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EXHIBIT 10.83
XXXX-XXXX
CONSTRUCTION EQUIPMENT CORPORATION
Mattoon, Illinois, U.S.A.
SALES & SERVICE AGREEMENT
THIS AGREEMENT made the 1st day of April, 1996, between BLAW XXXX CONSTRUCTION
EQUIPMENT CORPORATION, with offices at Mattoon, Illinois, U.S.A. ("XXXX-XXXX,
and Western Traction Company, Inc. with offices at 0000 X. Xxxxxxxx, Xxxxxx XX
00000 (" DISTRIBUTOR").
WITNESSETH:
That in consideration of the mutual promises herein made, XXXX-XXXX and
DISTRIBUTOR agree as follows:
1. APPOINTMENT
XXXX-XXXX hereby appoints DISTRIBUTOR as a distributor for the sale of
the "XXXX-XXXX" branded equipment specified in Schedule A (the "EQUIPMENT") and
service and replacement parts offered for sale by XXXX-XXXX ("PARTS") with the
right to purchase and to resell the EQUIPMENT and PARTS throughout the
geographical area specified in Schedule A (the "TERRITORY") upon the terms and
conditions hereinafter set forth. DISTRIBUTOR shall not appoint subdealers for
sales, service or rental of EQUIPMENT or PARTS or for any other activities
normally performed by a distributor without XXXX-XXXX'x prior written consent.
DISTRIBUTOR shall not sell EQUIPMENT or PARTS to any buyer who engages in
EQUIPMENT and PARTS resale activities normally performed by a distributor
without XXXX-XXXX'x prior written consent.
2. SALES PERFORMANCE
DISTRIBUTOR will use its continuing best efforts to develop the sale of
EQUIPMENT and PARTS within the TERRITORY to the satisfaction of XXXX-XXXX In
determining whether DISTRIBUTOR's level of sales and other aspects of
performance have been satisfactory in any period, XXXX-XXXX may consider
DISTRIBUTOR's performance in meeting the sales, market penetration and other
goals set forth in Schedule A attached hereto.
3. PROMOTIONAL, ADVERTISING AND SERVICE OBLIGATIONS
(a) DISTRIBUTOR shall use its best efforts to promote the sales of
EQUIPMENT and PARTS in the TERRITORY. In order to give adequate representation
in the TERRITORY, DISTRIBUTOR shall:
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(i) advertise the EQUIPMENT and PARTS in the Press and Trade Journals in the
TERRITORY.
(ii) issue and distribute suitable product and other promotional literature in
the TERRITORY.
(iii) display the EQUIPMENT in the most suitable exhibitions in the TERRITORY,
subject to XXXX-XXXX'x approval.
(iv) employ suitable sales, office and service staff in the TERRITORY.
(v) maintain offices, showrooms, sales and service facilities and workshops in
the TERRITORY which are adequate in the opinion of XXXX-XXXX, and display
photographs of the EQUIPMENT together with suitable literature.
(vi) state in its advertisements, literature and on all other suitable occasions
that it is the distributor for XXXX-XXXX for the TERRITORY.
(b) XXXX-XXXX shall:
(i) have the right to advertise the name and address of DISTRIBUTOR in the
advertisements and literature of XXXX-XXXX.
(ii) provide to DISTRIBUTOR reasonable quantities of literature deemed necessary
or appropriate by XXXX-XXXX.
(c) DISTRIBUTOR shall provide prompt, competent and efficient service at a
reasonable cost on all EQUIPMENT located in the TERRITORY as required by and in
accordance with the instructions and/or service policies of XXXX-XXXX as amended
from time to time which are included herein by reference thereto. DISTRIBUTOR
shall carry at all times a stock of PARTS adequate to render such service.
4. RIGHT OF XXXX-XXXX TO SELL EQUIPMENT AND PARTS
XXXX-XXXX reserves to itself the right to negotiate with and sell the EQUIPMENT
and PARTS directly to any customer in the TERRITORY. In the event of any such
sale of EQUIPMENT, XXXX-XXXX will pay to DISTRIBUTOR a commission to be
determined by XXXX-XXXX at the time; however, in no event shall such commission
exceed the difference between the net f.o.b. factory price normally paid by the
DISTRIBUTOR and the f.o.b. selling price to the customer. Payment of any such
commission will be contingent upon XXXX-XXXX'x receiving payment from the
customer.
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5. PRICES AND TERMS
(a) XXXX-XXXX will from time to time supply DISTRIBUTOR with its currently
effective price lists for the EQUIPMENT and PARTS f.o.b. factory or other point
of origin. XXXX-XXXX reserves the right to change its prices, terms and
conditions of sale upon thirty (30) days notice to DISTRIBUTOR by mail or
otherwise.
