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EXHIBIT 10
CONTRACT FOR
SALE AND PURCHASE OF ASSETS
for
THE MOTOR CYCLE DIVISION
Of
CYCLE SPORT UNLIMITED, INC.
SELLER: CYCLE SPORT UNLIMITED, INC.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
PURCIiASER: V-TWIN ACQUISITIONS, INC.
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
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LIST OF SCHEDULES
SCHEDULE A............................................. LIST OF ASSETS
SCHEDULE B............................................. LIST OF ACCOUNTS
RECEIVABLE
SCHEDULE C............................................. SCHEDULE OF SELLER
LIABILITIES
SCHEDULE C-1....................................... ASSUMED LIABILITIES
SCHEDULE C-2....................................... NON-ASSUMED LIABILITIES
SCHEDULE D............................................. DEALERSHIP AGREEMENTS
SCHEDULE E............................................. LEASE AGREEMENTS
SCHEDULE E-1....................................... HERNDON LEASE
AGREEMENT
SCHEDULE E-2....................................... SPRINGFIELD LEASE
AGREEMENT
SCHEDULE F............................................. BILL OF SALE
SCHEDULE G............................................. LICENSES
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DRAFT 6.2
CONTRACT FOR SALE AND PURCHASE OF ASSETS
THIS CONTRACT, made and entered into this ____ day of ____________, 1998,
by and between CYCLE SPORT UNLIMITED, INC.("Seller") and V-TWIN ACQUISITIONS,
INC., a District of Columbia corporation ("Purchaser").
WHEREAS, Seller's Motor Cycle Division is engaged in the sale and service
of motor cycles and water sport vehicles to the general public at 000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, (Herndon Location) and 0000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxx 00000 ("Springfield Location") (collectively "Business");
and
WHEREAS, the term "Business" as used herein shall not include assets and
interests used by the Fitness Resource Division of Seller, except as
specifically provided herein;
WHEREAS, Seller desires to cease operating the Business and sell certain
assets designated herein to Purchaser, and
WHEREAS, Purchaser desires to acquire certain assets of Seller and to
open and to operate the same type of Business at the same locations used by
Seller in the operation of the Business, and
WHEREAS, Xxxxxx and Purchaser shall contemporaneously herewith enter into
a lease with each other for the Herndon Location, and
WHEREAS, contemporaneously herewith Seller shall assign to Purchaser all
of Seller's interest in the lease for the Springfield Location; and
WHEREAS, Purchaser has paid an xxxxxxx money deposit of $50,000.00 to
Xxxxx, Xxxxx & Xxxxx for credit on the purchase of the Business,
NOW, THEREFORE, in consideration of the terms, covenants and conditions
herein, the parties agree as follows:
1 GENERAL TERMS OF SALE
1.1 CONTRACT TO SELL. Seller hereby agrees to sell, assign, transfer
and deliver to Purchaser, and Purchaser hereby agrees to purchase
and receive from Seller the Following assets, interests and
covenants:
1.1.1 All inventory and goods (including motor vehicles and
water vehicles), supplies, equipment, parts and
accessories, and fixtures (including trade fixtures,
office machinery and equipment), used primarily for
the Business and which are present in Herndon Location
or Springfield Location as of the close of business on
the day before settlement, all of which is included on
the list attached hereto as "SCHEDULE A." A draft of
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SCHEDULE A is attached to this Agreement at execution. A final
version of SCHEDULE A shall be prepared and agreed upon by the
parties as a condition of settlement as provided in SECTION 4.6.2
below;
1.1.2 Accounts receivable recorded in the corporate records of Seller as
of the close of business on the day before settlement, a current
list of which is attached hereto as "SCHEDULE B, and which shall be
updated prior to settlement;"
1.1.3 The good will associated with Seller's Business, including all of
Seller's interest in the name "Cycle Sport Unlimited."
1.1.4 All files, customer fists and marketing materials of the Business in
the possession of Seller as of the day before settlement and all
advertising contracts in effect as of the close of business on the
day before settlement, together with the right to all promotions and
events sponsored in whole or in part by "Cycle Sport;"
1.1.5 All the intellectual property assets of Seller related to the
Business, including the right to use the trade name "Cycle Sport
Unlimited" together with the current logo and/or service mark; and
1.1.6 The right to assume all franchise or authorized dealer agreements
and/or contracts held by Seller with any of its suppliers or
vendors, to the extent that such agreements may be assignable or
assumable, including (but not limited to) all of Seller's interest
in those certain dealership agreements attached hereto as
"SCHEDULE D;"
1.2 PURCHASE PRICE. Purchaser shall pay to Seller as the total purchase and
sale price the sum of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) payable
as follows:
1.2.1 XXXXXXX MONEY DEPOSIT. Purchaser has posted $50,000.00 in escrow
with Settlement Agent as consideration for the execution of this
Agreement. The Xxxxxxx Money Deposit shall be applied to the
Purchase Price at settlement. In the event of default by Purchaser
the Xxxxxxx Money Deposit shall be forfeit to Seller as liquidated
damages and not as a penalty. In the event of default by Seller the
Xxxxxxx Money Deposit shall be returned to Purchaser and the parties
shall thereupon be relieved of all further liability, duties and
obligations to each other. Upon the failure of settlement without
default by either party, the deposit shall be refunded to Purchaser.
1.2.2 FINAL PAYMENT. The sum of TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000.00), the final balance due for full payment and final
consideration shall be paid at closing, in the form of cashier's or
certified check, or wire transfer. The xxxxxxx money deposit shall
be credited toward the Purchase Price at the time of Settlement.
1.3 ALLOCATION OF PURCHASE PRICE. The full purchase price for the
assets, interests and covenants identified in SECTION 1.1 shall be
as follows:
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1.3.1 Garage equipment on SCHEDULE A $ 2,327
1.3.2 Office equipment on SCHEDULE A $ 4,920
1.3.3 Inventory on SCHEDULE A $209,555
[Including as shown ON SCHEDULE A:
Parts & Accessories at Herndon $179,362.22
Parts & Accessories at Springfield $130,699.65
Floor Plan Units $694,392.78
Paid Up Units $ 7,607.00]
1.3.4 Cash $ 83,198
TOTAL $300,000
1.4 CONDITION OF GOODS, EQUIPMENT AND FIXTURES. A complete list of goods
(including motor vehicles and water vehicles) equipment and fixtures
is included in SCHEDULE A. All goods equipment and fixtures
described in SCHEDULE A are included in this sale and are being
purchased on an "AS IS" basis, WITHOUT WARRANTY OF MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE other than those made by the
manufacturer thereof for the benefit of Seller, which warranties
shall extend to Purchaser as the successor in interest to Seller;
however, on the date of settlement, all equipment and fixtures shall
be in good working condition. Seller warrants that SCHEDULE A lists
all equipment and fixtures of Seller used in connection with the
Business.
1.5 CASH, ACCOUNTS RECEIVABLE AND PAYABLE.
1.5.1 CASH AND ACCOUNTS RECEIVABLE. Any and all cash and accounts
receivable produced by the Motorcycle Division existing as of
close of business on the day before the date of settlement
shall become the property of Purchaser. All cash and accounts
receivable as of the date of this Agreement are set forth on
SCHEDULE B, which shall be updated at settlement. Seller may
use cash to pay accrued payroll prior to settlement. Seller
may also use cash to pay trade payables which were incurred
more than 30 days prior to settlement. Trade payables
incurred less than 30 days prior to settlement shall be paid
by Purchaser after settlement. Payment of such accrued
payroll and trade payables shall not result in a reduction of
the Purchase Price.
1.5.2 ACCOUNTS PAYABLE. Xxxxxxxxx agrees to assume certain
liabilities of Seller, exclusive of building and land debt
and intercompany accounts payable. The liabilities assumed by
Purchaser are listed below, and shall be assumed per their
terms in existence as of the close of business on the day
before settlement:
1.5.3 LIABILITIES.
All manufacturer's floor plan accounts as provided in Section
4.6.2;
Used unit floor plan payable at F&M bank;
Prepaid service deposits;
Repair order deposits;
Special order deposits;
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Sales order reports; and
Trade payables incurred within 30 days of settlement as
provided in SECTION 1.5.1 above.
All accounts payable to be assumed by Purchaser, together
with the balances currently due, are set forth in "SCHEDULE
C-1," which shall be updated at the time of closing. Seller
and Seller's Guarantors shall be released from liability on
the obligations assumed.
1.5.3 PRIOR LIENS AND JUDGMENTS. Purchaser assumes no
responsibility for payment of prior liens, encumbrances,
state taxes, federal taxes and judgments recorded against the
Business, or associated real estate, except as specified in
SCHEDULE C-l. All liabilities of the Business not assumed by
Purchaser are set forth in "SCHEDULE C-2." The SCHEDULE C-1
and the SCHEDULE C-2 combined list all currently known
liabilities of the Business.
1.6 ASSUMED BUSINESS NAME AND TELEPHONE NUMBERS. Seller agrees to file
any documents as are necessary to permit the Purchaser the use of
the assumed business name "CYCLE SPORT UNLIMITED," and telephone
numbers 471-6990, 471-1823 and 451-6990, and any rollover numbers,
along with any other numbers serving the Herndon or Springfield
Locations. Purchaser shall have the exclusive right to use the above
name and telephone numbers provided Purchaser is not in default of
this Contract as hereinafter stated. This provision constitutes
authorization by Seller for Purchaser to execute for Seller such
documents as may be required following closing to effect transfer of
trade names and telephone numbers as provided herein.
1.7 INVENTORY OF ASSETS. It is agreed that the on-hand inventory of
tangible assets shall be approximately the amount set forth in
Section 1.3.3 as revised to reflect the update of Schedule A at
closing. An itemized physical inventory shall be taken by Purchaser
and Seller for tangible assets on site as of the date of
settlement, which inventory shall be attached hereto as part of
SCHEDULE A.
1.8 LEASE AGREEMENTS. At closing the Purchaser shall enter into a lease
agreement for the Herndon Location with Seller in the form attached
hereto as "SCHEDULE E-1." A copy of the current Springfield Location
lease is attached hereto as "SCHEDULE E-2". This lease is on a month
to month basis. Purchaser shall be reasonably satisfied with the
terms of Springfield Lease and Seller's duties under the lease shall
be assumed by Purchaser. These lease arrangements shall be a
condition of closing as set out in SECTION 4.6 below.
1.9 SETTLEMENT. This transaction shall be closed at the offices of The
Xxxxxxx Law Firm, A Professional Corporation, 0000 Xxxxxxxx Xxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, the counsel of Seller, as
provided in SECTION 4 below or at such other place as the parties
shall mutually agree.
1.10 BROKERAGE FEES. Each party warrants to the other that it has not
retained the services of real estate or business broker and that
brokerage fee is not due on this sale.
1.11 SELLER'S LIABILITIES. Except for the liabilities set out in SCHEDULE
C-1 Seller agrees to pay promptly when due all of the liabilities of
the Business arising from Seller's ownership of the Business,
including those in SCHEDULE C-2 and Seller agrees to indemnify and
hold
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Purchaser harmless from any loss therefrom, including reasonable attorney's
fees. Seller shall make any such payments promptly when due. Purchaser shall
notify Seller of any unpaid obligation within 5 business days of the date on
which Purchaser receives knowledge of such unpaid obligation. If Seller fails to
make any such payments promptly when due, Purchaser may elect at Purchaser's
sole option, to pay the liability in which event any such payment shall be
immediately repaid by Seller upon demand by Purchaser, together with interest
thereon at the rate of ten percent (10.0%) per annum from the date of
Purchaser's payment until repaid by Seller; provided that if Seller gives
Purchaser notice that the claim is subject to a bona fide contest, and
diligently pursues resolution of such claim, then Purchasers shall make no
payment for 60 days, or such additional reasonable time as may be necessary to
resolve the matter.
1.12 BULK TRANSFERS. The parties shall comply with Va. Code Section
8.6A-l0l,et seq., providing for the notification of creditors of
Seller that a portion of the Seller's assets will be transferred in
bulk not in the ordinary course of business.
2 REPRESENTATIONS AND WARRANTIES.
2.1 REPRESENTATIONS OF SELLER. Seller represents and warrants that:
2.1.1 AUTHORITY. Seller has the full power and authority to enter
into this Contract, and to conclude the transaction described
herein, and no contract or agreement to which Seller is a
party prevents it from concluding the transaction described
herein, nor is the consent of any third party required,
except as provided herein.
2.1.2 GOOD STANDING. Seller is a corporation duty organized,
validly existing and in good standing under the laws of
Virginia, and has the corporate power to own its property and
conduct the Business in the manner in which the Business is
now being conducted. Proof of good standing will be provided
at settlement.
2.1.3 CORPORATE RESOLUTION. Seller shall deliver to Purchaser, at
settlement, duty executed copies of its corporate
resolution(s) authorizing the transaction described herein,
which said resolution shall form a part of this Contract.
2.1.4 TITLE. Seller represents and warrants to Purchaser that the
Seller has, and on the closing date will still have, good and
merchantable title to all of the assets to be sold and
transferred to Purchaser pursuant to SECTION 1, including
without limitation, equipment used in the Business, and all
other assets conveyed herein, free and clear of all
mortgages, pledges, liens, security interests, state taxes,
federal taxes, charges, conditional sales contracts and
encumbrances whatsoever, except those items clearly indicated
in SCHEDULE C-1 or subject to floor plan or other
arrangements as provided in the dealership agreements in
SCHEDULE D. The lien of the First Union Bank loan shall be
released as to assets sold prior to, or simultaneous with,
settlement and title to the assets transferred to Purchaser.
Seller represents that it is not aware of any claim,
administrative action, suit, litigation or anticipated claim,
suit or litigation which would in any way affect the
Business, except for normal claims relating to consumer
warranties, customer satisfaction actions, etc., the total
expense for which is not anticipated to exceed the
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average of such cost in the last three calendar years.
2.1.5 PROPERTY INSURANCE. The properties and assets of the Business
listed in SCHEDULE A are adequately insured by Seller against
risks commonly insured against by companies similarly
situated. To the extent possible without extra cost or
liability to Seller, Purchaser may elect to assume Seller's
applicable insurance. To that effect, Purchaser will make
such assumption arrangements as are possible prior to
closing, or obtain replacement coverage as necessary, in
order to protect the interests of secured creditors as may be
required.
