AGREEMENT
This Agreement (the "Agreement"), is entered into as of April 29, 1998
among Xxxx Deere Construction Equipment Company (formerly known as Xxxx Deere
Industrial Equipment Company), a corporation organized under the laws of the
State of Delaware with its principal place of business in Moline, Illinois
("Deere"); Xxxx Machinery, Inc., a corporation organized under the laws of the
State of Florida with its principal place of business in Miami, Florida
(formerly known as The Mas Group, Inc. d/b/a/ Xxxx Machinery) ("Xxxx
Machinery"); Xxxx Corp., a corporation organized under the laws of the State of
Delaware with its principal place of business in Miami, Florida ("Xxxx"); Xxxxx
X. Mas, Jr., Xxxx Xxxxxx Mas and Xxxx Xxxxx Mas, all residents of the State of
Florida and shareholders of Xxxx (the "Mas shareholders"); Xxxxx Xxxxxxxxxx, a
resident of the State of Florida and a shareholder of Xxxx ("Xxxxxxxxxx");
Xxxxxx Fund I, LP, a Texas limited partnership owned by the Mas shareholders and
Xxxxx Xxxxxxxxxx with its principal place of business in Florida ("Xxxxxx"); and
Xxxxxx Capital Advisors, Inc., a Florida corporation owned by the Mas
shareholders and Xxxxx Xxxxxxxxxx with its principal place of business in
Florida ("Xxxxxx Capital") (collectively "the parties").
DEFINITIONS
1. "Affiliate" means with respect to any Person, (i) each other Person
that, directly or indirectly, owns or controls, whether beneficially or, as a
trustee, guardian or other fiduciary, ten percent (10%) or more of the Stock
having ordinary voting power in the election of directors of such Person, (ii)
each other Person that directly or indirectly controls, is controlled by or is
under common control with such Person or any Affiliate of such Person, (iii)
each of such Person's officers, directors, joint ventures and partners and (iv)
the spouse, each sibling and each lineal descendant and ascendant of any such
specified Person or any Affiliate of such specified Person. For purposes of this
definition, "control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise. This definition is distinguished from "Affiliate" as that term is
used in connection with Deere's New Dealer Agreement and defined in Recital 8
below as a "Xxxx Affiliate."
2. "Common Stock" or "Xxxx Common Stock" means all classes of the
common stock of Xxxx.
3. "Deere Competitor" means any Person who, directly or through an
Affiliate, manufactures, sells or distributes forestry, industrial, construction
or utility equipment, generally comparable to one or more models of equipment
manufactured or sold, or proposed to be manufactured or sold, now or in the
future, by Deere, either as whole goods or parts thereof, including any dealer
or distributor of such equipment or parts at any level of distribution.
4. "GE Affiliate" means General Electric Capital Corporation ("GE
Capital") and any Affiliate of GE Capital.
5. "Person" means any individual, sole proprietorship, partnership
(including a limited partnership), joint venture, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
limited liability company, joint stock company, entity or government (whether
federal, state, county, municipal or otherwise, including, without limitation,
any instrumentality, division, agency, body or department thereof) or any other
business entity.
6. "Stock" means all shares, options, warrants, general or limited
partnership interests, participations or other equivalents (regardless of how
designated) of or in a Person, whether voting or nonvoting, including, without
limitation, common stock, preferred stock, or any other "equity security" (as
such term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, and any succeeding law), including, without
limitation, any securities with profit participation features, and any rights,
warrants, options or other securities convertible into or exercisable or
exchangeable for any such shares, equity or profits, interests, participations
or other equivalents, or such other securities, directly or indirectly (or any
equivalent ownership interests, in the case of a Person which is not a
corporation).
RECITALS
1. Deere and Xxxx Machinery executed construction and utility equipment
dealer agreements in 1989 and executed revised agreements in 1994 ("Dealer
Agreements").
