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EXHIBIT 10.44
TOYOTA DEALER AGREEMENT
This is an Agreement between Southeast Toyota Distributors, Inc.
(DISTRIBUTOR), and Xxx Automotive Group II, Inc. (DEALER), a(n) [ ] individual,
[ ] partnership, [X] corporation. If a corporation, DEALER is duly incorporated
in the State of Georgia and doing business as Xxx Toyota.
PURPOSES AND OBJECTIVES OF THIS AGREEMENT
DISTRIBUTOR sells Toyota Products which are manufactured or approved by Toyota
Motor Corporation (FACTORY) and imported and/or sold to DISTRIBUTOR by Toyota
Motor Sales, U.S.A., Inc. (IMPORTER). It is of vital importance to DISTRIBUTOR
that Toyota Products are sold and serviced in a manner which promotes consumer
confidence and satisfaction and leads to increased product acceptance.
Accordingly, DISTRIBUTOR has established a network of authorized Toyota
dealers, operating at approved locations and pursuant to certain standards, to
sell and service Toyota Products. DEALER desires to become one of DISTRIBUTOR's
authorized dealers. Based upon the representations and promises of DEALER, set
forth herein, DISTRIBUTOR agrees to appoint DEALER as an authorized Toyota
dealer and welcomes DEALER to DISTRIBUTOR's network of authorized dealers of
Toyota Products.
This Agreement sets forth the rights and responsibilities of DISTRIBUTOR as
seller and DEALER as buyer of Toyota Products. DISTRIBUTOR enters into this
Agreement in reliance upon DEALER's integrity, ability, assurance of personal
services, expressed intention to deal fairly with the consuming public and with
DISTRIBUTOR, and promise to adhere to the terms and conditions herein.
Likewise, DEALER enters into this Agreement in reliance upon DISTRIBUTOR's
promise to adhere to the terms and conditions herein. DISTRIBUTOR and DEALER
shall refrain from conduct which may be detrimental to or adversely reflect
upon the reputation of the FACTORY, IMPORTER, DISTRIBUTOR, DEALER or Toyota
Products in general. The parties acknowledge that the success of the
relationship between DISTRIBUTOR and DEALER depends upon the mutual
understanding and cooperation of both DISTRIBUTOR and DEALER.
Dealer Code 10085
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I. RIGHTS GRANTED TO THE DEALER
Subject to the terms of this Agreement, DISTRIBUTOR hereby grants DEALER
the non-exclusive right:
A. To buy and resell the Toyota Products identified in the Toyota Product
Addendum hereto which may be periodically revised by IMPORTER;
B. To identify itself as an authorized Toyota dealer utilizing approved
signage at the location(s) approved herein;
C. To use the name Toyota and the Toyota Marks in the advertising,
promotion, sale and servicing of Toyota Products in the manner herein
provided.
DISTRIBUTOR reserves the unrestricted right to sell Toyota Products and to
grant the privilege of using the name Toyota or the Toyota Marks to other
dealers or entities, wherever they may be located.
II. RESPONSIBILITIES ACCEPTED BY THE DEALER
DEALER accepts its appointment as an authorized Toyota dealer and agrees
to:
A. Sell and promote Toyota Products subject to the terms and conditions of
this Agreement;
B. Service Toyota Products subject to the terms and conditions of this
Agreement;
C. Establish and maintain satisfactory dealership facilities at the
location(s) set forth herein; and
D. Make all payments to DISTRIBUTOR when due.
III. TERM OF AGREEMENT
This Agreement is effective this 13th day of December, 1995, and shall
continue for a period of (21) Months, and shall expire on September 12,
1997, unless ended earlier by mutual agreement or terminated as provided
herein. This Agreement may not be continued beyond its expiration date
except by written consent of DISTRIBUTOR and IMPORTER.
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IV. OWNERSHIP OF DEALERSHIP
This Agreement is a personal service Agreement and has been entered into
by DISTRIBUTOR in reliance upon and in consideration of DEALER'S
representation that only the following named persons are the Owners of
DEALER, that such persons will serve in the capacities indicated, and that
such persons are committed to achieving the purposes, goals and commitments
of this Agreement:
OWNERS' PERCENT OF
NAMES TITLE OWNERSHIP
Xxxxx X. Xxxxxxxxxxxxx, III PRES DLRPR 0.0%
T. Xxxxx Xxxx GM 0.0%
Holding Company
Xxx Automotive Group, Inc. 100.0%
V. MANAGEMENT OF DEALERSHIP
DISTRIBUTOR and DEALER agree that the retention of qualified management is
of critical importance to satisfy the commitments made by DEALER in this
Agreement. DISTRIBUTOR, therefore, enters into this Agreement in reliance
upon DEALER's representation that T. Xxxxx Xxxx, and no other person, will
exercise the function of General Manager, be in complete charge of DEALER's
operations, and will have authority to make all decisions on behalf of
DEALER with respect to DEALER's operations. DEALER further agrees that the
General Manager shall devote his or her full efforts to DEALER's
operations.
