EXHIBIT 10.17
▇▇▇▇ DEERE CONSTRUCTION
EQUIPMENT COMPANY
SPECIAL PRODUCTS
DEALER AGREEMENT
▇▇▇▇ DEERE
CONSTRUCTION EQUIPMENT COMPANY
SPECIAL PRODUCTS
DEALER AGREEMENT
The Dealer identified below hereby applies to JDCEC for appointment as an
authorized dealer for certain JDCEC special products for the area of
responsibility designated in Exhibit 1. The relationship between Dealer and
JDCEC will be governed by the Terms of Appointment set forth in this Agreement.
This Agreement shall be effective upon execution by JDCEC.
Dealer (Firm Name): ___________________________________________________________
Address: _____________________________________________________________________
__ Corporation __ Partnership
__ C __ General
__ S __ Limited
__ Limited Liability Company __ Proprietorship
__ Other: ____________________________________
By: __________________________________________
Title: _______________________________________
(Authorized officer, owner, or partner)
Date: _____________________
Signatures of Other Partners, Owners, or Shareholders:
____________________________________ ____________________________________
____________________________________ ____________________________________
____________________________________ ____________________________________
Signatures of Guarantors:
____________________________________ ____________________________________
____________________________________ ____________________________________
____________________________________ ____________________________________
Accepted:
▇▇▇▇ Deere Construction Equipment Company
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: ________________________________________
Title: _____________________________________
Date: _____________________
DEFINED TERMS
For purposes of this Agreement, the following terms shall be defined as follows:
Agreement This agreement.
Conditions of Sale JDCEC's published U.S. Special Products
Dealer Conditions of Sale, as in effect from
time to time.
Customer Satisfaction The extent to which Dealer fulfills the
needs and expectations of customers in
Dealer's Special Products AOR. JDCEC will
specify the method used to measure Customer
Satisfaction in bulletins issued from time
to time to Special Products Dealers.
Dealer The dealer identified in this Agreement.
Dealer's Special Products AOR The area of responsibility assigned to
Dealer under this Agreement.
Dispute Any dispute, controversy, or claim between
Dealer or any of Dealer's owners, partners,
shareholders, or guarantors and JDCEC, Deere
Credit, Inc., or ERS, whether based on
contract, tort, statute, or other legal
theory.
Equity The Dealer's equity to assets percentage,
determined by JDCEC based on the Terms
Schedule.
Equity Performance Standard The equity to assets percentage Performance
Standard specified by JDCEC in bulletins
issued from time to time to Special Products
Dealers.
ERS Equipment Remarketing Services, a division
of Deere Marketing Services, Inc.
Goods Whole Goods and Parts, as well as those JDM
products that JDCEC may offer for sale to
Dealer.
JDCEC ▇▇▇▇ Deere Construction Equipment Company.
JDCEC Warranties The JDCEC warranties applicable to the sale
or to the lease or rental of various types
of Goods.
JDCEC's Affiliates Deere & Company, its divisions, and its
subsidiaries, whether direct or indirect.
JDM ▇▇▇▇ Deere Merchandise.
▇▇▇▇ Deere Network The network of computers, communications
equipment, computer networking equipment,
computer software, application software, and
data used by JDCEC for the purpose of
gathering and communicating information and
conducting business.
Key Persons The persons and entities listed in
Exhibit 4.
Manual JDCEC's published Special Products Service
Administration Manual, as in effect from
time to time.
Market Share The market penetration achieved for Goods,
or a subset thereof, in Dealer's Special
Products AOR during a specified time period.
JDCEC will specify the method used to
measure Market Share in bulletins issued
from time to time to Special Products
Dealers.
Defined Terms/1
Meaningful Progress A level of performance for each Performance
Criterion for the period covered by the
Dealer's annual JDCEC-approved business
plan, which shall be as agreed upon between
Dealer and JDCEC each year. If in any year
Dealer and JDCEC do not reach agreement upon
Meaningful Progress with respect to a
particular Performance Criterion, JDCEC will
determine in its sole discretion what will
constitute Meaningful Progress for that
Performance Criterion for the year.
Minimum Equity Level The minimum equity to assets percentage
level specified by JDCEC in bulletins issued
from time to time to Special Products
Dealers.
Parts (1) the products indicated by a check ▇▇▇▇
in Section B of Exhibit 2 and (2)
attachments and parts available from JDCEC
for the Whole Goods.
Performance Criteria Market Share, Customer Satisfaction, and
Equity, as well as other criteria specified
by JDCEC in bulletins issued from time to
time to Special Products Dealers.
Performance Standard A level of performance (for a particular
Performance Criterion) specified by JDCEC in
bulletins issued from time to time to
Special Products Dealers.
Service Information System JDCEC's Service Information (or successor)
System.
Special Products Products distributed by JDCEC and designated
by JDCEC as "Special Products."
Special Products AOR An area of responsibility assigned by JDCEC
to a Special Products Dealer.
Special Products Dealer An authorized dealer of one or more Special
Products pursuant to a Special Products
Dealer Agreement with JDCEC.
Terms Schedule JDCEC's published U.S. Special Products
Dealer Terms Schedule, as in effect from
time to time.
Trademarks Those trademarks owned by JDCEC or any of
JDCEC's Affiliates.
Used Goods Whole Goods that do not have JDCEC Standard
Warranty remaining.