2. The Mas shareholders, who had been the sole shareholders of Xxxx
Machinery since 1994, and Xxxx, a new company owning all of the stock of Xxxx
Machinery, entered into certain agreements in December 1995 with GE Capital,
whereby, among other things, GE Capital provided financing to Xxxx, purchased
preferred stock of Xxxx ("Series A"); and acquired a warrant allowing it to
purchase 26,667 shares of Common Stock of Xxxx. Among other rights, the Series A
preferred stock allows GE Capital to elect one of the seven members of Xxxx'x
board of directors and to veto any merger, sale of the company or other change
in control.
3. In March 1996, Deere, Xxxx Machinery, Xxxx and the Mas shareholders
executed an agreement addressing, among other things, the change in ownership in
Xxxx Machinery, the creation of Xxxx and GE Capital's ownership interest in
Xxxx, and granting Deere termination rights in addition to those in the Dealer
Agreements in the event of certain further changes in the ownership of Xxxx
("March 1996 Agreement").
4. In December 1996, the Mas shareholders, Xxxx, XX Capital and GECFS,
Inc. ("GECFS") (which had acquired the warrant from GE Capital and purchased
Xxxx'x Common Stock), entered into certain additional agreements involving,
among other things, a refinancing and increased financing of Xxxx; issuance of
two additional classes of Xxxx preferred stock, respectively, to GECFS ("Series
B") (in exchange for the Xxxx Common Stock) and to GE Capital ("Series C") (for
cash); and a grant of a control option to GE Capital allowing it to acquire
shares of issued and outstanding Common Stock sufficient to increase its
ownership to fifty-one percent (51 %) of the Common Stock commencing on July 1,
1998.
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5. Among other rights, Series B and Series C of Xxxx'x preferred stock
owned by GE Capital and GECFS allow those companies to convert their stock to
forty percent (40%) of issued and outstanding Common Stock and elect one
additional member of the Xxxx board of directors.
6. Deere considers the December 1996 agreements to constitute a change
in the ownership in Xxxx giving rise to a right, under the terms of the March
1996 Agreement, of Deere to terminate Xxxx Machinery's dealership appointments.
7. Contemporaneously with this Agreement, Deere has entered into a new
dealer agreement with Xxxx Machinery ("New Dealer Agreement").
8. The New Dealer Agreement defines an affiliate of Xxxx Machinery
("Xxxx Affiliate"). By this definition, GE Capital and GECFS are Xxxx
Affiliates. Under the New Dealer Agreement, Xxxx Affiliates, among other things,
cannot sell, lease or rent parts or whole goods that compete with Deere's
products.
9. Because of the nature of their financing and investment business, GE
Capital and GECFS are unwilling to accede to the above-mentioned restriction
applicable to a Xxxx Affiliate under the New Dealer Agreement because either
company may, through default on a loan, investment opportunity or otherwise,
become an owner or part-owner of an entity that Deere would consider to be a
competitor.
10. On or before June 30, 1998, subject to market conditions, Xxxx
intends to complete an underwritten initial public offering of Common Stock
registered under the Securities Act of 1933 (as amended) ("IPO"), in an amount
of approximately twenty-five to thirty-three percent (25%-33%) of its Common
Stock issued and outstanding after the IPO, which will further change the
ownership of the company.
