shall be construed to be inconsistent with the
relationship or status. SALES AGENT shall be responsible for all
sub-agents and all other selling expenses.
6. Termination of Agreement: If either party shall desire
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to terminate this Agreement it shall deliver notice of such
termination at least 1 year prior to the end of the Agreement.
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Upon the end of such year, this Agreement shall be null and void.
SALES AGENT shall continue its best efforts until the end of this
Agreement in accordance with Paragraph 7 hereof and the COMPANY
shall pay over to the SALES AGENT any commissions accruing to the
SALES AGENT prior to the termination of the Agreement. It is
further agreed that upon the termination of this Agreement by
either party, SALES AGENT shall be entitled to purchase the
interest of the COMPANY in the BHN Joint Venture at a price equal
to the cumulative investment of the COMPANY in the joint venture.
Said purchase price shall be paid in thirty-six (36) equal
installments beginning thirty (30) days after termination of this
Agreement. Such debt shall be evidenced by a promissory note in
the form of Exhibit "A." Said note shall not bear any interest.
7. Best Efforts: SALES AGENT covenants and agrees to use
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its best efforts to sell the COMPANY's merchandise for the best
available price.
8. Veto Power: The COMPANY may prohibit sales as the Board
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of Directors of the COMPANY deem not to be in the best interests
of the COMPANY.
9. Entire Agreement: This Agreement supersedes all prior
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agreements and understandings between the SALES AGENT and the
COMPANY, and this Agreement expresses the whole and entire
agreement between the parties.
10. Choice of Law: This Agreement shall be construed
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according to the laws of the State of Florida.
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11. Title: Absolute title to all tomatoes shall remain with
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the COMPANY at all times that the SALES AGENT is negotiating
contracts of sale for the COMPANY; at no time shall the SALES
AGENT ship, handle or own the merchandise for which it negotiates
the contracts of purchase and sale.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
ATTEST: XXXXXXX-XXXXXXXX INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
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Xxxxx X. Xxxxxxx, Xx.
President
XXXXXXXX, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
President
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