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EXHIBIT 10.42
[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
Xxx Pontiac-GMC Truck, Inc.
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(Name of Dealer)
a Georgia Corporation X, Partnership , Individual ,
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(State)
doing business as Xxx Mitsubishi
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(Name)
at 0000 Xxxxxx Xxxxxx, Xxxxxxxx,
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(Number and Street) (City)
Xxxxxxxx Xxxxxx, Xxxxxxx 00000
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(County) (State) (Zip)
(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
dealer 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.
Agreement Date OCT 04 1996
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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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Xxx Automotive Group, Inc. Holding Company 100%
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Xxxxx X. Xxxxxxxxxxxxx, III President/Treasurer Active
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Xxxxx X. Xxxxxxxxxxxxx, XX Vice President Inactive
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Xxxxx X. Xxxxxxxxxxxxx Secretary Inactive
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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 Xxxxxx X. Xxxxxxxx exercises the functions of
general manager and Xxxxx X. Xxxxxxxxxxxxx, III 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 the 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: Columbus
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County or Parish of Muscogee 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 within 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.
Nothing contained in this Agreement shall require or be construed to
require Dealer's approval of MMSA entering into MMSA Dealer Sales and Service
Agreements or any other agreements with others within or without the Sales
Locality.
Agreement Date OCT 04 1996 [MITSUBISHI LOGO]
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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
0000 Xxxxxx Xxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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Parts and Services Facilities
0000 Xxxxxx Xxxxxx (Shared with Pontiac-GMC Truck)
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Xxxxxxxx, Xxxxxxx 00000
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Sales and General Offices
0000 Xxxxxx Xxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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Used Vehicle Display and Sales Facilities
0000 Xxxxxx Xxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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Storage Facilities
0000 Xxxxxx Xxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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Agreement Date OCT 04 1996
[MITSUBISHI LOGO]
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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.
Agreement Date Oct 04 1996 [Mitsubishi LOGO]
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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 undertakings, 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 of
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
Section 1642 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.
Agreement Date OCT 04 1996 [Mitsubishi Logo]
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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.
Xxx Pontiac-GMC Truck, Inc.
dba Xxx Mitsubishi
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(Dealer's Firm Name)
By /s/ Xxxxx X. Xxxxxxxxxxxxx, III Date September 16, 1996
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Title President
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By Date September 16, 1996
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Title
---------------------------- Xxxx Xxxxxx
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(Witness)
Mitsubishi Motor Sales of America, Inc.
By Date
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(President)
OR
By /s/ ?????????????????? Date OCT 04 1996
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(Executive Vice President)
OR
By Date
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(Vice President)
and
By Date
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(Vice President)
Agreement Date OCT 4 1996 [MITSUBISHI LOGO]
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PREAMBLE CHANGE
AMENDMENT TO MITSUBISHI MOTOR SALES OF AMERICA, INC.
DEALER SALES AND SERVICE AGREEMENT
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
Xxx Pontiac-GMC Truck, Inc. a Georgia
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(Dealer Firm Name) (State)
corporation [X], partnership [ ], individual [ ], doing business as
Xxx Mitsubishi
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(Name)
at 0000 Xxxxxx Xxxxxx , Xxxxxxxx
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(Number and Street) (City)
Xxxxxxxx Xxxxxx, Xxxxxxx , 00000
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(County) (State) (Zip)
(hereinafter referred to as "Dealer").
In consideration of the mutual covenants of the parties hereto, and other
good and valuable consideration, MMSA and Dealer hereby agree as follows:
1. The preamble paragraph of the MMSA Sales and Service Agreement entered into
by and between MMSA and Dealer on October 4 , 1996, (the
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"Dealer Agreement") is hereby amended to read as follows:
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 Xxx Pontiac-GMC Truck, Inc.
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(Dealer Firm Name)
a Georgia corporation [X], partnership [ ], individual [ ],
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(State)
doing business as Xxx Mitsubishi
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(Name)
at 0000 Xxxxxxxx Xxxxxxx , Xxxxxxxx
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(Number and Street) (City)
Xxxxxxxx Xxxxxx, Xxxxxxx , 00000
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(County) (State) (Zip)
(hereinafter referred to as "Dealer").
2. The terms and provisions of the Dealer Agreement, insofar as they are not
inconsistent with the terms and provisions of this Amendment, remain in full
force and effect and constitute a part of this Amendment as if set forth at
length herein.
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IN WITNESS OF THE FOREGOING, the parties hereto have executed this
Amendment in duplicate. THIS AMENDMENT SHALL NOT BECOME EFFECTIVE UNTIL IT HAS
BEEN SIGNED BY THE PRESIDENT OR AN EXECUTIVE VICE PRESIDENT OR TWO (2) VICE
PRESIDENTS OF MMSA. DEALER WILL BE NOTIFIED IN WRITING BY MMSA WHEN THIS
AMENDMENT HAS BEEN SO SIGNED, WHICH NOTICE WILL SPECIFY THE EFFECTIVE DATE OF
THIS AMENDMENT.
Xxx Pontiac-GMC Truck, Inc.
dba Xxx Mitsubishi
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(Dealer's Firm Name)
By: /s/ Xxxxx X. Xxxxxxxxxxxxx, III Date: October 22, 1996
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Title: President
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By: Date: October 22, 1996
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Title:
------------------------------- /s/ Xxxx Xxxxxx
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(Witness)
MITSUBISHI MOTOR SALES
OF AMERICA, INC.
By: Date:
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(President)
OR
By: /s/ ??? Date: Nov 4 1996
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(Executive Vice President)
OR
By: Date:
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(Vice President)
and
By: Date:
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(Vice President)