11. To resolve certain issues under the Dealer Agreements relating to
GE Capital's interest in Neff, Neff, the Mas shareholders, Xxxxxxxxxx, XX
Capital and GECFS are taking steps to reduce the interest of GE Capital and
GECFS in Xxxx. Specifically, they have entered into agreements (the
"Disinvestment Agreements") whereby:
a. GE Capital and GECFS exchanged the Series B and C
Xxxx preferred stock for Class B Common Stock
representing forty percent (40%) of issued and
outstanding Common Stock of Xxxx;
x. Xxxxxx then purchased shares of Class B Common Stock
from GE Capital and GECFS representing six percent
(6%) of the issued and outstanding Common Stock of
Xxxx;
c. The Mas shareholders, Xxxx and GE Capital entered
into a Control Option Agreement dated March 25, 1998
granting GE Capital and any GE Affiliate the right to
acquire shares of Xxxx Common Stock sufficient to
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increase their ownership to fifty-one percent (51 %)
of the issued and outstanding Common Stock commencing
on July 1, 1998 ("Control Option Agreement");
x. Xxxx and GE Capital (on behalf of GE Affiliates)
entered into a Standstill Agreement dated April 29,
1998 ("Standstill Agreement"), attached hereto as
Attachment 2, whereby the GE Affiliates have agreed
that, in addition to the obligations accepted by GE
Capital and GECFS as recited above, in the eighteen
months following the date of this Agreement, the GE
Affiliates shall make no attempt to enlarge their
rights or interests in Xxxx and, after that eighteen
month period, the GE Affiliates shall (i) through
their direct or indirect combined ownership of Xxxx
Common Stock directly or indirectly own no more than
twenty percent (20%) of the issued and outstanding
Common Stock, (ii) appoint no directors to Xxxx'x
board of directors, provided however, that if the GE
Affiliates sell fifteen percent (15%) or more of Xxxx
Common Stock issued and outstanding to a Person who
is neither a GE Affiliate, nor a Deere Competitor,
Xxxx may provide that such Person shall have the
right to appoint a director to Xxxx'x board of
directors, (iii) provide no financing to Xxxx, (iv)
have no rights, vested or contingent, to exercise any
control over Xxxx, and (v) make no attempt to
exercise control over Xxxx directly or indirectly,
either alone or in conjunction with other
shareholders.
e. GE Capital and GECFS have granted Xxxxxx Capital an
option to purchase, by September 25, 1999, ten
percent (10%) (before dilution by the IPO) of Xxxx'x
issued and outstanding Common Stock from GE Capital
and GECFS (the "Xxxxxx Capital Option");
f. Prior to completion of the IPO, Xxxx will replace its
existing credit facility with GE Capital with a
credit facility with financial institutions unrelated
to GE Capital so that GE Capital and GE Affiliates
will no longer be lenders or creditors of Xxxx
pursuant to an amended credit agreement ("Credit
Agreement");
g. Subject to market conditions, Xxxx intends to
complete an IPO of approximately twenty-five to
thirty-three percent (25%-33%) of its issued and
outstanding Common Stock on or before June 30, 1998;
h. Concurrently with the IPO, the Control Option
Agreement will be terminated, eliminating GE
Capital's and any GE Affiliate's right to acquire
shares of Xxxx Common Stock sufficient to increase
its ownership to fifty-one percent (51%) of the
issued and outstanding Common Stock;
i. Prior to the completion of the IPO, Xxxx will
implement a shareholder rights plan, a draft of which
is attached hereto as Attachment 1, which will
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provide, among other things, that if, after September
25, 1999, any combination of GE Affiliates either
directly or indirectly increases their direct or
indirect combined ownership of Xxxx Common Stock to
an amount in excess of twenty percent (20%) of the
issued and outstanding Common Stock, and such excess
ownership is not divested by the GE Affiliates as
provided in the rights plan, then the "flip-in"
rights provided for in section 11 of the rights plan
will be triggered allowing Xxxx shareholders other
than GE Affiliates to acquire additional stock, and
the GE Affiliates' interest in Xxxx will be
significantly diluted ("Xxxx Shareholder Rights
Plan");
j. Immediately after the date of the IPO, GE Capital
will sell its Series A Xxxx preferred stock to Xxxx;
k. Promptly following the IPO, representatives of GE
Capital and GECFS on the board of directors of Xxxx
will resign their positions on Xxxx'x board of
directors and GE Capital, GECFS and GE Affiliates
will no longer have any rights to appoint such
representatives to the board of directors of Xxxx;
and
l. After the IPO, GE Capital and GECFS, by September 25,
1999, will sell an amount of Xxxx Common Stock to
Xxxxxx Capital (pursuant to the Xxxxxx Capital
Option) or to another buyer (who will be a Xxxx
Affiliate under the New Dealer Agreement if it has
ten percent (10%) or more of the issued and
outstanding Common Stock of Xxxx), so that the direct
and indirect combined ownership of GE Capital, GECFS
and all other GE Affiliates in the Common Stock of
Xxxx will be reduced to no more than twenty percent
(20%) of the total issued and outstanding Common
Stock of Xxxx after dilution by the IPO.