2.1.6 SALE OF ASSETS CREATES NO CONFLICT. The execution, delivery
and performance of this Contract and the consummation of the
transactions herein contemplated do not and will not conflict
with, or result in a breach of any term or provisions of, or
constitute a default under, or result in the creation of any
lien or encumbrance upon the property or assets of the
Business pursuant to the articles of incorporation, or bylaws
of the Business, or other organizational and governing
documents, or any Contract, indenture, mortgage, deed of
trust or other instrument to which the Business is a party or
by which it is bound or to which its properties are subject,
or any law, rule, regulation, judgment, order or decree, and
except as disclosed in SCHEDULE C. All consents by third
parties that are required to prevent or eliminate every such
conflict, breach, default, lien and encumbrance shall have
been validly obtained before the settlement and at the
settlement shall be in full force and effect and valid and
sufficient for such purpose, or have otherwise been provided
for in SCHEDULE C.
2.1.7 BOOKS AND RECORDS. Seller represents that, to the best of
Seller's knowledge and belief, all books, records and account
statements maintained on behalf of the Business prior to
settlement are true and correct and accurately reflect the
economic condition of the business at time of settlement.
2.1.8 LICENSE COMPLIANCE. To the best of the Seller's knowledge and
belief, the Business has all governmental licenses and
permits and zoning approvals (federal, state and local)
necessary to conduct the Business and has complied in all
material respects with all laws, rules and regulations and
orders applicable to the Business. The licenses and permits
of the Business are in full force and effect and there is not
pending or threatened any proceeding looking toward the
revocation or material limitation of any such license or
permit. Copies of the applicable licenses are attached hereto
as "SCHEDULE G."
2.1.9 TAX COMPLIANCE. Seller has filed with the appropriate
governmental agencies all tax returns (federal, state and
local) required to be filed by the Business, and all taxes
shown to be due and payable on said returns or on any
assessments received by it, and all other taxes (federal,
state and local) due and payable on or before the date of
this Contract have been determined and paid.
2.1.10 TAX WARRANTY. Seller offers the following warranties and
certifications regarding the claims of creditors against the
assets of the Business:
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2.1.10.1 All sales and use taxes have been paid, or will be paid,
through the previous reporting period by Seller through the
date of settlement; and
2.1.10.2 All withholding, FUTA, unemployment and other payroll
related taxes have been paid, or will be paid, by Seller
through the previous reporting period.
2.1.10.3 All state tax and federal tax liability of Seller shall
be paid by Seller.
2.1.11 ENVIRONMENTAL HAZARDS. Seller warrants that, to the best of
Seller's knowledge and belief, there is no violation on the part of
the Business of any hazardous waste law under federal, state or
local law, and no violation of any such law exists on the property
occupied by the Business. Except in compliance with the requisite
laws, Seller has not generated, stored or disposed of any hazardous
waste on the property. Seller has not received any notice from any
federal, state, county, municipal or other governmental department,
agency or authority concerning the existence of any petroleum
product or other hazardous waste discharge or seepage which have
caused or may cause noncompliance with applicable laws and
regulation. The term "hazardous waste" shall mean any substance,
material or waste which is regulated by any federal, state or local
governmental or quasi-governmental authority, including, without
being limited to, any substance, material or waste defined, used or
listed as a "hazardous waste", "extremely hazardous waste",
"restricted hazardous waste", "hazardous substance", "hazardous
material", "toxic substances" or other similar or related terms as
defined, used or listed in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et seq.), the Clean Air Act, as amended (42 U.S. C.
Sections 7401, et seq.), the Clean Water Act, as amended (42 U.S.C.
Sections 1251 et seq.) and the regulations adopted and publications
promulgated pursuant thereto or any other similar applicable
federal, state or local law, rule, regulations or ordinance.
2.1.12 OPERATION OF BUSINESS PRIOR TO SETTLEMENT. The parties hereby
agree, from the date of execution of this Contract until the date of
settlement, that the Seller will carry on the activities and
operations of the Business diligently and in substantially the same
manner as has been customary in the past, Furthermore, Seller agrees
to use its best efforts (without making any commitments on behalf of
the Purchaser) to preserve for the Purchaser the present
relationships of the Seller with its employees, customers, and
others having business relations with the Business.
2.1.13 BUSINESS PREMISES. Until possession is given, Seller agrees to
maintain the Business premises, including heating, cooling,
plumbing, and electrical systems and built-in fixtures, together
with all other equipment and assets included in this sale, in
working order and to maintain, leave and deliver the premises in a
clean, orderly condition.
2.1.14 CONSENT TO SALE. Seller shall cooperate with Purchaser in obtaining
consent to the sale of the Business to Purchaser from any lender or
landlord secured against, or having an interest in, the real estate
or other assets of the Business, which consent shall be a condition
precedent to settlement as provided in SECTION 4.7 below.
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2.1.15 VERACITY. No statement contained in this Contract or in any
statement, certificate, instrument or other document, furnished to
Purchaser pursuant hereto or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement
of a material fact, or will omit to state a material fact necessary
to make the statements contained herein or therein true.
2.2 REPRESENTATIONS OF PURCHASER. Purchaser represents and warrants that:
2.2.1 AUTHORITY. Purchaser has the full power and authority to enter into
this Contract, and to conclude the transaction described herein,
and no contract or agreement to which Purchaser is a party prevents
Purchaser from concluding the transaction described herein, nor is
the consent of any third party required, except as provided herein.
2.2.2 GOOD STANDING. Purchaser is duly organized, validly existing, and in
good standing under the laws of District of Columbia.
2.2.3 CORPORATE RESOLUTION. Purchaser shall deliver to Seller, at
settlement, duly executed copies of its corporate resolution(s)
authorizing the transaction described herein, which said resolution
shall form a part of this Contract.
2.2.4 BINDING EFFECT. Purchaser has full power and authority to enter into
and perform this Contract and the transactions delineated herein,
and this Contract constitutes a valid and binding agreement of
Purchaser, enforceable in accordance with its terms except as may be
limited by applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws, from time to time in effect, and
any equity principles relating to or affecting generally the
enforcement of creditors' rights.
2.2.5 PURCHASE OF ASSETS CREATES NO CONFLICT. The execution and delivery
of this Contract and the consummation of the transactions
contemplated hereby will not conflict or be inconsistent with or
result in the termination of or result in any breach of or
constitute a default under the terms of any indenture, mortgage,
deed of trust, covenant, Contract, or other instrument to which
Purchaser is a party or to which any of its property is subject.
2.2.6 BOOKS AND ACCOUNTS. Purchaser's agent Xxxx X. Xxxxxxx Associates,
CPA, shall have the right to carefully examine the books and
accounts of the Business, including federal and state tax returns.
Purchaser's authorization of disbursement of the Purchase Price to
Seller shall constitute Purchaser's representation that it finds the
records to be true and correct.
2.2.7 FINANCIAL STATEMENTS. Any financial statements presented by the
Purchaser are audited, including the financial statements of Century
Industries.
2.2.8 ENVIRONMENTAL HAZARDS. Purchaser shall conduct a due diligence
environmental inspection of the Business and the property in and on
which the Business is conducted, which inspection shall be completed
during the Due Diligence Period. At Purchaser's option, this
inspection may consist of a Phase 1 environmental inspection of the
property.
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2.2.9 "AS IS" SALE. Purchaser acknowledges that it has examined the assets
identified on SCHEDULE A attached hereto and agrees to purchase the
same in their present condition, "AS IS". SELLER MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE QUALITY, CONDITION, OR
FITNESS FOR A PARTICULAR PURPOSE OF SAID ASSETS except for
manufacturer's warranties still in effect and benefitting Seller,
which warranties shall extend to Purchaser as the successor in
interest to Seller; however, on the date of settlement, all
equipment and fixtures shall be in good working condition. It being
agreed that pursuant to SECTION 1.4 on the date of settlement, all
equipment and fixtures shall be in good working condition.
2.2.10 LICENSES AND DEALERSHIP AGREEMENTS. During the period of any
indebtedness to Seller under this Contract, or a related agreement,
Purchaser shall obtain, and maintain, any and all required licenses
or permits to continue the Business. Purchaser shall maintain in
full force and effect all dealership agreements in SCHEDULE D.
Purchaser shall conduct the Business and exercise good faith and due
diligence to conduct and promote the Business. Seller and Purchaser
represent and warrant to each other than they will cooperate in all
matters necessary to accomplish the assignments of Licenses,
Dealerships Franchises and Floor Plans.
3 COVENANTS AND FURTHER AGREEMENTS
3.1 RELIANCE UPON AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
Notwithstanding any investigation at any time conducted by any of
the parties hereto, each of the parties hereto shall be entitled to
rely upon the representations and warranties of the other parties
set forth herein or in any schedule, exhibit, or other document
delivered pursuant hereto. The representations, warranties,
covenants, and agreements of the parties shall be true and accurate
as of the date of settlement, and shall survive the settlement date.
3.2 FURTHER ASSURANCES. The parties hereto agree to execute and deliver
or cause to be executed and delivered at the settlement or at other
reasonable times and places such additional instruments as another
party hereto may reasonably request for the purpose of carrying out
this Contract.
3.3 INDEMNIFICATION.
3.3.1 FOR PURCHASER. Seller covenants and agrees to indemnify and
hold harmless the Purchaser from and against any loss, claim,
liability, obligation or expense (including reasonable
attorney's fees): (i) incurred or sustained by Purchaser on
account of any misrepresentation or breach of any warranty,
covenant, or agreement of Seller contained in this Contract,
or made in connection with this Contract, or at Settlement; or
(ii) incurred or sustained on account of the nonfulfillment by
Seller of any of the conditions or covenants of this Contract
as contemplated hereby. Without limiting the generality of the
foregoing, Seller shall be liable for all material undisclosed
liabilities of the Company existing before the settlement or
which may arise based on facts or events existing prior to
settlement. If any claim is asserted against Purchaser for
which indemnification may be sought under the provisions of
this Section, Purchaser shall promptly notify Seller of such
claim in writing within 15 days of the time Purchaser
discovers or should have discovered the existence of
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such claim and thereafter shall permit Seller at its expense
to participate in the negotiation and settlement of any such
claim and to join in the defense of any legal action arising
therefrom.
3.3.2 FOR SELLER. Purchaser covenants and agrees to indemnify and
hold harmless Seller from and against any loss, claim,
liability, obligation or expense (including reasonable
attorney's fees) (i) incurred or sustained on account of any
misrepresentation or breach of any warranty, covenant or
agreement of Purchaser contained in this Contract or made in
connection herewith, or (ii) incurred or sustained on account
of the nonfulfillment by Purchaser of any of the conditions or
covenants of this Contract as contemplated hereby. If any
claim is asserted against Seller for which indemnification may
be sought under the provisions of this Section, Seller shall
promptly notify Purchaser of such claim in writing within 15
days of the xxxx Xxxxxx discovers, or should have discovered,
the existence of such claim and thereafter shall permit
Purchaser at its expense to participate in the negotiation and
settlement of any such claim and to join in the defense of any
legal action arising therefrom.
3.4 EXPENSES. Each party shall pay its own expenses and costs,
including without limitation counsel fees and transfer taxes
incurred in connection with the consummation of this Contract
and the transactions contemplated hereby, except as otherwise
provided in this Contract.
3.5 RISK OF LOSS. In the event of any loss or damage to equipment
or other assets included in this sale at any time prior to
settlement, the risk of loss shall be upon the Seller.
Immediately after Settlement, all risk of loss or damage shall
be upon the Purchaser.
3.6 BUSINESS DEPOSITS. Any and all amounts on deposit for the
benefit of the Business for lease deposits, utility services,
insurance, etc., shall be assigned to Purchaser. Seller shall
identify such deposits to the Settlement Agent and shall
receive a credit for such assignments at settlement.
3.7 BUSINESS RECORDS. At settlement Seller shall deliver to
Purchaser copies of a customer accounts and records, and any
other documents pertinent to the operation of the Business
which Seller may have and which Seller certifies to be
current. Such records shall include copies of those documents
necessary to conduct business with suppliers and customers of
the Business. The books and records shall include, but are not
limited to, income statements, balance sheets, statements of
cash flow, general ledgers, sales journals, cash receipts
journals, cash disbursement journals, general journals, all
customer lists, accounts payable listings and records, and
federal and state corporate tax returns for the last three
filing periods.
3.8 INSURANCE. Purchaser shall maintain insurance as required herein and
name any creditor requiring coverage as an insured party as its
interest may appear.
3.8.1 HAZARD INSURANCE. Purchaser agrees to carry hazard insurance
as required by the Herndon Lease.
3.8.2 LIABILITY INSURANCE. So long as Seller shall remain liable for
any obligation assumed by Purchaser, Purchaser shall maintain
liability insurance in an amount of not less than
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$5,000,000 total and $1,000,000 for each occurrence or the
amounts in effect for Seller on the date of this Contract.
3.9 PURCHASER'S RIGHTS.
3.9.1 REVIEW COMMUNICATIONS. After the closing of this Contract, the
Purchaser shall have the right to open and read any letters or
mail addressed to the Seller, and to reply to any such letters
that pertain to the conduct of the business in the same manner
that the Seller could have done had the sale not been made.
Any mail intended to be sent to the Seller personally and not
affecting the conduct of the business shall be promptly
forwarded to the Seller by the Purchaser.
3.10 ZONING. Seller warrants to Purchaser that the Herndon Location and
the Springfield Location are properly zoned for the Business.
3.11 CERTIFICATE OF OCCUPANCY. Immediately after settlement, Purchaser
shall obtain an occupancy permit at Purchaser's sole expense.
3.12 CONSULTING AGREEMENT. Xxxxx Xxxx will be available for consulting
for twelve months from the date of closing under the terms of a
consulting agreement to be negotiated between the parties.
4 SETTLEMENT.
4.1 SETTLEMENT DATE. Settlement under this Contract shall be held on
within 3 days from completion of the Conditions Precedent to
Settlement in Section 4.6.1 below, or thereafter as counsel for
Seller and Purchaser may agree, but in no event later than December
7, 1998 at the offices of The Xxxxxxx Law Firm, A Professional
Corporation, 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
"Settlement Agent", or at such other place as the parties may
mutually agree.