(b) XXXX-XXXX will sell the EQUIPMENT to DISTRIBUTOR at the list price in effect
at the time of shipment of DISTRIBUTOR's order less a distributor discount as
provided in Subparagraph 7(c) below upon the terms and conditions applicable to
such sales as established by XXXX-XXXX from time to time. Any provision of any
purchase order used by DISTRIBUTOR which is inconsistent with or in addition to
such standard terms shall be null and void. All sales, use, gross receipts or
similar taxes arising out of such transaction shall be for DISTRIBUTOR's account
(c) Orders accepted by XXXX-XXXX from DISTRIBUTOR shall be f.o.b. factory or
other point of origin and shall provide for payment as agreed by XXXX-XXXX If
for any reason shipment cannot be made upon completion of manufacturing,
XXXX-XXXX may arrange for storage at DISTRIBUTOR's risk and for DISTRIBUTOR's
account and disposal.
(d) In the event of any conflict between the provisions of this Agreement and
XXXX-XXXX terms and conditions of sale, from time to time in force, the
provisions of this Agreement shall prevail.
6. ACCEPTANCE OF ORDERS AND SHIPMENTS
(a) All orders by DISTRIBUTOR for EQUIPMENT and PARTS are subject to
acceptance by BLAWKNOX at its place of business and any such acceptance shall be
subject to such reasonable allocation, as in the sole judgment of XXXX-XXXX, may
be necessary or equitable in the event of any shortages.
(b) All shipments shall be made f.o.b. factory or other shipping point
designated by XXXX-XXXX, and XXXX-XXXX shall not be liable for any loss or
damage in transit. Claims for shortages, losses or damages to shipments shall be
made against carrier by DISTRIBUTOR.
(c) XXXX-XXXX shall attempt to meet its shipping estimate but shall not
be responsible in any manner for damage or loss due to delays caused by any
condition arising from war, the acts or demands of any Government or any other
delays beyond the reasonable control of XXXX-XXXX (including without limitation
strikes, lockouts, accidents, freight embargoes, fires, floods or inability of
XXXX-XXXX to obtain the necessary material, labor or energy from customary
sources of supply for any reason).
7. DISCOUNTS
(a) XXXX-XXXX will from time to time supply the DISTRIBUTOR with its
currently effective distributor discount sheets for the EQUIPMENT, which
discounts can be changed by XXXX-XXXX immediately upon notice to DISTRIBUTOR
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(b) Distributor discounts are computed on currently effective list
prices f.o.b. factory or other point of origin excluding special packing or
preparation. Export preparation charges are net charges.
(c) The applicable distributor discount will be deducted from the then
current list price in computing the amount billed to DISTRIBUTOR.
8. DISTRIBUTOR'S ACCOUNT
Any sum owed by XXXX-XXXX to DISTRIBUTOR or otherwise accruing to the
credit of DISTRIBUTOR may be applied against any indebtedness of DISTRIBUTOR to
XXXX-XXXX.
9. CHANGES IN DESIGN
(a) XXXX-XXXX reserves the right to discontinue the manufacture of any
EQUIPMENT or PARTS, to make changes in design, and to add improvements to
EQUIPMENT or PARTS at any time without obligation to change EQUIPMENT or PARTS
previously sold by XXXX-XXXX
(b) DISTRIBUTOR shall not make any modifications to EQUIPMENT or PARTS
and will not apply or use attachments, accessories or parts on EQUIPMENT or
PARTS unless such modification, application or use has been approved in writing
by XXXX-XXXX.
10. WARRANTY
(a) XXXX-XXXX warrants all new EQUIPMENT to be free from defects in
materials and workmanship (when subjected to normal and proper usage) for a
period of six (6) months from the "In Service Date" established by the "New
Machine Delivery Report" completed, signed and filed with XXXX-XXXX when the
unit is initially placed in service. FAILURE to transmit to XXXX-XXXX the
completed and signed "New Machine Delivery Report" within 15 days of placing the
EQUIPMENT in service will void this warranty on the EQUIPMENT. Written notice
must be given to XXXX-XXXX upon discovery of such defects, and parts must be
returned for inspection.
Parts found defective by XXXX-XXXX'X inspection, will be repaired or replaced
without cost f.o.b. point of manufacture. The foregoing shall be the limit of
XXXX-XXXX'x liability for such defects. No warranty is extended on components
and accessories not manufactured by XXXX-XXXX, and these items are subject to
the warranties, if any, of their respective manufacturers.
