1
EXHIBIT 10.88
DISTRIBUTOR AGREEMENT (EXCAVATORS)
1999
Parties Involved
The parties to this Agreement are LBX Company, LLC, a Delaware corporation, 0000
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000 (herein the "Company"), and
Name: Western Traction Company
Business Address: 0000 Xxxxxxxx Xxxxxx
City: Union City State: California Zip: 94587 which is a (check one):
X corporation, incorporated in the State of California
__ division of
a corporation incorporated in the State of
__ partnership (list all partners and, if a limited partnership, indicate
which are the limited partners)
__ sole proprietorship (individual proprietor is (herein "Distributor").
In consideration of the mutual covenants and promises contained herein, the
parties hereby agree as follows:
I Distributor Appointment
1.1 Subject to the terms and conditions contained herein, the Company grants to
Distributor the non-exclusive right to purchase and resell those products listed
on the attached Schedule A (herein the "Products") in the Territory. The Company
may revise the list of Products from time to time without liability to
Distributor. Nothing herein shall be construed to prohibit Distributor from
selling at any price.
1.2 The Company may discontinue the production or sale of or modify the design
or material specifications of any Product therefore without any liability or
obligation to Distributor or its customers, including, without limitation, any
obligation to modify any Product previously ordered by Distributor.
1.3 Nothing in this Agreement shall constitute Distributor an agent of the
Company. Distributor is an independent contractor and has control of the details
of the performance of its obligations hereunder. Distributor shall not impose or
create any obligation or responsibility, express or implied, or make any
promises, representations, or warranties on behalf of the Company, other than as
provided in Section 6.1 hereof.
1
2
II Territory
2.1 The Company designates as Distributor's Territory the geographic area
described on the attached Schedule A (herein the '"Territory"). Marketing
responsibility encompasses both sales and service of the Products. The Company
may revise Distributor's Territory from time to time without the Company
incurring any liability to the Distributor. The Company may refuse to ship a
Product to a location other than the Distributor's Territory. Distributor shall
not sell for delivery or shipment or otherwise transfer any of the Products
listed on Schedule G outside the United States and Canada, and shall not sell
such Products to those who, directly or indirectly, sell for delivery or
shipment or otherwise transfer such Products outside the United States and
Canada, provided that Distributor may sell such Products to customers in the
United States and Canada who themselves use the Products outside the United
States and Canada or who transfer the Products to affiliates for use (but not
resale) by those affiliates outside the United States and Canada.
2.2 Distributor shall use its best efforts to promote, sell, and service each of
the Products in its Territory and shall maintain a staff of trained sales and
service personnel adequate to cover Distributor's Territory properly. The
Company will evaluate Distributor's performance primarily on the basis of
Distributor's sales volume and promotional effort in the Territory. The Company
may, in its sole discretion, establish reasonable sales objectives for
Distributor and may consider those objectives, among other factors, in
evaluating Distributor's performance.
2.3 At its election, the Company may from time to time directly sell or solicit
the sale of the Products to any customers or prospective customers. Direct sales
or other transactions between the Company and any customer shall not create any
liability on the part of the Company to the Distributor.
III Distributor Facilities and Inventory
3.1 Distributor shall maintain a suitable place of business within the Territory
that is sufficient, in the Company's judgment, to display, store, and service
the Products.
3.2 Distributor shall maintain such inventory of the Products as is sufficient,
in the Company's judgment, reasonably to meet the sales potential and product
support requirements in Distributor's Territory. Distributor shall comply with
any instructions issued by the Company regarding the storage, handling, and
maintenance of the Products.
IV Prices and Terms of Sales and Delivery
4.1 All sales of the Products to Distributor shall be governed by the Company's
written pricing and security documentation policies, credit policy, price lists,
discount schedules, and terms and conditions of sale (including, without
limitation, payment therefore by Distributor) upon acceptance of order. The
Company may change said policies, price lists, discount schedules, and terms and
conditions at any time and, when notice of said changes has been given, all
earlier inconsistent
2
3
policies, prices, discount schedules, and terms and conditions shall
automatically be superseded from and after the effective date stated in such
notices.
4.2 The Company reserves the right, in its sole discretion, to apply special
discounting on a case by case basis to an individual product or sale within the
Distributor's assigned territory in order to promote that Distributor's
development of that territory.
4.3 Prices stated in the Company's price lists shall apply only to Products with
standard specifications. At Distributor's request, the Company at its option may
provide Distributor with price quotations on Products having special or modified
specifications.
4.4 No purchase order shall be binding on the Company until accepted in writing
by a duly authorized officer or employee of the Company. Unless otherwise agreed
in writing in specific transactions, the Company may refuse to issue a quotation
or to accept any purchase order for any reason. Any provision contained in any
purchase order issued by Distributor to the Company which is additional to, or
inconsistent or conflicting with, any provision of this Agreement, or any of the
Company's then current standard terms and conditions of sale, shall not be
binding on the Company unless the Company assents to such provision in writing.
4.5 This Agreement applies only to Distributor's outlet or branch listed on the
first page hereof and such additional outlets, if any, listed on Schedule A.
Although Distributor may now have or hereafter acquire other outlets or
branches, or change the location of any of them, nothing herein shall obligate
the Company to sell or ship the Products on orders accepted by the Company to
any location not listed herein. The Company's responsibility for shipments shall
cease upon delivery to the transportation company, and any claim for shortages,
losses or damage occurring thereafter shall be made by Distributor directly to
the transportation company. A copy of any claims against the transportation
company for shortages shall be mailed to the Company for information purposes
within five (5) days after the arrival of the shipment at destination.
4.6 In addition to punctual payment for the Products, Distributor shall pay to
the Company on demand all expenses and charges caused by Distributor for
demurrage, reshipment, rerouting, storage and other similar charges with respect
to the Products ordered by Distributor, including without limitation expenses
resulting from Distributor's failure promptly to accept delivery of or pay for
such Products.
4.7 The Company shall not be liable to Distributor for any injury, loss, damage
or expense, whether direct, indirect or consequential, resulting from or arising
out of delays in delivery resulting from fires, strikes, lockouts, delays in
manufacture, transportation or delivery of materials, embargoes, insurrections
or riots, civil or military authority, car shortages, acts of God, acts of
government or any other causes beyond its reasonable control. The time for
delivery specified in any quotation or contract shall be extended during the
continuance of such conditions and for a reasonable time thereafter.
3
4
4.8 If shortages of the Products occur because of economic, manufacturing, or
other conditions, including shortages of materials, the Company may allocate the
Products among its distributors and other customers on any basis that, in the
Company's sole judgment, shall be fair and reasonable. The Company shall not be
liable to Distributor by virtue of such shortage or allocation.
V Reports and Inspections
5.1 Distributor shall deliver annually to the Company on a confidential basis a
copy of such financial statements as are satisfactory in form and certification
to the Company, within ninety (90) days after the close of Distributor's fiscal
year. Additionally, but only upon the Company's written request, Distributor
shall furnish such financial information at more frequent intervals. Such
statements and information may be used by assignees and agents of the Company.
5.2 A Credit Application is to be completed and returned, when requested, as
part of a periodic review of the Distributor's account.
5.3 If requested, at least once each fiscal year, Distributor shall provide the
Company with a report of inventory of the Company Products on forms satisfactory
to the Company. At its request the Company may observe the taking of
Distributor's physical inventory.
5.4 The Company may inspect Distributor's facilities, operations, and records as
related to Distributor's performance under this Agreement during normal business
hours.
VI Warranty and Safety
6.1 The Company warrants the Products in accordance with its Warranty attached
hereto as Schedule B, as the same may be modified by the Company from time to
time and makes no other warranty, express or implied. Distributor shall make no
other warranty with respect to the Products on behalf of the Company.
