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[MITSUBISHI LOGO]
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DEALER SALES AND SERVICE AGREEMENT
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THIS AGREEMENT is made and entered into by and between MITSUBISHI MOTOR SALES OF
AMERICA, INC. a California corporation, with headquarters at 0000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "MMSA"), and
Xxxxxxxxxxx North Xxxx, Inc.
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(Name of Dealer)
a Georgia Corporation X, Partnership , Individual ,
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doing business as Xxxxxxxxxxx Mitsubishi
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(Name)
at 000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx,
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(Number and Street) (City)
Xxxx Xxxxxx, Xxxxxxx 00000
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(County) (State)
(hereinafter referred to as "DEALER").
1. BASIS OF AGREEMENT
This Agreement provides for the nonexclusive right of DEALER to sell and
service motor vehicles which are listed on the most recent MMSA Product List as
issued by MMSA from time to time, and related parts, accessories and options
distributed in the United States by MMSA. DEALER acknowledges that Mitsubishi
Motors Corporation and other manufacturers supplying motor vehicles to MMSA
may now or in the future distribute motor vehicles or related products in the
United States through distributors other than MMSA, and that entering into this
Agreement confers no rights or benefits upon DEALER with respect to the sale or
servicing of such motor vehicles or products.
2. TERM
This Agreement shall continue in effect for a period of three (3) years
from its effective date, unless earlier terminated by DEALER pursuant to
Section X.A. of the accompanying MMSA Dealer Sales and Service Agreement
Standard Provisions (hereinafter referred to as the ("Standard Provisions") or
earlier terminated by MMSA pursuant to Section X.B. of the Standard
Provisions. Unless earlier terminated by MMSA or DEALER, MMSA shall, not less
than three (3) months prior to the expiration of this Agreement, conduct an
evaluation of DEALER'S performance to determine whether DEALER qualifies for
renewal of this Agreement for an additional three (3) year term. Criteria
considered in such evaluation shall be as set forth in the Dealer Development
Plan then in effect for DEALER. If MMSA determines that DEALER qualifies for
renewal of its MMSA dealership, DEALER and MMSA shall execute an MMSA Dealer
Sales and Service Agreement in the form then used by MMSA, which agreement will
include similar provisions for further re-qualification and renewal.
If, at any time, MMSA determines that a different or revised form of sales
and service agreement would better serve the interests of the parties, MMSA
may, upon a minimum of thirty (30) days' notice to DEALER, terminate this
Agreement and offer the new or amended form of agreement to DEALER in its
stead. DEALER must accept the new or amended form of agreement within thirty
(30) days of receipt thereof.
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3. OWNERSHIP OF DEALER
MMSA and DEALER recognize that the ability of DEALER to satisfactorily
perform this Agreement is conditioned upon the continued active involvement in
and/or ownership of DEALER by the following person(s) in the percentage(s)
shown (hereinafter referred to as the "Owners"):
Involvement
Percentage in Management
Name Title of (Active or Inactive)
---- ----- Ownership --------------------
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Xxxxxxxxxxx Automotive Group, Inc. Holding Company 100%
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Xxxxxx X. Xxxxxxxxxxx, Xx. President Active
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Xxxxxxx X. Xxxxxxx Assistant Secretary Inactive
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Xxxxxxx X. Xxxxxx Secretary/Treasurer Active
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This Agreement has been entered into by MMSA in reliance upon, and in
consideration of, the personal qualifications and representations of the
above-named Owners. Accordingly, except as otherwise provided herein, no
change in the active involvement in DEALER'S management by the Owners and no
change in the ownership of DEALER by the Owners which results in a change in
majority control or interest shall be permitted by DEALER or any Owner without
the prior written approval of MMSA, which approval shall not be unreasonably
withheld.
4. MANAGEMENT OF DEALER
DEALER represents that Xxxxxxx X. Xxxxxx exercises the functions of
general manager and Xxxxxx X. Xxxxxxxxxxx, Xx. exercises the functions of
Dealer Principal (hereinafter referred to as the "Executive Managers") of its
MMSA dealership and that each has complete authority to make all decisions on
behalf of DEALER with respect to the dealership operations.
MMSA has entered into this Agreement in reliance upon, and in
consideration of, the personal qualifications and representations of the
above-named Executive Managers. Accordingly, DEALER agrees that there shall be
no change in the Executive Managers without MMSA's prior written consent.
DEALER shall give MMSA prior written notice of any proposed change in Executive
Managers (including the name and qualifications of the person proposed to be
appointed as a replacement Executive Manager) and MMSA shall have the right, in
its sole and reasonable discretion, to determine whether the proposed candidate
possesses the requisite qualifications and experience for this position.
5. SALES LOCALITY
Subject to and in accordance with the terms and conditions hereof, MMSA
has established the following Sales Locality as the non-exclusive, primary area
of responsibility for DEALER'S promotion and sale of MMSA Products.
City of: Kennesaw
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County or Parish of Xxxx State of Georgia
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Except as may be otherwise required by applicable law, MMSA reserves the
right to sell and/or lease MMSA Products to others (including, without
limitation, public or private fleet purchasers and employees of MMSA or its
affiliates) and to enter into MMSA Dealer Sales and Service Agreements with
others and without the Sales Locality. MMSA and DEALER agree that additional
MMSA Dealers may be appointed in or near the Sales Locality when MMSA
determines, in accordance with applicable law, that additional MMSA sales and
service facilities are warranted.
Agreement Date NOV 27 1995 [MITSUBISHI LOGO] 2
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6. DEALERSHIP PREMISES
MMSA has approved the following premises as the location of DEALER'S MMSA
sales and service operations (hereinafter referred to as the "Dealership
Premises").
MMSA NEW VEHICLE SALES FACILITIES
000 Xxxxxx Xxxxxxx Xxxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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PARTS AND SERVICE FACILITIES
000 Xxxxxx Xxxxxxx Xxxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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SALES AND GENERAL OFFICES
000 Xxxxxx Xxxxxxx Xxxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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USED VEHICLE DISPLAY AND SALES FACILITIES
000 Xxxxxx Xxxxxxx Xxxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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STORAGE FACILITIES
000 Xxxxxx Xxxxxxx Xxxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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[MITSUBISHI LOGO]
Agreement Date NOV 27, 1995 3
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BODY AND PAINT FACILITIES
N/A
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OTHER
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MMSA and DEALER recognize that DEALER may sell MMSA Products to customers
wherever they may be located. However, in order that MMSA may establish and
maintain an effective network of MMSA Dealers for the sale and servicing of
MMSA Products, DEALER specifically agrees that, without the prior written
approval of MMSA, it shall not display MMSA Trademarks or, either directly or
indirectly, establish any place or places of business for the conduct of any of
its MMSA dealership operations, except on the Dealership Premises in the manner
and for the purposes described above.
DEALER shall maintain all requirements and conditions of this MMSA Dealer
Sales and Service Agreement as outlined in DEALER'S most recent Dealer
Development Plan, including but not limited to exclusive facility, management
and capital requirements.
7. LICENSES
DEALER agrees to secure and maintain all licenses required for the
operation of its business as contemplated by this Agreement in any state or
jurisdiction where its MMSA dealership operations are to be conducted. If any
such license or licenses are required, this Agreement shall not become
effective, unless and until all such required licenses have been obtained and
DEALER furnishes MMSA with a copy of all such licenses together with written
notice specifying the date and number, if any, of all such licenses. DEALER
shall notify MMSA immediately in writing if DEALER fails to secure, maintain or
renew any such license. If any required license is suspended or revoked,
DEALER shall notify MMSA immediately in writing of the effective date of such
suspension or revocation.
8. SCOPE OF AGREEMENT
DEALER agrees to be bound by and comply with each and every term of this
MMSA Dealer Sales and Service Agreement, all schedules hereto, the Standard
Provisions, the Dealer Development Plan, the most recent Product List and all
Product Addenda, the Warranty Manual and all other manuals heretofore or
hereafter issued by MMSA, all modifications, extensions or renewals of any of
the foregoing, and each and every bulletin or directive heretofore or hereafter
issued to DEALER by MMSA. MMSA may from time to time deliver to DEALER a
Product Addendum setting forth special terms and conditions applicable to
particular MMSA Vehicles designated in the Product Addendum. Such special
terms and conditions shall supersede and control any inconsistent terms and
conditions in this Agreement with respect to the MMSA Vehicles designated in
the Product Addendum. Each Product Addendum shall be effective as of the date
specified in the Product Addendum and shall remain effective (1) until it is
amended or terminated by its own terms or by a new Product Addendum, (2) until
the MMSA Vehicles designated in the Product Addendum are no longer distributed
by MMSA, or (3) until termination of this Agreement.
9. DEFINITIONS
Italicized terms used herein shall have the meanings set forth in Section
II of the Standard Provisions.
10. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of California.
[MITSUBISHI LOGO]
Agreement Date Nov 27, 1995 4
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11. JURISDICTION
MMSA and DEALER agree that all litigation between MMSA and DEALER which
may arise out of or in connection with this Agreement or any transaction
between them shall be subject to the exclusive jurisdiction of the courts of
the State of California or of the federal courts sitting therein, and each
hereby consents to the jurisdiction of such courts. DEALER agrees that any and
all process directed to it in any such litigation may be served upon it outside
of California with the same force and effect as if such service had been made
within California.
12. LEGAL EFFECT
This Agreement terminates and supersedes all prior written or oral
agreements and understandings, if any, between MMSA and DEALER, except (1) any
agreements expressly referred to and incorporated herein, (2) any indebtedness
which may be owing by either MMSA or DEALER to the other, and (3) any DEALER'S
unfilled orders with MMSA for any MMSA Products placed with MMSA pursuant to
the provisions of any sales agreement terminated or superseded by this
Agreement. Except as herein otherwise provided, upon execution of this
Agreement by DEALER and in consideration of MMSA's entering into this
Agreement, DEALER releases MMSA from any and all claims, demands, contracts and
liabilities (including, but not limited to, statutory liabilities), known or
unknown, of any kind or nature whatsoever, arising from or out of or in
connection with any such prior agreements, business transactions, course of
dealing, discussions or negotiations between the parties prior to the effective
date hereof. DEALER expressly acknowledges and waives the application of
California Civil Code ss. 1542 which provides as follows: "A general release
does not extend to claims which the creditor does not know or suspect to exist
in his favor at the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
13. NOTICES
Any notice to be given hereunder may be delivered to the party if a sole
proprietor, to a partner of the party if a partnership, or to an officer of the
party if a corporation, or may be given by sending such notice by registered or
certified mail or by telegram or tested telex addressed, if to DEALER, to its
principal office as above stated, and if to MMSA, to its headquarters as above
stated, marked "Attention President". Except as otherwise provided in this
Agreement, any notice so given shall be considered to have been given when
delivered or mailed as provided above.
14. AUTHORITY OF DEALER
If DEALER is a partnership or corporation, DEALER shall provide MMSA with
a certified copy of the partnership authorization, corporate resolution or
other document evidencing the authority of DEALER to enter into and adhere to
the terms of this Agreement.
15. VALIDITY
No representative of MMSA shall have authority, other than by a writing
signed by the President or an Executive Vice President or two Vice Presidents
of MMSA, to renew, extend or terminate this Agreement, or to amend, modify or
waive any provision of this Agreement or any performance required hereby, or to
make any agreement which imposes obligations on either MMSA or DEALER not
specifically imposed by this Agreement.
