Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 1 of 24
`
`C/J
`csc
`
`Notice of Service of Process
`
`Primary Contact:
`
`Lisa Schomaker
`AGCO Corporation
`4205 River Green Pkwy
`Duluth, GA 30096-2563
`
`Electronic copy provided to:
`
` Joe Lewinski
` Lynnette Schoenfeld
`
`A3M / ALL
`Transmittal Number: 21971452
`Date Processed: 09/02/2020
`
`Entity:
`
`Entity Served:
`
`Title of Action:
`
`Document(s) Type:
`
`Nature of Action:
`
`Court/Agency:
`
`Case/Reference No:
`
`Jurisdiction Served:
`
`Date Served on CSC:
`
`Answer or Appearance Due:
`
`Originally Served On:
`
`How Served:
`
`Sender Information:
`
`AGCO Corporation
`Entity ID Number 3993163
`AGCO Corp
`Holt Texas, Ltd vs. AGCO Corp
`Citation/Petition
`Violation of State/Federal Act
`Bexar County District Court, TX
`2020CI15823
`Texas
`08/31/2020
`10:00 am Monday next following the expiration of 20 days after service
`CSC
`Personal Service
`G Wade Caldwell
`210-225-1655
`
`Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does not
`constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action.
`
`To avoid potential delay, please do not send your response to CSC
`251 Little Falls Drive, Wilmington, Delaware 19808-1674 (888) 690-2882 | sop@cscglobal.com
`
`EXHIBIT A
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 2 of 24
`PRIVATE PROCESS
`
`Case Number: 2020-Cl-15823
`
`HOLT TEXAS LTD
`vs.·.
`AGCO CORP
`(Note:Attached Document May Contain Additional Litigants.)
`
`CITATION
`
`2820CI15823 S00801
`
`IN THE DISTRICT COURT
`225th JUDICIAL DISTRICT
`BEXAR COUNTY, TEXAS .
`
`"THE STATE OF TEXAS"
`Directed To:
`
`These documents ,deli'(,red by:
`p_.~ck,A Dennis PSC-13727 2'28/2022
`AGCO CORP
`f-:J/ - ~C)::?_c}
`BY SERVING ITS REGISTERED AGENT CORPORATION SERVICE COMPAN()n
`/ : c>cJ
`@
`DBA CSC-LAWYERS INCORPORATING SERVICE COMPANY
`
`"You have been sued. You may employ an attorney, If you or your attorney do not file a written answer with the clerk who issued this
`citation by 10:00 a.m. on the Monday next following the expiration of twenty days after you were served this CITATION and ORIGINAL
`PETITION AND MOTION FOR REFERRAL TO PRIVATE ARBITRATION PURSUANT TO CONTRACT , a default judgment may be taken
`against you." Said ORIGINAL PETITION AND MOTION FOR REFERRAL TO PRIVATE ARBITRATION PURSUANT TO CONTRACT
`was filed on the 20th day of August, 2020.
`
`ISSUED UNDER MY HAND AND SEAL OF SAID COURT ON THIS 26TH DAY OF AUGUST AD., 2020.
`Mary Angie Garcia
`Bexar County District Clerk
`101 W. Nueva, Suite 217
`San Antonio, Texas 78205
`
`ZACHARY J FANUCCHI
`ATTORNEY FOR PLAINTIFF
`700 N SAINT MARYS ST 1825
`SAN ANTONIO, TX 78205-3507
`
`HOLT TEXAS LTD
`vs
`AGCO CORP
`
`Officer's Return
`
`By: .Jl[e.x..,arufra Jolinson, Deputy
`
`Case Number: 2828-CI-15823
`Court: 225th Judicial District Court
`
`I received this CITATION on _______ at __ -"o'clock _M. and:( ) executed it by delivering a copy of the CITATION with attached ORIGINAL PETITION AND
`defendant,
`the
`lo
`it
`on
`endorsed
`date of delivery
`the
`MOTION FOR REFERRAL TO PRIVATE ARBITRATION PURSUANT TO CONTRACT
`o'clock _M.
`at
`the
`on
`person
`in
`at: ___________ or( ) not executed because ___________ _
`
`Fees: _ _ _ _ Badge/PPS#: _ _ _ _ Date certification expires: _ _ _ _ _ _ _ _
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ County, Texas
`By: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
`
`OR: VERIFICATION OF RETURN (If not served by a peace officer) SWORN TO THIS _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
`
`OR: My name is _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , my date of birth is _ _ _ _ _ _ _ _ _ , and my address is
`_ _ _ _ _ _ _ County.