4.2 DELIVERY. At settlement, Seller shall deliver or cause to be
delivered to Purchaser such instruments, documents and opinions
required to be delivered by Seller under this Contract or which
counsel for Purchaser or Settlement Agent may reasonably request for
the purpose of settling this Contract. At settlement, Purchaser
shall pay and deliver to Seller the Purchase Price and any
additional pre approved costs in the amount and form specified
herein and shall deliver all other instruments, documents and
opinions required to be delivered by Purchaser under this Contract
or which Seller or Settlement Agent may reasonably request for the
purpose of settling this Contract.
4.3 METHOD OF PAYMENT. Purchaser shall make payment by certified check,
cashier's check, or wire transfer.
4.4 BILL OF SALE. Seller shall deliver to Purchaser at settlement a Bill
of Sale for the Business and all assets included in this
transaction, in the form attached hereto as SCHEDULE F.
4.5 RECORDING FEES. The recording fees shall be paid by Purchaser.
11
14
4.6 CONDITIONS PRECEDENT TO SETTLEMENT. The settlement hereunder shall
not occur and the obligation of Seller to sell and Purchaser to buy
shall not arise hereunder unless the following conditions have been
satisfied:
4.6.1 COMPLETION OF DUE DILIGENCE. Upon the execution of this
Agreement Seller shall make all books and records of the
Business available for review by Purchaser and shall allow
Purchaser reasonable access to the Business for the purpose of
inspection and evaluation. On or before November 13, 1998
("Due Diligence Period") the Purchaser shall have concluded
such legal, financial, environmental and other due diligence
activities as the Purchaser shall deem appropriate and the
results thereof shall be reasonably satisfactory to the
Purchaser. If Purchaser reasonably determines that the
Business is not satisfactory, than Purchaser shall provide
written notice of termination to Seller within 5 days from the
completion of the Due Diligence Period. The notice shall
clearly set out the deficiencies found by Purchaser. If Seller
is unable to cure the stated deficiencies within 10 days then
this Contract shall terminate.
4.6.2 SCHEDULE A. Seller shall complete the final version of
SCHEDULE A which shall be consented to by Purchaser, which
consent shall not be unreasonably withheld.
4.6.3 LEASE AGREEMENT. Seller and Purchaser shall enter into a lease
agreement for the Herndon Location ("Herndon Lease"). The
Herndon Lease shall contain the general terms set out in
Section 5 below, and shall be in substantially the form
attached hereto as SCHEDULE E-1. The Herndon Lease shall be
guaranteed for Purchaser in a manner acceptable to Seller's
lender. The Purchaser shall notify the Seller as to the
guaranty during the Due Diligence Period, and the Seller will
advise Purchaser as to the efficacy of the proposed guarantor
on behalf of Purchaser prior to the settlement. If the
guarantor is acceptable to Seller and Seller's lender, then
the guaranty will be delivered to Seller at settlement, if it
is not Purchaser shall provide an acceptable guarantor. If an
acceptable guarantor is not provided by the scheduled
settlement date, then this condition shall not have been
fulfilled and Seller may terminate the Agreement.
4.6.4 LEASE ASSIGNMENT Seller shall assign all of its interest under
the lease for the Springfield Location, "Springfield Lease,"
which is attached hereto as "SCHEDULE E-2". Seller is
negotiating a new lease for the Springfield location. The
terms of the Springfield Lease shall be reasonably acceptable
to Purchaser. The landlord shall consent to the assignment.
4.6.5 ASSIGNMENT OF DEALERSHIP FRANCHISE AGREEMENTS. Seller shall
assign all of its interest in the dealership franchise
agreements which are in force on the date of this agreement
and identified in SCHEDULE D. The assignment shall be subject
to the approval of the respective manufacturers. The
manufacturers shall release Seller from further liability
under the dealership agreements. Purchaser shall endeavor in
good faith to seek Century Industries to guaranty the
obligations of Purchaser under these agreements.
4.6.6 ASSUMPTION OF FLOOR PLAN AGREEMENTS. Purchaser shall assume
Seller's floor plan financing. The respective lenders shall
approve the assumption and shall release Seller from further
liability under the floor plans. Purchaser shall endeavor in
good faith to seek
12
15
Century Industries' guaranty the obligations of Purchaser
under the floor plans. If such guaranty is not obtained, then
this condition will not be satisfied.
4.6.7 TITLE OF HERNDON LOCATION. The parties acknowledge that the
Herndon Lease will contain certain real estate purchase rights
in favor of Purchaser. The real estate title to the Herndon
Location shall be reasonably acceptable to Purchaser at the
time of settlement under this Agreement.
4.6.8 NO BULK TRANSFER CLAIMS. No creditor shall assert a right to
payment under the Bulk Transfer Act for an amount greater than
the net settlement proceeds which Seller reasonably
anticipates to receive at settlement.
4.6.9 CONSENT TO SALE BY XXXXXX. Seller's real estate mortgage
lender, First Union Bank, shall consent to this Contract.
4.7 FAILURE OF CONDITIONS. In the event that any of the above described
conditions precedent fails to occur within the time specified then,
unless otherwise provided under the terms of the condition, either
party may provide written notice to the other of termination of this
Agreement. The notice shall specify any condition which has not been
satisfied and the factual basis upon the party has made the
determination that the condition has not been satisfied. Upon such
termination of this Agreement, the parties shall return all records
and documents from the other. Also upon Termination the xxxxxxx
money deposit shall be returned to the Purchaser. Each party shall
be released from all other duties, obligation and liability to the
other, except for the Confidentiality provisions of the Letter of
Intent, which is hereby incorporated in this Agreement by reference.
5 DEFAULT BY PURCHASER.
5.1 INSTANCES OF DEFAULT. Default shall occur in any of the following
instances:
5.1.1 FAILURE TO PERFORM. Except for Purchaser's failure to obtain
necessary creditor approvals in SECTION 4.6 above, if
Purchaser fails to perform any obligation imposed by this
Contract, or related instrument, and does not correct or
commence and diligently pursue correction of such failure
within fifteen (15) days after written notice from Seller
specifying the manner in which Purchaser is in default.
Purchaser shall also be in default if Purchaser fails to shall
exercise its best efforts to obtain the necessary creditor
approvals.
5.1.2 INSOLVENCY. Xxxxxxxxx becomes insolvent, a receiver is
appointed to take possession of all or a substantial part of
Purchaser's properties, Purchaser makes an assignment for the
benefit of creditors or files a voluntary petition in
bankruptcy, or Purchaser is the subject of an involuntary
petition in bankruptcy which is not dismissed within sixty
(60) calendar days.
5.1.3 DEFAULT ON UNDERLYING AGREEMENTS AND ASSUMED OBLIGATIONS. Any
default by Purchaser under the Herndon Lease, SCHEDULE C-1
obligations or any other agreements made pursuant to this
Contract not cured within any grace period provided herein.
13
16
5.2 SELLER'S AND PURCHASER'S REMEDIES UPON DEFAULT. In the event
of a party's default, the injured party shall have all the
rights and remedies granted to it by agreement and by the laws
of Virginia, and, in addition, Seller shall have the right, at
its option, to terminate this Contract and receive the full
Deposit as liquidated damages and not as a penalty.
6 MISCELLANEOUS.
6.1 BINDING EFFECT. This Contract shall be binding upon and shall
inure to the benefit of the parties hereto, their respective
successors, heirs, assigns and devisees.
6.2 INTEGRATION. This Contract constitutes the entire agreement
between the parties relating to the subject matter hereof It
supersedes prior memoranda, xxxxxxx money agreements, options
and all other prior documents made by the parties in
connection with the transaction described herein. Oral
agreements and understandings of the parties, if any,
regarding the subject matter of this Contract have been
integrated herein. This Contract may not be modified or
altered except by written agreement signed by all parties.
6.3 NOTICE. Any notice or other communication required or
permitted hereunder shall be sufficiently given if sent by
mail, first class postage prepaid, certified return receipt
requested, addressed as follows:
6.3.1 If to Purchaser, addressed to: V-Twin Acquisitions, Inc.
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxx, Xx., Esq.
0000 X. Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
6.3.2 If to Seller, addressed to: Xxxxx X. Xxxx, President
------------------------
------------------------
With a copy to: Xxxxx X. Xxxxx, Esq.
The Xxxxxxx Law Firm
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Notices shall be deemed received on the second business day after deposit of the
same in the United States mail, properly addressed and postage prepaid.
6.4 TIME IS OF ESSENCE. Time is of the essence in this Contract.
6.5 CHOICE OF LAW, JURISDICTION AND ATTORNEY'S FEES. This Contract shall be
governed by and
14
17
construed under the laws of the Commonwealth of Virginia. All parties
hereby agree that any action to enforce this Contract shall be brought in
the Circuit Court for Fairfax County, Virginia, and hereby consent to the
jurisdiction of said court. In the event any action, or suit is brought to
enforce this Contract or provision hereof or seek damages for breach
thereof, the prevailing party shall be entitled to recover from the other
party its costs of suit inducting attorney's fees, costs of trial, appeal
and all other sums provided by law.
6.6 SEVERABILITY. If any clause, provision or section of this Contract shall
be held illegal or invalid by any court, the illegality or invalidity of
such clause, provision or section shall not affect the remainder of this
Contract which shall be construed and enforced as if such illegal or
invalid clause, provision or section had not been contained this Contract.
If any agreement or obligation contained in this Contract is held to be in
violation of law, then such agreement or obligation shall be deemed to be
the agreement or obligation of the respective party hereto only to the
extent permitted bylaw.
6.7 ASSIGNMENT. Purchaser shall not sell, assign or transfer an interest in
the this Contract or in any instrument executed in connection herewith,
without prior consent of Seller. Seller shall not unreasonably withhold
consent.
6.8 WAIVER. Failure of either party, at any time, to require performance
hereunder of any provision herein contained shall in no way affect the
right of a party to enforce the same, nor shall any waiver by either party
of any breach of any provision hereof be held to be a waiver of a
succeeding breach of any suit or provision, or as a waiver of the
provision itself.
6.9 NUMBER, GENDER AND CAPTIONS. As used herein, the singular shall include
the plural and the plural the singular. The masculine and the neuter shall
include the masculine, feminine and neuter as the context requires. All
captions used herein are intended solely for convenience of reference, and
shall in no way limit any of the provisions of this Contract.
6.10 SECTION HEADINGS. The various Section headings are inserted for
convenience of reference only, and shall not affect the meaning or
interpretation of this Contract or any section thereof.
6.11 SURVIVAL. This Contract and the promises, conditions, and covenants
contained herein shall survive settlement and shall not be merged in any
settlement documents.
IN WITNESS WHEREOF, the parties have caused this Contract to be duly
executed by their representative duly authorized officers.
PURCHASER: SELLER:
V-TWIN ACQUISITIONS, NC. CYCLE SPORT UNLIMITED, NC.