13. The parties have resolved their concerns regarding ownership and
future potential competition and have contemporaneously entered into the New
Dealer Agreement, all on the terms and subject to the conditions set forth
herein.
COVENANTS
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, terms and conditions set forth herein, the parties hereby agree as
follows:
1. Xxxx, the Mas shareholders and Xxxxxxxxxx covenant that they will
take the steps as provided in the Disinvestment Agreements, the Xxxx Shareholder
Rights Plan and the Standstill Agreement, including the IPO, so that, within the
time periods provided in the recitals above, GE Affiliates will, directly and
indirectly:
a. own no Xxxx preferred stock;
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b. together own no more than twenty percent (20%) of the
total issued and outstanding Xxxx Common Stock after
dilution by the IPO;
c. have no representative on Xxxx'x board of directors;
d. not be lenders or creditors of Xxxx (except in
connection with trade accounts payable arising in the
ordinary course of business upon the sale of goods or
services to Xxxx);
e. have no rights under the Control Option Agreement;
and
f. together not enlarge their ownership, control or
other rights in Xxxx.
2. Xxxx, the Mas shareholders and Xxxxxxxxxx covenant that, on and
after the date of this Agreement, Xxxx (i) will not issue or sell Stock (other
than shares of Class A Common Stock issuable upon conversion of Class B Common
Stock) to GE Affiliates, (ii) will not take any steps to revise the attached
draft of the Xxxx Shareholder Rights Plan except as may be required by good
business judgment, (iii) will cause the Xxxx Shareholder Rights Plan to be
approved and executed before the completion of the IPO (Xxxx to provide Deere
with a copy of the final executed plan within fifteen business days of the date
of this Agreement), (iv) will not take any steps to amend the Xxxx Shareholder
Rights Plan to provide that GE Affiliates would not trigger the flip-in rights
if they were to increase their direct and indirect combined ownership of issued
and outstanding Xxxx Common Stock to an amount in excess of twenty-five percent
(25%) from the date of the IPO to September 25, 1999 and to an amount in excess
of twenty percent (20%) on and after September 25, 1999, (v) otherwise will take
no action to permit such an increase in ownership to proceed in a manner that
would not trigger the flip-in rights under the Xxxx Shareholder Rights Plan and
(vi) will not take any steps to amend the Standstill Agreement.
3. The Mas shareholders and Xxxxxxxxxx covenant that, unless the GE
Affiliates take action to reduce their ownership in Xxxx to twenty percent (20%)
or less of the issued and outstanding Xxxx Common Stock by September 25, 1999
(the "Option Exercise Deadline"), Xxxxxx Capital will exercise the Xxxxxx
Capital Option on or before the Option Exercise Deadline. If, for any reason,
Xxxxxx Capital is unable to exercise the Xxxxxx Capital Option, the Mas
shareholders and Xxxxxxxxxx further covenant that they shall take whatever steps
are necessary to reduce the GE Affiliates' ownership position in Xxxx to twenty
percent (20%) or less on or before the Option Exercise Deadline.
4. Xxxx, the Mas shareholders and Xxxxxxxxxx covenant that, upon
completion of the steps as provided in the Disinvestment Agreements:
a. GE Affiliates, with the exception of ownership of
Xxxx Common Stock allowed under those agreements,
will not, directly or indirectly, have any Stock,
control options, ownership, equity or financial
interest in Xxxx, or any right, conditional or
unconditional, to acquire the same;
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b. GE Affiliates will not, directly or indirectly, have
the power to appoint a director or directors to the
board of directors of Xxxx, or any right, conditional
or unconditional, to acquire the same, provided
however, that if the GE Affiliates sell fifteen
percent (15%) or more of Xxxx Common Stock issued and
outstanding to a Person who is neither a GE
Affiliate, nor a Deere Competitor, Xxxx may provide
that such Person shall have the right to appoint a
director to Xxxx'x board of directors;
c. GE Affiliates will not, directly or indirectly, be a
lender or creditor of Xxxx, or have any right,
conditional or unconditional, to become a lender or
creditor of Xxxx (except in connection with trade
accounts payable arising in the ordinary course of
business upon the sale of goods or services to Xxxx);
and
d. GE Affiliates will not, directly or indirectly, have
any management agreements, super-majority rights or
other power, influence or control over the management
or operation of Xxxx, or any right, conditional or
unconditional, to acquire the same.