6.2 Distributor represents that it is familiar with the Products, including (if
applicable to the Products covered herein) their safety features and safe
functional application, and that it is familiar with the requirements of the
safety codes and laws of the states in Distributor's Territory. Distributor
shall notify the Company promptly of any changes in such codes and laws which
become known to it and which would require changes in the safety features or
devices of the Products and shall not knowingly solicit orders for any Product
which would not comply with such codes and laws in the Distributor's Territory.
VII Advertising and Promotion
7.1 The Company may, in its sole discretion, directly advertise and promote the
Products. To assist Distributor in promoting sales, the Company may furnish such
promotional literature and other advertising aids as the Company deems
necessary. Such material shall remain the property of the Company.
4
5
7.2 In order that the Company may protect all trademarks, trade names, corporate
slogans, goodwill and product designations that the Company owns or uses
pursuant to license, Distributor shall not use any such marks, names, slogans,
or designations in any advertising copy, promotional material, signs, exhibits
or other written or printed material except in a form specifically approved in
writing by the Company.
7.3 The Products shall be resold by Distributor in Distributor's name, but shall
be advertised by Distributor as being furnished by the Company.
VIII Training
8.1 From time to time the Company may, at its sole discretion, offer training in
the selling and servicing of the Products, which training shall be available to
Distributor's personnel at such locations as the Company may specify. If such
training is necessary in order for Distributor to fulfill its sales and service
obligations, Distributor's personnel shall participate in said training.
Distributor shall bear that portion of the expenses of its personnel in
attending such training as is deemed appropriate by the Company. The payment of
such training costs and microfiche maintenance costs shall not be considered as,
nor constitute a "Franchise Fee" as that term is used in any Franchise
Protection Act enacted by any state. This Agreement is not to be construed as a
Franchise Agreement.
IX Taxes and Insurance
9.1 Distributor shall pay all license fees, sales, use, service use, occupation,
retailer's occupation, service occupation, personal property, and excise taxes
and any other fees, assessments, or taxes which may be assessed or levied by any
national, state, or local government and any departments and subdivisions
thereof, as a result of the performance of this Agreement or against any of the
Products ordered by the Distributor.
9.2 At its own expense, Distributor shall purchase from and maintain policies of
liability insurance and property damage insurance with insurance companies
satisfactory to the Company as follows:
(a) Comprehensive General Liability and Products Liability, covering
Distributor, its employees, and agents, in minimum coverage amount of
$1,500,000.00 combined single limit for personal injury and property damage; and
(b) All Risks of Physical Loss or Damage to the Products under Distributor's
direct or indirect control, with the Company named as a payee as its Interest
may appear. Coverage shall be in an amount sufficient to prevent the Company
from sustaining any loss of amounts due or to become due to the Company on
Distributor's inventory and equipment.
Such policies shall not be cancellable prior to ten (10) days written notice to
the Company.
5
6
Distributor shall furnish the Company with satisfactory evidence of such
policies of insurance prior to the effective date of this Agreement.
X Patents, Trademarks, Confidential Information and Product Modification
10.1 Distributor shall not use any trademark or trade names, whether or not
registered, now or hereafter owned or used pursuant to license by the Company or
any xxxx or name similar thereto except in the manner and to the extend that the
Company may specifically consent in writing, except that Distributor may refer
to the Products by the trademarks which the Company uses in connection
therewith. Such trademarks may be changed at the sole discretion of the Company.
Distributor is permitted only to use such trademarks or trade names in
connection with its performance under this agreement and, despite such use,
Distributor shall not acquire any rights or interest thereto.
10.2 Distributor shall not remove from the Products any identifying marks placed
thereon by the Company and shall not add any identifying marks without the prior
written approval of the Company.
10.3 Distributor shall not alter, modify or add attachments to any Product that
do not meet the Company's specifications, without the written consent of the
Company. In no event shall Distributor alter or modify any Product purchased
hereunder, or the trademarks or trade names used in connection therewith by the
Company, in such a manner as will in any way infringe, impair or lessen the
validity of the patents, trademarks or trade names under which the Products are
made or sold, or as will cause the Products to infringe the patents, trademarks,
or trade names of any third party.
10.4 As to any alteration, modification or attachment to the Products which is
approved by the Company, the Company shall have a perpetual non-exclusive
royalty-free right to make, have made, use, sell, and lease goods embodying any
improvements to the Products, including attachments to and components thereof,
made or acquired by Distributor.
10.5 Without limiting the generality of Distributor's obligations under Section
11.5 hereof, if Distributor alters, modifies, or adds attachments to any
Products that do not meet the Company's specifications, and/or uses trademarks
or trade names in connection therewith other than those adopted and used by the
Company, Distributor will indemnify the Company and hold the Company completely
harmless from and against any patent infringement, unfair competition or
products liability claims brought against the Company by any third party on
account of such activities.
10.6 In the course of the performance of this Agreement, the Company may furnish
Distributor with technical information, manuals relating to the Products, list
of customers, information regarding the Company's methods of doing business and
other confidential business information and trade secrets. Both during and after
the term of this Agreement, Distributor shall not disclose such confidential
business information and trade secrets to any person other than its employees
and shall keep it in strict confidence and not use it for any purpose other than
Distributor's performance under this Agreement.
6
7
XI Remedies and Indemnity
11.1 Except for any Indebtedness of Distributor or security related thereto, any
action by the Company or Distributor pertaining to this Agreement must be
instituted within one year after the accrual of the claim upon which such action
is based.
11.2 Failure of either party at any time to require performance of any
provisions hereof shall not affect its right to require full performance thereof
at any time thereafter. The waiver by either party of a breach of any such
provision shall not constitute a waiver of any subsequent breach thereof or
nullify the effect of such provision.
11.3 In the event that Distributor is in default with respect to any of the
terms or conditions of or referred to in this Agreement, for seven (7) days
after receipt of written notice from the Company, the Company may, without
incurring liability to Distributor or its customers and without prejudice to any
other remedy of the Company, defer further shipments of the Products to
Distributor (whether or not the Company has accepted purchase orders from
Distributor with respect to unshipped Products) until such default is remedied.
The rights and remedies granted the Company herein are in addition to and not
exclusive of any other rights or remedies under any other agreement or any law.
The exercise by the Company of any of its rights hereunder or otherwise shall
not constitute an election of remedies or a waiver of any other right or remedy.
11.4 Distributor shall pay interest on all amounts due the Company which are in
default, as may be provided in the Company's then current terms and conditions
of sale to Distributor. The Company may apply any outstanding amount due to
Distributor against indebtedness owed by Distributor to the Company, whether due
or to become due.
11.5 As to acts or omissions of Distributor, its employees and agents,
Distributor shall indemnify and hold the Company harmless from and against any
and all claims, losses, obligations, liabilities, costs, and expenses (including
without limitation legal and other fees) arising from such acts or omissions,
including without limitations any such claims, losses, obligations, liabilities,
costs and expenses arising out of any breach of or failure to perform any of
Distributor's representations, warranties, covenants and agreements herein, or
arising out of claims of negligence or strict liability of the Distributor or
Product defects caused by Distributor.
11.6 As to acts or omissions of the Company, its employees and agents, the
Company shall indemnify and hold the Distributor harmless from and against any
and all claims, losses, obligations, liabilities, costs and expenses (including
without limitation legal and other fees) arising from such acts or omissions, or
arising out of claims of negligence or strict liability of the Company or
Product defects caused by the Company.
XII Term and Termination
12.1 This Agreement shall become effective on the date of its signature by the
Company for a term
7
8
expiring at 11:59 p.m. on the expiration date set forth on
the signature page hereof, unless sooner terminated as hereafter provided.
12.2 This Agreement may be terminated at any time by the mutual consent of the
parties.
12.3 This Agreement shall automatically terminate upon the happening of any of
the following:
(a) The expiration of the term hereof.
(b) The discovery of an untrue statement of a material fact, or omission to
state a material fact necessary to make the statements contained therein not
misleading, in any written information or statement furnished by Distributor to
the Company in connection with Distributor's application for appointment as the
Company's distributor or the negotiation or performance of this Agreement.