A D.C. Corporation A Virginia Corporation
By: /s/ X. XXX XXXXXXXXXX By: /s/ XXXXX X. XXXX
---------------------- -------------------------
X. Xxx Xxxxxxxxxx Xxxxx X. Xxxx, President
Vice President
October 14, 1998
18
SCHEDULE A
SCHEDULE OF ASSETS
FOR
THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
19
UNIT INVENTORY
HERNDON
MAKE MODEL SERIAL # MAKE MODEL SERIAL #
YAM VMX12K 65979 KAW ZX600E6 513790
XV1100L 87675 EX250F13 62058
XV1100L 87693 EX250F11 53170
FZR600L 107898 JH750C 58118F595
YFZ350K 149406
YFM350FK 48050 SUZ VS1400GLPV 101815
YFM350FK 54488 VS1400GLPW 100262
SH50K 248247 VS800GLW 101669
SH50K 247479 VS800GLW 100101
SH50K 248884 VS800GLW 101473
SH50K 249095 VS800GLW 100712
SH50K 248902 VS800GLW 102044
SH50K 249113 VS800GLW 100185
SH50K 247473 VS800GLW 101142
RT180K 15017 VS800GLW 102262
PW80L 113026 VZ800W 104238
PW80L 112343 VZ800W 101254
PW50K 237086 VZ800W 101594
PW50L 243717 VZ800W 104028
PW50L 243725 LS650PW 100864
XL120OW 2221K798 LS650PW 100125
GP760W 1406H798 LS650PW 101659
WVT700V 2475B690 LS650PW 101698
SJ700AV 902484 LS650PW 100799
LS650PW 101700
KAW VN1500G1 12374 GSXR1100WT 101188
VN1500E1 80073 GSF1200SW 102111
VN1500E1 75730 GSF1200SW 101087
VN1500E1 78422 TL1000RW 101712
VN1500E1 80089 TL1000SW 100181
VM1500D2 75010 GSXR750W 104072
VN800B3 501360 GSXR750W 100031
VN800B3 500918 GSXR750W 104071
VN800B3 502023 GSXR750W 100968
ZX750P4 36043 GSXR750W 102721
ZX750P3 25956 GSXR750W 102507
ZX600G1 11515 GSX750W 100903
ZX600G1 11451 GSXR600W 101190
ZX600G1 11488 GSXR600W 102086
SUZ GSXR600W 102083
GSX600W 101869
DR125 101594
TRI T595 58961
T595 65140
THROPHY 900 63801
T-BIRD SPORT 66802
T-BIRD SPORT 602012
T-BIRD SPORT 66923
T-BIRD 62398
ADVENTURER 39457
PANDA TRAIL 50 88
TRAIL 50 105
TRAIL 50 146
USED BUELL S-1 200820
RF900 100525
CB750 202938
ZX600E 511185
XV535S 55520
LTF4WD 104594
YFS200 248906
1
20
INFORMATION ON PAGE DIDN'T CONVERT
2
21
PART AND ACCESSORY INVENTORY 8/25/98
HERNDON 179,362.22
SPRINGFIELD 130,699.65
22
PARTS DEPARTMENT EQUIPMENT 8/20/98
2 tire racks
1 three way mirror
6 display gondolas
2 glass display racks
2 free standing display racks
1 four way display rack
64 feet of 2' x 6' gridwall
2 microfiche readers
5 microfiche decks
2 computer terminals
1 computer terminal (486/25)
asst slatwall and gridwall hooks
1 credit card machine
2 Okidata 320 printers
1 Panasonic printer
1 HP 672C printer
56 3' x 6' metal parts shelves
3 4 drawer file cabinets
3 2 drawer file cabinets
1 Sharp fax machine
1 US Robotics modem
2 counter stools
1 task chair
2 work tables
4 hardware bins
FIXTURES
1 parts counter
1 desk
asst slatwall display
1 neon signage
1 overhead storage shelf
asst track light fixtures
4 cable storage racks
8 sections pegboard storage
23
HERNDON EQUIPMENT LIST--SERVICE DEPT. & BASEMENT
SERVICE DEPARTMENT
EQUIPMENT/SUPPLIES, LIST
Qty. Description
---- -----------
1 Snap-On wheel balancer
1 Coats tire changer
1 Coats wheel balancer
1 Nagoya wheel trueing stand
2 Lite Works loading ramps
1 hand saw
1 level
1 tire spreader
assort Honda manuals 1980 to 1991
3 Hardy air lift
1 Grazia hydraulic lift
6 metal work bench
5 shelf cabinet with door
2 5/15" coil air hose
4 1/4" coil air hose
9 4 shelf wooden shelf unit
2 5 shelf wooden shelf unit
1 6 shelf wooden shelf unit
5 5 gal. safety gas cans
1 set Suzuki special tools
1 Sun exhaust gas analyser
1 set of Triumph special tools
2 hand crank oil pumps for oil drums
10 oil drain pans
1 acetylene welding torch set
1 Dayton drill press
1 Dayton bench grinder
1 Mac Tool bench grinder
1 Craftsman arc welder
1 bead blast cabinet
1 Strongarm hydraulic floor press
1 bench vise
1 set Yamaha special tools
1 set Suzuki specials tools
1 Xxxxxxx boring bar
2 Safety Kleen parts washer
3 Sunnen cylinder hone kits
1 Crankshaft lathe
1 CC porting tool
1 Neway cylinder hone
1
24
HERNDON EQUIPMENT LIST--SERVICE DEPT. & BASEMENT
1 fan
1 cylinder micrometer set
1 headlight alignment machine
2 large plastic bin
2 5 gal. plastic gas bottles
1 Safety Kleen Carb Acid Cleaner system
1 Christie battery charger
1 Deltran battery tender
1 Christie Maintenance Free battery charger
2 Century battery charger
1 Honda battery tester
1 Xxxxxxx 4 amp battery charger
1 Microfische machine
2 microfische indexes
Honda manuals 1985-1998
Kawasaki manuals 1976-1998
Suzuki manuals 1980-1998
Yamaha manuals 1980-1998
Triumph service manuals
Suzuki Specifications manual 1978-1997
15 Parts bins
1 Craftsman roller tool box
1 microfiche machine
1 metal desk
2 chairs
1 wooden slide door shelf unit
3 metal filing cabinets
Yamaha seminar manuals
Suzuki seminar manuals
Triumph special tools
1 286 computer
1 Wyse computer terminal
2 Okidata 320 printers
1 Namco electric forklift
1 Hobart forklift battery charger
1 pr. of forklift extensions
1 Yuasa battery charger
7 assorted watercraft stands
1 Suzuki illuminated sign
3 squeegies
1 rake
1 roll of blue astro turf type carpet
2 small fans
1 industrial fan
2 weed eater trimmers
2
25
HERNDON EQUIPMENT LIST--SERVICE DEPT. & BASEMENT
1 ATV snow plow
1 55 gal. drum of Yamalube 2 cycle oil
3 55 gal. drum of Suzuki 10w40 oil
1/4 55 gal. drum of Yamalube 4 cycel oil
1 floor buffer
35 gal. battery acid
1 service dept. tire rack
1 eye wash kit
1 first aid kit
compressed air system for entire shop and basement
engine exhaust system for 6 work bays
150 assorted used gas tanks
1 8' step aluminum step ladder
1 aluminum extension ladder
1 jet ski hoist system
21 8' x 4' HD pallet rack uprights
34 8' long HD pallet rack cross shelf beams
6 43" long HD pallet rack cross shelf beams
6 56" long HD pallet rack cross shelf beams
9 2' x 6' white grid wall display panels
48 12" x 12" glass squares
1 4' x 2' wooden bench/shelf unit
1 Speedaire 80 gal. compressor
1 refridgerator
1 microwave
2 Yamaha sign faces 4' x 12'
1 Kawasaki sign face 3' x 12'
1 garden hose and reel
1 Honda ATV
5 3' sections of 6' high metal shelving
1 1987 Ford F150 pickup truck
1 flat bed motorcycle trailer
28 linear feet of assorted used parts, 4 shelves high
10 linear feet of assorted used exhaust systems
50 assorted used exhaust systems (hanging from ceiling)
1 large box of assorted motorcycle body work
4 linear feet of assorted motorcycle trunks, 4 shelves high
5 crates of assorted used motors and motor parts
15 feet of assorted used motorcycle body panels
27 "parts bikes"; wrecked or damaged
10 assorted display stands
1 6' folding table
1 8' folding table
assort assembly manuals
1 Xxxxx exaust gas analyser (broken)
3
26
HERNDON EQUIPMENT LIST--SERVICE DEPT.
2 lawn mowers
1 small industrial tarp
1 very large industrial tarp
9 shovels
4
27
OFFICE INVENTORY
2 L-shaped desks
1 small wood desk
2 small metal desks
1 custom metal frame executive desk
7 secretarial chairs
2 arm chairs
3 chair mats
4 straight chairs
1 boom box
5 2-drawer lateral files
2 2-drawer letter-size file cabinets
3 4-drawer letter-size file cabinet
1 credenza
1 small desk
2 folding tables
1 table
1 drawing table
1 3-shelf bookshelf
2 6-shelf bookshelves
1 storage supply cabinet
Paper towels
Plastic utinsels
Paper cups and plates
3 bulletin boards
1 mini refrigerator
1 microwave
3 rolling racks for printouts
1 Sharp 1450 copier
4 toners for copier
3 checkwriters
4 PCs
1 server
2 printers
1 printer noise reducer
1 fax machine
1 rolling 2-shelf cart
1 rolling 1-shelf cart
2 motorcycle pictures
5 phones
8 surge protectors
2 typewriters
1 British flag
1 copy stand
1
28
OFFICE INVENTORY
1 laminator
Small and large laminating pouches
1 electric pencil sharpener
4 desk lights
6 calculators
5 mice
5 telephones
3 magnetic paper clip holders
3 desk lamps
1 message holder
2 computer arms
2 computer stand
1 computer stand with tray
White out of various colors
15 Assorted Stamps (Entered/Faxed/Posted/Received, etc.)
4 pairs of scissors
3 month accordion files
3 alpha accordion files
3 plain accordion file
3 tape dispensers
16 binders in use
5 pencil holders
12 stacking trays (some plastic and some metal)
2 green free standing pendaflex file holders
10 wastebaskets
Miscellaneous pens(red-black-blue)/pencils(regular and colored)
1 large 3-hole punch
1 small 3-hole punch
1 box plain #10 envelopes
Cycle Sport #10 envelopes
3 boxes window envelopes
7 rolodexes
10 boxes of paper clips plus ones in holders
Staples - regular and heavy duty
6 Rulers
Highlighters
4 boxes push pins
Erasers
12 - 3x3 post-it pads
2 boxes of discs
Miscellaneous catalogs from vendors
3 new telephone message books
1 box forms/books of doctors/hospitals from health insurance company
2
29
OFFICE INVENTORY
5 new binders
14 rolls adding machine tape
5 Ribbons for fax machine
611 hanging files in use (legal and letter)
6 Staplers
2 Heavy duty staplers
Kleenex
7 wire baskets
7 small glass vases
2 5-section stand up file
3 magazine holders
2 pair metal bookends
2 storage containers for discs
3 stamp dispensers
2 Cycle Sport address xxxxxxx
1 Whiteboard
Dry erase markers & eraser & whiteboard cleaner
Binderclips - various sizes
3 typewriter ribbons
Typewriter correction tape
2 gluesticks
1 box paper reinforcements
Assorted file folder tabs
1 set alpha file folders
1 stamp sealer
2 postage scale
4 5-shelf metal units
Rubberbands
1 set of rolodex cards
2 boxes copy paper
2-3 boxes computer paper with perfed sides
App. 50 Storage boxes of old m/c files
5-1/2x8-1/2 white lined pads
8-1/2x11 white lined pads
Various dictionaries
1 vacuum
1 boxes 4x6 index cards
1 pkg. report covers
Event stuff
9 boxes new hanging files
3 pkg. hanging data binders
2 canceled check cases
Christmas decorations
3
30
OFFICE INVENTORY
Drop cloths
Plastic tub
Signs
1 ball of twine
Miscellaneous flyers
48 old ledger books
10x13 brown envelopes
9x12 brown envelopes
7-1/2x10-1/2 brown envelopes
6x6 brown envelopes
Fedex envelopes & paks
Airborne envelopes
6-75 watt light bulbs
1 old video monitor and player
Box of videos
Almost 2 full boxes of Cycle Sport Letterhead
10 old checkbook covers
4 5-1/2x8 covers
2 sets alphabet file folders
Insignia sign making software
Lotus Approach software
Q&A software
Quattro Pro software
SCO Xenix software
Print Shop Deluxe software
MS Office Professional
Word Perfect 6.0 for DOS software
Xxxxxxxx Sales Development System
Lemco Powersports Dealer Handbook
1 coffee pot
4
31
SPRINGFIELD
SHOP EQUIPMENT
1 4-drawer file cabinet
1 chair
1 desk
Assorted broken special tools
Assorted used parts
4 repair order racks
1 nitrogen bottle w/gauge set
1 in/out rack
1 time card rack
Limited assortment of functioning special tools
1 headlight Aimer - 1950 vintage
1 pair of jack stands
10 station battery tender
Assorted service manuals, spec books, set-up manuals
1 shop truck
3 shipping containers 20'x10'x8'
4 air hose
1 I Bar
1 set jumper cables
1 dirty rag can
2 gas cans
1 time machine
1 wheel balancer
1 micro fiche reader
1 time clock
1 hydraulic press
1 welder
1 crate mate
1 4-wheel plastic dolly
1 uplift for Royal Stars
1 bench grinder
3 work hammers
3 vises
2 shelves (6'3" x 18")
1 solvent washer
1 acetylene torch
3 battery charges
1 battery load tester
1 air compressor
2 lifts (air)
1 lift (mechanical)
1 craftsman work bench w/drawers
1
32
SPRINGFIELD
SHOP SUPPLEES
1 E-clip assortment
1 roll pin assortment
1 circles assortment
1 fuel/vacuum line clip assortment
1 pan head screw assortment
2 "O" ring assortments
1 xxxxxx pin assortment
1 electrical connector assortment
3.4 & 6 pr. electrical connector block assortment
5mm, 6mm, 7mm, 8mm, 10mm, 12mm, 14mm helicoil
6mm, 8mm, 10mm time cert kits
1 tubeless tire repair kit with supplies
10 value shim kits - Yam/Kaw/Suz/Honda
8 wheel weight assortments Yam/Kaw/Suz/Honda
5 cartridge grease
3 hand cleaner (1 gallon size)
1 55 gallon oil drum
1 5 gallon battery acid
6 boxes repair orders
1 box estimate forms
Keg tags
2
33
SPRINGFIELD
SALES DEPARTMENT EQUIPMENT
1 dual lighted royal star stand
2 desks
6 chairs
2 phones
6 framed prints
1 bulletin board
1 television
1 VCR recorder
1 TV stand
1 dual watercraft stand
1 metal file cabinet
1 5-shelf metal organizer
1 easel
2 trashcans
5 Yamaha rugs
1 6' table
SUPPLIES
5 banners
Miscellaneous brochures
6 framed prints
3
34
SPRINGFIELD
SALES DEPARTMENT INVENTORY
----------------------------------------------------------
MODEL SERIAL # MODEL SERIAL #
----------------------------------------------------------
YFM600K-GR 014620 TRIUMPH
----------------------------------------------------------
T509 063908
----------------------------------------------------------
PW 50 244751 Sprint Exec. 070137
----------------------------------------------------------
PW 80 107945 Sprint 056721
----------------------------------------------------------
----------------------------------------------------------
XT 350 044277
----------------------------------------------------------
----------------------------------------------------------
VMX 12K 067758
----------------------------------------------------------
YZF 600 RK-B 008404
----------------------------------------------------------
YZF 600 RK-R 013103
----------------------------------------------------------
FZR 600 107924
----------------------------------------------------------
XJ 600 SK-B 070217
----------------------------------------------------------
USED
----------------------------------------------------------
SH 50 K 249088 Shadow 600 403502
----------------------------------------------------------