Whole Goods (1) the products indicated by a check ▇▇▇▇
in Section A of Exhibit 2, (2) their
predecessors, and (3) their JDCEC-designated
successors or added by addendum signed by
Dealer and an authorized person from JDCEC
Defined Terms/2
TERMS OF APPOINTMENT
1. PROVISIONS OF APPOINTMENT
During the period of Dealer's appointment hereunder, the following
provisions shall apply:
a) Dealer's Special Products AOR
i) Dealer is assigned Dealer's Special Products AOR for the
purpose of marketing, servicing, and supporting Goods.
Dealer's Special Products AOR is not an exclusive territory.
JDCEC and others may market, service, and support Goods in
Dealer's Special Products AOR. Without limiting the foregoing,
JDCEC may sell, loan, lease, or rent Goods, without
restriction or limitation, to any person or entity, including
without limitation:
a) federal, state, and local governments;
b) accounts classified by JDCEC as direct or national
accounts;
c) purchasers for export;
d) educational institutions;
e) competitors of JDCEC;
f) equipment manufacturers; and
g) employees of JDCEC.
ii) JDCEC may assign all or any portion of Dealer's Special
Products AOR to other persons or entities for the purpose of
marketing, servicing, and supporting products other than
Goods, including without limitation products listed but not
included by a check ▇▇▇▇ in Exhibit 2. Such an assignment may
include Parts and JDM products.
iii) Dealer will concentrate its efforts in Dealer's Special
Products AOR.
iv) JDCEC shall have no obligation to support, through its
programs or other forms of dealer support, activities of
Dealer outside Dealer's Special Products AOR, and JDCEC may
exclude activities of Dealer outside Dealer's Special Products
AOR from JDCEC's programs and other forms of dealer support.
v) Whenever a sale, lease, or rental of Whole Goods by Dealer is
subject to JDCEC's service fee policy, as in effect from time
to time, Dealer will pay a service fee in accordance with the
terms of JDCEC's service fee bulletin in effect when the sale,
lease, or rental occurs.
b) Locations; Other Product Lines
i) Dealer will maintain dealership operations at each location
listed in Exhibit 3 for the purposes specified in Exhibit 3.
Dealer will not open any new location, relocate or discontinue
a location, or change the purposes of a location without
obtaining JDCEC's prior written approval. Dealer will not,
either directly or indirectly, establish, maintain, or operate
at any other location a place of business of any kind where
(or from which) any Goods are displayed, sold, leased, rented,
or serviced.
ii) Dealer will not sell, lease, or rent parts or whole goods that
compete with any of the Goods. Dealer will separate, in a
manner acceptable to JDCEC, other business activities and/or
products from Dealer's JDCEC dealership operations if, in
JDCEC's sole discretion, such activities and/or product lines
are likely to detract from Dealer's representation of JDCEC's
products.
Terms of Appointment/1
iii) To ensure compliance with this Section 1.b.,Dealer will permit
JDCEC to inspect during normal business hours, all locations
of Dealer engaged in the sale, lese, rental, or servicing of
equipment or vehicles (or parts for equipment or vehicles), or
in a related business.
c) Dealer's Business Plans and Promotional Efforts; Achievement of
Meaningful Progress and the Performance Standards
i) Each year, by the date specified by JDCEC, Dealer will secure
JDCEC's approval of a business plan containing:
a) an objective for each Performance Criterion that
represents Meaningful Progress for the Performance
Criterion;
b) action plans designed to achieve the Performance
Criteria objectives specified in the plan;
c) with respect to particular types of Goods, such other
elements as JDCEC may request generally of Special
Products Dealers authorized by JDCEC to market such
Goods; and
d) such other elements as JDCEC may request generally of
Special Products Dealers.
e) Dealer may base its business plan on the calendar year
or on its fiscal year.
ii) Dealer will actively and aggressively promote the sale, lease,
and rental of Goods. Dealer's compliance with this commitment
will be evaluated based on performance in Dealer's Special
Products AOR and not on performance outside Dealer's Special
Products AOR.
Dealer will maintain:
a) highly qualified management, sales, parts, and service
personnel;
b) sales, parts, service, and personnel development
programs;
c) inventories of Whole Goods and related attachments
available for demonstration, sale, lease, and rental;
d) inventories of Parts, service equipment, field service
vehicles, and tools; and
e) facilities
that in each case are sufficient to achieve the
Performance Criteria objectives contained in Dealer's
JDCEC-approved business plans and, within a reasonable
period of time, performance at or above the Performance
Standards.
iii) Dealer will achieve Meaningful Progress with respect to each
Performance Criterion in each fiscal or calendar year
(whichever is used as the basis for Dealer's JDCEC-approved
business plans). Dealer's compliance with this commitment will
be evaluated based on performance in Dealer's Special Products
AOR and not on performance outside Dealer's Special Products
AOR.
d) Preparation of Goods, Warranty, and Post-Delivery Service
i) The Manual and/or bulletins issued from time to time by JDCEC
designate the JDCEC Warranties. Dealer will follow
instructions contained in the Manual and JDCEC's bulletins and
will complete with true and accurate information the retail
purchase orders, delivery receipts, lease agreements, and
other forms specified therein. Dealer will be solely
responsible for any warranties given by Dealer that exceed the
applicable JDCEC Warranty, if any, and for any liability where
Dealer has failed to use the forms prescribed by JDCEC as
specified by JDCEC.
ii) To ensure proper operation of Goods, Dealer will properly
assemble and prepare all Goods sold, leased, or rented by
Dealer and will perform such inspections, adjustments, and
service prior to delivery to users as are required in the
Manual. Dealer will instruct users in the proper use and
maintenance of Goods and will furnish each user with the
appropriate operator's manuals furnished by JDCEC. Dealer will
perform post-delivery inspections and adjustments prescribed
for Goods in the Manual
Terms of Appointment/2
iii) Dealer is authorized to and will perform prompt and effective
warranty service on Goods in Dealer's Special Products AOR for
which JDCEC becomes obligated pursuant to a JDCEC Warranty,
including without limitation Goods not sold, leased, or rented
by Dealer, if presented with proper evidence that the Goods
are entitled to warranty service under a JDCEC Warranty.