(c) The death, incapacity, removal or withdrawal from the management of
Distributor of any principal owner/operator or the voluntary or involuntary
transfer of any substantial ownership interest in Distributor.
(d) The conviction of Distributor or of any principal owner/operator of any
crime which, in the opinion of the Company, may adversely affect the goodwill of
Distributor or the Company or the operation of the business to be carried on by
Distributor pursuant to this Agreement.
12.4 This Agreement also may be terminated upon the happening of any of the
following:
(a) A change in the management, operation, personnel, or credit standing of
Distributor or the Company which the other party, in its sole discretion, deems
adverse to its interest.
(b) Breach of or failure to perform any of the obligations hereunder or referred
to herein by either party, including but not limited to Distributor's failure to
develop the sales and services of the Company's Products in the Territory to the
Company's expectation, maintain a proper inventory, or to conduct its business
in accordance with any requirements set forth herein to be performed by
Distributor, or Distributor's export of Products or sale for export in violation
of the requirements of this Agreement.
12.5 Method of Termination:
(a) If termination is instituted under the provisions of Section 12.3(b), (c) or
(d) above, a registered or certified letter or telegram confirmed by letter will
constitute sufficient notice that the Agreement is terminated immediately on the
date of notice.
(b) If termination is instituted under the provisions of Section 12.4 hereof,
the following steps will be taken:
(i) The party wishing to terminate shall notify the other party in writing
stating the reasons for dissatisfaction. A thirty-day period shall be given the
other party to answer and discuss the areas of difference. If the parties do not
resolve their differences within the thirty- day period, the agreement will
terminate 30 days thereafter.
8
9
(ii) Nothing in the foregoing is meant to prevent the parties at any time by
mutual consent from terminating the agreement without going through the
prescribed steps and waiting period.
(c) If the Agreement is not renewed under the provisions of Section 12.3(a)
above, a registered or certified letter, or telegram confirmed by letter, shall
be sent no less than sixty (60) days prior to the expiration of the Agreement by
the party that intends not to renew the Agreement.
12.6 Nothing contained herein shall be deemed to create any express or implied
obligation on either party to renew or extend this Agreement or, if Distributor
is continued as the Company's distributor, to create any right to continue such
relationship on the same terms and conditions contained herein. Each party, in
its sole discretion, may determine, for any reason whatsoever, not to renew or
extend this Agreement or to continue such relationship on the terms and
conditions contained herein. The Company may, in its sole discretion, continue
to deal with the Distributor after the termination date of this Agreement. Such
continued dealing, without the execution of a new Agreement, will not create any
obligation to extend or renew this Agreement. Such continued dealings shall be
terminable at the will of either party.
XIII Effect of Termination
13.1 Neither party, by reason of the termination or nonrenewal of this
Agreement, shall be liable to the other for compensation, reimbursement, or
damages because of the loss of anticipated sales or prospective profits or
because of expenditures, investments, leases, property improvements or other
matters related to the business or goodwill of the parties.
13.2 All sums owed by either party to the other shall become due and payable
immediately upon termination. Either party, at its option, may offset any sums
due or to become due to it against any sums owed by it.
13.3 Upon termination of this Agreement, Distributor shall immediately
discontinue use of any and all trademarks and trade names owned or used pursuant
to license by the Company, including without limitation use in Distributor's
letterheads, advertising, and name. Distributor shall not thereafter use any
such xxxx or name or any xxxx or name tending to give the impression that any
relation between the Company and Distributor still exists, and Distributor shall
immediately deliver to such address as the Company specifies all technical
information, price lists, catalogs, drawings, designs, engineering photographs,
samples, literature, sales aids, customer lists and other confidential business
information and trade secrets of the Company in Distributor's possession.
13.4 Upon termination, the Company shall be relieved of any obligation to accept
any new orders or make further releases on existing blanket orders, and may at
its option cancel all of Distributor's unshipped orders for the Products,
irrespective of previous acceptance by the Company, except those which are
proved to the Company's satisfaction to have been sold by Distributor to
customers prior to giving of notice of termination or those as to which
Distributor has posted bid bonds prior to such notice. The Company shall have no
obligation or liability to Distributor or its prospective customers
9
10
in connection with any such cancellations. If the Company accepts such an order
for Products which ordinarily require delivery and service by Distributor and
for which Distributor is separately compensated by the Company, the latter at
its option may make other arrangements for such delivery and service and, if so,
will reduce the normal discount by that portion as may be specifically provided
for such delivery and service. Upon termination by Distributor, if Distributor
also seeks to cancel unshipped orders in process, Distributor shall pay the
normal cancellation charge which may be set forth in the sales documents
relating to such orders.
13.5 The Company's acceptance of any order by Distributor for the Products after
the termination of this Agreement shall not be construed as a renewal or
extension of this Agreement, nor as a waiver of termination, but in the absence
of a new written agreement executed by the Company, all such transactions shall
be governed by the terms and provisions of this Agreement.
13.6 Upon termination, the disposition of the Products purchased by Distributor
from the Company and in Distributor's possession, shall be governed by the
Company's then current written policy relating to returned Products. A copy of
the Company's now current policy, marked Schedule C, is attached hereto for
informational purposes only.
XIV Application and Construction of Agreement
14.1 This Agreement is binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, executors, legal representatives,
successors and assigns, except that Distributor shall not assign this Agreement,
or any interest herein including rights and duties of performance, without the
written consent of the Company. No assignment made without the Company's consent
shall relieve Distributor from any of its obligations under this Agreement.
14.2 This Agreement shall not be binding upon the Company until signed for the
Company by its duly authorized officer or employee. No agent or representative
of the Company has any authority to vary the terms and conditions contained
herein or to make any representation, statement, warranty, or agreement not
expressed herein.
14.3 Laws of the Commonwealth of Kentucky shall govern the construction of this
Agreement and the rights, remedies and duties of the parties hereto. In the
event of any litigation arising out of this Agreement or the transactions
contemplated thereby, the parties agree that any action or suit shall be brought
In a court of record in the County of Fayette, Commonwealth of Kentucky, or in
the United States District Court for the Eastern District of Kentucky, and the
parties hereby consent to the venue and jurisdiction of such courts.
14.4 Except for changes by the Company permitted under the Agreement, including
changes in the various Schedules attached hereto or in the price, discount
schedules, design, terms of sale, or specifications of the Products, no
amendment or modification of this Agreement or any portion thereof shall be
valid unless executed in writing by both parties. Any written amendment or
modification which is executed by both parties shall be binding upon them
notwithstanding any lack of consideration.
10
11
14.5 All understandings and agreements, written or oral, heretofore had or made
between the parties with respect to any of the subject matters herein, are
merged into this Agreement which alone fully and completely expresses their
agreement.
14.6 The descriptive headings in the Agreement are inserted for convenience only
and do not constitute a part of this Agreement.
XV NOTICE
15.1 Any notice required or permitted herein shall be in writing and shall be
hand delivered or mailed, postage fully prepaid, properly addressed to the party
to be notified at the address shown above or the last know address given by such
party to the other. Any such notice shall be considered to have been given when
hand delivered or on the second business day after it has been deposited in the
mails in the manner herein provided.
XVI Distributor Service Obligations
16.1 Some of the products furnished by the Company are of such nature, size,
and/or complexity that sales and goodwill depend upon prompt and competent (a)
delivery, installation, and start-up field services, (b) in-warranty services,
and (c) post-warranty services, of a type or extent which may not be required by
other of the Company's products. If the Products covered by this Agreement are
of the former type, then the parties hereto further agree that the nature and
extent of such services, and the means of compensating Distributor therefore,
are set forth in the attached Schedule D, as it may hereafter be amended by the
Company from time to time.