249084 EX 250 046661
----------------------------------------------------------
246606 VFR 750 600572
----------------------------------------------------------
TL 1000 101433
----------------------------------------------------------
----------------------------------------------------------
XV213 AK-B 027810
----------------------------------------------------------
026743
----------------------------------------------------------
----------------------------------------------------------
XV 1100 086517
----------------------------------------------------------
086522
----------------------------------------------------------
087712
----------------------------------------------------------
----------------------------------------------------------
GP 800 802806
----------------------------------------------------------
GP 760 808769
----------------------------------------------------------
XL 760 803619
----------------------------------------------------------
WVT 700 802297
----------------------------------------------------------
----------------------------------------------------------
PWC 1000 001999
----------------------------------------------------------
960428
----------------------------------------------------------
014071
----------------------------------------------------------
4
35
SPRINGFIELD
PARTS DEPARTMENT STORE EQUIPMENT
Rear Shelves 100" x 48" x 71" - 3 shelves
Overstock Shelves 72" x 25" x 75" - 20 shelves
Battery/Tubes/Yam. Stock 110" x 25" x 75" - 34 shelves
Yamaha Stock 110" x 25" x 75" - 54 shelves
Yamaha/Honda/Suzuk/Triumph 72" x 24" x 71" - 36 shelves
Special orders/spark plugs/catalogs 72" x 30" x 75" - 20 shelves
2 extra shelves 36" x 12" x 37" - 3 shelves
Desks
4 drawer file cabinet and 2 drawer file cabinet
2 shelves 95" x 12", storage nuts/bolts
6' gridwall sections - 28
7' gridwall sections - 16
5' gridwall sections - 3
3' gridwall sections - 4
Waterfall hangers - 33
Straight hangers - 4
Hooks
Display rack goggles - 1
Display rack locks - 1
2' gondola - 4
3' gondola - 2
4' gondola - 1
Grid-wall cubes - 3
Display case, glass 2x1x3 (on wheels)- 1
Glass cubicle stand 5'- 1
Glass cubicle stand 2'- 1
Glass cubicle slat sections - 6
6'- 2 bay tire rack - 1
6'- d bay tire rack - 2
"HJC" Helmets" lighted sign
"Michelin" lighted sign
"Xxxxxxx" lighted sign
"Dunlop" lighted sign
"NO FEAR" static sign
"First Gear" lighted sign
"Anti-shoplif" mirror, convey
3x4 Yamaha footmats - 2
Plexis inflatable display
5
36
SPRINGFIELD
PARTS DEPARTMENT SUPPLIES
1 - Plastic raffle drawing box w/entry forms
1 - Package tape gun
1 - 4 oz. bottle rubber cement
1/2 roll - Fishing line
5 - Razor blades for box knife
46 - Razor blades
1 box - 3/4" nails
1 - Blue Yamaha miniature football
7 - Magic markers
2 - Clipboards
1000 (est) - Product sales signs
1 - Yamaha key cutter
4 rolls - Package tape
100 - Small parts bags
100 - X-mall parts bags
10 - Credit card ribbons
9 - Credit card imprint paper
14 - Bottles of white-out
8 - Post-It pads
2 - Printer ribbons
2 - Microfiche lightbulbs
72 - No. 2 pencils
500 - 3x5 cards
1000 - Paperclips
1/4 pound - Rubberbands
3 rolls - Scotch tape
1 box - Full of scratch paper
500 ft. - Theater rope
3 - Clocks
1 - UPS Scale
1 - Yamaha Radio w/3 speaker surround sound
213 - Coat hangers
2 - Staplers
2 - Scotch tape dispensers
2 - Calculators
2 - Scissors
28 - Push pins
2 - Vanson leather sample packs (color/textures)
58 - Magazines (motorcycle/watercraft/dirtbike)
2 - Price tape guns
1 - Chemical shelf for store use
1 - Caution Wet Floor Sign
6
37
SPRINGFIELD
1 - Vacuum
2 - Dusters
1 - Floor mop
1 - Dust pan/broom set
2 - Fire extinguishers
9 - Bathroom cleaning chemicals
15 - Rolls of toilet paper
1 - Toilet scrub brush
2 - Stools
1 - Mop bucket w/wringer
1 - Hand dolly
4 - Microfiche machines
A massive assortment of gridwall displays & parts
1 - Rear door steel beam lock
5 - Trashcans 38 - Accessories catalogs
7
38
SPRINGFIELD
OFFICE EQUIPMENT
1 - Marker board
3 - Cork boards
7 - Spare phones
1 - Copier
1 - Computer terminal
1 - Table
2 - Chairs
2 - Trash cans
1 - Fax machine
3 - File cabinets
2 - Desks
1 - Laminator machine
1 - Calculator
1 - Typewriter
1 - Paymaster check imprinter
OFFICE SUPPLIES
1 - Northern Virginia road map
1 - File baskets
10 - Yamaha Operating Manuals
4 - Safe boxes
1 - 3-hole punch
1 - Oven mitt
3 - Promotional banners
2 - Boxes of copy paper
1 - Polaroid camera
1 - Computer disc stoarge box
1 box - Clasp envelopes
12 boxes - Business cards
150 - Promotion hang tags for bikes
1 - Bottle of toner
1 - MSDS book
4 - Lightbulbs
1 - Power strip
1 - Yamaha poster
8 - Phone books
6 - Pads of paper
8 rolls - Calculator paper
2 boxes - Cycle Sport envelopes
6 pads - Change receipts for bank money
8
39
SPRINGFIELD OFFICE SUPPLIES
3 - 3-ring "D" binders
1 - Postal scale Paperclips
2 - Rulers
2 - Staplers
2 bottles - White Out
1 - Tape Measure
6 - Clipboards
3 - File holders
1 - Desk lamp
1 - Business card holder
1 - Rolodex
1 - Key basket
13 - Pencils
12 - Pens
1 - Letter opener
4 - NADA Books
4 - Demo helmets
2 - Shelf units with 2 shelves
1 box - Letterhead note pads
8 rolls - Fax paper
9 - 1998 Yamaha Dealer Manuals on new products
500 - Security envelopes
1 box - Layaway tags
50 - File folder trays
1 - Triumph T-Bird Fender (slightly damaged)
1 - Royal Star Fender (slightly damaged)
9
40
SCHEDULE B
SCHEDULE OF ACCOUNTS RECEIVABLE
FOR
THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
41
Date: 10/13/98 Time: 10:46:28 CYCLE SPORT-XXXXXXX Report #1104 Page 0001
GENERAL LEDGER TRIAL BALANCE
Period: 01/01/98 to 09/30/98
Starting account: 11701-00 Ending account: 11750-01
Details are not shown
Sub-account: "All"
-----------------------------------------------------------------------------------------------------
Account-# Beginning Total Total Net Ending
Description balance debits credits change balance
-----------------------------------------------------------------------------------------------------
11071-00 .00 2,777.63 2,630.01 147.64 147.64
A/R RETURNED CHECKS
11702-00 .00 1,461,761.32 1,460,486.33 1,274.99 1,274.99
A/R CYCLE SPORT (CLEARING)
11703-00 4,085.75 66,009.06 66,402.00 392.94CR 3,692.81
A/R CYCLE SPORT (HOUSE)
11704-00 22,692.91 518,108.52 491,740.77 26,367.75 49,460.66
A/R FINANCE & UNIT CUSTOMERS
11705-00 .00 16,076.11 10,782.40 5,293.71 5,293.71
A/R MANUFACTURE HOLDBACKS
11712-00 48.77 110,433.07 106,101.24 4,331.83 4,380.60
A/R AMEX
11740-01 551.80 4,687.40 4,002.21 685.19 1,236.99
A/R YAMAHA WARRANTY
11741-01 2,247.88CR 514.34 895.95 381.81CR 2,629.49CR
A/R SUZUKI WARRANTY
11742-01 450.81CR 6,702.96 6,702.96 .00 450.81CR
A/R KAWASAKI WARRANTY
11744-01 335.99CR 917.67 917.67 .00 335.99CR
A/R TRIUMPH WARRANTY
11750-01 6,355.00 31,490.83 25,020.51 6,470.32 12,825.32
A/R ASSEMBLY & PRE-DELIVERY
Grand totals: 30,699.55 2,219,478.93 2,175,682.05 43,796.88 74,496.43
-- End of report --
42
Date: 10/13/98 Time: 10:49:01 CYCLE SPORT-XXXXXXX Report #6445 Page 0001
GENERAL LEDGER TRIAL BALANCE
Period: 01/01/98 to 09/30/98
Starting account: 11701-00 Ending account: 11750-01
Details are not shown
Sub-account: "All"
--------------------------------------------------------------------------------------------------------
Account-# Beginning Total Total Net Ending
Description balance debits credits change balance
--------------------------------------------------------------------------------------------------------
11701-00 .00 7,486.12 4,779.07 2,707.05 2,707.05
A/R RETURNED CHECKS
11702-00 .00 755,514.02 755,394.03 119.99 119.99
A/R CYCLE SPORT (CLEARING)
11703-00 73.97 13,604.58 14,186.22 581.64CR 507.67CR
A/R CYCLE SPORT (HOUSE)
11704-00 247.88 444,856.28 441,824.54 3,031.74 3,279.62
A/R FINANCE & UNIT CUSTOMERS
11705-00 .00 25,650.88 .00 25,650.88 25,650.88
A/R MANUFACTURE HOLDBACKS
11712-00 .00 60,345.56 57,472.91 2,872.65 2,872.65
A/R AMEX
11740-01 1,777.98CR 95.50 3,407.06 3,311.56CR 5,089.54CR
A/R YAMAHA WARRANTY
11750-01 5,911.90 13,243.31 12,359.00 884.31 6,796.21
A/R ASSEMBLY & PRE-DELIVERY
Grand totals: 4,455.77 1,320,796.25 1,289,422.83 31,373.42 35,829.19
-- End of report --
43
SCHEDULE C
SCHEDULE OF SELLER LIABILITIES
FOR
THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
44
SCHEDULE C-1
PURCHASER ASSUMED LIABILITIES
OF
THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
45
Date: 10/13/98 Time: 10:57:27 CYCLE SPORT-XXXXXXX Report #1105 Page 0001
GENERAL LEDGER TRIAL BALANCE 1.5.2.1
1.5.2.2
Period: 01/01/98 to 09/30/98
Starting account: 21101-01 Ending account: 21106-01
Details are not shown
Sub-account: "All"
----------------------------------------------------------------------------------------------------------
Account-# Beginning Total Total Net Ending
Description balance debits credits change balance
----------------------------------------------------------------------------------------------------------
21101-01 337,105.58CR 764.118.06 663,481.80 100,636.78 236,498.78CR
ITT FLOORPLAN-YAMAHA
21102-01 132,756.00CR 245,223.00 345,190.00 99,967.00CR 232,723.00CR
ITT FLOORPLAN-SUZUKI
21103-01 227,461.50CR 256,100.50 177,802.00 78,298.50 149,163.00CR
FLOORPLAN-KAWASAKI
21105-01 48,974.00CR 84,949.00 89,625.00 4,676.00CR 53,650.00XX
XXXXXXXX FLOORPLAN
21106-01 98,498.00CR 186,352.24 192,273.24 5,921.00CR 104,419.00CR
TRANS AMERICA FLOORPLAN
Grand totals: 844,823.06CR 1,336,742.82 1,468,371.54 68,371.28 776,453.78CR
-- End of report --
46
Date: 10/13/98 Time: 10:56:02 CYCLE SPORT-XXXXXXX Report #6446 Page 0001
GENERAL LEDGER TRIAL BALANCE
1.5.2.2
Period: 01/01/98 to 09/30/98
Starting account: 21101-01 Ending account: 21105-01
Details are not shown
Sub-account: "All"
-------------------------------------------------------------------------------------------------------
Account-# Beginning Total Total Net Ending
Description balance debits credits change balance
-------------------------------------------------------------------------------------------------------
21105-01 48,814.00CR 80,746.00 59,285.03 21,480.97 27,333.03CR
FLOORPLAN PAY-HALLMARK
Grand totals: 48,814.00CR 80,746.00 59,285.03 21,480.97 27,333.03CR
-- End of report --
47
Date: 10/13/98 Time: 11:00:05 CYCLE SPORT-XXXXXXX Report #1106 Page 0001
GENERAL LEDGER TRIAL BALANCE
Period: 01/01/98 to 09/30/98 1.5.2.3
.4
Starting account: 21360-00 Ending account: 21510-02 .5
.6
Details are not shown
Sub-account: "All"
---------------------------------------------------------------------------------------------------------
Account-# Beginning Total Total Net Ending
Description balance debits credits change balance
---------------------------------------------------------------------------------------------------------
21400-00 17,397.29CR 228,870.57 225,178.30 3,894.27 13,703.02CR
SALES DEPOSIT
21410-01 4,331.62CR 8,210.66 4,728.64 3,482.02 849.60CR
PREPAID SERVICE
21500-03 2,260.15CR 292,678.58 296,189.65 3,511.07CR 5,771.22CR
REPAIR ORDER DEPOSIT
21510-02 108.60CR 114,727.23 117,851.99 3,124.76CR 3,233.36CR
SPECIAL ORDER DEPOSIT
Grand totals: 24,097.66CR 644,487.04 643,946.58 540.46 23,557.20CR
-- End of report --
48
Date: 10/13/98 Time: 11:00:26 CYCLE SPORT-SPRINGFIELD Report #6447 Page 0001
GENERAL LEDGER TRIAL BALANCE
Period 01/01/98 to 09/30/98
Starting account: 22360-00 Ending account: 21510-02
Details are not shown
Sub-account: All
------------------------------------------------------------------------------------------------------
Account-# Beginning Total Total Net Ending
Description balance debits credits change balance
------------------------------------------------------------------------------------------------------
21400-00 754.03CR 227,273.88 223,723.00 3,550.00 2,795.97
SALES DEPOSIT
21410-01 30.79 9,507.13 7,923.00 1,584.15 1,634.94
PREPAID SERVICE
21500-03 1,146.00CR 197,360.52 200,071.28 2,710.76CR 3,856.76CR
REPAIR ORDER DEPOSIT
21510-02 5,061.64CR 154,416.39 157,092.59 2,676.20CR 7,737.84CR
SPECIAL ORDER DEPOSIT
Grand totals: 6,910.88CR 588,557.94 588,810.75 252.81CR 7,163.69CR
-- End of report --
49
SCHEDULE C-2
PURCHASER NON-ASSUMED LIABILITIES
OF
THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
50
Date:10/13/98 Time:11:48:05 CYCLE SPORT-XXXXXXX Report #1108 Page 0001
GENERAL LEDGER TRIAL BALANCE
Period 01/01/98 to 09/30/98
Starting account: 21600-00 Ending account: 22700-00
Details are not shown
Sub-account: All
-------------------------------------------------------------------------------------------------------------------
Account-# Beginning Total Total Net Ending
Description balance debits credits change balance
-------------------------------------------------------------------------------------------------------------------
21600-03 24,977.02CR 438,162.01 448,823.37 10,666.56CR 35,643,58CR
ACCRUED PAYROLL
21700-01 126.64CR 34,979.29 40,500.68 5,521.39CR 5,650.03CR
DMV PAYABLE (TAGS, TITLE, TAX)
21800-00 5830.0CR 3,604.34 4,436.30 831.96CR 248.96CR
GAME & FISHERIES PAYABLE (W/V)
21900-00 1,381.93CR 17,251.25 20,610.34 3,359.69CR 4,741.62CR
SALES TAX PAYABLE (4 1/2%)
22000-00 .00 37,529.99 37,529.99 .00 .00
FICA TAX PAYABLE
22100-00 .00 70,148.06 70,148.06 .00 .00
FED WITHOLDING PAYABLE
22200-00 .00 20,218.58 20,218.58 .00 .00
VA WITHOLDING PAYABLE
22300-00 .00 746.43 746.43 .00 .00
MD WITHOLDING PAYABLE
22400-00 .00 357.20 357.20 .00 .00
EMPLOYEE DISABILITY INS. PAY.