Dealer will perform prompt and effective non-warranty service
on Goods in Dealer's Special Products AOR, including without
limitation Goods not sold, leased, or rented by Dealer.
iv) Dealer will perform product improvement programs that JDCEC
may from time to time require for Goods in Dealer's Special
Products AOR, including without limitation Goods not sold,
leased, or rented by Dealer. Dealer will complete such
programs expeditiously and within the time frame specified by
JDCEC.
v) Should any Goods sold, leased, or rented by Dealer require
warranty service, non-warranty service, or product improvement
at a time when such Goods are not within the Special Products
AOR of a Special Products Dealer authorized by JDCEC to market
such Goods, Dealer is authorized to and will perform the
required service or product improvement.
vi) Dealer will perform warranty service and product improvement
programs in the manner and for the compensation specified in
the Manual in effect at the time the service or program is
performed. Dealer will notify JDCEC of all warranty and
product improvement program claims in accordance with the
Manual.
e) Sales to Re-sellers
Dealer will not sell Goods to any person or entity that re-sells or
intends to re-sell such Goods, provided, however, that this Section
1.e. shall not prevent Dealer from:
i) selling Parts to a person or entity in Dealer's Special
Products AOR that uses such Parts in providing repair or
maintenance services in Dealer's Special Products AOR for
products owned by others;
ii) selling Used Goods to a person or entity engaged in the
business of selling used equipment;
iii) selling Goods to ERS;
iv) selling Goods to a Special Products Dealer authorized by JDCEC
to market such Goods; or
v) selling Goods to a person or entity that is primarily engaged
in the business of renting equipment to end-users.
f) Equity
Dealer will maintain its Equity at a level sufficient to achieve
Dealer's commitments under this Agreement, which shall be not less
than the Minimum Equity Level.
g) JDCEC's Acceptance of Orders
JDCEC will accept orders placed by Dealer for Goods in JDCEC's
then-current product line, provided the Goods will be shipped during
the period of Dealer's appointment hereunder. JDCEC shall have no
liability for delay, failure, or refusal to accept Dealer's orders
or to ship Goods to Dealer if the delay, failure, or refusal results
from:
i) capacity constraints, demand in excess of available supply,
labor strikes or lockouts;
ii) a default under a security agreement between Dealer and JDCEC;
iii) termination of Dealer's appointment;
iv) any cause beyond JDCEC's control; or
v) JDCEC's determination, in its sole discretion, that
a) Dealer's financial condition does not justify the
extension of additional credit or the addition of
inventory
Terms of Appointment/3
b) Limitations in Dealer's market potential, marketing
capabilities, or product support capabilities for the
particular Goods involved are likely to lead to customer
dissatisfaction with the Goods or excessive warranty
expense.
c) Dealer has consistently failed to perform its obligation
under this Agreement; or
d) Dealer has failed to make timely submission of
legitimate forecasts of Dealer's anticipated inventory
needs and retail sales when requested by JDCEC.
All orders, sales, and shipments will be governed by the Conditions
of Sale in effect at the time the order is placed.
h) Availability of JDCEC Programs
i) With respect to particular types of Goods, JDCEC will make
available to Dealer finance plans, lease plans, floor plans,
and parts return programs (and other similar financing or
inventory management plans or programs) comparable to such
plans and programs that JDCEC makes available generally to
Special Products Dealers authorized by JDCEC to market such
Goods. Such plans and programs may contain conditions for
eligibility and are subject to credit approval. Such plans and
programs also may have varying terms depending on certain
dealer financial or performance criteria or market conditions.
ii) JDCEC may make available to any Special Products Dealer
marketing programs that JDCEC deems necessary to compete in
the Special Products AOR assigned to that Special Products
Dealer without obligating JDCEC to make similar programs
available to any other Special Products Dealer or to Special
Products Dealers generally.
i) Changes in Dealer Ownership or Business Structure
i) No change in the ownership or business structure of Dealer or
any Key Person will occur unless JDCEC has given prior written
approval of such change.
ii) Dealer will execute such agreements and documents as JDCEC may
deem necessary to preserve JDCEC's rights under this Agreement
or any other agreement between Dealer and JDCEC in light of a
change or proposed change in Dealer's ownership, management,
or business structure.
iii) If Dealer wishes to sell its business or substantially all of
the assets of its business (excluding Dealer's Special
Products Dealer appointment and this Agreement, which are not
transferable by Dealer), Dealer will notify JDCEC before the
beginning of any discussions or negotiations pertaining to the
proposed sale. JDCEC retains at all times the right to decide,
in its sole discretion, whether to appoint any third party as
a Special Products Dealer for Dealer's Special Products AOR,
for any portion thereof, or for any other area.
For purposes of this Agreement, a change in business structure shall
include, without limitation, a change in the legal form of Dealer
(e.g. from partnership to corporation); a change in the legal form
of any Key Person or of any entity that holds, directly or
indirectly, a 10% or greater ownership interest in Dealer; a merger
or consolidation involving Dealer; the creation of a subsidiary,
partnership, or other legal entity by Dealer; and any other change
that may affect any right or obligation under this Agreement or any
other agreement between Dealer and JDCEC.
j) Financial Statements
Dealer will submit to JDCEC's Finance Department offices in Moline,
Illinois, annual financial statements for Dealer within 100 days
after Dealer's fiscal year-end. Such financial statements shall have
been prepared in accordance with generally accepted accounting
principles and shall be in a form aproved by JDCEC, which approval
shall not be unreasonably withheld. Dealer also will provide such
other financial data of Dealer as JDCEC may from time to time
request.