VI. CHANGE IN MANAGEMENT OR OWNERSHIP
This is a personal service contract. DISTRIBUTOR has entered into this
Agreement because DEALER has represented to DISTRIBUTOR that the Owners and
General Manager of DEALER identified herein possess the personal
qualifications, skill and commitment necessary to ensure that DEALER will
promote, sell and service Toyota Products in the most effective manner,
enhance the Toyota image and increase market acceptance of Toyota Products.
Because DISTRIBUTOR has entered into this Agreement in reliance upon these
representations and DEALER's assurances of the active involvement of such
persons in DEALER operations, any change in ownership, no matter what the
share or relationship between parties, or any changes in General Manager
from the person specified herein, requires the prior written consent of
DISTRIBUTOR, which DISTRIBUTOR shall not unreasonably withhold.
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DEALER agrees that factors which would make DISTRIBUTOR's withholding of
consent reasonable would include, without limitation, the failure of a
new Owner or General Manager to meet DISTRIBUTOR's standards with regard
to financial capability, experience and success in the automobile
dealership business.
VII. APPROVED DEALER LOCATIONS
In order that DISTRIBUTOR may establish and maintain an effective
network of authorized Toyota dealers, DEALER agrees that it shall
conduct its Toyota operation only and exclusively in facilities and at
locations herein designated and approved by DISTRIBUTOR. DISTRIBUTOR
hereby designates and approves the following facilities as the exclusive
location(s) for the sale and servicing of Toyota Products and the display
of Toyota Marks:
New Vehicle Sales and Showroom Used Vehicle Display and Sales
0000 Xxx Xxxx 0000 Xxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Sales and General Office Body and Paint
Same as above Same as above
Parts Service
Same as above Same as above
Other Facilities
Storage
Same as above
DEALER may not, either directly or indirectly, display Toyota Marks or
establish or conduct any dealership operations contemplated by this
Agreement, including the display, sale and servicing of Toyota Products,
at any location or facility other than those approved herein without the
prior written consent of DISTRIBUTOR. DEALER may not modify or change
the usage or function of any location or facility approved herein or
otherwise utilize such locations or facilities for any functions other
than the approved function(s) without the prior written consent of
DISTRIBUTOR.
VIII. PRIMARY MARKET AREA
DISTRIBUTOR will assign DEALER a geographic area called a Primary Market
Area ("PMA"). The PMA is used by DISTRIBUTOR to evaluate DEALER's
performance of its obligations,
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among other things. DEALER agrees that it has no exclusive right to any
such PMA. DISTRIBUTOR may add new dealers, relocate dealers, or adjust
DEALER's PMA as it reasonably determines is necessary. DEALER's PMA is set
forth on the PMA Addendum hereto.
Nothing contained in this Agreement, with the exception of Section XIV(B),
shall limit or be construed to limit the geographical area in which, or the
persons to whom, DEALER may sell or promote the sale of Toyota products.
IX. STANDARD PROVISIONS
The "Toyota Dealer Agreement Standard Provisions" are incorporated herein
and made part of this Agreement as if fully set forth herein.
X. ADDITIONAL PROVISIONS
In consideration of DISTRIBUTOR's agreement to appoint DEALER as an
authorized Toyota dealer, DEALER further agrees:
1) Holding Company
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Dealer agrees:
a) That the current ownership of the outstanding stock of Xxx
Automotive Group, Inc., Columbus, Georgia, is by the following
person(s) in the percentage(s) shown:
Name % Ownership
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Xxx Xxxxxxxxxxxxx, III 100.0%
b) That Xxx Automotive Group, Inc. shall solely be engaged in
automotive-related endeavors.
c) That any changes in ownership of said corporation without the prior
written approval of Southeast Toyota Distributors, Inc. and Toyota
Motor Sales, U.S.A., Inc. will void this Toyota Dealer Agreement
entered into between Southeast Toyota Distributors, Inc. and Xxx
Toyota.
d) That T. Xxxxx Xxxx is currently exercising the functions of General
Manager of Xxx Toyota and, that T. Xxxxx Xxxx shall continue to
exercise the functions of General Manager of Xxx Toyota and, that
no changes in General Manager shall be made without the prior
written approval of Southeast Toyota Distributors, Inc. and Toyota
Motor Sales, U.S.A., Inc.
e) That capital funds will not be transferred from this corporation to
other corporations owned or controlled by Xxx Automotive Group,
Inc. that may be reasonably considered by Southeast Toyota
Distributors, Inc. to be detrimental to the capital structure of
the Toyota dealership.