5. Xxxx, the Mas shareholders and Xxxxxxxxxx covenant that, on and
after completion of the steps as provided in the Disinvestment Agreements, they
will take no action to allow or permit, and will take all steps necessary to
prohibit and prevent, GE Affiliates from, directly or indirectly:
a. together acquiring more than twenty percent (20%) of
the issued and outstanding Common Stock of Xxxx;
b. acquiring any other Stock of Xxxx;
c. acquiring any control option for Xxxx Stock;
d. acquiring any other equity or financial interest in
Xxxx;
e. appointing a director to Xxxx'x board of directors;
f. acquiring any super-majority rights in Xxxx;
g. providing a credit facility or otherwise lending
money to Xxxx;
h. entering into a management agreement with Xxxx;
i. entering into any other agreement or relationship
with Xxxx that has the potential for the exercise of
any power or influence to control the management or
operation of Xxxx; and
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j. otherwise exercising any power, influence or control
over the management or operation of Xxxx.
6. Xxxx, the Mas shareholders and Xxxxxxxxxx covenant that, they will
take all steps necessary (i) to enforce the Xxxx Shareholder Rights Plan and the
Standstill Agreement, (ii) to require the GE Affiliates to comply with the terms
of the Xxxx Shareholder Rights Plan and the Standstill Agreement, and (iii) to
assure that the GE Affiliates will be solely passive investors in Xxxx and will
remain solely passive investors for the duration of their present investment and
any future investment in Xxxx.
7. Deere will waive and not enforce Section 1.b.ii. of the New Dealer
Agreement with respect to GE Capital and GECFS as Xxxx Affiliates, so long as,
on and after the completion of the steps as provided in the Disinvestment
Agreements, GE Affiliates (i) do not together own more than twenty percent (20%)
of the total issued and outstanding Xxxx Common Stock after dilution by the IPO
and (ii) continue to be without the ownership, power and rights identified in
Covenant 4 of this Agreement. Except as may otherwise be agreed by Deere in
writing, Deere reserves the right to (a) enforce all other provisions of the New
Dealer Agreement with respect to GE Capital and GECFS and (b) enforce all
provisions of the New Dealer Agreement with respect to Xxxx Machinery and all
other Xxxx Affiliates.
8. Should Xxxx, Xxxx Machinery, the Mas shareholders or Xxxxxxxxxx
breach any covenant of Sections 1-6 and 13-14 of the Covenants of this
Agreement, should Xxxx fall to make the IPO as provided herein, should Xxxx
approve and execute the Xxxx Shareholder Rights Plan containing terms that Deere
determines, in its sole discretion, are not acceptable, without regard to
whether such terms may be consistent with good business judgment, or should any
GE Affiliate breach the Standstill Agreement, Deere shall have the right to
terminate any or all of Xxxx Machinery's dealership appointments then existing,
effective immediately.
9. Notwithstanding Section 1.i.i. of the New Dealer Agreement, Xxxx
may, without further approval by Deere, conduct the IPO, provided, however, that
Xxxx will execute an Indemnification Agreement, in the form attached hereto as
Attachment 3 ("Indemnification Agreement"), before proceeding with the IPO.
10. When Xxxx makes its IPO, the provisions of Sections 10 and 11 of
the Covenants of this Agreement shall apply, from and after the IPO, in lieu of
Xxxx Machinery's covenant, under Section 1.i.i. of the New Dealer Agreement,
that no change in the ownership of Xxxx will occur unless Deere has given its
prior written approval of such change.