Terms of Appointment/4
2. TERMINATION OF DEALER'S APPOINTMENT
a) Termination by Mutual Consent
Dealer's appointment may be terminated by the mutual consent of
Dealer and JDCEC, evidenced by a writing signed by Dealer and JDCEC,
with the effective date of such termination to be as mutually agreed
upon in writing.
b) Termination by Dealer
Dealer may terminate its appointment for any reason upon at least
180 days' prior written notice to JDCEC.
c) Termination by JDCEC
i) JDCEC may terminate Dealer's appointment, upon 180 days' prior
written notice to Dealer, in the event:
a) Dealer fails to achieve Meaningful Progress with respect
to a Performance Criterion in any fiscal or calendar
year (whichever is used as the basis for Dealer's
JDCEC-approved business plans); or
b) Dealer fails to comply with any material provision of
this Agreement.
JDCEC may exercise its termination right under this
Section 2.c.i. with respect to all or any portion of
Dealer's Special Products AOR, as JDCEC may determine in
its sole discretion.
JDCEC may exercise its termination right under this
Section 2.c.i. without regard to the performance of
other Special Products Dealers or to the circumstances
under which JDCEC has terminated or refrained from
terminating the appointment of other Special Products
Dealers.
ii) JDCEC may terminate Dealer's appointment, upon at least 120
days' prior written Notice to Dealer, if JDCEC determines that
Dealer's Equity is less than the Minimum Equity Level. JDCEC
will give Dealer written notice of termination under this
Section 2.c.ii. within 45 days after the financial statements
on which JDCEC's determination is based are received at
JDCEC's Finance Department offices in Moline, Illinois.
iii) JDCEC may terminate Dealer's appointment for any reason upon
at least 360 days' prior written notice to Dealer.
iv) JDCEC may terminate Dealer's appointment, effective
immediately, by giving written notice of termination to Dealer
at any time after the happening of any of the following:
a) the death, incapacity, or dissolution of any Key Person;
b) a default under any security agreement between Dealer
and JDCEC;
c) any noncompliance with Section 1.b., Section 1.c.i.,
Section 1.i.i., or Section 1.j.;
d) Dealer defrauds anyone, including without limitation
JDCEC, or misrepresents any material fact in any
communication with or submission to JDCEC;
e) the cancellation, discontinuance, or revocation of a
guaranty or letter of credit applicable to Dealer
indebtedness, or a failure to provide, or modify the
amount of, a guaranty or letter of credit when and as
requested by JDCEC or Deere Credit, Inc.;
f) Dealer substantially closes the dealership business;
g) Dealer intentionally fails to comply with any applicable
federal, state, or local law, regulation, or ordinance
relating to the operation of the dealership; or
Terms of Appointment/5
h) Dealer attempts to assign its rights or obligations
under this Agreement. Dealer's appointment hereunder
shall terminate automatically upon, and effective with,
the termination of any other dealership appointment with
JDCEC or any of JDCEC's Affiliates.
3. EFFECT OF TERMINATION OF APPOINTMENT
Termination of Dealer's appointment hereunder means that the obligations
and duties of the parties under Section 1 no longer apply, and that JDCEC
may decline to fill accepted orders placed before such termination. Orders
from Dealer that JDCEC contemplates will be shipped after the effective
date of termination may be accepted in JDCEC's sole discretion. Such
orders will be subject to the Conditions of Sale in effect at the time the
order is placed or to such other conditions that JDCEC may prescribe.
Submission or acceptance of orders and shipment or acceptance of Goods
does not have the effect of renewing or reinstating the obligations of
Section 1 and shall not be construed as an extension or renewal of
Dealer's appointment or as a rescission of any notice of termination. If
Dealer's appointment is terminated, neither Dealer nor JDCEC shall be
entitled to any compensation or reimbursement for loss of prospective
profits, anticipated sales, or other losses occasioned by the termination,
except as provided in this Agreement.
4. REPURCHASE OF GOODS ON TERMINATION
Upon termination of Dealer's appointment, JDCEC will buy and Dealer will
sell (or, with respect to JDM products, may sell subject to Section 4.c.),
free and clear of all liens and encumbrances, the following Goods in
Dealer's possession, provided they were originally purchased by Dealer
from JDCEC and are listed in JDCEC's published price list in effect on the
effective date of termination of Dealer's appointment, according to the
following terms:
a) All unsold current Whole Goods and attachments that are new, unused,
complete, and in good condition. Prices to be paid for such items
will be the invoice prices (but not more than current Special
Products Dealer prices) plus freight from the factory to Dealer's
location, less any discounts from invoice price that have been
allowed, and less any reduction in value that may be required due to
deterioration.
b) All unsold current Parts that are new, unused, complete, in good
condition, and re-salable as new without repackaging or
reconditioning. Prices to be paid for such Parts will be JDCEC's
then-current wholesale price, as listed in JDCEC's wholesale price
list for such Parts in effect on the effective date of termination,
less a discount of:
i) 15% on items listed as returnable under JDCEC's then-current
parts return policy; and
ii) 50% on all other items.
c) Such unsold current JDM products that Dealer may elect to sell to
JDCEC and that are new, unused, complete, in good condition, and
re-salable as new without repackaging or reconditioning. JDCEC shall
have no obligation to repurchase such products unless Dealer
furnishes JDCEC with a list of the products that it wishes to sell
to JDCEC within thirty days after the effective date of the
termination of Dealer's appointment. Price to be paid for such
products will be the then-current wholesale price, as listed in the
JDM Price List in effect on the effective date of termination, less
a discount of:
i) 50% on products indentified by an asterisk in the JDM Price
List;
ii) 15% on items listed as returnable under JDCEC's then-current
parts return policy; and
iii) 25% on all other JDM products.