[MITSUBISHI LOGO]
Agreement Date Nov 27, 1995 5
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IN WITNESS OF THE FOREGOING, the parties hereto have executed this
Agreement in duplicate. THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL IT HAS
BEEN SIGNED BY THE PRESIDENT OR AN EXECUTIVE VICE PRESIDENT OR TWO VICE
PRESIDENTS OF MMSA. DEALER WILL BE NOTIFIED IN WRITING BY MMSA WHEN THIS
AGREEMENT HAS BEEN SO SIGNED, WHICH NOTICE WILL SPECIFY THE EFFECTIVE DATE OF
THIS AGREEMENT.
Xxxxxxxxxxx North Xxxx, Inc.
dba Xxxxxxxxxxx Mitsubishi
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(Dealer's Firm Name)
By /s/ Date 10/20/95
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Title President
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By Date 10/20/95
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Title
------------------------ /s/ X.X. Xxxxx
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MITSUBISHI MOTOR SALES OF AMERICA, INC.
By Date
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(President)
OR
By Date
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(Executive Vice President)
OR
By /s/ Date Nov 27 1995
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(Vice President)
and
By /s/ Date Nov 27 1995
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(Vice President)
[MITSUBISHI LOGO]
Agreement Date Nov 27 1995 6
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DEALER SALES AND SERVICE AGREEMENT
STANDARD PROVISIONS
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The following Standard provisions have been made a part of and are incorporated
by reference in the Mitsubishi Motor Sales of America, Inc. Dealer Sales and
Service Agreement and shall apply to and govern the transactions, dealings, and
relations between MMSA and DEALER.
I. GENERAL OBLIGATIONS
The purpose of this Agreement is to provide for the sale and servicing of
MMSA Products in a manner that will best serve the interests of MMSA,
DEALER,other Authorized MMSA Dealers, and the owners and purchasers of
MMSA Products.
DEALER has entered into this Agreement with confidence in MMSA's integrity
and expressed intention to deal fairly with DEALER and the consuming
public of MMSA Products and services. MMSA has entered into this Agreement
with confidence in DEALER's integrity, ability and expressed intention to
deal fairly with MMSA, other Authorized MMSA Dealers and the consuming
public of MMSA Products and services and with reliance upon DEALER's
undertaking to perform and carry out the duties, obligations and
responsibilities of an Authorized MMSA Dealer as set forth in this
Agreement.
DEALER shall engage in no discourteous, deceptive, misleading or unethical
practices and shall actively promote the sale of MMSA Products. DEALER
shall give prompt, efficient and courteous service to all customers of
MMSA Products whether or not those customers purchased MMSA Products from
DEALER.
MMSA will actively assist DEALER in all aspects of DEALER'S MMSA
dealership operations. MMSA shall offer suggestions and provide materials
designed to assist DEALER and its personnel, conduct periodic annual
evaluations of DEALER'S premises, performance and facilities as described
in Section VII.B.1. hereof, and provide special training programs for the
active participation of DEALER and its sales, service and parts personnel.
II. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
indicated:
A. MMSA shall mean Mitsubishi Motor Sales of America, Inc., a California
corporation which is the authorized distributor in the United States
of MMSA Products.
B. MMSA VEHICLE shall mean any new passenger car or truck with a
Gross Vehicle Weight Rating of under 7,000 pounds (whether or not
manufactured or supplied by MMC) distributed in the United States by
MMSA and set forth in the Product List.
C. MMSA PARTS AND/OR ACCESSORIES shall mean genuine new parts,
components and accessories, designed primarily for use on MMSA
Vehicles and distributed by MMSA
D. MMSA PRODUCTS shall mean MMSA vehicles, MMSA Parts and
Accessories, and other new products (whether or not manufactured or
supplied by MMC) which from time to time may be offered by MMSA to
DEALER under this Agreement.
E. MMSA TRADEMARKS shall mean the trademarks, service marks, design
marks and trade names which are used by MMSA in connection with MMSA
Products, including, without limitation, the names "Mitsubishi" and
"MMSA," and the Mitsubishi three-diamond logo.
F. MMC shall mean Mitsubishi Motors Corporation, a Japanese
corporation which manufactures or supplies to MMSA some or all of the
MMSA Vehicles.
G. AUTHORIZED MMSA DEALER OR MMSA DEALER shall mean any dealer
located in the United States authorized by MMSA to conduct dealership
operations in connections with the sale of MMSA Products pursuant to
an MMSA Dealer Sales and Service Agreement.
H. OWNERS shall mean the persons named in Section 3 of the MMSA
Dealer Sales and Service Agreement.
I. EXECUTIVE MANAGERS shall mean the persons named in Section 4 of
the MMSA Dealer Sales and Service Agreement.
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J. DEALERSHIP PREMISES shall mean the place or places of business
established by DEALER and approved by MMSA in accordance with Section
6 of the MMSA DEALER Sales and Service Agreement.
K. DEALERSHIP FACILITIES shall mean the building and other
improvements on the Dealership Premises provided by DEALER in
accordance with requirements set forth in the Dealer Development Plan.
L. DEALER DEVELOPMENT PLAN shall mean the written development plan,
as amended from time to time by MMSA, setting forth the criteria
relied upon by MMSA to determine initially whether DEALER qualifies
for appointment as an MMSA DEALER and thereafter to evaluate whether
DEALER'S performance hereunder qualifies DEALER for renewal(s) of its
MMSA Dealership.
X. XXXXX VEHICLE WEIGHT RATING shall mean the value specified by the
manufacturer of MMSA Vehicles as the loaded weight of a single
vehicle.
N. SALES LOCALITY shall mean the locality which is designated in
Section 5 of the MMSA DEALER Sales and Service Agreement as the
primary area of DEALER'S sales and service responsibility for MMSA
Products.
0. WARRANTY MANUAL shall mean the MMSA Warranty Policy and Procedure
Manual, as the same may be amended from time to time by MMSA, which
sets forth policies and procedures concerning warranties on MMSA
Products.
P. PRE-DELIVERY INSPECTION MANUAL shall mean the MMSA Pre-delivery
Inspection Procedures Manual, as the same may be amended from time to
time by MMSA, which sets forth MMSA policies and procedures concerning
the servicing of MMSA Vehicles prior to their delivery to purchasers
of MMSA Vehicles.
Q. INVOICE PRICE shall mean, with respect to each MMSA Product to
which it refers, the price to DEALER for such product as from time to
time established by MMSA.
R. PARTS DISCOUNT AND PURCHASE TERMS SCHEDULE shall mean a listing
of the terms, discounts and conditions relating to the purchase of
MMSA Parts and Accessories supplied by MMSA to DEALER, as amended form
time to time by MMSA.
S. MMSA MASTER PARTS PRICE LIST shall mean a listing of the
suggested list prices and the prices of MMSA Parts and Accessories
issued by MMSA from time to time.
T. POLICY REVIEW BOARD shall mean the MMSA Policy Review Board
described in Section XI hereof.
U. THIS AGREEMENT shall mean the Mitsubishi Motor Sales of America,
Inc. Dealer Sales and Service Agreement, all schedules thereto, these
Standard Provisions, the Warranty Manual and the Dealer Development
Plan, the most recent Product List and all Product Addenda, each as
amended from time to time, and all other guides, bulletins or
directives issued from time to time by MMSA to MMSA DEALERs.
V. PRODUCT LIST shall mean a list of MMSA Products distributed by
MMSA which shall be provided to DEALERS and amended or supplemented by
MMSA from time to time.
W. PRODUCT ADDENDUM or ADDENDA shall mean any addendum to this
Agreement which MMSA may issue to DEALERS from time to time setting
forth special terms and conditions governing the sale or servicing
only of the particular vehicles or products designated in the Product
Addendum.
III. SALES OF MMSA PRODUCTS TO DEALER
A. ORDERS
DEALER shall submit to MMSA firm orders for MMSA Products in such
quantity and variety as are necessary to fulfill Dealer's obligations
under this Agreement. DEALER agrees to submit current orders and
estimated projections of DEALER'S future requirements for MMSA
Products at such time and for such periods as MMSA may reasonably
request. DEALER will submit all orders and projections in the format
prescribed by MMSA.
All orders are subject to acceptance by MMSA. MMSA is under no
obligation to accept orders from DEALER and may accept any order in
whole or in part. Acceptance of any order may be by oral or written
notice to DEALER or by shipment of the MMSA Products ordered.
[MITSUBISHI LOGO]
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No order may be cancelled by DEALER and each order shall remain binding upon
DEALER unless rejected in writing by MMSA.
Except as otherwise provided herein, MMSA agrees to ship MMSA Products to
DEALER only on DEALER'S orders. MMSA will use its best efforts to fill any
orders which it has accepted, but nothing contained in this Agreement
shall obligate MMSA to deliver to DEALER any Particular number of MMSA
Vehicles or MMSA Parts and Accessories.
B. DELIVERIES
1. Mode and Place of Delivery
MMSA shall select the distribution points, carriers and modes of
transportation in effecting delivery of MMSA Products to DEALER.
DEALER agrees to reimburse MMSA for any delivery, freight, handling
and other charges which appear on MMSA's invoice to DEALER.
2. Diversion of Deliveries
If MMSA is required to deliver any MMSA Product ordered by DEALER
because of DEALER'S failure or refusal to accept such product, DEALER
agrees to assume responsibility for and pay any charges incurred by
MMSA as a result of such diversion including, without limitation,
charges incurred by MMSA in returning any such product to the point of
original shipment or other distribution point selected by MMSA, plus
all charges for demurrage or storage related to such division.
3. Delay or Failure to Deliver
MMSA shall not be liable for delay or failure to fill orders that have
been accepted, where such delay or failure is the result of any
domestic or foreign laws, regulations, ordinances, rules, orders or
other governmental requests, acts of God, foreign or civil wars,
riots, interruptions of navigation, shipwrecks, fires, strikes,
lockouts or other labor troubles, embargoes, blockades, delay or
failure of MMC, other suppliers of MMSA or any carrier to deliver MMSA
Products, or any other event whether similar or dissimilar to the
foregoing which is beyond the reasonable control of MMSA.
4. Damage Claims Against Carriers
Unless otherwise specified in the Warranty Manual, MMSA agrees, upon
request by DEALER, to assist DEALER in recovery against any carrier
for loss or damage to MMSA Products shipped hereunder.
C. PRICES AND OTHER TERMS OF SALES
1. Price Changes
MMSA reserves the right, without prior notice to DEALER, to change
prices, charges and terms of purchase of all MMSA Products sold under
this Agreement and except as provided in Section III.C.7. hereof,
DEALER or its customer shall have no right of cancellation or to any
refund or credit with respect thereto. MMSA will charge DEALER for
MMSA Products according to the prices, charges and terms of purchase
in effect on the date of shipment. Prices, charges and terms of
purchase for MMSA Parts and Accessories shall be established from
time to time by MMSA in the MMSA Master Parts Price List and in the
Parts Discount and Purchase Terms Schedule.
2. Payment for MMSA Vehicles
Unless otherwise permitted by MMSA in writing, payment for MMSA
Vehicles shall be by cash draft issued prior to shipment of each
MMSA Vehicle form its port of entry against DEALER'S then applicable
wholesale credit line, which line shall be approved by MMSA and
established in DEALER'S name with a financial institution acceptable
to MMSA. The minimum amount of such credit line must be expressly
approved by MMSA and must be sufficient to meet MMSA's estimate of
DEALER'S anticipated sale volume, as the same may be revised from
time to time in the Dealer Development Plan.