`
`I declare under penalty of perjury that the foregoing is true and correct. Executed in _ _ _ _ _ _ County, State of Texas, on
`the _ _ _ day of _ _ _ _ , 20 _ _ .
`
`NOTARY PUBLIC, STATE OF TEXAS
`
`Declarant
`
`ORIGINAL (DK802)
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 3 of 24
`
`FILED
`8/20/2020 12:58 PM
`Mary" Angie Garcia
`Bexar County District Clerk
`Accepted By: Maria Jackson
`
`HOLT TEXAS, LTD.,
`Plaintiff,
`
`v.
`
`AGCO CORP.,
`Defendant.
`
`CAUSE NO. 2020Cl15823
`- - - - - - -
`§
`§
`§
`§
`§
`§
`§
`
`IN THE DISTRICT COURT
`
`_2_2_5_th __ JUDICIAL DISTRICT
`
`. BEXAR COUNTY, TEXAS
`
`PLAINTIFF'S ORIGINAL PETITION AND MOTION FOR REFERRAL
`TO PRIVATE ARBITRATION PURSUANT TO CONTRACT
`
`COMES NOW HOLT TEXAS, LTD. ("Holt"), pursuant to Chapter 57 of the Texas
`
`Business & Commerce Code, complaining of AGCO CORP. ("Agco"), Defendant, and for cause
`
`of action would respectfully show as follows:
`
`I. PRELIMINARY STATEMENT
`
`I.
`
`This is a suit to compel payment for the return of a dealer's inventory of parts and
`
`other items after the termination of a dealership agreement pursuant to Chapter 57 of the Texas
`
`Bus. & Comm. Code. Plaintiff also moves for an Order by the Court to refer this matter to private
`
`arbitration in San Antonio, Bexar County, Texas.
`
`2.
`
`This case involves claims for monetary relief over $200,000.00 but not more than
`
`$1,000,000.00.
`
`II.DISCOVERY CONTROL PLAN
`
`3.
`
`Discovery will be conducted under Level 3 under Rule 190.4, Texas Rules of Civil
`
`Procedure.
`
`III. PARTIES
`
`4.
`
`Plaintiff is a Texas limited partnership doing business in North and South Texas
`
`and headquartered in San Antonio, Bexar County, Texas.
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 4 of 24
`
`5.
`
`Defendant, AGCO CORP., is a Georgia corporation duly qualified to do business
`
`in the State of Texas which may be served with citation by and through its registered agent for
`
`service of process, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service
`
`Company, 21 IE. 7th Street, Suite 620, Austin, Texas, 78701-3136.
`
`IV. JURISDICTION, VENUE, AND AMOUNT IN CONTROVERSY
`
`6.
`
`The Court has jurisdiction over the claims brought by Plaintiff herein, as the amount
`
`in controversy exceeds the minimum jurisdictional limit of this Court. The Court also has
`
`jurisdiction over the foreign Defendant because it contracted to do bu_siness in Texas, actively does
`
`business in Texas, and has purposefully availed itself to the Jurisdiction of this Court.
`
`7.
`
`Venue in Bexar County, Texas is appropriate because the terminated dealership
`
`agreement Was performable in Texas. Pleading further, Plaintiff will show venue in Bexar County,
`
`Texas, is appropriate pursuant to § 57.051 of the Tex. Bus. & Comm. Code in that Plaintiff is
`
`headquartered in Bexar County, Texas.
`
`V.BACKGROUND
`
`8.
`
`Since at least 2014, Plaintiff and Defendants were parties to multiple Dealer Sales
`
`and Service Agreements whereby Defendant agreed to consider Plaintiff a retail dealer for the
`
`purchase, retail sale and after-sale servicing of Defendant's products. By way of example, a true
`
`and correct copy of Plaintiff's 2014 contract with Defendant for Plaintiffs Corpus Christi location
`
`is attached hereto as Exhibit 1.
`
`9.
`
`In Fall 2019, Plaintiff elected to terminate its dealership association with
`
`Defendant, as provided by the parties' contract. Plaintiff gave notice to Defendant of its intention
`
`to terminate the parties' contracts, pursuant to Chapter 57 of the TEX. Bus. & COMM. CODE and
`
`paragraph 51 of the parties' agreement.