XVII Schedules
17.1 The following Schedules are attached hereto and made a part hereof, subject
to the right of the Company unilaterally to amend them from time to time:
SCHEDULE A ADDITIONAL DISTRIBUTOR LOCATIONS COVERED BY THIS AGREEMENT
PRODUCTS AND DISCOUNTS
TERRITORY
SCHEDULE B MACHINE WARRANTY AND LIMITATION OF LIABILITY
SCHEDULE C RETURN OF PRODUCTS
SCHEDULE D DISTRIBUTOR MACHINE DELIVERY SERVICE AND WARRANTY SERVICE
SCHEDULE E PRICES AND TERMS
SCHEDULE F MACHINE CANCELLATION POLICY
SCHEDULE G MACHINE EXPORT RESTRICTION
11
12
IN WITNESS WHEREOF the parties have executed this Agreement including attached
Schedules intending to be bound thereby:
12
13
SCHEDULE A
I. ADDITIONAL DISTRIBUTOR LOCATIONS COVERED BY THIS AGREEMENT:
Fresno, California
Pleasant Grove, California
Sparks, Nevada
II. PRODUCTS AND DISCOUNTS: Subject to the Company's unilateral right to amend,
add to, delete from, and otherwise alter this Schedule in the future, the
products covered by this agreement and the discounts from the suggested list
prices applicable to items purchased are as follows:
PRODUCTS DISCOUNTS
1. Hydraulic Excavators, Logmasters, Scrapmasters 25%
2. Parts: Repair parts for all above products, all prior
production versions of the same and all obsolete products
of the same type in the Distributor's "Territory". Varies
In all cases, the selling Distributor shall be responsible for delivery and
service of the machine unless the Company, at its sole discretion, determines
otherwise. If, at the discretion of the Company, it is determined that the
selling Distributor shall not deliver and service the machine, the Company will
make arrangements to have this service performed. In this event, the Company
will withhold, at the time of invoicing a percentage in accordance with the
Service Policy and Procedure Manual.
III. TERRITORY:
In the State of California, all counties north of and including Santa Xxxxxxx,
Xxxx and lnyo with the exception of Del-Norte, Siskiyou and Modoc.
The entire State of Nevada except Lincoln and Xxxxx counties and except the
south half of Xxx County per the attached map.
13
14
SCHEDULE B
MACHINE WARRANTY AND LIMITATION OF LIABILITY:
The products furnished by the Company, exclusive of used or rebuilt machinery or
equipment, are subject to the following warranty:
(A) Warranty.
All of the Company's products are of high quality and are manufactured in
conformity with the best commercial practices in the various lines. The Company
warrants all hydraulic excavators, scrapmasters and logmasters furnished by it
to be free from defects in material and manufacture at the time of shipment for
twelve (12) months from date of shipment or 1500 hours of operation, whichever
shall occur first. The Company will furnish without charge, F.O.B. point of
shipment, replacements for such parts as the Company finds to have been
defective at the time of shipment, or at the Company's option, will make or
authorize repairs to such parts, provided that, upon request, such parts are
returned, transportation prepaid, to the point of shipment.
This warranty shall not apply to any product which has been subjected to misuse;
misapplication; neglect (including, but not limited to, improper maintenance);
accident; or improper installation, modification (including, but not limited to,
use of unauthorized parts or attachments), adjustment, or repair. Engines,
motors, and accessories furnished with the Company's products, but which are not
manufactured by the Company or any affiliated companies, are not warranted by
the Company but are sold only with the express warranty, if any, of the
manufacturers thereof. THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED (INCLUDING THOSE OF MERCHANTABILITY AND FITNESS OF ANY
PRODUCT FOR A PARTICULAR PURPOSE), AND OF ANY OTHER OBLIGATION OR LIABILITY ON
THE PART OF THE COMPANY.
(B) Limitation of Liability.
IT IS EXPRESSLY UNDERSTOOD THAT THE COMPANY'S LIABILITY FOR ITS PRODUCTS,
WHETHER DUE TO BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE,
IS LIMITED TO THE FURNISHING OF SUCH REPLACEMENT PARTS, AND THE COMPANY WILL NOT
BE LIABLE FOR ANY OTHER INJURY, LOSS, DAMAGE, OR EXPENSE, WHETHER DIRECT OR
CONSEQUENTIAL, INCLUDING BUT NOT LIMITED TO LOSS OF USE, INCOME, PROFIT, OR
PRODUCTION, OR INCREASED COST OF OPERATION, OR SPOILAGE OF OR DAMAGE TO
MATERIAL, ARISING IN CONNECTION WITH THE SALE, INSTALLATION, USE OF, INABILITY
TO USE, OR THE REPAIR OR REPLACEMENT OF, THE COMPANY'S PRODUCTS.
The Company reserves the right to make alterations or modifications in their
equipment at any time, which, in their opinion, may improve the performance and
efficiency of the Product. They shall not be obliged to make such alterations or
modifications to Products already in service.
14
15
Any operation beyond rated capacity expressly prohibited in the operating
instructions or safety manual furnished with the machine, or any adjustment, or
assembly procedures not recommended or authorized in the operating or service
instructions shall void such warranty.
15
16
SCHEDULE C
RETURN OF PRODUCTS
New, unused machines of standard manufacture purchased by the Distributor from
the Company, may be repurchased at the sole discretion of the Company. Further,
the Company may, in its sole discretion, elect to accept a return of such
machine for credit. All such returns or repurchases shall require the prior
written approval of the Company. In addition, the following terms and conditions
shall apply to a return or repurchase of parts.
(A) In the event of termination of the Agreement under any of the provisions of
Article XII, the Company agrees, subject to the above, to purchase from the
Distributor such parts in the Distributor's stock which the Distributor
previously has purchased from the Company. Also subject to the above, if the
return of such parts is made while this Agreement remains in effect, such return
shall be for credit to be applied on future purchases. The purchase price or
credit shall be made in accordance with the Parts Policy and Procedure Manual.
(B) All repurchased or returned parts must be in accordance with the Parts
Policy and Procedure Manual.
(C) If the returned or repurchased parts require reconditioning, the cost of
such reconditioning will be deducted from the price paid or credit issued.
(D) All returned or repurchased parts must be shipped and delivered by
Distributor F.O.B. to the site specified by the Company.
(E) If requested by the Company, the Distributor shall furnish the invoice or
order number on which parts were originally purchased.
16
17
SCHEDULE D
DISTRIBUTOR MACHINE DEUVERY SERVICE AND WARRANTY SERVICE
The company and distributor recognize that the products are of such a
specialized technical character that sales thereof and customer goodwill depend
upon follow-up services by trained parts and service personnel. This applies to
all sales of products by Distributor irrespective of place of delivery or use of
the products. Accordingly, Distributor agrees as follows:
(1) In all cases the selling Distributor will provide adequate delivery service
and warranty service on all products unless the Company in its sole discretion
determines otherwise. In the later event, the Company will arrange for these
services to be performed and a percentage in accordance with the Service Policy
and Procedure Manual will be withheld at time of invoicing. "Delivery service
and warranty service" includes but is not limited to performing all service
necessary at the time of delivery of products to Distributor's customers, and
servicing all warranty claims on products sold by Distributor. A Pre Delivery
Inspection Report (Product Evaluation), Delivery Report, follow-up inspection at
approximately six (6) months or 1000 hours of operation and a final inspection
at twelve (12) months or 1500 hours of operation are required.
(2) When the Company requests Distributor to perform within Distributor's
Territory delivery service and/or warranty service on a product not sold by
Distributor, Distributor will do so.
(3) The Company will reimburse the Distributor for warranty labor and costs as
specified in the Company's Service Policy and Procedure Manual.
(4) The Distributor shall promptly furnish all reports required with regard to
deliveries, service and warranties.
(5) If Distributor fails to perform the obligations required of it in this
Schedule D, the Company, in its sole discretion, may perform, or cause to be
performed, such obligations.
(6) In all cases where the machine is for delivery outside the contiguous United
States and Canada, a percentage in accordance with the Service Policy and
Procedure Manual will be withheld (with the exception of delivery within the
selling Distributor's Territory) and the Company will arrange for delivery and
service to be performed.