From and after the IPO, none of the following events shall
occur unless Deere has given its prior written approval:
a. The Control Group (Xxxxx X. Mas, Jr., Xxxx Xxxxx Mas,
Xxxx Xxxxxx Mas, and Xxxxx Xxxxxxxxxx and entities
that they wholly own) shall cease to own or control
in excess of thirty percent (30%) of the outstanding
voting
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power of Xxxx (or a successor entity in a transaction
not prohibited by subsection 10(c) or 10(d) hereof);
b. The Control Group shall cease to own Common Stock,
issued and outstanding, representing at least thirty
percent (30%) of Xxxx'x shareholders' equity (or the
shareholders' equity of a successor entity in a
transaction not prohibited by subsection 10(c) or
10(d) hereof);
c. Another corporation or other legal person shall be
merged or consolidated or reorganized into or with
Xxxx, and immediately following such merger,
consolidation or reorganization, the Control Group
shall own, directly or indirectly, in the aggregate,
outstanding securities of the surviving, resulting or
acquiring corporation or other legal person having
less than:
(i) thirty percent (30%) of the voting power of
the surviving, resulting or acquiring
corporation or other legal person; or
(ii) thirty percent (30%) of the shareholders'
equity of such surviving, resulting or
acquiring corporation or other legal person;
x. Xxxx shall sell or transfer all or substantially all
of its business and/or assets to another corporation
or other legal person; or
e. Individuals who are members of the Control Group;
persons whose election, or nomination for election,
by Xxxx'x shareholders as directors of Xxxx was
approved by a vote of at least three-quarters of the
members of the Control Group; and persons whose
election, or nomination for election, was previously
so approved, shall cease for any reason to constitute
at least a majority of Xxxx'x directors then in
office.
11. From and after the IPO, Xxxx will give Deere immediate written
notice whenever Xxxx:
a. becomes aware of the filing with the Securities and
Exchange Commission of any Schedule 13D, 13G or 14D-1
(or amendment thereto) relating to Xxxx, or of facts
indicating that such a filing should have been made;
or
b. is considering the signing of any agreement or letter
of intent (i) with any Person, if such agreement or
letter of intent may involve a change in the
ownership or control of Xxxx, or (ii) with any Deere
Competitor or Affiliate thereof.
12. When Xxxx makes its IPO, the following provisions (subsection (a)
of this Section 12 of the Covenants of this Agreement) shall apply, from and
after the IPO, in lieu of Deere's right, under Section 2.c.iv.c. of the New
Dealer Agreement, to terminate Xxxx Machinery's
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dealership appointment in the event a change occurs
in the ownership of Xxxx without Deere's prior
written approval:
a. In addition to its other rights of termination under
the New Dealer Agreement and this Agreement, Deere
shall have the right to terminate any and all of Xxxx
Machinery's dealership appointments then existing,
effective immediately:
(i) in the event of any noncompliance with
Sections 9-11 of the Covenants above; or
(ii) if any Person, alone or in combination with
that Person's Affiliates, other than the
members of the Control Group, has or
acquires ownership (including without
limitation beneficial ownership, as
determined under SEC rule 13d-3) or control
of more than twenty percent (20%) of the
outstanding shares of any class of Xxxx
stock, or, in the case of GE Affiliates
collectively from the date of the IPO to
September 25, 1999, more than twenty-five
percent (25%) of the outstanding shares of
any class of Xxxx stock and on and after
September 25, 1999, more than twenty percent
(20%) of the outstanding shares of any class
of Xxxx stock, without Deere's prior written
approval.
13. Xxxx and the Mas shareholders covenant that Xxxx, Xxxxxx Fund I,
LP, Xxxxxx Capital Advisors, Inc., Xxxxx X. Mas, Jr. and the chief executive
officer of Xxxx Machinery shall be among those identified as Key Persons in the
New Dealer Agreement, as that term is defined therein.
14. Xxxx and Xxxx Machinery will request and obtain Deere's written
approval before soliciting (directly or indirectly) the interest of any Deere
dealer or entering into any negotiations with any Deere dealer concerning a
possible transaction that would add to the area of responsibility assigned to
Xxxx Machinery under the New Dealer Agreement or constitute a new area of
responsibility for Xxxx Machinery or a Xxxx Affiliate. Deere shall have the
right, in its sole discretion, to reject such a request, to disapprove additions
to Xxxx Machinery's area of responsibility, and to refuse assignment of a new
area of responsibility to Xxxx Machinery, a Xxxx Affiliate, or any other person
or entity.