At the written request of JDCEC, Dealer will, at Dealer's expense, list,
tag, pack, load, and transport all repurchased Goods to the nearest
location regularly maintained by JDCEC for the storage of such Goods (or
to such closer location as may be designated by JDCEC) or pay for the cost
of transportation to such location. The risk of loss shall be on Dealer
until the vehicle transporting such Goods reaches the designated
destination.
Terms of Appointment/6
Should Dealer fail to fulfill the above obligation within 60 days after
JDCEC has requested that it do so, JDCEC or its designee may enter
Dealer's premises, perform these duties, and charge Dealer's account for
any expenses incurred in so doing.
Amounts payable to Dealer under this Section 4 will not be paid until
Dealer has complied with all applicable laws governing bulk transfers of
inventory.
JDCEC shall be relieved of its obligations under this Section 4 if a
default occurs or has occurred under any security agreement between Dealer
and JDCEC, and JDCEC elects to exercise its rights under such security
agreement to take possession of the Goods.
JDCEC shall be relieved of its obligations under this Section 4 if Dealer
has defrauded JDCEC or if Dealer misrepresents a material fact pertaining
to the repurchase of Goods in any communication with or submission to
JDCEC.
5. RESOLUTION OF DISPUTES
Although Dealer and JDCEC are entering into this Agreement in a spirit of
cooperation and mutual respect, it is possible that Disputes may arise.
Dealer, Dealer's owners, partners, shareholders, and guarantors, JDCEC,
Deere Credit, Inc., and ERS agree that any Dispute shall be finally
resolved by binding arbitration pursuant to the terms set forth in Exhibit
5. The duty to arbitrate shall extend to any officer, employee,
shareholder, principal, agent, partner, trustee (in bankruptcy or
otherwise), or subsidiary of Dealer as to any Dispute that is subject to
this Section 5.
6. COMPUTER SYSTEM
a) During the period of Dealer's appointment, Dealer will, at Dealer's
expense:
i) install and maintain in good working order a computerized
business system that is compatible with, and in communication
with, the ▇▇▇▇ Deere Network;
ii) maintain the hardware and software necessary to supply
electronically to JDCEC (a) product delivery and warranty
claim information in accordance with the Service Information
System; and (b) such other information as JDCEC may from time
to time request Dealer to submit electronically;
iii) conform to any modifications made to the ▇▇▇▇ Deere Network
(provided JDCEC gives Dealer at least 60 days' prior notice of
the modification);
iv) input into the ▇▇▇▇ Deere Network, in accordance with JDCEC's
instructions, such information as JDCEC may from time to time
request, and furnish such computer files and reports as JDCEC
may from time to time request; and
v) pay all costs associated with Dealer's use of the ▇▇▇▇ Deere
Network, as well as all costs incurred in obtaining and
maintaining Dealer's computerized business system and in
communicating with the ▇▇▇▇ Deere Network.
b) Dealer will keep confidential any information contained in the ▇▇▇▇
Deere Network and not use such information for purposes unrelated to
Dealer's dealership appointment hereunder.
c) JDCEC shall not be liable for any losses incurred by Dealer in
connection with Dealer's computerized business system or the ▇▇▇▇
Deere Network.
Terms of Appointment/7
7. AMENDMENT OF AGREEMENT
This Agreement cannot be altered or amended, or any of its provisions
waived, on behalf of JDCEC except in a writing signed by a duly authorized
officer of JDCEC. Dealer and JDCEC recognize that this Agreement does not
have an expiration date. Because market and business practices and
conditions are likely to change with the passage of time and such changes
or other circumstances could necessitate a change in this Agreement, JDCEC
may amend these Terms of Appointment at any time, without the consent of
Dealer, if the same amendment is made to the Terms of Appointment of all
other Special Products Dealers whose dealer agreements are in the form of
this Agreement and may be amended in this manner pursuant to applicable
law. Any such amendment shall be made by issuance by JDCEC of a bulletin
or other written notice to such Special Products Dealers and shall be
effective on the date specified in the bulletin or other written notice,
which date shall be at least 120 days following the date of such bulletin
or other written notice.
8. USE OF TRADEMARKS, NAMES, AND SIGNS
JDCEC grants Dealer the non-exclusive right to use the Trademarks, during
the period of Dealer's appointment, in connection with the advertising and
sale of Goods bearing one or more of the Trademarks, and in connection
with the providing of services by Dealer relating to the sale or servicing
of Goods identified by the Trademarks. Such use of the Trademarks shall be
in a manner and form approved by JDCEC. Dealer agrees not to use any of
the Trademarks as part of Dealer's corporate or business name and to cease
all use of the Trademarks if Dealer ceases to be a Special Products
Dealer, including without limitation the removal from Dealer's premises
and vehicles of all signs and distinctive identification that might
associate Dealer with JDCEC. Dealer also agrees not to sell or distribute
any goods bearing any of the Trademarks, unless the goods originated from
or were distributed by JDCEC, JDCEC's Affiliates, or licensees authorized
to use the Trademarks on the goods. Dealer also agrees not to use the
Trademarks to promote goods not originating from or distributed by JDCEC,
JDCEC's Affiliates, or their licensees.
9. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of JDCEC and, to the extent the terms hereof bind
or benefit Deere Credit, Inc. or ERS, their respective successors and
assigns. Dealer's rights and obligations under this Agreement may not be
assigned or transferred. Any attempt by Dealer to assign its rights or
obligations under this Agreement shall be null and void.
10. CHANGES IN OR DISCONTINUANCE OF GOODS
a) JDCEC may, at any time and without notice, make changes in or
discontinue any Goods without incurring any liability.
b) This Agreement extends only to Goods. JDCEC reserves the right to
offer any other products to selected Special Products Dealers or
others under existing or separate new agreements. As new products,
other than those designated by JDCEC as direct successors of Goods,
are developed, acquired, or marketed by JDCEC, they may or may not
be added to the Goods covered under this Agreement.
11. DEALER GUARANTY
To the extent requested by JDCEC, Key Persons and other partners in, or
owners of, Dealer have executed or concurrently herewith will execute in
favor of JDCEC one or more guaranties of Dealer's indebtedness to JDCEC.
Dealer will obtain, and Key Persons and other partners in, or owners of,
Dealer will execute, such additional guaranties and amendments and
additions to guaranties as JDCEC may from time to time request.
For purposes of this Section 11 and Section 12, JDCEC shall include Deere
Credit, Inc. in addition to ▇▇▇▇ Deere Construction Equipment Company.
Terms of Appointment/8
12. SECURITY IN GOODS
Dealer has executed or concurrently herewith will execute in favor of
JDCEC one or more security agreements covering Dealer's inventory of Goods
and certain other items. Dealer will execute such additional security
agreements and financing statements, and amendments and additions thereto
or to existing instruments, as JDCEC may from time to time request, in
order that JDCEC may have at all times a first lien on Goods and other
collateral securing Dealer's indebtedness to JDCEC.
13. RELATIONSHIP OF THE PARTIES
a) Dealer acknowledges that it is an independent retail merchant which
purchases Goods for resale for the principal benefit of Dealer.
Dealer further acknowledges and agrees that it is an independent
contractor. In performing service work Dealer assumes full
responsibility for such work. Dealer also acknowledges and agrees
that it is not an employee, agent, representative, franchisee,
partner, or joint venturer of or with JDCEC, has not paid and will
not pay a franchise fee to JDCEC, and is free to operate its
business in accordance with its independent business judgment,
provided that such operation is in accordance with this Agreement
and any other agreement between Dealer and JDCEC. Dealer has no
authority to bind JDCEC by representations, statements, agreements,
conduct, or in any manner whatsoever. JDCEC shall not be liable for
any debts, accounts, obligations, or other liabilities of Dealer,
its agents, employees, or representatives. It is expressly
recognized that no fiduciary relationship exists between the
parties.
b) Except as provided in Sections 5, 9, and 17, this Agreement is not
enforceable by any third party and is not intended to benefit, or
convey any rights to, anyone other than Dealer and JDCEC.
c) Dealer obtains no rights by virtue of this Agreement or its
dealership appointment to acquire additional dealerships or to
obtain additional dealership appointments or area of responsibility
assignments from JDCEC.
14. USE OF PRICE LISTS, CATALOGS, AND MANUALS
The Manual and any bulletins, price lists, catalogs, and service manual
pages furnished to Dealer by JDCEC must be kept in good condition and
returned to JDCEC upon termination of Dealer's appointment. If such items
have been purchased by Dealer, JDCEC will repurchase them for the price
paid. Dealer will not disclose, directly or indirectly, the contents of
such Manual, bulletins, price lists, catalogs, and service manual pages to
a person or entity that is a competitor of JDCEC or of a Special Products
Dealer.
15. ADVERTISING MATERIAL; MAILING LISTS
During the period of Dealer's appointment:
a) with respect to particular types of Goods, JDCEC will furnish to
Dealer promotional materials and printed advertising matter that
JDCEC prepares for use by other Special Products Dealers in
connection with the sale, lease, rental, or servicing of such Goods
and that JDCEC deems appropriate for Dealer's Special Products AOR;
and
b) Dealer will create, maintain, and keep current a list of the names
and addresses of all purchasers and prospective purchasers of Goods
in Dealer's Special Products AOR, provide JDCEC with the current
list, and promptly notify JDCEC of all changes to the list.
The list contemplated by Section 15.b. shall be the sole property of
JDCEC. JDCEC may use the list at any time for any purpose it deems
appropriate, provided, however, that JDCEC will advise Dealer in advance
of any use it makes of the list (other than for the purpose of sending
Dealer's direct mail solicitations to
Terms of Appointment/9
purchasers and prospective purchasers on the list) during the period of
Dealer's appointment. Dealer will reimburse JDCEC for handling and postage
expenses for all direct mailings made at Dealer's request to prospective
purchasers in Dealer's Special Products AOR.
16. NO WAIVER
The failure of JDCEC to take any action or require full and strict
compliance with any provision of this Agreement or any provision of any
agreement with other Special Products Dealers shall not affect JDCEC's
right to take any action or require full and strict compliance at any time
prior or subsequent thereto and shall not constitute a waiver of a breach
of the provision or nullify the effectiveness of such provision.