(7) The Distributor accepts the responsibility of providing machine campaign
support on all units located within its Territory, whether sold under this
Agreement or otherwise
17
18
SCHEDULE E
PRICES AND TERMS
(A) Machines. Prices to the Distributor for machines shall be determined from
(1) the Company's suggested price lists (as changed by the Company from time to
time) in effect at time of order; or billing F.O.B. point of shipment, prepared
for domestic shipment, less (2) the applicable discounts that may be in effect
at time of order.
(B) Terms-Machine. Terms of payment for machines are net thirty (30) days.
(C) Parts. Prices to the Distributor for parts shall be the net price determined
from the Company's published parts price lists, as changed by the Company from
time to time, in effect at the time and place of order. Such lists, and the
schedule and conditions accompanying them, shall be considered a part of this
agreement.
(D) Terms-Parts. Terms of payment for parts are net 30 days from date of
invoice.
(E) Distributor shall be entitled to no discount for parts furnished for
warranty adjustments.
18
19
SCHEDULE F
MACHINE CANCELLATION POLICY
The following constitutes the Company's policy regarding cancellation of orders
for machines manufactured or offered by it.
All machine orders placed with the Company are accepted as firm orders.
Order acceptance occurs when the sales order is issued by the Company confirming
to the Distributor entry of the order, sales order number, a price and a
shipping date.
Orders for machines which are special in nature, which require special
engineering and include nonstandard items are non-cancellable at the time of
order acceptance and will be so noted on our sales order acknowledgment.
In the case of all other machines offered for sale by the Company, cancellation
will be accepted if the Company is notified by the 15th day of the month two
months prior to the month of scheduled shipment. For example, for machines
scheduled for shipment in September, the Company must be notified no later than
July 15th. In the absence of notification in accordance with the above schedule,
machines on order will be shipped and invoiced to the ordering Distributor
during the month originally scheduled.
19
20
SCHEDULE G
MACHINE EXPORT RESTRICTION
The following Products have export restrictions as outlined in "II Territory"
paragraph 2.1:
1600Q
2650Q
2700Q
2800Q
2800QLF
3400Q
3400QLF
3900Q
4300Q
5800Q
6000Q
20
21
INVENTORY SECURITY AGREEMENT
Western Traction Company a (sole proprietorship) (partnership) (corporation) of
the State of ___________________ ("Distributor") having a place(s) of business
at:
X.X. Xxx 0000 Xxxxx Xxxx, XX 00000
0000 Xxxx Xxxx, Xxxxxx, XX 00000
0000 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, XX 00000
as debtor, and LBX COMPANY LLC (the "Company"), as secured panty, hereby agree
as follows:
1. Definitions. As used herein:
(a) All terms defined in Articles 1 or 9 of the California Uniform Commercial
Code shall have the meanings given therein unless otherwise defined herein:
(b) The term "Property" shall mean Distributor's entire inventory of products,
parts and all other items (including all additions or accessions thereto and
substitutions therefor), heretofore or which may hereafter be acquired by
Distributor from the Company and the purchase price of which shall not have been
paid in full, and any items taken in trade for any of the foregoing;
(c) The term "Collateral" shall mean and include all of the following, whether
now owned or hereafter created or acquired by Distributor: (i) all Property,
(ii) all accounts, chattel paper, instruments, documents, contract rights,
general intangibles and leases arising, in whole or in part, from the sale or
lease of any Property, including without limitation any and all reversionary
rights to Property under any of foregoing, and (iii) all proceeds of, accessions
to and products of any of the foregoing in whatever form, including without
limitation cash, checks, drafts and other instruments for the payment of money,
chattel paper, trade-ins, security agreements and other documents; and
(d) The term "Obligations" shall mean and include any and all of Distributor's
indebtedness and/or liabilities to the Company of every kind, nature and
description, direct or indirect, secured or unsecured, joint or several,
absolute or contingent, due or to become due, now existing or hereafter arising,
regardless of how they arise or by what agreement or instrument they may be
evidenced or whether evidenced by any agreement or instrument, including but not
limited to all amounts owing by Distributor to the Company by reason of
purchases made by Distributor from the Company or any affiliate thereof, and all
obligations to perform acts or refrain from taking action.
2. To secure the payment and performance of all of the Obligations, Distributor
hereby pledges and assigns to the Company and grants to the Company a continuing
general security interest in all of Distributor's Collateral and all of
Distributor's ledger sheets, files, records and documents relating to the
Collateral which shall, until delivered to or removed by the Company, be kept by
the Distributor in trust for the Company and without cost to the Company in
appropriate containers and safe places, bearing suitable legends disclosing the
Company's interest. With respect to any chattel
21
22
paper or lease comprising a portion of the Collateral, immediately upon
formation of same Distributor agrees to place a legend on the face thereof
disclosing the Company's interest therein. Upon the request of the Company,
Distributor shall assign and deliver physical possession of any such chattel
paper or lease to the Company.
3. Except as otherwise specifically authorized in any other written agreement
between the Distributor and the Company, the Distributor shall not use, sell,
lease, assign, pledge, hypothecate, factor or otherwise dispose of any
Collateral or create a security interest therein, or otherwise encumber any of
the Collateral or suffer to exist any lien, charge, or encumbrance on any of the
Collateral except for any security interest granted to the Company. Upon any
sale or lease of any Collateral the Distributor shall (unless otherwise
specifically authorized in any written agreement between the parties hereto,)
pay to the Company the full amount of any indebtedness owing to the Company for
the items sold or leased.
4. The acceptance of a note or notes and renewals thereof for the whole or any
part of any Obligation, or the institution of legal action or the recovery of a
judgment for the whole or any part thereof or on any note given therefor, shall
not constitute payment of any such Obligation nor shall it in any way divest the
Company, or be deemed a waiver, of any part of the security interest granted
thereby.
5. The following shall constitute events of default ("default") by Distributor:
(i) Default by Distributor in the payment or performance of any Obligation; (ii)
Failure by Distributor upon request to turn over proceeds or provide information
in accordance with any of the provisions hereof; (iii) Distributor in violation
of Section 3 shall sell, lease, or dispose of any Collateral or allow any lien,
charge or encumbrance to be created or remain thereon; (iv) Distributor (or any
member of the Distributor's firm if a partnership) shall become insolvent, make
an assignment for the benefit of creditors, institute or have instituted against
it proceedings under any bankruptcy or insolvency law, or Distributor's stock in
trade or any part thereof shall become levied upon or attached; (v) Distributor
shall make any misrepresentation, orally or in writing, to the Company for the
purpose of obtaining credit or an extension of credit; (vi) Distributor shall
breach any representation, warranty, covenant or agreement herein contained or
contained in any other agreement or arrangement now or hereafter entered into,
to which Distributor and the Company are parties; or (vii) any change in
Distributor's condition or affairs (financial or otherwise) or of any endorser,
guarantor or surety for any of the Obligations, including but not limited to any
dispute, disagreement or controversy between or among principals, partners,
managers, officers or stockholders of Distributor, any change in the ownership
or management of Distributor, or any personal conduct of Distributor or of a
partner, officer or key employee of Distributor, or the revocation or
discontinuation of any such guaranty, that in the Company's sole opinion impairs
its security or increases its risk.
6. Upon the occurrence of any default and at any time there after (such default
not having been previously cured), the Company shall have, in addition to all
other rights and remedies at law or in equity, the right to:
22
23
(a) Declare immediately due and payable all Obligations and collect the same
together with all costs of collection, including but not limited to court costs
and reasonable attorneys' fees paid or incurred by the Company in enforcing its
rights hereunder:
(b) Discontinue or withhold the delivery of any and all Property to the
Distributor, or make further deliveries only on a cash or C.O.D. basis; and
(c) Take possession of any or all Collateral.