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XI. EXECUTION OF AGREEMENT
Notwithstanding any other provision herein, the parties to this
Agreement, DISTRIBUTOR and DEALER, agree that this Agreement shall be
valid and binding only if it is signed:
A. On behalf of DEALER by a duly authorized person;
B. On behalf of DISTRIBUTOR by the President and/or an authorized
General Manager, if any, of DISTRIBUTOR; and
C. On behalf of IMPORTER, solely in connection with its limited
undertaking herein, by President of IMPORTER.
XII. CERTIFICATION
By their signatures hereto, the parties agree that they have read and
understand this Agreement, including the Standard Provisions incorporated
herein, are committed to its purposes and objectives and agree to abide
by all of its terms and conditions.
Xxx Automotive Group, Inc. d/b/a Xxx Toyota DEALER
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(Dealer Entity Name)
Date: 7/19/95 By: /s/ Xxxxx X. Xxxxxxxxxxxxx, III President
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Signature Title
Date: By:
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Signature Title
Date: By:
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Signature Title
Southeast Toyota Distributors, Inc. DISTRIBUTOR
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(Distributor Name)
Date: 11/22/95 By: /s/ Xxxx Xxxxxxxx, Jr. General Manager
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Signature Title
Xxxx Xxxxxxxx, Jr.
Date: By:
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Signature Title
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Undertaking by IMPORTER: In the event of termination of this Agreement by
virtue of termination or expiration of DISTRIBUTOR's contract with IMPORTER,
IMPORTER, through its designee, will offer DEALER a new agreement of no less
than one year's duration and containing the terms of the Toyota Dealer
Agreement then prescribed by IMPORTER.
TOYOTA MOTOR SALES, U.S.A., INC.
Date: Dec 13, 1995 By: /s/ Xxxxxx Xxxxx President
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Signature Title
Xxxxxx Xxxxx
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Exhibit 7-1A
EXTENSION OF TOYOTA DEALER AGREEMENT
Xxx Automotive Group II, Inc. d/b/a
Agreement by and between Xxx Toyota , located at
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(Dealer)
0000 Xxx Xxxx Xxxxxxxx, Xxxxxxx
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(Address) (City, State)
a (an) [ ] Individual [ ] Partnership [X] Corporation, hereinafter called
DEALER, and Southeast Toyota Distributors, Inc., hereinafter called DISTRIBUTOR.
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(Distributor)
WHEREAS DEALER entered into a Toyota Dealer Agreement for the sale and service
of new Toyota vehicles and parts, options and accessories therefor, which
Agreement is dated December 13, 1995, which expires on January 12, 1998.
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NOW, THEREFORE, in consideration of the mutual covenants of the parties, and
other good and valuable consideration, DEALER and DISTRIBUTOR agree as follows:
(1) The Toyota Dealer Agreement entered into between DEALER and DISTRIBUTOR
for the sale and service of vehicles and parts and accessories therefor,
dated December 13, 1995, will continue in effect for an additional
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period of Six (6) months beyond the effective date of termination of
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said Agreement set forth above, or until July 12, 1998, and on which
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date said Agreement will terminate automatically without notice to or by
either party, unless required by law.
(2) All other terms and provisions of the aforesaid Toyota Dealer Agreement
remain in full force and effect and constitute a part of this Agreement as
it is set forth at length herein.
(3) This Agreement does not obligate DISTRIBUTOR to grant any further
extension of the aforesaid Toyota Dealer Agreement.
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Xxx Automotive, Group II, Inc. d/b/a Xxx Toyota , DEALER
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(Dealer Entity Name)
Date: 1/23/98 By: /s/ Xxxxx X. Xxxxxxxxxxxxx, III President
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(Signature) (Title)
Date: By:
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(Signature) (Title)
Southeast Toyota Distributors, Inc. , DISTRIBUTOR
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(Distributor Name)
Date: By: General Manager
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(Signature) (Title)
Xxxx Xxxxxxxx, Jr.
APPROVED: TOYOTA MOTOR SALES, U.S.A., INC.
Date: By: President
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(Signature) (Title)
Xxxxxx Xxxxxxxx