MMSA may find it necessary, from time to time, to advise DEALER that
the amount of available credit required of DEALER must be increased.
Such decisions will be based upon criteria reasonably established by
MMSA, including the sufficiency of the existing credit line and
anticipated increases in sales. DEALER agrees to cooperate fully with
MMSA and arrange promptly for all required changes in its financial
arrangements.
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3. Payment for MMSA Products other than MMSA Vehicles
MMSA will invoice DEALER for all MMSA Products other than MMSA Vehicles
purchased by DEALER. Payment for invoices shall be due by the tenth (10th)
day of the month following the month in which the products covered by the
invoice are delivered. MMSA reserves the right, at any time with or
without notice to DEALER, to place any and all sales of MMSA Products
other than MMSA Vehicles on a C.O.D. basis, cash in advance basis or
otherwise alter the credit terms available to DEALER. DEALER's right to
return MMSA Products (other than MMSA Vehicles) shall be governed by the
terms and provisions set forth in the Parts Discount and Purchase Terms
Schedule.
4. Failure of Financing Arrangements
It is DEALER'S sole responsibility to institute appropriate controls to
ensure the uninterrupted availability of sufficient funds under its
approved credit line with DEALER'S financial institution. Should DEALER
fail to pay for, or should any applicable financing arrangement fail to
provide credit for the payment of, any MMSA Products ordered by DEALER
when payment is due therefor, MMSA may, with respect to any such MMSA
Products, (i) cause the same to be stored at the sole risk and expense of
DEALER, or (ii) cause such MMSA Products to be shipped elsewhere
(including returning the same to MMSA) and DEALER shall pay to MMSA
promptly upon demand all expenses sustained by MMSA in storing, handling
and shipping occasioned thereby; or (iii) without obligation to pay any
sum to DEALER, sell such MMSA Products directly to any other MMSA Dealer,
person, firm or corporation, all expenses or losses occasioned thereby to
be borne by DEALER.
In addition to the foregoing, in the event of an oral or written refusal
by DEALER'S financing institution to make payment against drafts for any
MMSA Vehicle ordered by DEALER, MMSA may impose a fixed administrative
charge for each MMSA Vehicle refused. The amount of such charge, which
shall be in addition to otherwise applicable delivery, storage and
demurrage charges, shall reflect a reasonable estimate of the average
administrative cost incurred by MMSA in arranging for alternative
disposition of the MMSA Vehicle so refused. Furthermore, any failure of
DEALER'S financial institution to maintain for a period of sixty (60)
or more days the unrestricted availability to MMSA of DEALER'S credit line
in an amount and in accordance with the terms approved by MMSA shall
constitute grounds for termination of this Agreement under Section
X.B.2.(f) hereof. "Unrestricted availability" as used in this section
shall mean that upon presentment of MMSA'S drafts to DEALER'S financial
institution as contemplated hereunder, no approval of DEALER, the financial
institution itself or any other party will be required before payment to
MMSA is made.
5. Title and Risk of Loss
Title and risk of loss or damage to any MMSA Product sold to DEALER shall
pass to DEALER upon (i) its delivery to DEALER, (ii) its delivery to a
common carrier for delivery to DEALER, or (iii) receipt by MMSA of payment
therefor, whichever shall first occur. MMSA shall retain, and DEALER
hereby grants to MMSA, a security interest in, and the right to retain or
repossess, all MMSA Products sold to DEALER by MMSA until MMSA is paid in
full therefor.
6. Collection of Indebtedness
DEALER agrees to execute and deliver and shall, where appropriate,
cooperate with MMSA in causing to be filed with the appropriate
authorities any and all statements and documents required or permitted by
the Uniform Commercial Code and any other local laws for the protection of
unpaid sellers.
DEALER agrees that MMSA may apply toward payment of any amount due MMSA
from DEALER any credit owed to DEALER by MMSA, and MMSA may, at its
option, collect any sums owed by DEALER to MMSA by making a separate draft
or by including any such sums in any draft issued for the sale of MMSA
Products sold under this Agreement. DEALER will pay the amount of each
draft and all exchange and collection charges. In addition, MMSA may
impose an interest charge for balances thirty (30) days or more overdue.
Such charge shall be assessed at the maximum rate permitted by law. The
foregoing rights of MMSA are in addition to, and not in lieu of, any rights
or remedies it may have by law as an unpaid seller.
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7. Refunds
Should MMSA reduce the Invoice Price of any MMSA Vehicle then in current
production, MMSA will give written notice of such reduction to DEALER and
will refund to DEALER an amount equal to the difference between any higher
price paid by DEALER for such MMSA Vehicles and the reduced price. Such
refunds will be payable only for MMSA Vehicles actually purchased by
DEALER at a price higher than the reduced price and which are new and
unsold by DEALER on the effective date of the price reduction set forth in
MMSA's notice thereof. To be entitled to such refund, DEALER must, within
thirty (30) days after receipt of notice of the price reduction, make
written claim therefor supported by evidence satisfactory to MMSA.
MMSA shall have no obligation to make refunds or give credits with respect
to:
a. Any MMSA Vehicle used as a demonstrator and not promptly registered
with MMSA by DEALER when assigned to demonstrator use;
b. Any reduction in the amount of MMSA charges for distribution and
delivery or taxes;
c. Any reduction in the amount of any contribution or any other sum for
advertising or sales promotion; or
d. Any reduction by MMSA in the suggested retail price or Invoice Price
established by MMSA by reason of any law, order, or regulation of any
government or any governmental agency.
MMSA reserves the right to pay refunds to any financial institution which
has financed the purchase of, and retains a lien or ownership interest in,
any MMSA Vehicle for which application for refund or credit is made by
DEALER.
D. PRODUCT WARRANTIES
Dealer understands and agrees that the only warranties applicable to each
new MMSA Product sold to Dealer by MMSA shall be the written warranty or
warranties expressly furnished by MMSA or by the manufacturer of the MMSA
Product and as stated in the Warranty Manual. Anything in this Agreement to
the contrary notwithstanding, all warranties made by MMSA as set forth in
the Warranty Manual shall survive and, in accordance with their
respective terms, continue in full force and effect, despite any
expiration or termination of this Agreement pursuant to Section X hereof.
E. CHANGE OF DESIGN, OPTIONS OR SPECIFICATIONS
MMSA reserves the right, at any time, to make changes in or discontinue
the supply of any design or specification of MMSA Products (regardless of
whether such products are MMSA Vehicles, MMSA Parts and Accessories or
options), without notice to DEALER and, unless required by law, without
obligation to make any changes with respect to MMSA Vehicles and MMSA
Parts and Accessories or options previously delivered to DEALER or being
imported, manufactured, or sold in accordance with Dealer's orders. No
change shall be considered a model year change unless so specified by
MMSA. Except as specifically provided in Section III.C.7. hereof, MMSA
shall be under no liability to DEALER on account of any discontinuance or
change and shall have no obligation to DEALER to make any refund on MMSA
Products previously purchased by DEALER, whether or not the price of MMSA
Products previously sold by MMSA is affected thereby. Unless directed in
writing by MMSA or required to do so by law, DEALER shall not alter any
MMSA Product or change or substitute any of its components as sold by
MMSA, except for minor or cosmetic changes which do not affect the
mechanical operation, safety or structural integrity of any MMSA Product.
F. VEHICLES EXCLUDED
DEALER acknowledges that this Agreement confers no rights or benefits with
respect to vehicles or products of any kind not distributed by MMSA, and
that DEALER'S right to purchase MMSA Vehicles from MMSA shall at all times
be limited to those MMSA Vehicles listed on the most recent Product List.
Without limiting the generality of the foregoing, DEALER acknowledges
that: (1) MMC distributes in the United States trucks with a Gross Vehicle
Weight Rating of 7,000 pounds or more, truck tractors, buses, other heavy
vehicles, and parts and accessories therefor through a distribution
company known as Mitsubishi Fuso Truck America, Inc.("MFTA"); (2) this
Agreement confers no right upon DEALER to purchase for resale or lease,
sell service or lease MFTA vehicles or products; (3) MFTA vehicles are of
a separate "line make" from MMSA
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Vehicles; and (4) this Agreement confers no right upon DEALERS to protest,
object or invoke any other administrative or judicial process to bar or delay
the establishment of any MFTA dealership within or without DEALER'S Sales
Locality.
IV. DEALERSHIP PREMISES
A. RESPONSIBILITIES OF DEALER
MMSA and DEALER recognize the importance of establishing an effective
network of qualified Authorized MMSA Dealers meeting MMSA's
established standards. Accordingly, Dealer agrees that it shall not,
under any circumstance, establish an associate dealer or subdealer for
MMSA Products or establish any MMSA dealership premises or operations
other than those expressly approved by MMSA. DEALER agrees to operate
its MMSA dealership only on the Dealership Premises, and to provide
and utilize the Dealership Facilities only in accordance with
standards established by MMSA set forth in the Dealer Development
Plan. DEALER recognizes that if it engages in other business
activities in the Dealership Facilities and/or on the Dealership
Premises, the physical facilities necessary for the sale and servicing
of MMSA Products may be adversely affected. Accordingly, DEALER agrees
that it shall not modify, relocate, change the usage of, reduce or
expand the Dealership Premises or the Dealership Facilities without
first consulting with MMSA and obtaining its written approval of such
changes.
B. AUTOMOBILE LEASING OR RENTAL BUSINESS
DEALER may, as part of its MMSA dealership operations, engage in the
leasing of MMSA Vehicles on the Dealership Premises so long as DEALER
complies fully with all standards and requirements established by MMSA
in connection therewith. DEALER, its Owners and Executive Managers
shall not, however, without the prior written consent of MMSA, form or
acquire, directly or indirectly, a separate legal entity for the
purpose of conducting such leasing operations, whether within or
without the Dealership Premises. Nor shall DEALER, its Owners and
Executive Managers acquire for themselves or for members of their
respective families any substantial interest in such separate business
without the prior written consent of MMSA. If MMSA consents to the
operation or substantial ownership of such separate leasing business
by DEALER, its Owners, Executive Managers or their respective
families, such business shall be subject to the provisions of Section
IV.C. hereof.
C. RELATED ACTIVITIES OF DEALER OR DEALER'S OWNERS OR EXECUTIVE MANAGERS
If DEALER or any of DEALER'S Owners or Executive Managers should have
or should acquire, directly or indirectly, for themselves or for
members of the respective families, any substantial interest in an
enterprise the business of which is in any way connected with new or
used MMSA Products (hereinafter referred to as "Related Business"), or
any property which is being used or will be used in connection with
new or used MMSA Products (hereinafter referred to as "Related
Property"), or any beneficial interest in any Related Property, DEALER
will:
1. At the time this Agreement is executed by DEALER, or immediately
upon such acquisition, whichever may be later, require such
Related Business or the holder of legal title or beneficial
interest in the Related Property to execute and deliver to MMSA a
written instrument in which such Related Business or holder shall
assume the following obligations:
a. To refrain from all conduct which might be harmful to the
goodwill of MMSA or to the reputation of MMSA Products or
which might be inconsistent with the public interest;
b. To grant to MMSA, until the expiration or prior termination
of this Agreement, the right, through MMSA's employees and
other designees, to inspect, at all reasonable times during
regular business hours, the premises, as well as the records
and accounts, of such Related Business or holder; and
c. To refrain from any use of any MMSA Trademark.