`
`2
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 5 of 24
`
`l 0.
`
`On November 4, 2019 Plaintiff returned the first of several batches of parts from
`
`multiple·locations to Defendant, pursuant to TEX. Bus. & COMM. CODE Chapter 57 and received
`
`credit for the return of those parts in late January or February 2020 in the amount of $983,784.00.
`
`11.
`
`Plaintiff returned a second batch of parts, again from multiple locations, in late
`
`April 2020 and received credit for the return of those parts in the amount of $205,987.00 in July
`
`of 2020. However, despite several requests by Holt to make one final return of unsold parts to
`
`Defendant, purchased for 12 of its stores in north and south Texas (the "Remaining Parts") for
`
`which Plaintiff paid $264,415.10, Defendant has failed and refused to agree to accept the return
`
`of these parts. Plaintiff estimates it is entitled to reimbursement in the amount of $290,856.61 for
`
`these Remaining Parts pursuant to. TEX. Bus. & COMM. CODE§§ 57.353 and.57.355.
`
`12.
`
`The parties' agreement calls for any dispute concerning the dealership agreements
`
`to be referred to private arbitration and conducted pursuant to the rules of the American Arbitration
`
`Association. In addition to the other relief requested herein, Plaintiff seeks entry of an order
`
`referring this case to private arbitration in San Antonio, Bexar County, Texas.
`
`VI.
`CAUSE OF ACTION: VIOLATION OF TEX. Bus. & COMM. CODE§ 57
`
`13.
`
`Plaintiff incorporates the allegations of paragraph 9-12 into this paragraph 13 the
`
`same as if fully set forth.
`
`14.
`
`Defendant's refusal to pay or credit Plaintiffs account for the value of the
`
`Remaining Parts is a violation of Plaintiffs rights under TEX. Bus. & COMM. CODE§§ 57.353and
`
`355, which provides for the recovery of 110% of the cost of the parts upon a finding of liability.
`
`Plaintiff also seeks pre- and post-judgment interest.
`
`15.
`
`As a result of Defendant's refusal to pay, Plaintiff has been harmed in the amount
`
`ofat least $290,856.61, for which Plaintiff now sues. Plaintiff also seeks the recovery.of reasonable
`
`3
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 6 of 24
`
`and necessary actual costs in this case, including attorney and arbitrator fees. TEX. Bus. & COMM.
`
`CODE§ 57.355.
`
`VII.
`MOTION FOR REFERRAL TO PRIVATE ARBITRATION
`
`16.
`
`The agreements between the parties contains an arbitration clause, providing that
`
`"any controversy arising out of or relating to" the agreements be determined by arbitration and
`
`conducted pursuant to the rnles of the American Arbitration Association. Exhibits 1 and 2, 166.
`
`17.
`
`The claims asserted herein fall within the parties' arbitration agreement. To
`
`determine whether a claim falls within the scope of an arbitration agreement, courts look at the terms
`
`of the agreement and the factual allegations of the petition. Prudential Sec. Inc. v. Marshall, 909
`
`S.W.2d 896, 900 (Tex. 1995). Plaintiff's claims fall clearly within the scope of the arbitration
`
`agreements, as they cover "any controversy arising out of or related to" the agreement attached
`
`hereto as Exhibit 1.
`
`18.
`
`As a result, the court must compel arbitration and the proceedings in this case
`
`must be stayed pending completion of arbitration. Shearson/American Express, Inc. v.
`
`McMahon, 482 U.S. 220 (1987); Inre Oakwood Mobile Homes, Inc., 987 S.W.2d 571 (Tex. 1999);
`
`Prudential, 909 S. W .2d at 896 (Tex. 1995).
`
`19.
`
`In the unlikely event the court were to determine that any claims do not fall
`
`within the scope of the arbitration agreement, then these claims would be intertwined and the whole
`
`case should be sent to arbitration. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266,270-71 (Tex.
`
`1992) ( orig. proceeding). To determine whether claims are intertwined a court must determine if
`
`the noncontractual claims can stand alone or if the court must refer to the contract in order to
`
`prove or defend the claims. Hearthshire Braeswoodv. Bill Kelly Co., 849 S.W.2d 380,391 (Tex.
`
`App.--Houston [14th Dist.] 1993, writ denied).
`
`4
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 7 of 24
`
`20.