Distributor hereby waives notice of any acceleration hereunder of any maturity
of any Obligation and, except for the notice required pursuant to Section 7(a)
hereof, waives any and all other notices of any action taken or which may be
taken by the Company hereunder.
7. If the Company elects to take possession of any Collateral, it shall have the
right, to full extent and in addition to any other rights allowed by law, to
enter upon any premises occupied by or under the control of Distributor for that
purpose Distributor shall, when requested to do so by the Company, gather at its
principal place of business, or at any other place designated by the Company,
any and all Collateral which is not already located there. After taking
possession the Company shall have, in addition to all other rights and remedies
at law or in equity the right to:
(a) Sell all or any part of the Collateral at one or more public and/or private
sales on written notice. Such notice shall be deemed to be reasonable notice of
such sale if mailed, postage prepaid, or delivered to the Distributor at the
address shown herein at least 5 days before such sale; or
(b) Determine, in its sole discretion, which rights, security, liens, security
interests or remedies it shall at any time pursue, relinquish, subordinate,
modify or take any other action with respect to, without in any way modifying or
affecting any of them or any of its rights hereunder. Any monies, deposits,
receivables, balances or other property of Distributor (including any
Collateral) which may come into the Company's hands at any time or in any
manner, may be retained by the Company and applied to any of the Obligations.
Distributor hereby waives any right it may have to require or request the
Company to proceed against any Collateral or to proceed against any other
security the Company may bold, and hereby waives any right it may have to
require or request the Company to pursue any other remedy for the benefit of
Distributor and agrees that the Company may proceed against Distributor for the
full amount of any liability or Obligation of Distributor to the company without
taking any action against any other panty and without selling or otherwise
proceeding against or applying any security the Company may hold, including but
not limited to the Collateral.
8. The proceeds of sales of any Collateral pursuant to Section 7 shall be
applied first to all costs of collection, including but not limited to Court
costs and reasonable attorneys' fees paid or incurred by the Company in
enforcing its rights hereunder, and then to the satisfaction of any and all
Obligations. Any proceeds then remaining will be paid over to the Distributor as
provided by law, and the Distributor shall be liable for any deficiencies.
23
24
9. Without suggesting that any other procedures may not also be commercially
reasonable, or that any of the following procedures are mandatory in any
particular case, it is agreed that the following are all commercially reasonable
methods of disposing of any Collateral should the Company decide to follow one
or more of them as to all or any part of the Collateral:
(a) Private sale of complete machines (equivalent to new or unused machines of
current production) and all attachments thereto to another dealer or dealers at
current dealer prices in effect at the time of such disposition;
(b) Sale of any Property by units or in one or more parcels at private sale at
the best price submitted in sealed bids taken from three or more dealers,
provided that in the Company's sole discretion such best bid represents a
reasonable price;
(c) Sale of parts and attachments in good condition for which there is a ready
market to dealers through the Company's regular parts distribution facilities at
prices and terms prevailing at the time of such disposition. The Company may
commingle such parts with its regular inventory of parts and account for the
sale of any parts constituting a portion of the Collateral upon the assumption
that such parts are the first parts sold after such commingling. The Company's
expenses of reinventorying and merchandising returned and repossessed parts
(exclusive of costs incurred in sorting the parts for listing, loading them at
Distributor's place of business, and of transportation expense from
Distributor's place of business to the Company's parts distribution facility)
are in excess of 10% of the invoice price, and it is agreed that a 10% charge
for such services may be made without further itemization or analysis of such
expenses: and
(d) Public sale at auction of all Collateral or any portion thereof not disposed
of by some other method.
10. The Distributor shall keep accurate books and records of account in
accordance with generally accepted accounting principals applied on a consistent
basis, including stock, sales and lease records of machines and repair parts. At
the end of Distributor's fiscal year, and at such other times as the Company may
request, Distributor shall furnish the Company with full and complete financial
and operating statements in a form acceptable to the Company. Distributor shall
also furnish the Company, at any time upon request, full information regarding
all Collateral, including but not limited to inventory on hand, inventory sold
or leased, the proceeds thereof, and any agreements affecting such inventory.
11. The Distributor shall:
(a) Properly store all Collateral in its possession and protect the same from
injury or damage of any kind;
(b) Continuously keep all Collateral insured with all-risk type coverage
satisfactory to the Company and with insurers satisfactory to the Company, in an
amount equal to the invoice price
24
25
thereof. Such insurance may be issued in the name of Distributor who may retain
possession of the policies, but each policy shall be in form satisfactory to the
Company with loss payable to the Company as its interest may appear and shall
provide for 10 days minimum written cancellation notice to the Company.
Distributor shall immediately furnish the Company with a certificate of
insurance issued by the insurer on each policy;
(c) Keep all Collateral free and clear of all liens, charges and encumbrances
however arising, except for any security interest granted to the Company;
(d) Simultaneously with the execution and delivery of this Agreement, provide
the Company with a written list of the addresses of all locations where any
Collateral is now located, any probable location where any of the Collateral may
be moved to or used by any lessee thereof, and Distributor agrees that
immediately upon any change in the location of any of the Collateral it will
notify the Company in writing setting forth the description of the Collateral so
moved and the address of its new location;
(e) From time to time do whatever the Company may request by way of obtaining,
executing, delivery and/or filing financing statements, landlord's or
mortgagee's waivers, and other notices, and amendments and renewals thereof, and
Distributor shall take any and all steps and observe such formalities as the
Company may request, in order to create and maintain a valid first lien upon,
pledge of and/or paramount security interest in, any and all of the Collateral.
The Company is authorized to file financing statements without Distributor's
signature as specified by the Uniform Commercial Code to perfect or maintain the
Company's security interest in all of the Collateral. All charges, expenses and
fees which the Company may incur in filing any of the foregoing and any local
taxes relating thereto, may be charged to the Distributor's account and added to
the obligations; and
(f) Pay promptly on demand therefor, any and all costs and expenses of
collection, including court costs and reasonable attorney's fees, paid or
incurred by the Company in enforcing any of the Company's rights hereunder or
effectuating collection of any of the Obligations.
If Distributor shall fail to insure or to pay the fees, taxes, assessments or
charges as required herein or by the Distributor Agreement (including any
amendments thereto) between the parties hereto, or shall allow any lien, charge
or encumbrance to attach to any of the Collateral, the Company, without
obligation to do so, may obtain such insurance, pay such fees, taxes,
assessments or charges, or discharge such lien, charge or encumbrance and
Distributor shall reimburse the Company promptly for all monies so paid out and
shall pay the Company interest thereon at the highest lawful contract rate under
applicable law. The amounts so paid by the Company shall be deemed conclusive as
to the amounts properly payable, and such amounts shall be secured hereunder.
12. Distributor shall at any time upon request immediately deliver to the
Company all proceeds of Property which are in its possession in the form of
customer's notes (for the purpose of this Section 12 and of Section 13 hereof
"notes" shall include without limitation instruments, documents, chattel paper
and leases) together with appropriate endorsement and/or assignment thereof to
the Company,
25
26
and will provide the Company with information concerning proceeds in the form of
customer's accounts (for purpose of this Section 12 and of Section 13 hereof
"accounts" shall include without limitation all contract rights) sufficient to
enable the Company to collect such accounts directly and the Company may collect
such notes and accounts directly.
13. The provisions of the Section 13 and all references herein to "notes" and
"accounts" shall apply to any notes and accounts, respectively, delivered to,
pledged with or as to which information is furnished to the Company, pursuant to
Section 12 hereof.
At any time regardless of whether Distributor is in default, the Company is
authorized to reduce open accounts to notes, to renew or extend time of payment
of any note or account or any securities securing the same, any such renewal to
be in its own or Distributor's name as the Company may elect, to take, waive,
release or exchange any security therefor, to make such compromise or settlement
therefor as it deems advisable in its sole discretion, and to take such steps
for the enforcement, collection, securing, renewing, extending or compromising
of any note or account, or any part thereof, or any security therefor, as it
deems advisable in its sole discretion. Any proceeds realized from the
collection or enforcement of said notes and accounts or any security therefor
shall be applied as provided In Section 8 hereof.