2. Furnish to MMSA, at the time this Agreement is executed by DEALER
or immediately upon such acquisition, whichever may be later, a
written report setting forth in detail:
a. The ownership of beneficial interests in such Related
Business or Related Property; and
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b. The business activities of such Related Business and the use of
such Related Property including, among other things, the names of
all Authorized MMSA Dealers with which such Related Business has
any dealings or who use or have any interest in such Related
Property, and the terms of such dealings, use and interests.
3. In the event of any change in the ownership, activities or use of the
Related Business or Related Property, furnish to MMSA a written report
setting forth the details of such change.
4. Furnish to MMSA such other reports concerning the Related Business or
Related Property as MMSA may from time to time require.
D. PERSONNEL
Dealer agrees that it will employ qualified personnel in such capacities
and in such number as may be specified in the Dealer Development Plan or
as otherwise required by MMSA.
E. INSURANCE
Dealer shall obtain fire and casualty insurance issued by an insurer or
recognized responsibility satisfactory to MMSA, with coverage for each
occurrence and in an aggregate amount acceptable to MMSA, and providing
coverage for, among other things, death, bodily injury and property damage
claims which may arise in connection with Dealer's operations. Such
insurance shall be maintained in full force and effect at Dealer's sole
cost throughout the term of this Agreement and all extensions or renewals
hereof.
F. MAINTAINING OPERATIONS OPEN FOR BUSINESS
Since the transportation and maintenance needs of customers served by
Dealer can be properly met only if Dealer keeps the Dealership Premises
open for business, Dealer agrees to maintain its dealership operations
open for business during all days and hours which are customary and lawful
for such operations in the community or locality in which the Dealership
Premises are located. Any unexcused failure to remain open for business
during such hours in excess of five (5) consecutive business days shall
constitute grounds for termination of this Agreement under Section
X.B.1.(a) hereof.
G. MINIMUM VEHICLE INVENTORIES
Subject to the ability of MMSA to supply MMSA Vehicles ordered by Dealer,
Dealer agrees that it shall, at all times, maintain the minimum inventory
of MMSA Vehicles for immediate sale as set forth in the Dealer Development
Plan from time to time by MMSA after consultation with Dealer. Dealer
also agrees that it shall have available at all times, for purposes of
showroom display and demonstration, the number of current models of MMSA
Vehicles required of Dealer as determined from time to time by MMSA after
consultation with DEALER. DEALER agrees to maintain all MMSA Vehicles in
excellent condition at all times. Failure of DEALER to maintain the
required minimum number of MMSA Vehicles shall constitute grounds for
termination of this Agreement under Section X.B.2.(n) hereof.
Dealer recognizes that it is the goal of all MMSA Dealers to meet
efficiently the needs of all customers of MMSA Products wherever located
and that, although an MMSA Dealer may attempt to continually maintain its
minimum inventory, occasionally its customers may request a specific MMSA
Vehicle or MMSA Part or Accessory which is not currently in stock.
Accordingly, Dealer agrees to use its best efforts to cooperate with other
MMSA Dealers by providing them with access to information regarding its
parts and MMSA Vehicle inventory and whenever possible, trading its MMSA
Products to satisfy the needs of a customer of another MMSA Dealer.
H. SIGNS
Subject to applicable governmental ordinances, regulations and statutes,
Dealer agrees to buy or rent from MMSA or from sources designated by MMSA
and to erect and maintain on the Dealership Premises, entirely at Dealer's
expense, authorized sales and service signs conforming to the requirements
established and approved for Dealer's use by MMSA. Dealer further agrees
to obtain and maintain any licenses or permits necessary to erect such
signs. Failure to obtain, erect, maintain, repair, illuminate and
prominently display such signs in a manner approved by MMSA shall
constitute grounds for termination of this Agreement under Section
X.B.2(j) hereof.
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I. ELECTRONIC COMMUNICATIONS SYSTEM
MMSA has elected to implement an electronic data processing system to
facilitate communications between MMSA and each MMSA Dealer. Such a system
is designed to enable each MMSA Dealer to electronically transmit current
information regarding its sales and service operations, including without
limitation, orders for MMSA Vehicles and MMSA Parts and Accessories, sales
reports, and warranty claims data. In recognition of the benefits of such
a system, DEALER agrees to acquire and install, at its sole expense, on
the Dealership Premises a dealer computer terminal approved by MMSA and to
utilize the system in accordance with MMSA's instructions.
J. PLANNING ASSISTANCE FOR DEALERSHIP PREMISES
To assist DEALER in planning, establishing and maintaining the Dealership
Premises, MMSA will, if feasible, make available to DEALER upon request,
copies of sample building layout plans, facility planning recommendations
and an identification program covering the placement, installation and
maintenance of recommended signs. In addition, representatives of MMSA
will be available to DEALER from time to time to advise DEALER and
dealership personnel in connection with DEALER'S planning of the Dealership
Facilities and Dealership Premises.
V. NET WORKING CAPITAL
DEALER agrees to establish and maintain net working capital in an amount
not less than the minimum net working capital agreed upon by DEALER and
MMSA and specified in the DEALER Development Plan. If, because of changed
conditions, MMSA deems it necessary to increase or decrease the minimum
amount of DEALER'S net working capital, the minimum net working capital
required of DEALER under the Dealer Development Plan may be revised by MMSA
after consultation with DEALER. If the amount thereof is increased, DEALER
agrees to meet the new minimum net working capital standard within the time
period reasonably prescribed by MMSA after consultation with DEALER.
VI. ACCOUNTS, RECORDS AND REPORTS
A. UNIFORM ACCOUNTING SYSTEM
It is for the mutual benefit of DEALER and MMSA that uniform accounting
systems and practices be maintained by all Authorized MMSA Dealers.
Accordingly, DEALER agrees to maintain such systems and practices as
designated by MMSA in accordance with the uniform accounting system and
practices established by MMSA for use by all MMSA Dealers. DEALER
agrees that it will furnish to MMSA by the tenth (10th) day of each
month, in the form prescribed by MMSA, true, complete and accurate
financial and operating statements covering the preceding month and
showing calendar-year-to-date operations.
B. SALES REPORTING
To assist in the evaluation of current market trends and other matters,
DEALER agrees to:
1. Immediately upon delivery of an MMSA Vehicle to the purchaser
thereof, complete and transmit to MMSA a report of the retail sale
called the "Retail Delivery Report"; and
2. Furnish MMSA with such other reports or records which may reasonably
be required by MMSA.
C. SALES AND SERVICE RECORDS
DEALER agrees to keep complete, accurate and current records regarding
the sale and servicing of MMSA Products. In order that policies and
procedures relating to applications for reimbursement for warranty and
policy work may be applied uniformly to all Authorized MMSA Dealers,
DEALER agrees to prepare, keep current and retain records in support of
requests for reimbursement for warranty and policy work performed by
DEALER in accordance with the policies and procedures prescribed in the
Warranty Manual and standards established by MMSA consistent with said
manual.
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D. EXAMINATION OF ACCOUNTS AND RECORDS
DEALER agrees that it will permit MMSA to make examinations and
audits of its accounts and records at any time during regular
business hours, and in connection therewith, to reproduce and take
for its own use copies of DEALER'S records including, without
limitation, records supporting requests for reimbursement for
warranty and policy work performed or to be performed by DEALER. A
report of any such examination will be furnished to DEALER. Failure
to allow authorized personnel of MMSA to examine, audit, reproduce and
take copies for MMSA's use of DEALER'S records, whether or not
located on the Dealership Premises, shall constitute grounds for
termination of this Agreement under Section X.B.2.(m) hereof.
VII. PROMOTING AND SELLING MMSA PRODUCTS
A. RESPONSIBILITIES OF DEALER
DEALER agrees to use its best efforts to promote, sell and service
MMSA Vehicles and MMSA Pars and Accessories in the Sales Locality.
DEALER recognizes that DEALER'S fundamental obligation under this
Agreement is to stock, sell and service all models and types of MMSA
Vehicles distributed in the Sales Locality by MMSA. Accordingly,
DEALER expressly assumes responsibility for fulfilling this
obligation, and in connection therewith, DEALER expressly agrees to
develop that sales volume necessary to meet DEALER'S Minimum Sales
Responsibility as outlined in this Agreement and as is more
particularly described in the Dealer Development Plan.
B. SALES AND PERFORMANCE CRITERIA
1. Dealer Development Plan
The parties hereto shall periodically, and in any event at least
annually, review DEALER'S performance under this Agreement.
DEALER'S performance will be evaluated on the basis of the
performance criteria set forth in the Dealer Development Plan,
which criteria shall include such factors as maintenance of
facilities, service and sale of MMSA Parts and Accessories and
sales performance.
During each such periodic review, MMSA shall note in writing any
deficiencies it finds in DEALER'S performance and operations, and
MMSA will offer suggestions for the improvement thereof. MMSA
shall give DEALER a reasonable opportunity to implement its
suggestions and take other steps necessary to cure deficiencies
in DEALER'S performance. DEALER agrees to cooperate with MMSA
during such evaluation and to furnish any data regarding the
DEALER'S operations which may reasonably be requested by MMSA.
DEALER agrees that it will use its best efforts to meet the
performance standards established from time to time by MMSA and
to cure any deficiencies set forth in its Dealer Development
Plan. Failure by DEALER to correct such deficiencies after
having had a reasonable opportunity to do so shall constitute
grounds for termination of this Agreement under Section X.B.3.(a)
hereof.
2. Determination of Minimum Sales Responsibility
If DEALER is the only MMSA Dealer located in the Sales Locality,
calculation of DEALER'S Minimum Sales Responsibility will be
based upon the ratio of sales and registrations of MMSA Vehicles
to sales and registrations of competitive vehicles and MMSA
Vehicles in the Sales Locality. In metropolitan market where
multiple MMSA Dealers are located, DEALER (together with all
other MMSA Dealers in the Sales Locality) will be assigned a
percentage share of responsibility for total sales performance in
the Sales Locality based upon DEALER'S trading area. MMSA may
from time to time change the size and/or boundaries of DEALER'S
trading area after appropriate analyses of new care purchasing
patterns in the Sales Locality. Such trading area will be used
solely for the purpose of determining the percentage of sales
responsibility assigned to DEALER and should not be interpreted
as a market area assigned to DEALER. In evaluating DEALER'S
performance, MMSA will consider recent trends in DEALER'S sale
performance and any special local conditions which would uniquely
affect DEALER'S performance.
To the extent that MMSA for any reason, other than DEALER'S
failure to submit orders or arrange payment, delivers to DEALER
less than the number of new MMSA Vehicles that represents
DEALER'S Minimum Sales Responsibility, DEALER'S Minimum Sales
Responsibility set forth in the Dealer Development will be
reduced accordingly.
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The term "competitive vehicles" as used in this section shall
mean those new vehicles which are from time to time
designated by MMSA as competitive with MMSA Vehicles. The
term "DEALER'S trading area" as used in this section shall
mean an area immediately surrounding the Dealership Premises
which is determined by MMSA from time to time based upon an
analysis of census tracts or other geographical boundaries.
C. Sales Operations
1. Sales Organization
To enable DEALER to fulfill satisfactorily its
responsibilities under this Agreement, DEALER agrees to
organize and maintain the minimum number of trained sales and
customer relations personnel required by MMSA in the Dealer
Development Plan.