22500-00 .00 9,330.00 9,330.00 .00 .00
EMPLOYEE HEALTH INS. PAYABLE
22600-00 .00 1,200.00 1,200.00 .00 .00
EMPLOYEE IRA PAYABLE
Grand totals: 25,904.59CR 633,527.15 653,906.75 20,379.60CR 46,284.19CR
-- End of report --
51
Date:10/13/98 Time:11:48:32 CYCLE SPORT-SPRINGFIELD Report #6449 Page 0001
GENERAL LEDGER TRIAL BALANCE
Period 01/01/98 to 09/30/98
Starting account: 21900-00 Ending account: 22700-00
Details are not shown
Sub-account: All
-------------------------------------------------------------------------------------------------------------------
Account # Beginning Total Total Net Ending
Description balance debits credits change balance
-------------------------------------------------------------------------------------------------------------------
21600-00 9,055.04CR 228,069.41 230,833.12 23,763.71CR 11,818.75CR
ACCRUED PAYROLL
21700-01 .00 17,291.30 20,809.60 3,518.30CR 3,518.30CR
DMV PAYABLE (TAGS, TITLE, TAX)
21300-00 241.00 1,792.22 1,708.78 84.04 325.04
GAME & FISHERIES PAYABLE (W/V)
21900-00 2,648.88CR 19,388.86 21,582.49 2,193.63CR 4,842.31CR
SALES TAX PAYABLE (4 1/2%)
22000-00 .00 14,647.93 14,647.93 .00 .00
FICA TAX PAYABLE
22100-00 .00 26,035.81 26,035.81 .00 .00
FED WITHOLDING PAYABLE
22200-00 .00 8,183.25 8,183.25 .00 .00
VA WITHOLDING PAYABLE
22300-00 .00 67.42 67.42 .00 .00
MD WITHOLDING PAYABLE
22500-00 .00 2,760.00 2,760.00 .00 .00
EMPLOYEE HEALTH INS. PAYABLE
22600-00 .00 560.00 560.00 .00 .00
EMPLOYEE IRA PAYABLE
Grand totals: 11,462.72CR 318,796.80 327,188.40 8,319.60CR 19,854.32CR
-- End of report --
52
SCHEDULE D
DEALERSHIP AGREEMENTS
FOR
THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
53
[YAMAHA LOGO]
DEALER AGREEMENT
[YAMAHA LOGO]
YAMAHA MOTOR CORPORATION, U.S.A
0000 XXXXXXXXXXXX XXXXXX XXXXX XXXX, XXXXXXXXXX 00000
MAIL ADDRESS: P.O. BOX 6620, BUENA PARK, CALIFORNIA 90622
PHONE: (000) 000-0000
54
YAMAHA SALES AND SERVICE AGREEMENT
The information contained below is important as an integral part of the
Agreement attached hereto and required prior to the effectiveness of the
relationship. All information must be accurate and complete and Yamaha must be
notified of any changes to such information since it may affect your rights
under the Agreement.
A. DEALER'S COMPLETE LEGAL NAME
Name: CYCLE SPORT UNLIMITED, INC.
-----------------------------------------------------------------------
(OWNER, PARTNER, CORPORATE, REFERRED TO IN THE AGREEMENT AS "DEALER")
SOLE
PROPRIETORSHIP PARTNERSHIP CORPORATION
(COMPLETE SEC. C-1) (COMPLETE SEC. C-1) (COMPLETE SEC. C-2)
VIRGINIA
--------------------------- --------------------------- ------------------------------
(STATE)
Fictitious Business Name: CYCLE SPORT
----------------------------------------------------
(If different from above)
Federal Identification No. 00-0000000
----------------------------------------------------
B. DEALER'S LOCATION
Address: 0000 XXXXXX XXX., XXXXXX, XX. 00000
----------------------------------------------------------------------
(Referred to in the Agreement as "Dealer's Location")
C. DEALER: OWNERS AND MANAGEMENT
NAME SOCIAL SECURITY NO. TITLE
1. Owners:
----------------------- --------------------------- ----------------------
----------------------- --------------------------- ----------------------
----------------------- --------------------------- ----------------------
----------------------- --------------------------- ----------------------
NAME TITLE
2. Officers and XXXXX X. XXXX PRESIDENT
Manager: ------------------------------- ---------------------------
XXXXXX X. XXXXXXX, XX. VICE PRESIDENT
------------------------------- ---------------------------
XXXXXX X. XXXXXXX, XX. SECRETARY
------------------------------- ---------------------------
XXXXXX X. XXXXX TREASURER
------------------------------- ---------------------------
------------------------------- ---------------------------
------------------------------- ---------------------------
Dealer warrants and represents that the information as set forth above is
true and correct.
"Dealer"
X /s/ XXXXX XXXX
-------------------------------
TITLE: X PRESIDENT
-------------------------------
DATE: X 7-26-77
-------------------------------
- 2 -
55
YAMAHA SALES AND SERVICE AGREEMENT
THIS AGREEMENT is made by and between YAMAHA MOTOR CORPORATION, U.S.A., a
California corporation, having its principal office located at 0000 Xxxxxxxxxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Yamaha"), and
Dealer as identified on the cover sheet attached hereto.
RECITALS
A. Yamaha is the exclusive distributor in the United States of quality
MOTORCYCLES which are sold under the trademark "Yamaha" and distributes parts
and accessories therefor (hereinafter collectively referred to as the
"Products").
B. Dealer has represented, as an inducement to Yamaha's entering into this
Agreement, that: (1) Dealer is capable of performing the terms and conditions of
this Agreement, (2) Dealer has a sufficient number of trained personnel and
adequate facilities to sell and service the Products, and (3) Dealer has
adequate financial resources to perform the monetary obligations herein.
C. Dealer desires to engage in sales of the Products in accordance with the
terms and conditions hereof; and Yamaha desires to appoint Dealer as a retail
sales and service location for the Products in accordance herewith.
Yamaha and Dealer agree to govern their relationship in accordance with the
following:
1. ESTABLISHMENT OF RELATIONSHIP
1.01 APPOINTMENT OF DEALER. Yamaha hereby appoints Dealer as an authorized
Yamaha dealer for the sales and service of the Products only from Dealer's
location and Dealer hereby accepts such appointment. Dealer agrees not to,
directly or indirectly, change Dealer's location nor establish or operate any
other location for the sales or service of the Products without the prior
written consent of Yamaha, which consent shall not be unreasonably withheld.
1.02 NONEXCLUSIVE. The rights granted herein are nonexclusive. Yamaha
reserves the right to appoint additional dealers of any or all of the Products
at any time pursuant to Yamaha's marketing program and policies; and in
accordance with the applicable state laws.
2. DEALER'S SALES OPERATIONS
2.01 SALES. Dealer agrees to and shall use its best efforts to vigorously
promote and sell the Products at retail, and shall continually work to increase
the market for the Products in the area served by Dealer's location. Dealer
agrees to maintain a fully qualified sales organization and conduct a
continuing program of quality advertising and sales promotion activities for the
Products which reflect favorably on the goodwill established by Yamaha. Xxxxxx
agrees to afford the Products as much effort as Dealer gives to competitive or
other products of Dealer in terms of promotion, floor space, inventory, and
service.
2.02 PERFORMANCE CRITERIA. The relationship established hereby is intended
by the parties to be mutually beneficial. In this regard, Yamaha assumes under
this Agreement certain specific responsibilities to Dealer in order to obtain in
return an adequate level of performance by Dealer. Such level of performance
shall be evaluated periodically by Yamaha, at least once in each year, based on
reasonable criteria such as the following:
(a) The volume of Dealer's sales of the Products as compared with the sales
of competitive products in the market area served by Dealer's location.
(b) The volume of Dealer's sales of the Products as compared to other
dealers of the Products who are similarly situated.
(c) The actual sales volume of the Products by Dealer as compared to the
reasonable annual sales objectives which may be established by Yamaha for
Dealer.
(d) The actual promotion efforts of Dealer relating to the Products.
(e) The compliance with all of the terms and conditions of this Agreement.
2.03 CUSTOMER RELATIONS. Dealer shall at all times conduct its operations in
such a manner so as to develop and maintain good customer relations. Dealer
shall provide prompt and courteous service to customer inquiries and complaints
relating to the Products. Dealer shall at all times properly represent the
Products and shall not make, directly or indirectly, any false, misleading, or
disparaging representations to any customer or other person in regards to Yamaha
or the Products. Dealer shall conduct its operations during usual and customary
business hours.
2.04 INVENTORY. Dealer agrees to maintain at Dealer's location: (1) a
prominent display of the Products which includes at least one of each of the
current models of the units, and (2) a reasonable inventory of the Products
which is adequate to meet the current and anticipated demand in the market area
served by Dealer's location, subject only to availability.
2.05 SUPPLY OF PRODUCTS. Yamaha shall make reasonable efforts to supply
Dealer with the Products in accordance with accepted orders; however, during any
period of shortage, Yamaha shall be permitted to allocate the Products in an
equitable manner.
2.06 REPORTS AND RECORDS. In order to provide Yamaha with information
regarding sales and market trends, Dealer shall periodically provide to Yamaha
complete and accurate data regarding Dealer's sales and inventories of the
Products and such other reasonable information as and when requested by Yamaha.
Dealer shall keep complete and accurate records regarding the sales and service
activities for the Products and shall retain for at least three (3) years all
such records and documents. Dealer shall permit any designated representative of
Yamaha, at reasonable times, to examine and audit such records and documents. In
the event of the discovery of any improper claim or payment, Yamaha may charge
back to Dealer all payments or credits plus interest thereon made by Yamaha to
Dealer pursuant to such claims or otherwise, as well as the costs to Yamaha for
such audit and the recovery of such payments or credit.
2.07 CHANGES TO THE PRODUCTS. Yamaha may periodically change the design,
models, and features of the Products, add
- 3 -
56
new products, or discontinue the distribution of any or all of the Products to
Dealer without accountability to Dealer in connection with any Products ordered
by Dealer or Dealer's inventory of the Products.
2.08 COOPERATION WITH YAMAHA. Dealer shall at all times cooperate and work
closely with Yamaha's representatives. In addition Dealer shall maintain close
communications with such representatives.
3. PURCHASE OF THE PRODUCTS
3.01 GENERAL TERMS AND CONDITIONS. Yamaha shall sell the Products to Dealer
and Dealer shall purchase the Products from Yamaha in accordance with the terms
and conditions set forth herein. Yamaha reserves the right to change any terms
or conditions, including price and payment terms, at any time without
accountability to Dealer.
3.02 ORDERS. Dealer shall order the Products from Yamaha in accordance with
the ordering procedures of Yamaha. All orders are subject to acceptance by
Yamaha based on the availability of the Products and Dealer's compliance with
the terms and conditions hereof. To enable Yamaha to plan its purchases from the
manufacturer of the Products, Dealer shall submit its purchase orders at such
times as may be requested by Yamaha. The effective terms and conditions of
Yamaha shall supersede any conflicting terms and conditions of any purchase
order submitted by Dealer.
3.03 PRICE. Dealer shall pay to Yamaha the price and any other charges for
the Products as set forth on Yamaha's price schedules, issued periodically by
Yamaha, which is in effect at the time of shipment of Dealer's order. On the
stated future effective date, a new price or charge shall automatically
supersede any previous price or charge.
3.04 PAYMENT. Dealer shall pay the purchase price for the Products at the
time of delivery thereof, unless Yamaha has approved other terms of credit for
Dealer. Yamaha may cancel any order placed by Dealer or refuse the shipment
thereof should Dealer fail to meet any payment term, credit, or financial
requirements of Yamaha. The cancellation or withholding of any order shall not
be construed as a termination or breach of this Agreement by Yamaha.
3.05 SHIPMENT. Yamaha shall use its best efforts to ship all accepted orders
for the Products to Dealer F.O.B. Yamaha's warehouse with reasonable promptness;
provided, however, that Yamaha shall not be liable for any damage, consequential
or otherwise, to the Products which occurs while in transit, or as a result of a
failure to fill orders, delays in delivery, or any error in the filling of
orders.
3.06 TAXES. Dealer represents and warrants that all Products purchased
hereunder are purchased for resale in the ordinary course of Dealer's business.
Xxxxxx agrees that he is responsible for and shall comply with all laws calling
for the collection and/or payment of all taxes, including sales and use taxes
and ad valorem taxes.
4. DEALER'S SERVICE OPERATIONS
4.01 SERVICE OPERATIONS. Dealer shall establish and maintain quality service
operations as recommended by Yamaha for the Products at Dealer's location which
shall include thoroughly trained personnel, proper tools and equipment, and
adequate service facilities. Such service operations shall provide to owners of
the Products prompt, courteous, and workmanlike service.
4.02 DELIVERY AND PREPARATION OBLIGATIONS. Dealer shall be responsible for
and agrees to perform set-up, preparation, and delivery obligations as
prescribed by Yamaha, prior to the delivery of the Products to purchasers
thereof; and Yamaha agrees to compensate Dealer in accordance with the policies
of Yamaha as may be issued from time to time and in accordance with applicable
law.
4.03 GENERAL SERVICE. Dealer shall provide to owners of the Products such
general service and repair for the Products as may be necessary. Any and all
charges therefore shall be reasonable and consistent with those prevailing in
the market area of Dealer; and all such services and charges shall be in
accordance with applicable law.
4.04 WARRANTY SERVICE. Dealer agrees to perform all warranty service on all
Products brought to Dealer, whether or not sold by Dealer. Dealer shall perform
such warranty service in accordance with the policies of Yamaha as they may be
issued from time to time in the Yamaha service and warranty manuals and
bulletins. Dealer shall use only genuine Yamaha parts, or parts that are
equivalent in quality and design to genuine Yamaha parts, in performing warranty
service on the Products.
(a) Dealer acknowledges the importance of providing to owners of the
Products prompt and skilled warranty service and the need to comply with all
laws relating to warranty service. Dealer shall give immediate service to such
warranty requests and/or service. Xxxxxx agrees to perform all warranty service
in a competent and workmanlike manner. Dealer agrees to maintain an inventory of
genuine Yamaha parts to provide all necessary warranty service.