14. The invalidity or unenforceability of any provision hereof, in whole or in
part, shall not affect the validity or enforceability of the remainder of such
provision or of any other provision or provisions hereof, the provisions hereof
being severable.
15. This Agreement, which shall inure to the benefit of and be binding upon the
respective successors, assigns, heirs and personal representatives, as the case
may be, of each of the parties hereto, shall be governed, construed and
interpreted in all respects in accordance with the laws of the State of
California.
16. No delay or omission on the Company's part in exercising any right, remedy
or option shall operate as a waiver of such or any other right, remedy or option
or of any default. Waiver by the Company of any default hereunder of Distributor
shall not be construed as a waiver of any prior or subsequent default. Action
against any guarantor or surety is not an election or waiver of the right to
proceed against the Distributor. Whenever the pronoun "it" is used in this
Agreement with reference to the Distributor, said pronoun shall mean "his" or
"her", as the case may be, if the Distributor is an individual or sole
proprietorship.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
_______________, 19__.
Address of Distributor X.X. Xxx 0000 Xxxxx Xxxx, XX 00000
26
27
INVENTORY SECURITY AGREEMENT
Western Traction Company a (sole proprietorship) (partnership) (corporation) of
the State of ("Distributor") having a place(s) of business at: 0000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, as debtor, and LBX COMPANY LLC (the
"Company"), as secured party, hereby agree as follows:
1. Definitions. As used herein:
(a) All terms defined in Articles 1 or 9 of the Nevada Uniform Commercial Code
shall have the meanings given therein unless otherwise defined herein:
(b) The term "Property" shall mean Distributor's entire inventory of products,
parts and all other items (including all additions or accessions thereto and
substitutions therefor), heretofore or which may hereafter be acquired by
Distributor from the Company and the purchase price of which shall not have been
paid in full, and any items taken in trade for any of the foregoing;
(c) The term "Collateral" shall mean and include all of the following, whether
now owned or hereafter created or acquired by Distributor: (i) all Property,
(ii) all accounts, chattel paper, instruments, documents, contract rights,
general intangibles and leases arising, in whole or in part, from the sale or
lease of any Property, including without limitation any and all reversionary
rights to Property under any of foregoing, and (iii) all proceeds of, accessions
to and products of any of the foregoing in whatever form, including without
limitation cash, checks, drafts and other instruments for the payment of money,
chattel paper, trade-ins, security agreements and other documents; and
(d) The term "Obligations" shall mean and include any and all of Distributor's
indebtedness and/or liabilities to the Company of every kind, nature and
description, direct or indirect, secured or unsecured, joint or several,
absolute or contingent, due or to become due, now existing or hereafter arising,
regardless of how they arise or by what agreement or instrument they may be
evidenced or whether evidenced by any agreement or instrument, including but not
limited to all amounts owing by Distributor to the Company by reason of
purchases made by Distributor from the Company or any affiliate thereof, and all
obligations to perform acts or refrain from taking action.
2. To secure the payment and performance of all of the Obligations, Distributor
hereby pledges and assigns to the Company and grants to the Company a continuing
general security interest in all of Distributor's Collateral and all of
Distributor's ledger sheets, files, records and documents relating to the
Collateral which shall, until delivered to or removed by the Company, be kept by
the Distributor in trust for the Company and without cost to the Company in
appropriate containers and safe places, bearing suitable legends disclosing the
Company's interest. With respect to any chattel paper or lease comprising a
portion of the Collateral, immediately upon formation of same Distributor agrees
to place a legend on the face thereof disclosing the Company's interest therein.
Upon the request of the Company, Distributor shall assign and deliver physical
possession of any such chattel paper or lease to the Company.
27
28
3. Except as otherwise specifically authorized in any other written agreement
between the Distributor and the Company, the Distributor shall not use, sell,
lease, assign, pledge, hypothecate, factor or otherwise dispose of any
Collateral or create a security interest therein, or otherwise encumber any of
the Collateral or suffer to exist any lien, charge, or encumbrance on any of the
Collateral except for any security interest granted to the Company. Upon any
sale or lease of any Collateral the Distributor shall (unless otherwise
specifically authorized in any written agreement between the parties hereto,)
pay to the Company the full amount of any indebtedness owing to the Company for
the items sold or leased.
4. The acceptance of a note or notes and renewals thereof for the whole or any
part of any Obligation, or the institution of legal action or the recovery of a
judgment for the whole or any part thereof or on any note given therefor, shall
not constitute payment of any such Obligation nor shall it in any way divest the
Company, or be deemed a waiver, of any part of the security interest granted
thereby.
5. The following shall constitute events of default ("default") by Distributor:
(i) Default by Distributor in the payment or performance of any Obligation; (ii)
Failure by Distributor upon request to turn over proceeds or provide information
in accordance with any of the provisions hereof; (iii) Distributor in violation
of Section 3 shall sell, lease, or dispose of any Collateral or allow any lien,
charge or encumbrance to be created or remain thereon; (iv) Distributor (or any
member of the Distributor's firm if a partnership) shall become insolvent, make
an assignment for the benefit of creditors, institute or have instituted against
it proceedings under any bankruptcy or insolvency law, or Distributor's stock in
trade or any part thereof shall become levied upon or attached; (v) Distributor
shall make any misrepresentation, orally or in writing, to the Company for the
purpose of obtaining credit or an extension of credit; (vi) Distributor shall
breach any representation, warranty, covenant or agreement herein contained or
contained in any other agreement or arrangement now or hereafter entered into,
to which Distributor and the Company are parties; or (vii) any change in
Distributor's condition or affairs (financial or otherwise) or of any endorser,
guarantor or surety for any of the Obligations, including but not limited to any
dispute, disagreement or controversy between or among principals, partners,
managers, officers or stockholders of Distributor, any change in the ownership
or management of Distributor, or any personal conduct of Distributor or of a
partner, officer or key employee of Distributor, or the revocation or
discontinuation of any such guaranty, that in the Company's sole opinion impairs
its security or increases its risk.
6. Upon the occurrence of any default and at any time thereafter (such default
not having been previously cured), the Company shall have, in addition to all
other rights and remedies at law or in equity, the right to:
(a) Declare immediately due and payable all Obligations and collect the same
together with all costs of collection, including but not limited to court costs
and reasonable attorneys' fees paid or incurred by the Company in enforcing its
rights hereunder:
(b) Discontinue or withhold the delivery of any and all Property to the
Distributor, or make further deliveries only on a cash or C.O.D. basis; and
28
29
(c) Take possession of any or all Collateral.
Distributor hereby waives notice of any acceleration hereunder of any maturity
of any Obligation and, except for the notice required pursuant to Section 7(a)
hereof, waives any and all other notices of any action taken or which may be
taken by the Company hereunder.
7. If the Company elects to take possession of any Collateral, it shall have the
right, to full extent and in addition to any other rights allowed by law, to
enter upon any premises occupied by or under the control of Distributor for that
purpose. Distributor shall, when requested to do so by the Company, gather at
its principal place of business, or at any other place designated by the
Company, any and all Collateral which is not already located there. After taking
possession, the Company shall have, in addition to all other rights and remedies
at law or in equity the right to:
(a) Sell all or any part of the Collateral at one or more public and/or private
sales on written notice. Such notice shall be deemed to be reasonable notice of
such sale if mailed, postage prepaid, or delivered to the Distributor at the
address shown herein at least 5 days before such sale; or
(b) Determine, in its sole discretion, which rights, security, liens, security
interests or remedies it shall at any time pursue, relinquish, subordinate,
modify or take any other action with respect to, without in any way modifying or
affecting any of them or any of its rights hereunder. Any monies, deposits,
receivables, balances or other property of Distributor (including any
Collateral) which may come into the Company's hands at any time or in any
manner, may be retained by the Company and applied to any of the Obligations.