`
`After Defendant has answer~µ and appeared herein and after notice and a hearing,
`
`Plaintiff respectfully requests the Court to enter an Order referring this matter to private arbitration
`
`in San Antonio, Bexar County, Texas before an arbitrator to be agreed to by the parties (or
`
`appointed by the Court if the parties cannot agree) and staying any further proceedings in this case
`
`until such time as an arbitrator issues an award to be confirmed.
`
`WHEREFORE, Plaintiff, HOLT TEXAS, LTD. prays for Defendant, AGCO CORP. to be
`
`cited to appear and answer herein and after it has done so, that Plaintiffs Motion for Referral to
`
`Private Arbitration be set for hearing and at the hearing the Comt enter an Order staying further
`
`activity in this case and referring this matter to private arbitration in San Antonio, Bexar County,
`
`Texas according to the rules of the American Arbitration Association; that this arbitration be
`
`ordered to proceed before a private arbitrator to b~ determined by the parties and, if the parties
`
`cannot agree, then the Court appoint an arbitrator to hear this dispute; and, at the final hearing
`
`thereon, Plaintiff have and recover judgment against Defendant as follows:
`
`1. $290,856.61 in cash or credit for the ~emaining Parts;
`
`2. Pre- and Post-judgment interest;
`
`3. Plaintiff recover its attorneys' fees, costs and expenses of arbitration as provided by
`
`Statute; and,
`
`4. Such other and further relief to which Plaintiff shall show itself to be justly entitled.
`
`5
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 8 of 24
`
`CALDWELL EAST & FINLAYSON PLLC
`One Riverwalk Place, Suite 1825
`700 N. St. Mary's Street
`San Antonio, Texas 78205
`Telephone: (210) 225-1655
`Fae ·
`ile: 210 2
`-89
`
`State Bar No. 03621020
`Email: gcaldwell@ceflegalsa.com
`ZACHARY J. FANUCCHI
`State Bar No. 24028548
`Email: zfanucchi@ceflegalsa.com
`M. EDUARDO RAMIREZ
`State Bar No. 24081113
`Email: eramirez@ceflegalsa.com
`
`ATTORNEYS FOR PLAINTIFF
`
`6
`
`

`

`....... ····•······· ····--·-·-··· - - - - - - -~ - - - - - - - - - ·--··········•
`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 9 of 24
`
`AGCO CORPORATION
`
`DEALER SALES AND SERVICE AGREEMENT
`
`DEALER NAME:
`..•
`ADDRESS:
`
`Holt Texas, LTD dba HOLT CAT
`
`1319 South Padre Island Or.
`
`CITY:
`
`Corpus Christi
`
`$TATE/ZIP:
`
`Texas 78416
`
`TELEPHONE:
`
`361/852-5265
`
`AAGCO·
`
`Your A~riculture Company
`
`EXHIBIT 1
`
`

`

`~ - - - - - ......
`
`···- ·---·---· ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · - - ·-·- _,,,_
`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 10 of 24
`
`AGCO CORPORATION
`DEALER SALES AND-SERVICE AGREEMENT
`Th.is ~GREEME,NT (tJ:te "Agreement") is made this 1.~ ~ day of J"'Ccf\{..Lt(..,I'--~
`, 20 t'i, by and between AGCO
`Corporation, ("AGCO" or the "Company"), with its principal place of business at 420iver Green Parkway, Duluth, Georgia
`.
`30096-2563.
`
`and
`
`Holt Texas, LTD dba HOLT CAT
`
`GENERAL PURPOSES OF THE AGREEMENT
`
`Dealer Established
`
`1. The general purposes of the Agreement are to constitute Dealer as a retail dealer in the
`Products covered by the Agreement; and to establish the relationship between Company and
`Dealer for the purchase, retail sale and after-sale servicing of Products by Dealer.
`
`Sale of Products
`
`·
`
`2. During the term of the Agreement Company will sell to Dealer such Products as Dealer wishes
`to buy from Company and Company agrees to sell to Dealer.
`
`COMMITMENT OF THE COMPANY
`
`M~rketirig Support
`
`3. To assist Dealer in resale of Produ~. Company will advise Dealer in product training,
`merchandising and sale promotion and will develop sales aids such as displays, brochures
`and catalogues which it will offer to Dealer in quantities and upon terms as are established by
`Gompany.
`
`In consideration of the mutual promises and covenants set' forth herein, AGCO and Dealer agree· as follows:
`
`· Products Covered
`
`4.