(b) Dealer shall submit complete and accurate claims to Yamaha for
reimbursement for parts and labor used in performing warranty service on
warranty claim forms of Yamaha with all information required thereon; and Yamaha
shall reimburse Dealer for such parts and labor in accordance with the effective
schedules and rates applicable to Dealer. Dealer shall keep and retain complete
and accurate records and documents supporting such claims, which records and
documents are subject to the provisions of Paragraph 2.06, regarding inspection
and adjustments.
4.05 ASSISTANCE AND PROTECTION. In the event any warranty claim arises that
Dealer is unable to perform, Yamaha should be promptly notified by Dealer and be
provided the details of the claim and Yamaha shall use reasonable efforts to
resolve such claim. Yamaha is relying upon Dealer's assurance that he is capable
of performing service obligations for the Products. Dealer agrees to fully
protect Yamaha from any claims, liability or loss that may result from a failure
of Dealer to properly perform service for the Products as required hereunder or
under applicable law.
5. GENERAL RESPONSIBILITIES--YAMAHA AND DEALER
5.01 PROMOTION AND ASSISTANCE BY YAMAHA. Yamaha shall, from time to time,
provide to Dealer such assistance, incentives, and programs as may be offered to
all other dealers of the Products who are similarly situated. Yamaha shall
conduct an advertising program for the Products which may include television and
radio commercials, magazine advertisements, and promotional events.
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5.02 TRADEMARKS. Yamaha agrees to permit Dealer to identify itself as an
authorized "Yamaha" dealer for the Products and use the trademarks of Yamaha in
connection with Dealer's efforts to sell and promote the Products; provided,
however, that such use shall be subject to the control of Yamaha and be in a
manner consistent with the high quality image of the Products. Dealer shall not
use the name "Yamaha" or other trademarks as a part of its corporate name or in
any manner inconsistent with the instructions of Yamaha. Dealer acknowledges
that Yamaha has the sole right and interest in such trademarks and agrees to
cease immediately all use thereof on the termination of this Agreement.
5.03 FACILITIES. Dealer shall establish and maintain the appearance and
condition of the facilities at Dealer's location so as to favorably reflect on
the Products and the quality image of Yamaha. As part of the facilities at
Dealer's location, Dealer shall install and maintain prominent and suitable
signs as recommended by Yamaha, which identify Dealer as a dealer of the
Products.
5.04 PERSONNEL. Dealer shall employ competent personnel for its sales
operations, service operations, and administration in order to fulfill its
responsibilities under this Agreement. All sales and service personnel shall be
thoroughly familiar with the Products; and Dealer, at his expense, shall cause
such personnel to attend training programs for the Products and study sales,
service and warranty manuals and bulletins for the Products as may be provided
by Yamaha from time to time.
5.05 FINANCIAL RESPONSIBILITY. Dealer shall maintain for its operations
hereunder adequate working capital and lines of wholesale credit to enable
Dealer to fulfill his responsibilities under this Agreement. Dealer agrees to
furnish Yamaha, at reasonable times, financial reports and other financial data
to enable Yamaha to determine Dealer's financial responsibilitv. At least within
ninety (90) days following the close of Dealer's fiscal year, Xxxxxx agrees to
submit to Yamaha Dealer's financial statement for the previous year.
5.06 COMPLIANCE WITH LAWS. Dealer shall conduct and maintain at all times
his sales and service operations in strict compliance with all applicable
federal and state laws and regulations, county and city ordinances and
regulations and any other applicable law, regulation or ordinance.
6. TERMINATION
6.01 EFFECTIVENESS. This Agreement shall be effective upon the execution
hereof by an authorized officer or representative of Yamaha at Buena Park,
California, and shall continue until terminated as provided herein.
6.02 TERMINATION FOR CAUSE (IMMEDIATE EFFECT). Unless otherwise provided for
or allowed under state law, Yamaha may terminate this Agreement with immediate
effect on the giving of written notice to Dealer should any of the following
events occur, such events being of such a nature so as to constitute good cause
for immediate termination by Yamaha:
(a) Any misrepresentation by Dealer in entering into this Agreement or the
submission by Dealer of any false or fraudulent application, claim or report in
connection with its sales or service operations.
(b) Insolvency of Dealer; inability of Dealer to meet its debts as they
mature; the filing by Dealer of a petition of voluntary bankruptcy under any
chapter of the bankruptcy laws of the United States; the institution or
proceedings to adjudge Dealer a bankrupt in an involuntary proceeding; the
execution of an assignment by Dealer for the benefit of creditors; the
appointment by a court of a receiver, trustee for Dealer or the assets of
Dealer; dissolution of Dealer; or the failure of Dealer to conduct its
operations in the ordinary course of business.
(c) Any transfer or attempted transfer by Dealer of any interest in, or
right, privilege or obligation under this Agreement; or any transfer of the
principal assets of Dealer's operations hereunder; or any change in the direct
or indirect ownership or operating management of Dealer, however accomplished,
without the prior written consent of Yamaha, which consent shall not be
unreasonably withheld.
(d) Any relocation or establishment of branch locations without having
complied with the requirements set forth in Paragraph 1.01 of this Agreement.
(e) Any act by Dealer or any person involved in the ownership or operating
management of Dealer which violates any law and affects adversely Dealer's
operations or any conduct or unfair business practice by Dealer or any person
involved in the ownership or operating management of Dealer which affects
adversely Dealer's operations or the goodwill and reputation of Dealer, Yamaha,
or the Products.
(f) Any failure by Dealer to pay to Yamaha any sums that may be due or
become due pursuant to this Agreement or maintain adequate lines of credit for
purposes of purchasing the Products from Yamaha.
(g) Revocation of Dealer's motor vehicle Dealer's license or other license
or permit necessary to conduct its operations hereunder.
6.03 TERMINATION - GENERAL NONPERFORMANCE. Unless otherwise provided for or
allowed under state law or this Agreement, Yamaha or Dealer may terminate this
Agreement on the giving of at least sixty (60) days prior written notice to the
other for failure of either party to fulfill any or all of their
responsibilities and obligations as set forth in this Agreement, except for
causes specified under Paragraph 6.02 hereof.
6.04 TERMINATION - DEATH, INCAPACITY. As an inducement to entering into this
Agreement, Dealer has represented that the persons identified on the cover sheet
shall continue to actively participate in the ownership and operating management
of Dealer; and, therefore, Yamaha may terminate this Agreement on the giving to
Dealer of at least fifteen (15) days prior written notice in the event of death,
physical or mental incapacity or disassociation of any of the identified
persons. Yamaha may defer such termination for a period up to six (6) months
from such event in order to allow Dealer an opportunity to replace such person
or persons with an equally qualified person or persons or allow an orderly
liquidation of Dealer's operations; provided, however, it can be demonstrated
that the terms and conditions of this Agreement can be fulfilled during such
period and thereafter.
6.05 TRANSITION - NEW AGREEMENT. Yamaha may terminate this Agreement at any
time on the giving to Dealer of at least sixty (60) days prior written notice
should Yamaha offer a new or modified form of agreement to all its dealers for
the Products.
7. RESPONSIBILITIES UPON TERMINATION
7.01 CONTINUING RESPONSIBILITIES. Upon the termination of this Agreement,
Dealer shall no longer be an authorized
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Yamaha dealer; however, Dealer shall immediately pay to Yamaha all amounts owed
to Yamaha, whether or not due.
7.02 DISCONTINUANCE OF USE OF TRADEMARKS. Upon termination, Dealer shall (1)
discontinue forthwith any and all use of the trademarks of Yamaha, including
such use in advertising, business materials of Dealer and as part of the firm or
trade name of Dealer, (2) forthwith remove or obliterate any and all signs
designating Dealer as an authorized dealer for the Products or which include any
trademark of Yamaha, and (3) forthwith notify and instruct publications and
others who may list or publish Dealer's name as an authorized Yamaha dealer,
including telephone directories, yellow pages, and other business directories,
to discontinue such listing of Dealer as an authorized Yamaha dealer.
7.03 ORDERS FOR THE PRODUCTS. In the event of the termination of this
Agreement, all unshipped orders for the Products shall be deemed cancelled.
However, from the date of the notice of termination to the effective date of
termination, orders may be filled by Yamaha if such orders are bona fide and
reasonable in quantity, Dealer pays for such order in cash on delivery; and
Dealer is capable of meeting its sales and service obligations hereunder.
7.04 REPURCHASE OF PRODUCTS.
A. Upon termination of this Agreement, Yamaha shall have the option,
but not the obligation, to repurchase from Dealer and Dealer shall sell to
Yamaha, within sixty (60) days after the effective date of termination the
following:
(1) Any or all new, unused, undamaged, then current model Products which
were purchased by Dealer from Yamaha, and are the unencumbered property of and
in the possession of Dealer, at the net invoice price, exclusive of
transportation charges and delivery and preparation reimbursement, previously
paid by Dealer therefor less all costs incurred in regards to their purchase.
(2) Any or all new, unused and undamaged resaleable parts, purchased from
Yamaha which are then the unencumbered property of and in the possession of
Dealer, at Yamaha's then current parts wholesale price list, exclusive of
transportation charges and less all costs incurred in regards to the repurchase.
Dealer shall, at Dealer's expense, inventory, tag, pack and deliver possession
of such parts to Yamaha, in accordance with Yamaha's procedures then in effect.
B. Within thirty (30) days of the date of termination of this
Agreement, Dealer shall deliver or mail to Yamaha a detailed inventory of all of
the items referred to in Paragraph 7.04. In the event Dealer fails to supply
such a list to Yamaha within said period, Yamaha shall have the right to enter
onto Dealer's premises for the purpose of compiling such an inventory list and
Dealer shall reimburse Yamaha for any costs incurred in connection therewith.
C. Within ten (10) days after receipt of Dealer's detailed inventory or
after Yamaha has taken a physical inventory, whichever is later, Yamaha shall
notify Dealer of its intention in regards to Dealer's inventory of Products.
8. MISCELLANEOUS
8.01 RELATIONSHIP OF THE PARTIES. This Agreement does not in any way create
the relationship of principal and agent between Dealer and Yamaha and in no
circumstances shall Dealer, its agents or employees be considered the agent of
Yamaha. Dealer shall not act or attempt to act or represent itself directly or
by implication as agent of Yamaha or in any manner assume or create or attempt
to assume or create any obligation or make any contract, agreement,
representation or warranty on behalf of or in the name of Yamaha, except those
authorized in writing by Yamaha. Dealer shall indemnify and hold Yamaha harmless
from any cost and liability caused by the acts of Dealer, its employees or agent
and from liability caused by any unauthorized act by Dealer, its agents, or
employees.
8.02 FORCE MAJEURE. Yamaha shall not be responsible for or liable for failure
to perform any part of this Agreement or for any delay in the performance of any
part of this Agreement, directly or indirectly resulting from or contributed to
by any foreign or domestic embargoes, seizures, acts of God, insurrections, wars
and/or continuance of war; or the adoption or enactment of any law, ordinance,
regulation, ruling or order directly or indirectly interfering with the
production, delivery or payment hereunder; or lack of the usual means of
transportation, fires, floods, explosions, strikes; extraordinary currency
devaluations, taxes, or customer duties or other similar charges or assessments;
or other events or contingencies beyond its control, either of the foregoing
nature or of any kind, nature or description affecting the transportation,
production, sale or distribution of the Products or any components used in or in
connection with their production.
8.03 ENTIRE AGREEMENT. This Agreement supersedes and terminates any and all
prior agreements or contracts, written or oral, entered into between Yamaha and
Dealer as of the effective date of this Agreement with reference to all matters
covered by this Agreement. All negotiations, correspondence and memoranda which
have passed between Yamaha and Dealer with reference to all matters covered by
this Agreement are merged herein and this Agreement constitutes the entire
agreement between Yamaha and Dealer. No representations not contained herein are
authorized by Yamaha, and this Agreement may not be altered, modified, amended,
or changed, in whole or in part, except in writing and executed by Yamaha and
Dealer in the same manner as is provided for the execution of this Agreement.
8.04 ASSIGNMENT. The relationship created between Yamaha and Dealer is
intended to be personal in nature, since Yamaha is relying on the continued
active participation of certain individuals in the operations of Dealer, and
consequently, this Agreement shall not be assignable or transferable in any
manner whatsoever without the prior consent in writing of Yamaha. For purposes
of this Agreement, any change in ownership, the legal form of the business, or
active management shall be deemed a transfer which requires the prior consent of
Yamaha. Any determination by Yamaha in this regard shall be based on an
evaluation of assignee's or transferee's qualifications and ability to meet
Yamaha's high standards. In the event Dealer changes his legal form of business
or makes an assignment without notifying Yamaha as provided herein, Dealer shall
continue to be personally liable for all past and future debts of this or a
successor business.
8.05 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
8.06 CONSTRUCTION. This Agreement and all of the words, terms, and provisions
hereof shall be construed in accordance with their usual and ordinary meanings,
and not in favor of or against either party hereto. Paragraph headings are not a
part of this Agreement, but are only for convenience.
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8.07 NONWAIVER OF RIGHTS. Failure of either party hereto to enforce any of
the provisions of this Agreement or any rights with respect thereto or failure
to exercise any election provided for herein shall in no way be considered to be
a waiver of such provisions, rights or elections or in any way affect the
validity of this Agreement. The failure of either party to exercise any of said
provisions, rights or elections shall not preclude or prejudice such party from
later enforcing or exercising the same or any other provisions, rights or
elections which it may have under this Agreement.
8.08 INVALIDITY. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
8.09 NOTICE. All notices required or permitted to be given or made under this
Agreement may be effected in writing by certified mail, postage prepaid, return
receipt requested, and shall be deemed communicated three (3) days from the
mailing thereof. Mailed notices shall be addressed to the parties as their
addresses appear above, but each party may change his address by written notice
in accordance with this paragraph.
8.10 ATTORNEY'S FEES. In the event any legal action is necessary to enforce
any of the terms and conditions of this Agreement, Dealer shall pay to Yamaha
all costs and fees incurred, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this 1 day of Aug, 1977. Dealer expressly acknowledges that it has read this
Agreement in its entirety and understands its rights and responsibilities under
this Agreement and the provisions relating to termination.
"YAMAHA"
YAMAHA MOTOR CORPORATION, U.S.A.
a California Corporation
By: [SIGNATURE]
----------------------------------
Title: ASSISTANT SECRETARY
-------------------------------
"DEALER"
X CYCLE SPORT UNLIMITED INC.