2. Representations in the Sale of MMSA Vehicles
DEALER agrees that it will sell all MMSA Vehicles in
accordance with directives issued by MMSA designating model
and model year classifications and will not make any
misleading statements or misrepresentations regarding MMSA
Products, including without limitation, selling as new any
MMSA Vehicle which is not in fact new and unused,
misrepresenting the model year or year of manufacture, or the
items or prices of the items making up the total selling
price of any MMSA Vehicle. DEALER shall not make any
statements tending to lead any customer to believe that a
greater portion of the selling price of an MMSA Vehicle
represents destination charges and/or factory handling
charges than the amounts of such items actually charged to and
paid for by DEALER.
3. Customer Deposits
DEALER will hold in trust until completion of sale any down
payment and all other property it may receive from customers
in connection with their purchases of MMSA Products. DEALER
will not sell or place any lien on any property taken as a
trade-in unless at the same time it segregates and holds in
trust an amount equal to the trade-in allowance agreed upon
with the customer for such property until completion of the
sale for which such property was taken as a trade-in. DEALER
will ensure that all purchase order forms signed by its
customers contain provisions binding DEALER to hold all down
payments and other property in the manner specified in this
section.
D. Advertising
1. Misleading Advertising
Both MMSA and DEALER recognized the need for maintaining
standards of ethical advertising of a quality and dignity
consonant with the reputation and standing of MMSA Products
in order to maintain public confidence in, and respect for,
DEALER, MMSA and MMSA Products. Accordingly, neither MMSA nor
DEALER will publish or cause or permit to be published any
advertising relating to MMSA Products likely to mislead or
deceive the public or to impair the goodwill of MMSA or
DEALER or the reputation of MMSA Products. DEALER shall,
promptly upon written notice from MMSA, discontinue any
advertising which MMSA, in its sole judgment, considers may
be injurious to DEALER's or MMSA's business, or to the
reputation of MMSA Products, or likely to mislead or deceive
the public, or at variance with the business, advertising or
public relations policies of MMSA.
2. MMSA Dealer Advertising Association
MMSA and DEALER recognize the benefits which may be derived
from a comprehensive joint advertising effort by MMSA
Dealers. Accordingly, MMSA agrees to assist MMSA Dealers in
the formation and effective operation of such cooperative
dealer advertising association. DEALER agrees to cooperate
with MMSA in the establishment of such a group and, once it
is established, to participate actively and contribute to it
in accordance with the bylaws of the association.
The MMSA dealer advertising association will finance its
advertising programs through the assessment of a fixed charge
for each new MMSA Vehicle purchased by member MMSA Dealers.
As a service to the dealer association, MMSA will collect the
agreed upon charge, provided that the dealer association
maintains control over both the amount of the assessment and
the manner in which such funds will be expended.
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3. Dealer Cooperative Promotional Fund
MMSA will establish and maintain general advertising programs and will
make sales promotion and campaign materials available to DEALER to
promote the sale of MMSA Vehicles. DEALER recognizes that it will
benefit from the simultaneous use by all Authorized MMSA Dealers of
new model announcement literature, catalogs, banners and like
materials and from the economies attendant upon preparation and
purchase by MMSA of such basic sales promotion literature, parts and
service manuals and other materials for all dealers. Accordingly,
DEALER agrees to cooperate in MMSA'S advertising programs and to fully
utilize the materials offered DEALER by MMSA. MMSA'S sales promotion
services will include the supply, at no additional cost to DEALER, of
new model announcement and other sales promotion materials, and parts
and service materials as described from time to time in MMSA sales
letters. DEALER agrees to contribute to the cost of MMSA's sales
promotion services an amount established by MMSA from time to time
for each MMSA Vehicle sold by MMSA to DEALER. These amounts do not
include the cost of special campaigns or special literature not
described in MMSA sales letters.
E. ASSISTANCE PROVIDED BY MMSA
1. Sales Training Assistance
To assist DEALER in the fulfillment of its responsibilities
hereunder, MMSA shall offer general and specialized sales
management and sales training courses for the benefit and use of
DEALERS'S sales organization. DEALER understands the importance of
having a well trained and knowledgeable staff in the successful
operation of a dealership and, therefore, DEALER agrees to require
the attendance of all its sale personnel at any special courses,
meetings or training sessions offered for their benefit from time
to time by MMSA. Whenever possible, MMSA will give DEALER thirty
(30) days' advance notice of any such mandatory event so that all
sales personnel may make arrangements to be present. Repeated
failure by DEALER'S sales personnel (including but not limited to
management) to participate fully in such programs shall constitute
grounds for termination of this Agreement under Section X.B.2.(i)
hereof.
2. Field Sales Personnel
To assist DEALER in handling its sales responsibilities under this
Agreement, MMSA agrees to provide field sales personnel from time
to time to advise and counsel DEALER regarding merchandising,
training and sales management.
VIII. SERVICING MMSA VEHICLES
A. RESPONSIBILITIES OF DEALER
DEALER agrees to provide service and parts to all MMSA Vehicles
whether or not under warranty and whether or not the MMSA Vehicle to
be serviced was purchased from DEALER.
1. Warranty Service
Warranty and policy service shall be performed in accordance with
the Warranty Manual and any related bulletins and directives issued
from time to time by MMSA to DEALER. DEALER shall furnish to the
purchaser of each MMSA Product, at the time each product is
delivered, copies of any applicable warranties. DEALER shall be
responsible for the timely submission of warranty claims in the
format required by MMSA. MMSA agrees to compensate DEALER for all
warranty and policy work in accordance with procedures and rates
established from time to time by MMSA and in accordance with
applicable law; and DEALER agrees that such rates shall constitute
full and complete payment to DEALER for such work. DEALER agrees
that where MMSA reimburses DEALER for warranty or policy work, the
customer shall not be obligated to pay any charges for warranty or
policy work except as required by law.
2. New Motor Vehicle Pre-Delivery Service
DEALER agrees that prior to delivery of each new MMSA Vehicle to a
retail customer, DEALER will conduct pre-delivery service and
inspections in accordance with the Pre-delivery Inspection Manual.
Dealer shall be reimbursed by MMSA for such pre-delivery service
service and inspection in accordance with procedures and rates
established from time to time by MMSA and in accordance with
applicable law.
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3. Free Maintenance
In accordance with directives to be issued from time to time by MMSA,
certain maintenance services, excluding lubricant and oil filter costs,
may be free of charge to the customer; if Dealer delivers an MMSA Vehicle
to a customer pursuant to such directives, Dealer shall be reimbursed
according to the terms of such directives. In the event that such free
maintenance services are performed by another MMSA Dealer upon an MMSA
Vehicle sold by Dealer, DEALER shall pay to such other MMSA Dealer the
charge then in effect as established by MMSA for such maintenance
services. Conversely, in the event that DEALER performs such free
maintenance with respect to an MMSA Vehicle sold by another MMSA Dealer,
DEALER shall be entitled to receive from such other MMSA Dealer the amount
of such charge. All claims for payment for such charges by or against
DEALER shall be processed through MMSA. All such free maintenance services
shall be performed in conformity with current service policies and
practices as outlined in service manuals, the Pre-delivery Inspection
Manual, the Warranty Manual and warranty bulletins or technical service
bulletins and directives issued from time to time by MMSA.
4. USE OF PARTS
DEALER agrees not to use in the repair or servicing of MMSA Vehicles
parts other than MMSA Parts and Accessories or other parts (including
accessories) expressly approved by MMSA unless:
a. the replacement parts are equivalent in quality and design to MMSA
Parts and Accessories or parts expressly approved by MMSA; or
b. the parts to be replaced are not necessary to the mechanical operation
of the MMSA Vehicle and the replacement parts will not adversely affect
the mechanical operation of the MMSA Vehicle.
FAILURE BY DEALER TO USE MMSA Parts and Accessories or parts expressly
approved by MMSA (or other parts equivalent thereto in quality and design)
in accordance with the requirements of this section shall constitute
grounds for termination of this Agreement under Section X.B.2.(r) hereof.
In the event of any dispute or litigation between DEALER and MMSA
regarding the use by DEALER of parts other than MMSA Parts and Accessories
or parts expressly approved by MMSA, DEALER agrees that it shall have the
burden of establishing either:
a. that parts used by it are equivalent in quality and design to MMSA
Parts and Accessories or parts expressly approved by MMSA; or
b. that the parts replaced were not necessary to the mechanical operation
of the MMSA Vehicle and the replacement parts would not adversely affect
the mechanical operation of the MMSA Vehicle.
Dealer agrees that it will not represent or offer to sell as MMSA Parts
and Accessories, or parts expressly approved by MMSA, any parts used by it
in the repair or servicing of MMSA Vehicles which are not in fact genuine
MMSA Parts and Accessories, or parts expressly approved by MMSA.
IF DEALER uses parts for the service or repair of MMSA Vehicles which are
not MMSA Parts and Accessories and which have not otherwise been approved
in writing by MMSA for use in MMSA Vehicles, DEALER does so at its own
risk and neither MMSA nor any manufacturer of MMSA Products will be
responsible to DEALER or any third party for any products liability,
warranty or other claim which may arise as a result of the installation
and/or use of such parts and DEALER agrees to idemnify and hold MMSA and
any manufacturer of MMSA Products harmless from any such claim or
liability.
5. Campaign Inspections and Corrections DEALER agrees to perform campaign
inspections and/or corrections for owners and users of all MMSA Products
that qualify for such inspections and/or corrections, regardless of where
or from whom such products were purchased. DEALER further agrees to comply
with all procedures relating thereto set forth in the Warranty Manual and
applicable bulletins, manuals, directives and technical data issued from
time to time by MMSA to DEALER. MMSA agrees to reimburse DEALER for all
replacement parts and/or other materials
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required and used in connection therewith and for labor in accordance with
the applicable provisions of the Warranty Manual as supplemented by
bulletins and directives issued from time to time by MMSA to DEALERS. The
term "campaign inspection and/or correction" as used in this section shall
mean specially designated service operations initiated by MMSA to be
performed by DEALER on specified vehicles.
6. Compliance With Safety and Emission Control Requirements
DEALER agrees to comply with, and operate consistently with, all
applicable provisions of the National Traffic and Motor Vehicle Safety Act
of 1966, as amended, and the federal Clean Air Act, as amended, including
applicable rules and regulations issued from time to time thereunder, and
all other applicable federal, state and local motor vehicle safety and
emission control requirements.
In the event that the laws of the state in which DEALER is located require
motor vehicle dealers or distributors to install in new or used motor
vehicles, prior to the retail sale thereof, any safety devices or other
equipment not installed or supplied as standard equipment by MMSA, then
DEALER, prior to its sale of any MMSA Vehicles on which such installations
are so required, shall properly install such equipment on such MMSA
Vehicles. DEALER shall comply with all state and local laws pertaining to
the installation requirements of any such equipment including, without
limitation, the reporting of such installation. MMSA shall not be liable
for any failure of DEALER or its employees to comply with such state and
local laws.
In the interests of motor vehicle safety and emission control, MMSA agrees
to provide to DEALER, and DEALER agrees to provide to MMSA, such
information and assistance as may reasonably be requested by the other in
connection with the performance of obligations imposed on either party by
the National Traffic and Motor Vehicle Safety Act of 1966, as amended,
and the federal Clean Air Act, as amended, and the rules and regulations
issued thereunder, and all other applicable federal, state and local motor
vehicle safety and emission control requirements.