`
`PURCHASE OF PRODUCTS
`
`· The Products covered by this Agreement are those items of machinery or parts (hereinafter
`referred to as Products) listed in the current price list(s) issued by the Company from time to
`time (and which as and when issued shall be deemed to be a part of this Agreement and are
`incorporated herein by reference), together·with attachments and accessories (hereinafter
`referred to as accessories)• and applicable parts. However, this agreement is specifically
`limited to· those Products checked below and mutually agreed upon as evidenced by the
`initials of the parties to this Agreement Machinery, accessories and parts are sometimes
`collectively referred·to herein as Products.
`
`(INITIALS).
`
`IA~-
`
`J,
`
`AGCO® PRODUCTS
`□ Wholegoods, Service and Parts
`00
`Service & Repair Parts Only
`
`Tractors
`
`[!]
`00 Conventi~nal Hay
`00 Commercial Hay
`□ GLEANER® Combines
`□ Seeding
`□ Tillage
`
`AGCO-US-version-01 /01/07
`
`1
`EXHIBIT 1
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 11 of 24
`
`Wholegoods, Service and Parts
`.
`.
`.
`Service & Repair Parts Only
`
`MASSEYFERGUSON®PRODUCTS
`□ [Kl
`[Kl Compact and Utility Trcictors
`(!I Mid Range ~nd High HP Tractors
`l!J Conventional Hay
`[!] Commercial Hay
`[!] Combines
`[Kl
`Seeding
`. IX]
`
`Tillage
`
`FENDT® TRACTORS ·
`0 . Wholegoods, Service & Parts
`.. I!) Service & Repair Parts Only .
`
`VALTRA®TRACTORS
`D Wholegoods, Service & Parts
`0
`Service & Repair Parts Only ·
`
`(INITIALS)
`
`(INITIALS)
`
`(INITIALS)
`
`Product Limitation
`
`5.
`
`It is understood a_nd agreed by. the Dealer that. while the price list(s) may include Products
`other than those checked above, the Products covered by this Agreement are specifically
`· limit~d. to those checked and initialed by the parties to this Agreement AGCO reserves the
`right at any time without notice to discontinue the manufacture and distribution of any
`'Products, accessories or parts which are or have been covered· by this Agreemen~.
`
`Parts Limitation
`
`6.
`
`If this Agreement is for wholegoods, it is further understood and agreed that the parts
`covered· by this Agreement are limited specifically to parts for those wholegoods covered
`by this Agreement.
`·
`
`Non-Exclusive
`Tef1itory
`./ .. \
`···:· ,·) ..
`
`. Orders
`
`7.-
`
`AGCO shall be under no liability to Dealer in respect to any· sales made or promoted by
`any other Dealer: Dealer acknowledges and agrees that It is not given any exclusive
`territory by AGCO. AGCO may assign the Dealer a primary area of responsibility for
`purposes of setting sales goals and measuring Dealer's performance. In sueh event, the
`area is not exclusive to the Dealer, and AGCO may appoint other Dealers in the sa{Tle
`~-
`-
`a: Dealer may purchase Products under this Agreement by submitting orders for.all Products .
`to be purchased. AGCO reserves the right to reject any order. Orders which are accepted
`will be accepted at 4205 River Green Parkway, Duluth, Georgia 30096-2568 or at such
`other locations as may hereafter be specified by AGCO.
`
`PRICING, DISCOUNTS A"!D TERMS
`
`Price Changes
`
`· 9.
`
`AGCO-US-Version-01/01 /07
`
`,,,
`
`"~
`
`~.,
`
`AGCO reserves the right to change its prices, terms, discounts and any other pricing
`provision at any time without notice tQ Dealer, and the price and terms which apply will be
`those in effect on the date of invoipe of the Products, accessories or parts.
`If AGCO
`increases its prices to Dealer on any Products, access~ries ·or pa$ during the -term of this
`Agreement, AGCO shall adjust to such increased price all Products, accessories or parts
`shipped or invoiced subseq_uent to ,he _time that such _price change_ becomes effective.