(b) EXCEPT AS SET FORTH HEREIN, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF
ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OF
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL XXXX-XXXX BE LIABLE FOR
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, NOR FOR ANY DELAY IN
PERFORMANCE OF THIS WARRANTY.
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II. LEGAL STATUS OF DISTRIBUTOR
DISTRIBUTOR is not hereby constituted an agent or legal representative of
XXXX-XXXX for any purpose whatsoever, and DISTRIBUTOR is granted no right or
authority to assume or create any obligation, express or implied, or to make any
representations, warranties, or guarantees on behalf or in the name of
XXXX-XXXX.
12. TERM AND TERMINATION
(a) This Agreement shall become effective on the Effective Date specified in
Schedule A and shall continue in effect unless sooner terminated in accordance
with this Agreement) until the Expiration Date specified in Schedule A. This
Agreement may be extended thereafter only by the execution and delivery of a new
Schedule A by each of the parties.
(b) DISTRIBUTOR may at any time terminate this Agreement by sixty (60) days
written notice to XXXX-XXXX.
(c) XXXX-XXXX may terminate the Agreement immediately by notice to DISTRIBUTOR
in case of (i) an assignment by DISTRIBUTOR for the benefit of all or any part
of its creditors; (ii) an appointment of a receiver or other custodian for
DISTRIBUTOR's business or the control thereof by parties other than those now in
control thereof; (iii) the insolvency of DISTRIBUTOR or the filing of a petition
in bankruptcy or for reorganization, whether voluntary or involuntary, by or
against DISTRIBUTOR; (iv) the failure by DISTRIBUTOR to pay any amount owed to
XXXX-XXXX when due or the failure by DISTRIBUTOR to account to XXXX-XXXX for the
proceeds from the sale of EQUIPMENT for which DISTRIBUTOR is indebted to
XXXX-XXXX; or (v) abandonment of operations or suspension of business by
DISTRIBUTOR.
(d) XXXX-XXXX may terminate this Agreement by giving DISTRIBUTOR at least sixty
(60) days prior written notice in the event that (i) DISTRIBUTOR falls to
satisfy or perform any of its obligations set forth in this Agreement or (ii)
there is any dispute, disagreement or controversy between or among the
principals, parties, managers, officers or stockholders of DISTRIBUTOR or any
loss of managers, officers or key employees through termination of employment or
otherwise which in the judgment of XXXX-XXXX may adversely affect the business
of DISTRIBUTOR or XXXX-XXXX; provided, however, that if the foregoing failure or
condition is something which may be cured then DISTRIBUTOR shall have 60 days to
effect such cure.
(e) The termination of this Agreement by either party shall not entitle
DISTRIBUTOR to any termination or severance compensation or to any payment in
respect to any goodwill established by DISTRIBUTOR during the term of this
Agreement or render XXXX-XXXX liable for damages on account of the loss of
prospective profits or on account of any expenditure, investment or obligation
incurred or made by DISTRIBUTOR. IN NO EVENT SHALL XXXX-XXXX BE LIABLE FOR
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
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13. CERTAIN POST-TERMINATION OBLIGATIONS
(a) In the event of a termination of this Agreement, all obligations
owed by DISTRIBUTOR to BLAWKNOX shall become immediately due and payable on the
effective date of termination, whether otherwise then due or not.
(b) Upon termination of this Agreement, DISTRIBUTOR shall remain
obligated with respect to all unfilled orders previously submitted to XXXX-XXXX;
however, XXXX-XXXX may, at its option, cancel all unfilled orders except those
for EQUIPMENT and PARTS which are subject to binding signed orders received by
DISTRIBUTOR from a customer.
(c) Upon termination of this Agreement, DISTRIBUTOR shall immediately
discontinue the use of all XXXX-XXXX trademarks and trade names, including
removing from its salesrooms, service facilities, buildings, vehicles, signs,
letterheads, business cards, telephone directory advertising and other
advertising and promotional materials all references to XXXX-XXXX trademarks and
trade names, and DISTRIBUTOR shall not thereafter use any deceptively similar
name or trademark tending to give the impression that the relationship between
BLAWKNOX and DISTRIBUTOR still exists.
(d) Upon termination of this Agreement, DISTRIBUTOR shall return to
XXXX-XXXX all literature, price lists, catalogs, models, engineering data and
other items supplied to DISTRIBUTOR by XXXX-XXXX.
14. GENERAL PROVISIONS
(a) This Agreement contains the complete understanding between
XXXX-XXXX and DISTRIBUTOR in relation to the EQUIPMENT and PARTS and supersedes
any prior or contemporaneous agreements, promises and representations, whether
written, oral or created through custom, usage or course of dealing. This
Agreement may not be amended, modified or varied except by written agreement
signed by DISTRIBUTOR and by a duly authorized officer of XXXX-XXXX No departure
from this agreement shall permit any subsequent departure, and no waiver by
either party of any terms of this Agreement or of any breach shall obligate such
party thereafter to waive the same terms or any subsequent similar breach.