17. LIMITATION ON DAMAGES; JURY WAIVER; TIME TO INITIATE PROCEEDINGS
a) No party to a Dispute shall be entitled to an award of multiple,
punitive, or exemplary damages, or any damages excluded by, or in
excess of any damage limitation expressed in, this Agreement.
b) Dealer, Dealer's owners, partners, shareholders, and guarantors,
JDCEC, Deere Credit, Inc., and ERS each hereby knowingly,
voluntarily, and intentionally waive any right he, she, or it may
have to a trial by jury in respect of any litigation pertaining to
any Dispute, and each agrees not to request a jury in any such
litigation.
c) No party to a Dispute may commence litigation or arbitration
proceedings with respect to such Dispute more than one year after
that party's cause of action accrues.
18. NOTICES
In addition to other available means of giving notice, notices required or
permitted under this Agreement (including without limitation notices in
connection with any arbitration under Section 5) may be given to the
person indicated on Exhibit 6, by personal delivery or by certified U.S.
mail, Federal Express or other reputable overnight delivery service, or
facsimile to the address or facsimile number indicated on Exhibit 6.
Notices given by personal delivery shall be deemed given when delivered.
Notices given by certified U.S. mail, reputable overnight delivery
service, or facsimile shall be deemed given when sent.
19. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the
substantive laws of the State of Illinois without regard to Illinois'
conflict of laws rules.
20. SEVERABILITY
Any provision of this Agreement or portion thereof that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability
without invalidating the remainder of the provision or the remaining
provisions of this Agreement and without affecting the validity or
enforceability of such provision in any other jurisdiction. Any provision
herein found to be prohibited or unenforceable in a jurisdiction shall, by
agreement of the parties hereto, be replaced for such jurisdiction by a
provision that ensures that the economic and/or business objectives of the
prohibited or unenforceable provision are preserved insofar as it is
possible to do so under the applicable law in such jurisdiction.
Terms of Appointment/10
21. PAYMENTS ON TERMINATION
If Dealer's appointment hereunder is terminated, all indebtedness of
Dealer to JDCEC which does not become due prior to the effective date of
the termination will be due and payable as of the effective date of the
termination. JDCEC may pay any sums owing to Dealer on termination
(including without limitation any sums owing to Dealer for repurchased
Goods) in cash or by giving Dealer credit to be applied to any
indebtedness then owed by Dealer to JDCEC or to any of JDCEC's Affiliates,
regardless of whether such indebtedness is then due and payable.
22. SURVIVAL
The termination of Dealer's appointment shall not affect any rights or
obligations that have accrued hereunder as of the effective date of such
termination. Such termination also shall not affect any rights or
obligations, except those expressly limited to the period of Dealer's
appointment, under Sections 3, 4, 5, 6.b., 6.c., 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22, and 23, which rights and obligations,
except those expressly limited to the period of Dealer's appointment,
shall survive termination of Dealer's appointment.
23. ENTIRE AGREEMENT
This Agreement is and shall be deemed to be the complete and final
expression of the agreement between the parties as to the subject matters
contained herein. This Agreement supersedes all previous dealer agreements
and representations between the parties made with respect to the Dealer's
appointment hereunder as a Special Product Dealer. It is acknowledged and
agreed by Dealer and JDCEC that no promise or representation not contained
herein (including without limitation Exhibit 7) was an inducement to
either party or was relied on by either party in entering into this
Agreement. Any prior or contemporaneous promises, agreements, or
representations, whether oral, written, or created through custom, usage,
or course of dealing, except for those listed on Exhibit 7, are also
superseded by this Agreement. Dealer understands that, except as provided
in Section 7, no agent or employee of JDCEC has authority to vary or add
to the provisions of this Agreement, or to make any representation
altering or going beyond the terms of this Agreement.
Terms of Appointment/11
EXHIBIT 1
DEALER'S SPECIAL PRODUCTS AOR
Dealer's Special Products AOR shall consist of the following counties:
State of ________
Counties:
Exhibits/1
EXHIBIT 2
A. WHOLE GOODS
[ ] Deere brand ADT models [ ] ▇▇▇▇ brand ADT models
[ ] Compact Excavators
B. PARTS
[ ] Engine Parts for Whole Goods and for competitive products
[ ] Filters for Whole Goods and for competitive products
[ ] Oil
[ ] Remanufactured Components for Whole Goods and for competitive products
Exhibits/2
EXHIBIT 3
LOCATIONS
Address Purpose
------- -------
[ ] Whole Goods Sales
------------------------------------------------
[ ] Service of Goods
[ ] Parts Sales
[ ] Other ___________________
[ ] Whole Goods Sales
------------------------------------------------
[ ] Service of Goods
[ ] Parts Sales
[ ] Other ___________________
[ ] Whole Goods Sales
------------------------------------------------
[ ] Service of Goods
[ ] Parts Sales
[ ] Other ___________________
[ ] Whole Goods Sales
------------------------------------------------
[ ] Service of Goods
[ ] Parts Sales
[ ] Other ___________________
[ ] Whole Goods Sales
------------------------------------------------
[ ] Service of Goods
[ ] Parts Sales
[ ] Other ___________________
Exhibits/3
EXHIBIT 4
KEY PERSONS
Name Ownership Interest Relationship to Dealer / Role in Dealer's Affairs
---- ------------------ -------------------------------------------------
Exhibits/4
EXHIBIT 5
DISPUTE RESOLUTION
1. If the parties to a Dispute agree, the Dispute will be submitted to
non-binding mediation.