`EXHISIT 1-
`
`.,~
`
`,,
`
`•¥~
`
`:'.t
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 12 of 24
`MASSEYFERGUSON®PRODUCTS
`0 Wholegoods, Service and Parts
`[Kl
`Service & Repair Parts Only
`
`(INITIALS)
`
`00 Compact and Utility Tractors
`[!j Mid Range and High HP Tractors
`1K) Conventional Hay
`[!] Commercial Hay
`[Kl Combines
`00
`Seeding
`[Kl
`
`Tillage
`
`FEND~ TRACTORS
`D Wholegoods, Service & Parts
`(K]
`Service & Repair Parts Only
`
`VALTRA® TRACTORS
`D Wholegoods, Service & Parts
`D Service & Repair Parts Only
`
`(INITIALS)
`
`(INITIALS)
`
`Product Limitation
`
`5.
`
`Parts Limitation
`
`Non~Exclusive
`Ten:itory
`
`.J-:
`
`\
`
`6.
`
`7.
`
`It is understood and agreed by the Dealer that while the price list(s) may include Products
`other than those checked above, the Products covered by this Agreement are specifically
`limited to those checked and initialed by the parties to this Agreement. AGCO reserves the
`right at any time witttout notice to discontinue the manufacture and 'distribution of any
`Products, accessories or parts which are or have been covered by this Agreemen~.
`
`If this Agreement is for wholegoods, it is further understood and agreed that the parts
`covered by this Agreement are limited specifically to parts for those wholegoods covered
`by this Agreement.
`
`AGCO shall be: under no liability to Dealer in respect to any sales made or promoted by
`any other Dealer. Dealer acknowledges and agrees that it Is not given any exclusive
`territory by AGCO. AGCO may assign the Dealer a primary area of responsibility for
`purposes of setting sales goals and measuring Dealer's performance. In such event, the
`area is not exclusive to the Dealer, and AGCO may appoint other Dealers in the same
`area.
`
`Orders
`
`8. Dealer may purchase Products under this Agreement by submitting orders for all Products.
`to be purchased. AGCO reserves the right to reject any order. Orders which are accepted
`will be accepted at 4205 River Green Parkway, Duluth, Georgia 30096-2568 or at such
`other locations as may hereafter be specified by AGCO.
`
`Price Changes
`
`· 9.
`
`PRICING, DISCOUNTS AND TERMS
`
`AGCO reserves the right to change its prices, terms, discounts and any other pricing
`provision at any time without notice to Dealer, and the price and terms which apply will be .
`If AGCO
`those in effect on the date of invoice of the Products, accessories or parts.
`increases its prices to Dealer on any Products, accessories or parts during the -term of this
`Agreement, AGCO shall adjust to such increased price all Products, accessories or parts
`shipped or invoiced subsequent to the time that such price change becomes effective.
`2
`
`EXHIBIT 1
`
`

`

`----------~- .••--- ---------------· --- ···------·-...
`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 13 of 24
`
`.
`
`Wholegood Terms
`and Conditions
`
`Parts Terms and
`Conditions
`
`1 O. Tile Trade Di~counts and Terms covering Products ·and. accessories shali be set forth in
`the "Wholegoods Schedule of Terms and Conditions'' applicable to dealers and in effect on · ·
`the -date of invoice. The Wholegoods Schedule· of Terms and Conditions shall tie
`construed to be· a part of this Agreement and is incorporated herein by refe~ence.
`.
`
`·11. The Trade Di~counts and Terms· covering Parts shali be set forth in the Parts Division
`"Schedule of Terms and Conditions" applicable to dealers and ·in effect on the date of
`invoice. The Schedule of Terms and Conditions shall be construed to be a part of this
`_Ag~eement and is incorporat~d herein by_reference.
`·
`
`COMMITMENTS OF THE DEALER
`
`12. Dealer ag~ees to order, stock, prominently display, and promote a representative sample of
`each type of Product applicable to Dealer's trade area.
`It shall be AGCO's sole right to
`determine the adequacy of Product stocking and the manner of Product display, but in. no
`event will the Proquct display of Products be less desirabl~ than that furnished by Dealer to
`competitive product lines.
`·
`
`13. Dealer must execute a "will-call" agreement and comply with all published procedures in
`order to qualify f~r this delivery option.
`
`14. Dealer shall examine al)d inspect all Products-upon arrival and notify AGCO Qf any claim
`on account of shortage,· defective Products, or other non-conforming conditions of the
`Products within fifteen (15) days after-Dealer's receipt of the products.
`If Dealer fails to
`notify AGCO within the·fifteen (15) day period, AGCO shall not be responsible for any such .
`claim. Nevertheless, AGCO shall have reasonable time in which to replace any shortage,
`defective Product, or non-conforming delivery for Which it is responsible, and shall have no
`other liability to the Dealer on that account.