Distributor hereby waives any right it may have to require or request the
Company to proceed against any Collateral or to proceed against any other
security the Company may hold, and hereby waives any right it may have to
require or request the Company to pursue any other remedy for the benefit of
Distributor and agrees that the Company may proceed against Distributor for the
full amount of any liability or Obligation of Distributor to the company without
taking any action against any other party and without selling or otherwise
proceeding against or applying any security the Company may hold, including but
not limited to the Collateral.
8. The proceeds of sales of any Collateral pursuant to Section 7 shall be
applied first to all costs of collection, including but not limited to Court
costs and reasonable attorneys' fees paid or incurred by the Company in
enforcing its rights hereunder, and then to the satisfaction of any and all
Obligations. Any proceeds then remaining will be paid over to the Distributor as
provided by law, and the Distributor shall be liable for any deficiencies.
9. Without suggesting that any other procedures may not also be commercially
reasonable, or that any of the following procedures are mandatory in any
particular case, it is agreed that the following are all commercially reasonable
methods of disposing of any Collateral should the Company decide to follow one
or more of them as to all or any part of the Collateral:
29
30
(a) Private sale of complete machines (equivalent to new or unused machines of
current production) and all attachments thereto to another dealer or dealers at
current dealer prices in effect at the time of such disposition;
(b) Sale of any Property by units or in one or more parcels at private sale at
the best price submitted in sealed bids taken from three or more dealers,
provided that in the Company's sole discretion such best bid represents a
reasonable price;
(c) Sale of parts and attachments in good condition for which there is a ready
market to dealers through the Company's regular parts distribution facilities at
prices and terms prevailing at the time of such disposition. The Company may
commingle such parts with its regular inventory of parts and account for the
sale of any parts constituting a portion of the Collateral upon the assumption
that such parts are the first parts sold after such commingling. The Company's
expenses of reinventorying and merchandising returned and repossessed parts
(exclusive of costs incurred in sorting the parts for listing, loading them at
Distributor's place of business, and of transportation expense from
Distributor's place of business to the Company's parts distribution facility)
are in excess of 10% of the invoice price, and it is agreed that a 10% charge
for such services may be made without further itemization or analysis of such
expenses: and
(d) Public sale at auction of all Collateral or any portion thereof not disposed
of by some other method.
10. The Distributor shall keep accurate books and records of account in
accordance with generally accepted accounting principals applied on a consistent
basis, including stock, sales and lease records of machines and repair parts. At
the end of Distributor's fiscal year, and at such other times as the Company may
request, Distributor shall furnish the Company with full and complete financial
and operating statements in a form acceptable to the Company. Distributor shall
also furnish the Company, at any time upon request, full information regarding
all Collateral, including but not limited to inventory on hand, inventory sold
or leased, the proceeds thereof, and any agreements affecting such inventory.
11. The Distributor shall:
(a) Properly store all Collateral in its possession and protect the same from
injury or damage of any kind;
(b) Continuously keep all Collateral insured with all-risk type coverage
satisfactory to the Company and with insurers satisfactory to the Company, in an
amount equal to the invoice price thereof. Such insurance may be issued in the
name of Distributor who may retain possession of the policies, but each policy
shall be in form satisfactory to the Company with loss payable to the Company as
its interest may appear and shall provide for 10 days minimum written
cancellation notice to the Company. Distributor shall immediately furnish the
Company with a certificate of insurance issued by the insurer on each policy;
30
31
(c) keep all Collateral free and clear of all liens, charges and encumbrances
however arising, except for any security interest granted to the Company;
(d) Simultaneously with the execution and delivery of this Agreement, provide
the Company with a written list of the addresses of all locations where any
Collateral is now located, any probable location where any of the Collateral may
be moved to or used by any lessee thereof, and Distributor agrees that
immediately upon any change in the location of any of the Collateral it will
notify the Company in writing setting forth the description of the Collateral so
moved and the address of its new location;
(e) From time to time do whatever the Company may request by way of obtaining,
executing, delivery and/or filing financing statements, landlord's or
mortgagee's waivers, and other notices, and amendments and renewals thereof, and
Distributor shall take any and all steps and observe such formalities as the
Company may request, in order to create and maintain a valid first lien upon,
pledge of and/or paramount security interest in, any and all of the Collateral.
The Company is authorized to file financing statements without Distributor's
signature as specified by the Uniform Commercial Code to perfect or maintain the
Company's security interest in all of the Collateral. All charges, expenses and
fees which the Company may incur in filing any of the foregoing and any local
taxes relating thereto, may be charged to the Distributor's account and added to
the obligations; and
(f) Pay promptly on demand therefor, any and all costs and expenses of
collection, including court costs and reasonable attorney's fees, paid or
incurred by the Company in enforcing any of the Company's rights hereunder or
effectuating collection of any of the Obligations.
If Distributor shall fail to insure or to pay the fees, taxes, assessments or
charges as required herein or by the Distributor Agreement (including any
amendments thereto) between the parties hereto, or shall allow any lien, charge
or encumbrance to attach to any of the Collateral, the Company, without
obligation to do so, may obtain such insurance, pay such fees, taxes,
assessments or charges, or discharge such lien, charge or encumbrance and
Distributor shall reimburse the Company promptly for all monies so paid out and
shall pay the Company interest thereon at the highest lawful contract rate under
applicable law. The amounts so paid by the Company shall be deemed conclusive as
to the amounts properly payable, and such amounts shall be secured hereunder.
12. Distributor shall at any time upon request immediately deliver to the
Company all proceeds of Property which are in its possession in the form of
customer's notes (for the purpose of this Section 12 and of Section 13 hereof
"notes" shall include without limitation instruments, documents, chattel paper
and leases) together with appropriate endorsement and/or assignment thereof to
the Company, and will provide the Company with information concerning proceeds
in the form of customer's accounts (for purpose of this Section 12 and of
Section 13 hereof "accounts" shall include without limitation all contract
rights) sufficient to enable the Company to collect such accounts directly and
the Company may collect such notes and accounts directly.
31
32
13. The provisions of the Section 13 and all references herein to "notes" and
"accounts" shall apply to any notes and accounts, respectively, delivered to,
pledged with or as to which information is furnished to the Company, pursuant to
Section 12 hereof.
At any time regardless of whether Distributor is in default, the Company is
authorized to reduce open accounts to notes, to renew or extend time of payment
of any note or account or any securities securing the same, any such renewal to
be in its own or Distributor's name as the Company may elect, to take, waive,
release or exchange any security therefor, to make such compromise or settlement
therefor as it deems advisable in its sole discretion, and to take such steps
for the enforcement, collection, securing, renewing, extending or compromising
of any note or account, or any part thereof, or any security therefor, as it
deems advisable in its sole discretion. Any proceeds realized from the
collection or enforcement of said notes and accounts or any security therefor
shall be applied as provided In Section 8 hereof.
14. The invalidity or unenforceability of any provision hereof, in whole or in
part, shall not affect the validity or enforceability of the remainder of such
provision or of any other provision or provisions hereof, the provisions hereof
being severable.
15. This Agreement, which shall inure to the benefit of and be binding upon the
respective successors, assigns, heirs and personal representatives, as the case
may be, of each of the parties hereto, shall be governed, construed and
interpreted in all respects in accordance with the laws of the State of Nevada.
16. No delay or omission on the Company's part in exercising any right, remedy
or option shall operate as a waiver of such or any other right, remedy or option
or of any default. Waiver by the Company of any default hereunder of Distributor
shall not be construed as a waiver of any prior or subsequent default. Action
against any guarantor or surety is not an election or waiver of the right to
proceed against the Distributor. Whenever the pronoun "it" is used in this
Agreement with reference to the Distributor, said pronoun shall mean "his" or
"her", as the case may be, if the Distributor is an individual or sole
proprietorship.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
___________, 19__.
Address of Distributor: 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000
32