2. If the parties to a Dispute do not agree to mediation of the Dispute, or
if mediation does not resolve the Dispute, the Dispute shall be finally
resolved by binding arbitration in accordance with the arbitration rules
of JAMS/Endispute, as amended by this Exhibit. The party seeking
arbitration shall submit a written notice of arbitration to the other
party and to JAMS/Endispute. The arbitration shall be held at such
location as required by applicable law or, if no location is required by
applicable law, at Chicago, Illinois or such other city as the parties to
the Dispute may agree in writing. The arbitration shall be held before a
panel of three arbitrators each of whom is affiliated with JAMS/Endispute
and is part of the pool of arbitrators selected by JAMS/Endispute as
available to arbitrate Disputes. Each arbitrator in the pool shall:
a) be a current or former practicing attorney or former judge;
b) have at least fifteen years experience in litigation, arbitration,
and/or mediation of commercial disputes;
c) have prior experience as an arbitrator (through award) of at least
three manufacturer/dealer or franchisor/franchisee disputes; and
d) be recommended as a commercial arbitrator by at least two major
manufacturers or franchisors and at least two dealers or
franchisees.
The arbitration panel shall consist of one arbitrator from the pool
designated by Dealer, one arbitrator from the pool designated by JDCEC,
and a third arbitrator from the pool designated by the two other
arbitrators, which person shall be the Chairperson of the arbitration
panel. A decision and award joined by at least two members of the
arbitration panel shall constitute the award and shall be binding on the
parties. The arbitration panel shall provide written reasons for their
decision and award, which shall be final and binding and may be entered by
any court having jurisdiction thereof.
3. Except as provided herein, any action or decision joined by two
arbitrators from the arbitration panel shall constitute the action of the
arbitration panel. The arbitration panel may consider and grant
dispositive motions, including without limitation motions to dismiss or
for summary judgment. In order to prevent irreparable harm, the
arbitration panel may consider and grant requests for temporary or
permanent injunctive relief or other equitable relief.
4. Unless contrary to applicable law, this Agreement shall be interpreted in
accordance with and the arbitration panel shall apply and be bound to
follow the substantive laws of the State of Illinois. Where there is a
conflict between the terms of this Agreement and the laws of the State of
Illinois, the terms of this Agreement shall control.
5. Each party shall bear its costs associated with the arbitration, including
its attorneys' fees, and the parties shall share equally the fees and
expenses of JAMS/Endispute and the arbitrators, provided, however, that if
court proceedings to stay litigation, compel arbitration, or enforce the
award are necessary, the party who unsuccessfully opposes such proceedings
shall pay all associated costs, expenses, and attorneys' fees that are
reasonably incurred by the other party.
6. The Chairperson of the arbitration panel shall decide all matters relating
to discovery as well as all procedural or non-dispositive matters that
shall come before the arbitration panel. Subject to privileges recognized
under applicable law, the Chairperson shall require such discovery as is
necessary for the parties to be adequately prepared for the arbitration.
Discovery may include the exchange of documents, depositions,
interrogatories, and the exchange of exhibits, expert reports, and witness
lists.
Exhibits/5
7. The parties, witnesses, and arbitrators shall not disclose the contents or
results of the arbitration without the prior written consent of all
parties to the Dispute, except to the extent necessary to enforce the
award or as necessary for financial and tax reporting purposes.
8. Notwithstanding anything to the contrary in this Exhibit 5 or section 5,
in the event of an alleged violation of a party's intellectual property
rights, that party may seek temporary injunctive relief from any court of
competent jurisdiction pending appointment of the arbitration panel. The
party requesting such relief shall also promptly file a notice of
arbitration and a request that the arbitration panel provide temporary
relief. Such actions shall not constitute a waiver of the party's rights
or a breach of the party's obligations under this Exhibit 5 and Section 5.
Any temporary injunctive relief entered by a court shall continue in
effect only until the arbitration panel has issued a decision on temporary
relief.
9. Notwithstanding anything to the contrary in this Exhibit 5 or section 5,
JDCEC and Deere Credit, Inc. may seek judicial remedies, such as (but not
limited to) attachment, replevin, and garnishment, deemed necessary by
JDCEC or Deere Credit, Inc. in its sole discretion for the enforcement of
JDCEC's or Deere Credit, Inc's rights regarding any security for
indebtedness of Dealer , and such action by JDCEC or Deere Credit, Inc.
shall not constitute a waiver of JDCEC's or Deere Credit, Inc's rights or
a breach of JDCEC's or Deere Credit, Inc.'s obligations under this Exhibit
5 and Section 5.
Exhibits/6
EXHIBIT 6
NOTICES
To Dealer or its owners, partners, shareholders, or guarantors:
--------------------------------------
--------------------------------------
--------------------------------------
facsimile:
----------------------------
To JDCEC, Deere Credit, Inc., or ERS:
--------------------------------------
--------------------------------------
--------------------------------------
facsimile:
----------------------------
Dealer or JDCEC may amend the addressee, address, or facsimile number indicated
for its group on this Exhibit 6 by giving written notice of such amendment to
the other party, provided, however, that no more than one addressee, address,
and facsimile number may be indicated at any given time.
Exhibits/7
EXHIBIT 7
PROMISES AND REPRESENTATIONS
Dealer and JDCEC agree that the following are the only promises, agreements, or
representations, oral, written, or created through custom, usage, or course of
dealing, not contained elsewhere in this Agreement and that were an inducement
to or relied upon by any party hereto in entering into this Agreement or that
were made prior to or contemporaneous with this Agreement and are not superseded
by this Agreement:
--------------------------------------------------------------------------------
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____ No promises, agreements or representations
------------------------------ --------------------------------------
Dealer Signature JDCEC Signature
Exhibits/8