`
`In the absence· of directions from
`15. "All shipments are.to'be·routed as AGCO may direct.
`· Dealer, AGCO shall ship by the most convenient _route available. AGCO will use its best
`efforts to mal<e shipments on or ·befQre the dates requested by oealer. AGCO shall not be
`responsible to Dealer or anyone else foi' delays, damage or loss or for failing to ship
`Prqducts on time or failur~ to fill accepted orders.
`·
`
`·1s. Dealer agrees · that nc;, Products· delivered hereunder are to be returned· without
`authorization from AGCO. Dealer will pay .all transportation charges on ~my Products
`authorized by AGCO to be returned.· Information· regarding restocking charges, when
`applicable, is set fortn in other sections ·of this Agreement, the Wholegoods Sch~dule of
`Terms and ·conditions and the Parts Division· Schedule of Terms and Discounts:
`
`17. Dealer agrees· to protect the Products from damage and abuse by providing . proper
`storage. Nothing in this Agreement shall release Dealer from payment for all Products
`ordered and shipped by AGCO. Upon shipment to Dealer; all Products shall be held at
`Dealer's risk with respect to loss or. damage from any cause· and at Dealer's e~pense with
`respe~t to taxes and' charQeS of any kind. ·
`·
`·
`18. The Dealer shall at all times k~ep the ·Products financed by AGCO or by any affiliate of
`AGCO or for which it is indebted to AGCO or any affiliate of AGCO covered by fire, theft,
`other casualty and extended coverage insurance for their full replacement value Yo1ith any
`loss payable to AGCO .and any other affiiiate designated-by AGCO as their interests may
`appear .. The insurance coverage will be provided through· a group dealer floorplan policy
`underwritten by. a third party insurance carrier. The group policy premiums will be
`determined by the in~urance carrier and charged to the d~aler on a monthly basis.
`
`19. Dealer agrees to pay AGCO in full as set forth in· other sections of this Agreement, the
`Wholegoods Schedule of Terms & Conditions and the Parts Division Schedule of Terms &
`Discounts. Notwithstanding any other provisions, payment in full for wholegoods is due
`upon retail sale_. The Company-may refuse to sell. or deliver_ Products 'to Dealer when in
`the Company's· opinion Dealer's fina,:icial condition does not warrant further sales or
`deliveries.
`
`Product Ordering
`and Display
`
`WillCall
`
`Shortage or
`Defective Parts ··
`
`Shipment of
`Product and
`Delays
`
`Product Return
`Authorization
`
`Storage and Taxes
`
`Insurance
`
`Terms of Payment
`
`AGCO-US-version-01 /01/07
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 14 of 24
`
`Security Interest
`
`Past Due Accounts
`
`Wholesale
`Floorplan
`
`Inventory Audits
`
`Assignment pf
`Agreement, .(cid:173)
`sa1e·.of Business
`
`Financial
`Statements
`;,
`
`Report Oil Sale of
`Previously Owned
`Prod4ct
`
`20. At the time· of i~voice,. title and all rights and risks of ownership pass to the Dealer. As.
`security for the purchase price of any Products sold to Dealer and for all present and future
`direct or indirect indebtedness that may be or become owed by Dealer to AGCO, AGCO .
`shall have a security interest _in such Products, as mo.re fully set forth in the Wholesale
`Security Agreement and Power of Attorney which are .incorporated into this Agreement by
`: reference. Upon request of AGCO at any time, Dealer agrees to turn over, endorse and
`assign to AGCO such · quantity of customer's notes, or if notes are not available, then
`customer's accounts and chattel paper sufficient to fully cover and secure all indebtedness
`owed by the Dealer to AGCO, such notes and accounts to be held as additional collateral
`In case of default in payment of any of the notes,
`and security for the indebtedness.
`accounts or chattel paper, Dealer agrees to pay the fuli amount with interest wfthin fifteen
`.(15) days after maturity. All collections on notes or accounts are to be credited on the note
`or notes or account of Dealer first becoming due. On payment of the indebtedness in full,
`all notes, accounts or chattel paper remaining in possession of AGCO will be assigned ~o
`. Dealer.
`
`21. AGCO reserves the· right to declare all balances of the account due and· payable
`immediately if for any reason it deems it necessary for the protection. of its interests.. No
`cash discount or payment by.-AGCO to Dealer. will be made so long as any of the
`indebtedness, wliether secured by collateral or otherwise, is past due. Late charges will be
`Interest shall be charged on all other
`assessed on any past due open account balance.