(b) This Agreement shall be binding upon and inure to the benefit of
XXXX-XXXX, its successors and assigns, but may not be assigned by DISTRIBUTOR
without the prior written consent of XXXX-XXXX. Any merger, consolidation,
transfer of assets, event or transaction which results (whether by operation of
law or otherwise) in a change of ownership or control of DISTRIBUTOR or
DISTRIBUTOR's business shall be deemed an assignment by DISTRIBUTOR for purposes
of this Agreement.
(c) Within 120 days after the end of each fiscal year, DISTRIBUTOR
shall furnish XXXX-XXXX with its audited financial statements for such fiscal
year. DISTRIBUTOR shall also
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furnish any other information regarding DISTRIBUTOR's business or finances which
may be reasonably required by XXXX-XXXX. BLAWKNOX will use this information
exclusively for its own purposes and will treat it as confidential.
(d) if any portion of this Agreement is held to be illegal, invalid or
unenforceable under any applicable law, such illegality, invalidity or
unenforceability shall not affect any other provisions of this Agreement.
(e) Any controversy or claim (whether contract, tort, statutory or
other) under federal, state or local law between XXXX-XXXX and DISTRIBUTOR
arising from any aspect of the commercial relationship between XXXX-XXXX and
DISTRIBUTOR, including without limitation the construction or application of any
of the terms, provisions or conditions of this Agreement, shall, on written
request of either xxxxx served upon the other, be submitted to final and binding
arbitration Such arbitration shall be compelled and enforced according to the
Illinois Uniform Arbitration Act, and shall be conducted according to the
applicable procedures of the American Arbitration Association, except as
otherwise provided herein. The arbitration shall be conducted before the
American Arbitration Association or such other arbitration service as the
parties may, by mutual agreement, select. The arbitrator shall be appointed by
agreement of the parties or, if no agreement on appointment can be reached
within 30 days of the giving of the written request for arbitration noted above,
then by the American Arbitration Association pursuant to its rules. Judgment on
the award the arbitrator renders may be entered in any court having jurisdiction
over the parties. The arbitration shall be conducted in Mattoon, Illinois. This
arbitration provision shall survive the expiration or termination of this
Agreement. If any part of this arbitration provision is found to be void or
unenforceable, the remainder of the arbitration provision will continue in full
force and effect.
(f) This Agreement shall be governed by and construed in accordance with the
laws of the State of Illinois. This Agreement shall be deemed to have been
entered into at Mattoon, Illinois, regardless of the places of signing by the
parties hereto or the order of their signing.
Witness the due execution as of the day and year first above written:
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SCHEDULE A
XXXX-XXXX CONSTRUCTION EQUIPMENT CORPORATION
Attached to and made a part of the Sales & Service Agreement dated April 1, 1996
between XXXX-XXXX and DISTRIBUTOR.
XXXX-XXXX: Xxxx-Xxxx Construction Equipment Corporation
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx, X.X.X. 00000-0000
Attention: President
Fax No: 000-000-0000
TWX No: 000-000-0000 XXXX-XXXX MT
DISTRIBUTOR: Western Traction Company, INc.
0000 X. Xxxxxxxx
Xxxxxx, XX 00000
Attention:
Fax No:
EFFECTIVE DATE: April 1, 1996
EXPIRATION DATE: April 1, 1997
EQUIPMENT: TYPE MODEL
---- -----
all asphalt paving equipment and road
wideners see attached counties
TERRITORY:
ANNUAL TARGET SALES VOLUME:
ACTION PLAN: DEALER SALES AND MARKETING ACTION PLAN DATED___________ attached
hereto as Exhibit 1.
Executed as of the 24th day of June 1996.
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XXXX-XXXX CONSTRUCTION EQUIPMENT CORPORATION
REFERENCE: Schedule A
Item: Territory
The following counties in the state of Nevada:
Xxxxxxxxx, Xxxxxxx, Elko, Eureka, Humboldt, Lander, Lyon, Mineral, Pershing,
Storey, Washoe, White Pine, Xxxxxx City and that portion of Xxx county north of
Interstate 6 including the city of Tonapah.
The following counties in the state of California:
Alpine, Inyo, Lassen, Modoc and Muno; and those portions which lie East of
Sierra-Nevada Summit of Eldorado, Nevada, Placer, Plumas and Sierra.
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