B. SERVICE OPERATIONS
1. Service and Parts Organization
DEALER agrees to organize and maintain a complete service and parts
organization, including a qualified service manager, a qualified parts
manager and the minimum number of competent service and parts personnel
established by MMSA in the Dealer Development Plan.
2. Paint and Body Facilities
If permissible under local governmental ordinances, regulations and
statutes, DEALER will use its best efforts to provide paint and body
facilities for MMSA Vehicles. Such facilities will be subject to MMSA'S
prior written approval and, once approved, shall become part of the
Dealership Premises and subject to the terms and conditions of this
Agreement. If local law does not permit the operation of such services on
the Dealership Premises, DEALER agrees to enter into a contract for the
services of an independent company in order to provide complete warranty
service for MMSA Vehicles. The company selected by DEALER for paint and
body services must be approved in writing by MMSA.
3. Workshop
In the installation and operation of DEALER'S workshop and body and paint
shop, if any, DEALER will comply with such standards and requirements as
MMSA may prescribe from time to time, particularly with respect to:
a. Procurement and maintenance of general tools and equipment, including
hydraulic hoists and lubricating equipment;
b. Procurement and maintenance of special tools from time to time
designated by MMSA as necessary to properly provide warranty and
repair services to MMSA customers;
c. Use of workshop forms which may be prescribed by MMSA and use of MMSA
customer service promotional material, as well as procurement and
maintenance of at least one complete set of MMSA service literature;
and
d. Proper execution of all service and repair work with respect to MMSA
Products.
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Failure by DEALER to procure and maintain necessary special tools, general
tools and equipment shall constitute grounds for termination of this
Agreement under Section X.B.2.(k) hereof.
4. Handling of Service Complaints
DEALER will receive, investigate and handle all complaints received from
MMSA customers with a view to securing and maintaining the goodwill of the
public toward DEALER, MMSA and MMSA Products. All complaints received by
DEALER which cannot be readily remedied shall be promptly reported in
detail to MMSA. DEALER recognizes that the repeated failure to properly
resolve customer complaints shall constitute grounds for termination of
this Agreement under Section X.B.2.(l) thereof.
5. Stock of Parts
DEALER agrees to carry in stock at all times during the term of this
Agreement an inventory of MMSA Parts and Accessories and MMSA approved
parts and accessories adequate at any given time to enable DEALER to
fulfill customer demands, warranty repairs and its other service
obligations under this Agreement. For this purpose, DEALER agrees to
purchase each year an initial supply of parts for the new models of MMSA
Vehicles. MMSA shall at least fifteen (15) days prior to the introduction
of new models provide a list of the parts which should be purchased by
DEALER. MMSA shall have the right to audit DEALER'S inventory from time to
time and may require changes in the volume and contents thereof. In
addition, DEALER agrees to provide adequate equipment for an effective
parts supply operation. Failure to maintain an adequate stock of parts in
accordance with standards and requirements established by MMSA shall
constitute grounds for termination of this Agreement under Section
X.B.2.(o) hereof.
6. Parts Inventory Control
MMSA has elected to implement an electronic data processing parts
inventory control system for the purpose of providing adequate records
regarding the availability of parts. In recognition of the benefits of
such a system. DEALER agrees to acquire and install, at its sole expense,
on the Dealership Premises a computer terminal for the purpose of
utilizing the parts inventory control system offered by MMSA in accordance
with MMSA'S instructions. Alternatively, at the dealer's own discretion
and to meet this requirement, DEALER may use at the Dealership Premises
another inventory control system provided that (1) it is fully integrated
with an automated accounting system; (2) the inventory control and
accounting system software are already operating and controlling the
operation of two or more other dealerships which are owned by the DEALER,
and (3) the inventory control and accounting software are operated on a
single mainframe computer for all such dealerships. This requirement shall
not apply to DEALER if DEALER began doing business as an authorized MMSA
Dealer prior to November 1, 1985, provided however, DEALER has already
installed on the Dealership Premises before said date a parts inventory
control system approved by MMSA.
7. Service Rentals
In accordance with standards established by MMSA, DEALER shall maintain or
have available for use by DEALER'S service customers a fleet of rental
vehicles adequate to serve the needs of customers who leave their MMSA
Vehicles with DEALER for repair or servicing.
C. ASSISTANCE PROVIDED BY MMSA
1. Service Training Assistance
DEALER and MMSA both recognize the importance of providing consistent,
dependable service of the highest quality to MMSA customers. Accordingly,
MMSA agrees to provide service training assistance to DEALER designed to
continually improve the level of service provided by DEALER'S service and
parts personnel. Since MMSA and DEALER recognize that the maximum benefit
from such training programs may only be derived if all service and parts
employees attend the programs, DEALER agrees to require the attendance of
all such personnel. MMSA will endeavor to provide at least thirty (30)
days' prior notice of all such mandatory programs to DEALER. Repeated
failure of DEALER'S service and parts personnel including, but not limited
to, management, to attend such sessions shall constitute grounds for
termination of this Agreement under Section X.B.2.(i) hereof.
2. Service Manuals and Materials
MMSA agrees to provide DEALER with one copy of each service manual or
other publication
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MMSA deems necessary for the operation of DEALER'S service
organization. Additional copies may be purchased by DEALER at its
option.
3. Field Service Personnel Assistance
To assist DEALER in handling its service responsibilities under this
Agreement, MMSA agrees to make available field service personnel who
from time to time will advise and counsel DEALER'S personnel on
service-related subjects, including product quality, technical
adjustment, repair and replacement of product components, owner
complains, warranty administration, service and parts merchandising,
training and service management.
IX. DISPLAY OF TRADEMARKS, SERVICE MARKS AND TRADE NAMES
DEALER acknowledges that MMSA is the exclusive owner of, or is authorized
to use and to permit DEALER and others to use, the MMSA Trademarks. During
the term of this Agreement, DEALER is granted a nonexclusive privilege of
displaying and otherwise using the MMSA Trademarks in connection with and
for the purpose of identifying, advertising and selling MMSA Products;
provided, however, that DEALER shall promptly discontinue the display and
use of any such MMSA Trademarks, and shall change the manner in which any
such MMSA Trademarks are displayed and used, whenever requested to do so
by MMSA. DEALER shall not use the MMSA Trademarks or the words
"Mitsubishi" or "MMSA" or any other word confusingly similar to
"Mitsubishi" in its corporate name if DEALER is a corporation, or in its
partnership name if DEALER is a partnership, or in its proprietorship name
if DEALER is a proprietorship; provided, however, that if MMSA gives its
prior written consent, DEALER may use the words "Mitsubishi Motors" as part
of the trade name under which it conducts its business. If DEALER uses
the words "Mitsubishi Motors" as part of its trade name, upon the request
of MMSA or upon the termination of this Agreement for any reason
whatsoever, DEALER shall cease to use the words "Mitsubishi Motors" in its
trade name and shall take or cause to be taken all steps to eliminate such
words therefrom.
DEALER will do nothing to impair the value of, or contest the right of
MMSA to the exclusive use of, any trademark, design xxxx, service xxxx, or
trade name at any time acquired, claimed, used or adopted by MMSA.
X. TERMINATION OF AGREEMENT.
A. DEALER MAY TERMINATE THIS AGREEMENT UPON THIRTY (30) DAYS PRIOR WRITTEN
NOTICE TO MMSA.
B. MMSA MAY TERMINATE THIS AGREEMENT FOR CAUSE:
1. Immediately--
a. Upon failure of DEALER to keep its MMSA dealership operations,
or any part thereof, open for business for a period in excess
of five (5) consecutive business days as required under Section
IV.F. hereof, except in the event such closure or cessation of
operation is caused by some physical event beyond the control
of DEALER, such as civil war, riots, fires, floods,
earthquakes, or other acts of God; or
b. Upon any change in location of the Dealership Premises or upon
any change in the amount or usage of the Dealership Facilities
or in the event DEALER directly or indirectly conducts any of
its MMSA dealership operations at any other location or in any
other facilities, without the prior written consent of MMSA; or
c. Upon the effective date of the expiration or earlier
termination of MMSA'S right to distribute MMSA Products.
2. By Giving Thirty (30) Days Prior Written Notice Upon--
a. Failure of DEALER to obtain or maintain any license, or the
suspension or revocation of any license, necessary for the
conduct by DEALER of its business pursuant to this Agreement; or
b. Failure of DEALER to pay MMSA for any MMSA Products in
accordance with the terms and conditions of this Agreement or
the terms and conditions governing the purchase of such
products; or
c. The death of any Owner or upon the death or incapacity of any
Executive Manager (provided that the terms and conditions of
Section X.D. hereof shall apply in any such case); or
d. Any sale, transfer, relinquishment or other change, voluntary
or involuntary, by operation of law or otherwise, of any
majority interest in the direct or indirect ownership or in the
management of DEALER as set forth in Sections 3 and 4,
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respectively, of the MMSA Dealer Sales and Service Agreement, without the
prior written consent of MMSA; or
e. The inability of DEALER to generally pay its debts as such debts become
due, or the filing of any voluntary or involuntary petition under any
bankruptcy law, or the execution by DEALER of an assignment for the
benefit of creditors, or the appointment for DEALER of a receiver or
trustee or other officer having similar powers for DEALER who is not
removed within thirty (30) days from his appointment thereto, or any levy
under attachment or execution or similar process which is not within ten
(10) days vacated or removed by payment or bonding, or the conviction of
DEALER, or any principal officer or manager of DEALER, of any crime
tending to affect adversely the ownership, operation, management, business
or interests of DEALER or MMSA; or
f. Failure of DEALER to establish or maintain the unrestricted availability
of lines of credit in the amount set forth in the Dealer Development Plan
and under terms approved by MMSA with financial institutions acceptable to
MMSA for use in connection with DEALER'S purchase and maintenance of its
inventory of MMSA Products as required under the provisions of this
Agreement, including, but not limited to, Sections III.C.2. and III.C.4.
hereof; or
g. Impairment of the reputation or financial standing of DEALER or any of its
management subsequent to the execution of this Agreement, or ascertainment
by MMSA subsequent to the execution of this Agreement or any fact existing
at or prior to the time of execution of this Agreement which tends to
impair the reputation or financial standing of DEALER or any of its
management and which would substantially impair the operation of the
dealership; or
h. Any submission by DEALER to MMSA of a false or fraudulent dealership
application report, statement or claim for reimbursement, refund, credit,
or financial information, or submission to a customer of a false or
fraudulent report or statement of any kind, including but not limited to
statements concerning pre-delivery preparation, testing, servicing, repair
or maintenance; or
i. Repeated failure of DEALER'S sales, service and parts personnel, including
but not limited to management, to fully participate in any training and/or
mandatory promotional programs offered by MMSA to DEALER as required under
Sections VII.E.1. and VIII.C.1. hereof; or
j. Failure of DEALER to property obtain, erect, maintain, repair and
illuminate signs and other displays in a manner approved by MMSA as
required under the provisions of this Agreement, including, but not
limited to, Section IV.H. hereof; or
k. Failure of DEALER to procure and maintain an adequate supply of general
and special tools and equipment designated by MMSA as required under the
provisions of this Agreement, including, but not limited to, Section
VIII.B.3. hereof; or
l. Failure of DEALER to maintain good relations with its customers,
including, but not limited to, failure to notify MMSA of complaints by
customers and repeated failure to properly resolve customer complaints as
required under Section VIII.B.4. hereof; or
m. Failure of DEALER to permit authorized MMSA representatives to examine,
audit, reproduce and take for MMSA's use copies of DEALER'S records,
whether or not located on the Dealership Premises, as required under
Section VI.D. hereof; or
n. Failure of DEALER to maintain the minimum inventory of MMSA Vehicles,
whether for showroom display, demonstration or immediate sale, as required
under Section IV.G. hereof; or
o. Failure of DEALER to maintain an adequate stock of parts as required under
section VIII.B.5. hereof; or
p. Failure of DEALER to accept an amended form of MMSA Dealer Sales and
Service Agreement or renewal thereof within thirty (30) days after its
presentation to DEALER, as required under Section 2 of the MMSA Dealer
Sales and Service Agreement; or
q. Failure of DEALER to promote effectively MMSA Products by using sales
promotional literature offered by MMSA; or
r. Failure of DEALER to use proper parts and accessories in the repair and
servicing of MMSA Vehicles as required under Section VIII.A.4. hereof.