`past due accounts at a rate published by AGCO, not to exceed the maximum legal rate.
`All payments made on the- ind~btedness shall be payable at AGCO's home office or other
`. desig~ated depositories. AGCO reserves the right to apply any payment made to the
`oldest past due amount. . AGCO shall be reimbursed by Dealer for any exchange or
`collection charges in connection with any of the Dealer's payments.
`
`22. Dealer shall cor,:iply fully with all floor plan terms applying to sales made to Dealer, and
`Dealer shall make no sale or other disposition of floor planned Products other than. by
`normal course of business sale or lease to a bona fide retail customer. Dealer agrees to
`· store all floor planned Products at Dealer's facility at the address stated at the end of this
`Agreement, unless prior written consent for storage at some other location is obtained from
`AGCO.·
`
`23. At any time on request, Dealer will.give AGCO's representatives full information regarding
`Products in inventory, Products sold and the proceeds of the Products. At any time upon
`request, Dealer •Will give AGCO or its: representatives full access to the Products for the
`purpose of taking .a physical inventory.
`. .
`.
`.
`.
`24_- This Agreement cannot be assigned by Dealer.
`In the event Dealer shall sell all or
`. subs~ntially all of its business or assets or otherwise discontinue its business, the •
`indebtedness shall become immediately due and .. payable, and the Agreement will be ·
`. terminated.by AGCO.
`
`25. Dealer will furnish. to AGCO annually, within o~e huridred twenty {120) days after the 'close
`of Dealer's fiscal year,· or more often, if request~d. full complete and detailed financial and
`operating statements. · In addition, Dealer will furnish, upon AGCO's request, per~onal
`financial s~tements from· the owner(s), partner(s), principal ·stockholder(s) or guarantor(s)
`of Dealer .. Tt;,ese 'financial disclosures and any other information in AGCO's possession
`.m_ay be shared with A~CO Finance, Agrjcredit Acceptance Company or any other AGCO
`·
`·
`affiliates and related companies.
`OPERATING R~QUIREMENTS.
`
`26. Dealer agrees to submit requested information on· sale of previously owned AGCO
`·
`·
`.
`· products to IR<;>Nsolutions™ Official Guide publlcatlon.
`
`· Continuous
`lr,provement
`
`27. Dealer agrees to properly· represent .the interests of'AGCO by utilizing its best efforts to
`.obtain and retain an approp~iate market share for AGCO .. To ensure that Dealer- provides
`
`e.~~~C/Jallll'l' @@!.'\>@~r;,,:;'9tll<li~•
`AGCO-US-verslon-01/01/07
`
`

`

`Case 5:20-cv-01112 Document 1-3 Filed 09/17/20 Page 15 of 24
`
`Security Interest
`
`Past Due Accounts
`
`Wholesale
`Floorplan
`
`Inventory Audits
`
`Assignment of
`Agreement,
`Sale of Business
`
`Financial
`Statements
`
`Report on Sale of
`Previously Owned
`Product
`
`Continuous
`Improvement
`
`20. At tne time of invoice, title ar:id all rights and risks of ownership pass to the Dealer. As
`security for the purchase price of any Products sold to Dealer and for all present and future
`direct or indirect indebtedness that· may be or become owed by Dealer to AGCO, AGCO
`shall have a security interest in such. Products, as more fully set forth in the Wholesale
`Security Agreement and Power of Attorney which are incorporated into this Agreement by
`reference. Upon request of AGCO at any time, Dealer agrees to turn over, endorse and
`assign to AGCO such quantity of customer's notes, or if notes are not available, then
`customer's accounts and chattel paper sufficient to fully cover and secure all indebtedness
`owed by .the Dealer to AGCO, such notes and accounts to be held as additional collateral
`and security for the indebtedness.
`In case of default in· payment of any of the notes,
`accounts or chattel paper, Dealer agrees to pay the full amount with interest within fifteen
`(15) days after maturity. All collections on notes or accounts are to be credited on the note
`or notes or account of Dealer first becoming due. On payment of the indebtedness in full,
`all notes, accounts, or chattel paper remaining in possession of AGCO will be assigned to
`Dealer.
`
`21. AGCO reserves the right to declare ·a!I balances· of the account due and payable
`immediately if for any reason it deems it necessary for the protection of its interests.. No