15. Deere covenants that, within five business days of the full
execution of this Agreement, the Standstill Agreement, the New Dealer Agreement
(including Exhibit 7 thereto and the personal guarantees) and the
Indemnification Agreement, it shall withdraw its demand for arbitration, filed
with the Chicago office of the American Arbitration Association ("AAA"), No. 51
168 00016 98, Xxxx Deere Construction Equipment Co. and Xxxx Machinery, Inc.,
Xxxx Corp., Xxxxx X. Mas, Jr., Xxxx Xxxxxx Mas and Xxxx Xxxxx Mas, stating in a
letter to the AAA that its dispute has been resolved and that its right to
further arbitration under the March 1996 agreement has been terminated by mutual
agreement.
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16. Xxxx covenants that on and after the date of this Agreement, it
will provide to Deere a copy of each amendment, modification or supplement to
the Credit Agreement at the time such amendment, modification or supplement is
made or executed.
17. This Agreement, together with the Attachments hereto, and the New
Dealer Agreement, together with the exhibits thereto, set forth the entire
agreement and understanding between the parties, and supersedes, merges,
terminates and otherwise renders null and void any and all prior written and
oral agreements entered into by some or all of the parties with respect to the
subject matter hereof Each party acknowledges that there are no warranties,
representations, covenants, promises or understandings of any kind, nature or
description whatsoever made by either party to the other, except such as are
expressly set forth in this Agreement together with the Attachments hereto, and
the New Dealer Agreement, together with the exhibits thereto, and further agrees
that they shall not be bound by any definition, condition, provision or
understanding except as expressly set forth herein, together with the
Attachments hereto, and the New Dealer Agreement, together with the exhibits
thereto.
18. This Agreement shall be governed by, and construed in accordance
with, the substantive laws of the State of Illinois without regard to Illinois'
conflict of laws rules.
19. The failure of any party at any time to require performance by the
other party of any provision of this Agreement shall in no way affect the right
of such party to require performance of that provision, and any waiver by either
party of any breach of any provision of this Agreement shall not be construed as
a waiver of any continuing or succeeding breach of such provision, a waiver of
the provision itself, or a waiver of any right under this Agreement. The
remedies herein are cumulative and not exclusive of any remedies provided by
law.
20. The parties to this Agreement agree that any dispute pertaining in
any way to Xxxx, Xxxx Machinery or Xxxx Rental, Inc., whether based on contract,
tort, statute or other legal theory, shall be finally resolved by binding
arbitration pursuant to the terms set forth in Exhibit 5 of the New Dealer
Agreement.
21. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original for all purposes and all of which, when taken
together, shall constitute one and the same Agreement.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective, duly authorized officers or individually, as of
the day and year first above written.
XXXX DEERE CONSTRUCTION EQUIPMENT COMPANY
By: /S/ XXX X. XXXXX
------------------------------------------
Title: DIRECTOR, COMMERCIAL OPERATIONS
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XXXX MACHINERY, INC.
By: /S/ XXXXX X. XXXXXXXXXX
------------------------------------------
Title: PRESIDENT
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XXXX CORP.
By: /S/ XXXXX X. XXXXXXXXXX
------------------------------------------
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
---------------------------------------
XXXXX X. MAS, JR.
/S/ XXXXX MAS
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XXXX XXXXXX MAS
/S/ XXXX XXXXXX MAS
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XXXX XXXXX MAS
/S/ XXXX XXXXX MAS
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XXXXX XXXXXXXXXX
/S/ XXXXX X. XXXXXXXXXX
----------------------------------------------
XXXXXX FUND I, LLP
By: /S/ XXXXX X. XXXXXXXXXX
------------------------------------------
Title:
---------------------------------------
XXXXXX CAPITAL ADVISORS, INC.
By: /S/ XXXXX X. XXXXXXXXXX
------------------------------------------
Title:
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