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3. By Giving Ninety (90) Days Prior Written Notice Upon--
a. Failure of DEALER to reach and maintain its Minimum Sales
Responsibility as defined in the Dealer Development Plan or to
correct deficiencies described in the Dealer Development Plan, as
required under Section VII.B.1 hereof, or failure of DEALER to
otherwise conduct its business in accordance with any of its
obligations or requirements set forth herein to the satisfaction of
MMSA; or
b. Any material or continuing breach or violation by DEALER of any
other term or provision of this Agreement; or
c. Any dispute, disagreement or controversy between or among partners,
managers, officers or stockholders of DEALER which in the good
faith of MMSA adversely affects the ownership, operation,
management, business or interests of DEALER or MMSA, or the
presence in the management of DEALER of any person who in MMSA's
good faith opinion no longer has the requisite qualifications to
discharge his or her responsibilities.
C. NOTICE AND EFFECT OF TERMINATION
The date of any notice of termination shall be the date such notice is
mailed. Any notice of termination by MMSA shall inform DEALER of the
grounds therefor, and any such notice may be withdrawn if during the
applicable notice period DEALER cures to MMSA's satisfaction the condition
or conditions upon which the notice is based. If any period of advance
notice of termination required hereunder is less than that required by
applicable law, such period of advance notice shall be deemed to be the
minimum period required by such laws.
MMSA's election to terminate this Agreement shall be without the prejudice
to any other right or remedy which may be available to MMSA hereunder or
under applicable law.
D. ESTABLISHMENT OF SUCCESSOR DEALER
1. Because of the Death of an Owner
In the event of termination of this Agreement by MMSA because of
the death of an Owner, pursuant to Section X.B.2.(c) hereof, the
following provisions shall apply:
a. Subject to the other provisions of this Agreement, MMSA shall
offer an MMSA Interim Sales and Service Agreement (a
conditional and temporary sales and service agreement the
term of which may not exceed one (1) year) in the form then
used by MMSA to a successor dealer ("Successor Dealer")
comprised of the person nominated by such deceased Owner as
his or her successor, together with the other Owner(s),
provided that:
(i) the nomination was submitted to MMSA in writing, was
consented to by all remaining Owners, and was approved
by MMSA prior to the death of such Owner;
(ii) either (a) there has been no change in the Executive
Managers of DEALER or (b) the provisions of Section
X.D.2. below have been complied with; and
(iii) the Successor Dealer has capital and facilities
substantially in accordance with MMSA's established
standards and requirements therefor at the time the
MMSA Interim Sales and Service Agreement is offered.
b. If the deceased Owner has not nominated a successor in
accordance with this section, but all of the beneficial
interest of the deceased Owner has passed by will or by the
laws of intestate succession directly to the deceased
Owner's spouse and/or children (the "Proposed New Owners"),
subject to the other provisions of this section, MMSA shall
offer an MMSA Interim Sale and Service Agreement in the form
then used by MMSA to a Successor Dealer comprised of th
Proposed New Owners, together with the other Owner(s),
provided that:
(i) Either (a) there has been no change in the Executive
Managers of DEALER or (b) the provisions of Section
X.D.2. below have been complied with; and
(ii) The Successor Dealer has capital and facilities
substantially in accordance with MMSA's established
standards and requirements therefor at the time the
MMSA Interim Sales and Service Agreement is offered.
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2. Because of Death or Incapacity of Executive Manager
In the event of the termination of this Agreement by MMSA because of the
death, physical or mental incapacity of an Executive Manager, subject to
the other provisions of this section of this Agreement, MMSA shall offer
an MMSA Interim Sales and Service Agreement to a Successor Dealer
comprised of the Owners, provided that:
a. Either (i) the Owners have nominated in writing a person to succeed the
deceased or disabled Executive Manager which nomination was approved by
MMSA prior to the event causing the death, disability or incapacity of
such Executive Manager, or (ii) not later than one (1) month after the
occurrence of such death or disabling event a new Executive Manager is
proposed to MMSA by all of the owners and such person is approved by
MMSA; and
b. The Successor Dealer has capital and facilities substantially in
accordance with MMSA's established standards and requirements therefor
at the time the MMSA Interim Sales and Service Agreement is offered.
3. Evaluation of Successor Dealer
During the term of any MMSA Interim Sales and Service Agreement offered
pursuant to Sections X.D.1. or X.D.2. hereof, MMSA will periodically
review the performance of the Successor Dealer using the standards set
forth in the Successor Dealer's Dealer Development Plan. If such
Successor Dealer is able to satisfactorily meet such standards and desires
to continue the dealership operation, the Successor Dealer will be given
an opportunity to enter into an MMSA Dealer Sales and Service Agreement
and such Successor Dealer shall be thereafter treated in the same manner
as any Authorized MMSA Dealer.
4. Termination of Market Representation
Notwithstanding anything stated or implied to the contrary in this
Agreement, MMSA shall not be obligated to offer a dealership agreement to
any Successor Dealer if MMSA notifies DEALER in writing prior to the event
causing the termination of this Agreement that MMSA's market
representation plans do not provide for continuation of that dealership
operation in the Sales Locality.
5. Termination of Offer
Any offer of an MMSA Interim Sales and Service Agreement to a proposed
Successor Dealer made under this Section shall automatically expire if not
accepted within thirty (30) days after presentation by MMSA.
E. CONTINUANCE OF BUSINESS RELATIONS
If, after the effective date of termination or expiration, MMSA chooses to
accept orders from DEALER to fill customers' orders received prior to such
date by DEALER, or if MMSA otherwise transacts business with DEALER relating
to the sale of MMSA Products, all such transactions will be governed by the
terms of this Agreement, so far as those terms are applicable.
Nevertheless, no such acceptance of orders or other acts of MMSA shall waive
termination or constitute a renewal of this Agreement.
F. DISCONTINUANCE OF USE OF MARKS
Upon expiration or termination of this Agreement, DEALER agrees that it
shall immediately:
1. Discontinue the use of the words "Mitsubishi," "MMSA" and all other MMSA
Trademarks, or any semblance of any of the foregoing, including without
limitation, the use of all stationery and other printed material
referring in any way to Mitsubishi, MMSA or MMC, any other manufacturer
of MMSA Products, or bearing any MMSA Trademarks; and
2. Discontinue any use of the words "Mitsubishi," "MMSA" or other MMSA
Trademarks, or any semblance of any of the foregoing, as a part of its
trade name, and file a change or discontinuance of such name with
appropriate authorities; and
3. Remove all product signs bearing any MMSA Trademarks from the Dealership
Premises at DEALER'S sole cost and expenses; and
4. Not represent itself as an Authorized MMSA Dealer; and
5. Refrain from any action including, without limitation, any advertising
stating or implying that it is authorized to sell or distribute MMSA
Products.
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In the event Dealer fails to comply with the terms and conditions of this
Section X.F., MMSA shall have the right to enter upon the Dealership
Premises and remove all such signs bearing any MMSA Trademarks without
liability to Dealer; and Dealer agrees that it shall reimburse MMSA for any
costs and expenses incurred in connection therewith, including but not
limited to reasonable attorneys' fees.
G. REPURCHASE PROVISIONS
Upon the expiration or termination of the Agreement, MMSA may at its option
purchase from Dealer all or any part of the following:
1. New, unused, undamaged current model year MMSA Vehicles then unsold in
Dealer's inventory. The prices of such vehicles shall be the lower of
(i) the price at which they were originally purchased by Dealer from
MMSA, or (ii) the Invoice Price last established by MMSA for the sale
of identical vehicles to MMSA Dealers in the area in which Dealer is
located, less in either case all prior refunds or allowances, if any,
made by MMSA with respect thereto, and also less any costs and
expenses required to place the repurchased vehicles in new car
condition.
2. New, unused and undamaged MMSA Parts and Accessories then unsold in
Dealer's inventory which are in good and saleable condition, provided
that they are listed in the then current MMSA Master Parts Price List
and have not been superseded by another part or accessory. All such
parts and accessories must be in the original container bearing a
label with the appropriate part identification number. Should MMSA
elect to purchase parts, the repurchase price shall be the price last
established by MMSA for the sale of identical MMSA Parts or
Accessories to MMSA Dealers in the area in which Dealer is located,
less the maximum dealer's discount available under the most favorable
purchase terms available to Dealer and also less handling and packing
charges then in effect as established by MMSA.
If DEALER purchased MMSA Parts and Accessories from sources other
than MMSA, DEALER must present to MMSA evidence of the price which it
paid for such parts before MMSA will consider repurchasing such
parts. In no event shall MMSA pay a price which exceeds the price
for any part as calculated hereinabove.
3. Tools and equipment especially designed for servicing MMSA Vehicles.
The prices for such tools and equipment shall be as mutually agreed
upon by MMSA and Dealer.
4. Signs recommended by MMSA for identification of, Dealer. The prices
of such signs shall be as mutually agreed upon by MMSA and Dealer.
Within thirty (30) days after the date of expiration or termination of this
Agreement, Dealer shall deliver or mail to MMSA a detailed inventory of all
items referred to in subsections 1, 2, 3 and above and Dealer shall certify
the truth thereof. In the event Dealer fails to supply such a list to MMSA
within said period, MMSA shall have the right to enter the Dealership
Premises, without liability to Dealer, for the purpose of compiling such an
inventory list; and DEALER shall reimburse MMSA for any costs and expenses
incurred in connection therewith. If, upon review of the inventory list,
MMSA decides to purchase any of the items in subsections 1-4 hereinabove,
MMSA will, within a reasonable period of time, provide Dealer with a
written offer specifying the items MMSA wishes to purchase. Dealer shall
act promptly in arranging for the sale and delivery of such items to MMSA.
If Dealer fails to promptly cooperate in effectuating the sale, MMSA may,
at its option, withdraw its offer to repurchase.
Any purchase made hereunder shall be deemed to be only with respect to
those items which were purchased by Dealer from MMSA, unless MMSA by its
notice of such purchase states otherwise. Dealer agrees that products to be
purchased by MMSA from Dealer shall be delivered by Dealer to MMSA's place
of business at Dealer's expense; or, if Dealer fails to do so, MMSA may
transport such products and deduct the costs therefor from the repurchase
price. Dealer agrees to execute and deliver to MMSA instruments
satisfactory to MMSA conveying title to the aforesaid property to MMSA. If
such property is subject to any lien or charge of any kind, Dealer agrees
to procure the discharge and satisfaction thereof prior to the repurchase
of such property by MMSA.
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XI. POLICY REVIEW BOARD
A. ESTABLISHMENT OF POLICY REVIEW BOARD
In the interest of maintaining harmonious relations between MMSA and
DEALER and to provide for the resolution of protests, controversies and
claims related to the transactions contemplated under this Agreement,
MMSA shall establish the Mitsubishi Motor Sales of America, Inc. Policy
Review Board (the "Policy Review Board") to be comprised of two
corporate officer and one MMSA Dealer representative. DEALER agrees to
abide by the procedures of the Policy Review Board, as they may be
revised from time to time by MMSA.
B. APPEAL OF DEALER APPOINTMENT TO POLICY REVIEW BOARD
If, as a result of a market analysis undertaken by MMSA, MMSA proposes
to appoint an additional MMSA Dealer in the Sales Locality, and if
DEALER objects to such proposed addition, DEALER may file a written
objection to such proposed addition with the Policy Review Board in
accordance with the procedures established therefor within fifteen (15)
days from the date of DEALER'S receipt of notice of MMSA's intent to
appoint such additional MMSA Dealer. MMSA will not appoint such
additional dealer until the Policy Review Board has rendered its
decision on the matter and any decision of the Policy Review Board
shall be binding on MMSA but not on DEALER.
C. APPEAL OF TERMINATION TO POLICY REVIEW BOARD
Any protests, controversies or claims by DEALER (whether for damages,
stays of action or otherwise) with respect to any termination of this
Agreement or the settlement of the accounts of DEALER with MMSA after
termination of this Agreement has become effective shall be appealed by
DEALER to the Policy Review Board within fifteen (15) days after
DEALER'S receipt of notice of termination or, as to settlement of
accounts after termination, within six (6) months after the termination
has become effective. Appeal to the Policy Review Board shall be a
condition precedent to DEALER'S right to pursue any other remedy
available under this Agreement or otherwise available under law. MMSA,
but not DEALER, shall be bound by the decision of the Policy Review
Board.
D. ARBITRATION OF CLAIMS BY DEALER
If DEALER is dissatisfied with a decision of the Policy Review Board in
a case arising under Section XI.C. hereof, DEALER may submit the matter
to binding arbitration as hereinafter provided.
1. Arbitration shall be initiated by DEALER by filing a written request
therefor within fifteen (15) days after DEALER'S receipt of notice
of the decision of the Policy Review Board issued under Section
XI.C. hereof. DEALER'S written request to arbitrate, together with
the appropriate filing fee, shall be filed by DEALER with the office
of the American Arbitration Association located nearest to the
Dealership Premises, which shall then become the site of arbitration
proceedings, unless otherwise agreed to by the parties. The
arbitration request shall set forth a clear and complete statement
of the nature of DEALER'S claim and its basis, the amount involved,
if any, and the remedy sought.
2. Arbitration shall be the sole and exclusive remedy of DEALER in such
cases, and the decision and award of the arbitrator shall be final
and binding on both parties.
3. The arbitration shall be conducted in accordance with the Commercial
Rules of the American Arbitration Association then in effect
(hereinafter referred to as the "Commercial Rules") and in
consonance with the United States Arbitration Act (9 U.S.C. Section
1, et seq.).
4. The arbitration shall be heard by a single, impartial arbitrator
mutually agreeable to the parties, who shall be an attorney at law
admitted to practice for at least five (5) years and selected from a
panel of American Arbitration Association arbitrators. If the
parties shall fail to reach such an agreement within fifteen (15)
days of the DEALER'S request to arbitrate, an arbitrator meeting
such qualifications shall be named by the American Arbitration
Association from such panel in accordance with the Commercial Rules.
5. If the arbitrator finds that termination of this Agreement by MMSA
would be in accord with the provisions hereof, the standards set
forth in the Automobile Dealer Suits Against Manufacturers Act, 15
U.S.C. Sections 1221-1225 (the "Dealer's Day in Court Act"), and any
applicable state or local law, the arbitrator shall render an award
in favor of MMSA,
[MITSUBISHI LOGO]
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the termination shall become effective on the date of such award,
and the termination shall be expressly recognized by Dealer as
having been made by MMSA without breach by MMSA of this Agreement,
the Dealer's Day in Court Act, or any applicable state or local
law. If the arbitrator shall render an award in favor of Dealer,
MMSA's notice of termination shall be void and shall not be deemed
to constitute a breach of this Agreement. The decision and award
of the arbitrator shall be conclusive as to all matters within the
arbitrator's jurisdiction in all other proceedings between the
parties, their successors or assigns, and judgment upon the award
may be entered in any Court of competent jurisdiction.
6. To facilitate the selection of a competent and experienced
arbitrator, the parties agree to make reasonable arrangements to
compensate the arbitrator for the time spent in the performance of
his or her duties. The compensation shall be commensurate with the
professional standing of the arbitrator and shall be arranged in
conformance with the Commercial Rules. The compensation of the
arbitrator, the administrative fees and charges of the American
Arbitration Association, and the other expenses of the arbitration
shall be borne by the parties as provided in the Commercial Rules.
The arbitrator shall, however, have discretion in the arbitrator's
award to assess such compensation, administrative fees and charges
and other expenses of the arbitration against either party in such
proportions (or in their entirety) as the arbitrator may determine
to be fair and equitable, provided that in all cases each party
shall pay the fees and disbursements of its own legal counsel.
7. Unless MMSA and Dealer specifically agree to the contrary, and
subject to the Commercial Rules and the procedures of the American
Arbitration Association, the arbitration hearing shall be
concluded not more than sixty (60) days after the date of Dealer's
written request to arbitrate.
XII. GENERAL PROVISIONS
A. Indemnification
1. Dealer shall defend and indemnify MMSA and any manufacturer of
MMSA Products and hold each of them harmless from any and all
liabilities that may be asserted or arise by reason or out of: (a)
Dealer's failure or alleged failure to comply, in whole or in
part, with any obligation assumed by Dealer pursuant to this
Agreement; (b) Dealer's negligent or improper, or alleged
negligent or improper, repairing or servicing of new or used MMSA
Vehicles or equipment, or such other motor vehicles or equipment
as may be sold or serviced by Dealer; (c) Dealer's breach, or
alleged breach, of any contract between Dealer and Dealer's
customer; or (d) Dealer's misleading statement or
misrepresentation, or alleged misleading statement or
misrepresentation, either direct or through advertisement, to any
customer of Dealer. This indemnification shall include all
attorneys' fees, court costs and expenses incurred by MMSA and/or
any manufacturer of MMSA Products in defending any claim or suit
asserted as a result of the foregoing.
In the event that any legal action arising out of any of the
foregoing causes or alleged causes is brought against MMSA, any
manufacturer of MMSA Products and/or any of their shareholders,
then Dealer shall undertake, at its sole expense, the defense of
said action on their behalf. Should any tender of such defense be
refused by Dealer, then MMSA, any manufacturer of MMSA Products
and/or any of their shareholders shall conduct such defense; and
Dealer shall be liable to MMSA, any manufacturer of MMSA Products
and/or any of their shareholders for costs of such defense,
including attorneys' fees, together with any judgement or
settlement paid by MMSA, any manufacturer of MMSA Products and/or
any of their shareholders.
Dealer shall have no obligation to indemnify MMSA and/or any
manufacturer of MMSA Products pursuant to this paragraph if the
injury or damage as to which indemnification is demanded is
alleged to have been caused or contributed to in any way by any
act or omission by MMSA and/or any manufacturer of MMSA Products.
2. MMSA and/or any manufacturer of MMSA Products shall indemnify
Dealer and hold it harmless from any and all claims for personal
injury or property damage resulting from the alleged
malfunctioning of an MMSA Product claimed to have been caused by a
factory defect or deficiency in design of such product. This
indemnification shall include all attorneys' fees, court costs and
expenses incurred by Dealer in defending any claim or suit
asserted as a result of the foregoing.
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In the event that any legal action arising out of any of the foregoing
causes or alleged causes is brought against Dealer and/or any of their
shareholders, than MMSA and/or any manufacturer or MMSA Products shall
undertake, at its sole expense, the defense of said action on their behalf.
Should any tender of such defense be refused by MMSA and/or any
manufacturer of MMSA Products, the Dealer, and/or any of their
shareholders, shall conduct such defense; and MMSA and/or any manufacturer
of MMSA Products shall be liable to Dealer, and/or any of their
shareholders for costs of such defense, including attorneys' fees, together
with any judgment or settlement paid by Dealer, and/or any of their
shareholders.
MMSA and/or any manufacturer of MMSA Products shall have no obligation to
indemnify Dealer pursuant to this paragraph if the injury or damage as to
which indemnification is demanded is alleged to have been caused or
contributed to in any way by any act or omission by Dealer, including, but
not limited to, improper or unsatisfactory service or repair,
misrepresentation or any claim of Dealer's unfair or deceptive trade
practice.
3. Any party seeking indemnification shall promptly give written notice to the
proposed indemnitor of any lawsuit and provide copies of any pleadings
which have been served, together with all information then available
regarding the circumstances giving rise to the suit. The proposed
indemnitee shall at all times take all reasonable steps to insure that the
defense of such lawsuit is not prejudiced by its action or inaction. The
parties shall cooperative fully in the defense of such lawsuit in such
manner and to such extent as the indemnitor may reasonably require.
B. NO IMPLIED WAIVERS
Any failure of either party at any time to require performance by the other
party of any provision hereof shall in no way affect the full right to
require such performance at any time thereafter, nor shall any waiver by
either party of a breach of any provision hereof constitute a waiver of any
succeeding breach of the same or any other provision, nor constitute a
waiver of the provision itself. The election by either party of a
particular remedy on default (including but not limited to termination of
this Agreement) will not be exclusive of any other remedy provided
hereunder or by applicable law, and all rights and remedies of the parties
hereto will be cumulative.
C. WAIVER OF TRIAL BY JURY
For all disputes, controversies or claims which may arise between MMSA and
Dealer out of, or in connection with, this Agreement, its construction,
interpretation, effect, performance or nonperformance, termination or the
consequences thereof, or in connection with any transaction between them
contemplated hereby, MMSA and Dealer hereby waive, to be the extent
permitted by law, the right to trial by jury.
D. DEALER NOT AGENT OR REPRESENTATIVE
This Agreement does not make Dealer the agent or legal representative of
MMSA or any other manufacturer of MMSA Products for any purpose whatsoever.
Dealer is not granted any express or implied right or authority to assume
or to created any obligation or responsibility on behalf of or in the name
of MMSA or nay other manufacturer of MMSA Products or to bind either in any
manner whatsoever.
E. ASSIGNMENT
Neither party may assign this Agreement or any of its interest herein
without the prior written consent of the other party, except that MMSA may
assign this Agreement without such consent to any person, firm or
corporation succeeding to its business and to any subsidiary or affiliated
company of MMSA.
F. EXPENSES
Except as provided in this Agreement, MMSA shall not be under any liability
whatsoever for any expenditure made or incurred by Dealer in connection
with Dealer's performance of its obligations pursuant to this Agreement.
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G. TAXES
DEALER agrees that it shall be responsible for and shall duly pay any
and all sales taxes, use taxes, excise taxes,and other governmental or
municipal charges, whenever imposed, levied or based upon the sale of
MMSA to DEALER and shall maintain accurate records of same for reporting
purposes. DEALER agrees to pay and to hold MMSA harmless from any sales
tax, use tax or similar tax, and any claims or demands (whether or not
lawful) made by tax authorities with respect to such taxes, applicable
with respect to the sale of MMSA Products from MMSA to DEALER and from
DEALER to its customers.
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