-------------------------------
BUSINESS NAME
By: X /s/ XXXXX X. XXXX
-------------------------------
Title: X PRESIDENT
-------------------------------
By: X
-------------------------------
Title: X
-------------------------------
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Dealer Agreernent
YAMAHA MOTOR CORPORATION, U.S.A. SALES AND SERVICE AGREEMENT
THIS AGREEMENT is made by and between YAMAHA MOTOR CORPORATION, U.S.A., a
California Corporation, YAMAHA PARTS DISTRIBUTORS, INC., a California
Corporation, each having its principal office located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as -YMUS- and -YPDI-
respectively, and collectively referred to as "Yamaha") and Dealer as identified
below. A. Dealer's Complete Legal Name Name: (Owner, Partnership, Corporation
referred to in the Agreement as "Dealer") Sole Proprietorship Partnership
Corporation (Complete Sec. C-1) (Complete Sec. C-1) (Complete Sec. C-1 & C-2)
Fictitious Business Name (if different from above) B. Dealer's Location Address:
(Referred to in the Agreement as "Dealer's Location") C. Dealer: Owners and
Management 1. Owner; Shareholder or Partner 2. Officers: A. Yamaha is the
exclusive distributor in the United States of quality products which are sold
under cenain trademarks owned by Yamaha ("Yamaha", "RIVA" and "Riva by Yamaha")
and distributes parts and accessories therefor which products, parts and
accessories are more specifically defined ontheAddendum(s), attached hereto and
made apart hereof (hereinafter collectively referred to as the "Products"). B.
Dealer has represented as an inducement to Yamaha's entering into this
Agreement, that: (1) Dealer is capable of performing the terms and conditions of
this Agreement, (2) Dealer has a sufficient number of trained personnel and
adequate facilities to sell and service the Products, and (3) Dealer has
adequate financial resourcesto perform the monetary obligations herein. C.
Dealer desires to engage in sales of the Products in accordance with the terms
and conditions hereof; and Yamaha desires to appoint Dealer as a retail sales
and service location for the Products inaccordance herewith. Yamaha and Dealer
agree to govern their relationship in accordance with the following: 1.
ESTABLISHMENT OF RELATIONSHIP 1.1 Appointment of Dealer. Yamaha hereby appoints
Dealer as an authorized dealer for the sale and service of the Products, and
Dealer hereby accepts such appointment. Yamaha and Dealer agree that Dealer
Name Name RECITALS Percentage of Ownership President Vice President Secretary
Treasurer shall only sell the Products to retail consumers and shall not sell
or otherwise transfer the Products to any other dealer except those dealers
authorized by Yamaha to sell and service the Products. 1.2 Location of Dealer.
In order to enable Yamaha to maintain an effective network of authorized Yamaha
dealers, Dealer agrees not to directly or indirectly sell or offer for sale the
Products from any location other than from Dealer's Location. 1.3 Change of
Location. Dealer agrees not to change Dealer's Location or establish or operate
anyother locationforthe sale or service of the Products without obtaining
Yamaha's prior written approval of such proposed change. Yamaha's approval
shall not be unreasonably withheld. Any proposed change of location is subject
to applicable state law; however, nothing herein shall be construed to require
Yamaha totake any step to obtain governmental approval for any proposed change
of location. 1.4 Nonexclusive. The rights granted herein are nonexclusive.
Yamaha reservesthe right to appoint additional dealers of any or all of the
Products at any time pursuant to Yamaha's marketing program and policies. 2.
DEALER'S SALES OPERATIONS 2.1 Sales. Dealer agrees to vigorously promote and
sell the Products to retail consumers, and shall continually work to increase
the market for the Products in the area served by Dealer's Location.
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Dealer shall attain the annual sales objectives, if any, established by Yamaha
for Dealer. Dealer shall conduct a continuing program of quality advertising and
sales promotion activities for the Products. Dealer may sell the Products to
retail consumers at such prices as Dealer may establish from time to time. 2.2
Sales Organization. Dealer agrees to maintain a fully qualified sales
organization which includes qualified sales personnel who are thoroughly
familiar with the Products. Dealer, at its expense, shall cause such personnel
to attend training programs for the Products, and study sales manuals and
bulletins for the Products as may be provided by Yamaha from time to time. 2,3
Multiple Brands. Yamaha recognizes that Dealer may handle brands which are
competitive with the Products sold to Dealer pursuant to this Agreement. In the
event Dealer handles such competitive products, Dealer agrees to afford the
Products at least as much effort as Dealer gives to competitive products handled
by Dealer interns of promotion and sale, floor space, inventory and service. 2.4
Performance Criteria. Dealer's level of performance may be evaluated
periodically by Yamaha, based on reasonable criteria such as the following: (a)
The volume of Dealer's sales of the Products as compared with the sale of
competitive products in the market area served by Dealer's Location. (b) The
volume of Dealer's sales of the Products as compared to other dealers of the
Products. (c) The actual sales volume of the Products by Dealer as compared to
the reasonable annual sales objectives which may be established by Yamaha for
Dealer. (d) The manner in which Dealer has conducted its sales operations,
including advertising, sales promotion and treatment of consumers. (e) The trend
over a reasonable period of time of Dealer's sales performance. (f) The
availability of Products to Dealer. (g) Significant local conditions that may
have directly affected Dealer's performance. (h) The compliance with all of the
terms and conditions of this Agreement. Evaluations prepared pursuant to this
Section 2.4 will be discussed with and provided to Dealer, with the expectation
that Dealer will take such action as may be required to correct any deficiencies
in Dealer's performance of its responsibilities. 2.5 Customer Relations. Dealer
shall at all times conduct its operations in such a manner so as to develop and
maintain good customer relations. Dealer shall provide prompt and courteous
service to customer inquiries and complaints relating to the Products. Dealer
shall at all times properly represent the Products and shall not make, directly
or indirectly, any false, misleading, or disparaging representations to any
customer or other person in regards to Yamaha or the Products. 2.6 Hours of
Business. Dealer agrees that its operations shall be conducted in the normal
course of business during usual business hours and for not less than the usual
number of days of the week and hours of the day which are customary for the same
type of business in the market area served by Dealer's Location. 2.7 Display and
Inventory. Dealer agrees to maintain a prominent display of a reasonable
representation of the entire line of the Products at Dealer's Location, which
display shall be in accordance with the guidelines established by Yamaha. Dealer
also agrees to maintain a reasonable inventory of the Products which is adequate
to meet the current and anticipated demand in the market area served by Dealer's
Location, subject to availability and to guidelines established by Yamaha. 2.8
Report and Records. In order that Yamaha may comply with applicable regulations
and achieve its marketing objective, Dealer shall report to Yamaha, all retail
sales of the Products within ten (10) days of completion of such sale. Dealer
shall periodically provide to Yamaha complete and accurate data regarding
Dealer's inventories of the Products and such other reasonable information as
and when requested by Yamaha. Dealer shall keep complete and accurate records
regarding sales and service activities for the Products, applications for
discounts, allowances, warranty claims, refunds and credits and shall retain for
at least three (3) years all such records and documents. Dealer shall permit any
designated representative of Yamaha, at reasonable times, to examine and audit
such records and documents. 2.9 Cooperation with Yamaha. Dealer shall at all
times cooperate and work closely with Yamaha's representatives and shall
maintain close communications with such representatives in regards to Dealer's
operations hereunder. 2.10 Facilities. Dealer shall establish and maintain the
appearance and condition of the facilities at Dealer's Location so as to
favorably reflect on the Products and the quality image of Yamaha. As part of
the facilities at Dealer's Location, Dealer shall install and maintain prominent
and suitable signs as recommended by Yamaha, which identify Dealer as a dealer
of the Products. Dealer agrees to maintain the facilities in a neat and orderly
fashion and in accordance with the standards established by Yamaha which may be
changed from time to time. The facilities must at all times comply with such
standards with respect to appearance, location, size, layout of building,
showroom, office, parts department and service operation. Yamaha may
periodically evaluate Dealer's facilities. Dealer shall permit any designated
representative of Yamaha, at reasonable times, to inspect the facilities and
Dealer agrees to make such alterations or improvements to the facilities as
Yamaha may reasonably specify. 3. DEALER'S SERVICE OPERATIONS 3.1 Service
Operations. Dealer shall establish and maintain quality service operations as
recommended by Yamaha for the Products at Dealer's Location including a parts
and accessories department which will comply with all standards established by
Yamaha. Dealer shall provide to owners of the Products such general service and
repair as may be necessary. Any and all charges therefore shall be reasonable
and consistent with those prevailing in the market area served by Dealer's
Location and all such services and charges shall be in accordance with
applicable law. Dealer agrees to provide service to any customer who has
purchased a Product, regardless of the dealer from whom the Product was
purchased. 3.2 Service Organization. Dealer agrees to maintain a fully qualified
service organization which includes service personnel who are thoroughly
familiar with the Products. Dealer, at its expense, shall cause such personnel
to attend training programs for the service of the Products and study service
manuals and bulletins for the Products as may be provided by Yamaha from time to
time. Dealer agrees to purchase and provide to its service personnel all tools
and equipment, as prescribed by Yamaha, that may be necessary to adequately and
properly service the Products. 3.3 Review of Dealer's Service and Repair
Performance. Yamaha may periodically evaluate Dealer's service and repair
performance in accordance with the standards recommended by Yamaha. Evaluations
prepared pursuant to this Section 3.3 will be discussed with and provided to
Dealer, with the expectation that Dealer will take such action as maybe required
to correct any deficiencies in Dealer's performance of his responsibilities. 3.4
Delivery and Preparation Obligations. Dealer shall be responsible for and agrees
to perform set-up, preparation, and delivery obligations as prescribed by
Yamaha, prior to the delivery of the Products to purchasers thereof. Dealer
agrees that all Products sold by it will be in proper operating condition prior
to delivery to any purchaser. Dealer further agrees to provide purchasers of the
Products with information concerning proper operation of the Products prior to
delivery. Yamaha agrees to compensate Dealer in accordance with the policies of
Yamaha as may be issued from time to time.
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3.5 Xxxxxxxx,
X. Xxxxxxxx. Products supplied to Dealer by Yamaha are warranted only in
accordance with Yamaha's written warranty to consumers, which written warranty
is supplied to Dealer for distribution to Dealer's customers and which maybe
amendeclor modified from time to time only by Yamaha. OTHER THAN THE WARRANTY
CONTAINED IN YAMAHA'S WRITTEN WARRANTYOR AS REQUIRED BY LAW, YAMAHA DISCLAIMS
ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT BY WAY OF LIMITATION,
THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. YAMAHA
DISCLAIMS ANY LIABILITY FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAIVIAGES OR
COMMERCIAL LOSSES SUFFERED BY DEALER, ITS CUSTOMERS OR ANY THIRD PARTY, except
as provided under state law. B. Warranty to Customers. Dealer shall show
customers any applicable Yamaha warranty prior to sale of the Products and will
furnish customers a copy of any applicable Yamaha warranty at the time of sale.
Dealer shall not give, or purport to give any additional or different warranty
to customers on behalf of Yamaha, other than the applicable written warranty of
Yamaha for the Products. 3.6 Warranty Service. Dealer agrees to perform all
warranty service on all Products brought to Dealer, whether or not sold by
Dealer. Dealer shall perform such warranty service in accordance with the
policies of Yamaha as they may be issued from time to time in the Yamaha service
and warranty manuals and bulletins. Any charges for such warranty service shall
be reasonable and consistent with those prevailing in the market area served by
Dealer's Location. When performing warranty service on the Products, Dealer
shall use only genuine Yamaha parts, or parts that are equivalent in quality and
design to genuine Yamaha parts. (a) Dealer acknowledges the importance of
providing to owners of the Products prompt and skilled warranty service and the
need to comply with all laws relating to warranty service. Dealer shall give
immediate service to such warranty requests. Xxxxxx agrees to perform all
warranty service in a competent and workmanlike manner. Dealer agrees to
maintain an inventory of genuine Yamaha parts in accordance with Section 2.7 and
to provide all necessary warranty service. (b) Dealer shall submit complete and
accurate claims to Yamaha for reimbursement for parts and labor used in
performing warranty service on warranty claim forms of Yamaha with all
information required therein; and Yamaha shall reimburse Dealer for such parts
and labor in accordance with the effective schedules and rates applicable to
Dealer. Dealer shall keep and retain complete and accurate records and documents
supporting such claims, which records and documents are subject to the
provisions of Section 2.8, regarding inspection. In the event of the discovery
of any improper claim or payment, Yamaha may charge back to Dealer all payments
or credits plus interest thereon made by Yamaha to Dealer pursuant to such
claims or otherwise, as well as the costs to Yamaha for such audit and the
recovery of such payments or credit. 3.7 Assistance and Protection. In the event
any warranty claim arises that Dealer is unable to perform, Yamaha should be
promptly notified by Dealer and be provided the details of the claim and Yamaha
shall use reasonable efforts to resolve such claim. Yamaha is relying upon
Dealer's assurance that it is capable of performing service obligations for the
Products. Dealer agrees to fully protect Yamaha from any claims, Iiability or
loss that may result from a failure of Dealer to properly perform service for
the Products as required hereunder or under applicable law. 3.8 Technical
Advice. Yamaha will have service representatives available for Dealer to consult
with, if necessary, in connection with service problems. 3.9 Recall and Update.
Regardless of where Products covered by a recall or a modification program
sponsored by Yamaha were purchased, Dealer will perform any inspection, recall,
or modification service as may be required from time to time. All such service
shall be performed in accordance with the announced policies and procedures of
Yamaha. 4. PURCHASE OF THE PRODUCTS 4.1 General Terms and Conditions. Yamaha
shall sell the Products to Dealer and Dealer shall purchase the Products from
Yamaha in accordance with the terms and conditions set forth herein and the
sales programs offered by Yamaha from time to time. Yamaha reserves the right.
to change any terms or conditions, including price and payment terms, at any
time without accountability to Dealer. However, Yamaha shall endeavor to provide
Dealer with advance notice of any such changes. 4.2 Price. Dealer shall pay to
Yamaha the price and any other charges for the Products as set forth on Yamaha's
price schedules, which are in effect at the time of invoicing of Dealer's order
unless the sales program pursuant to which the Products were ordered specifies a
different price- Yamaha may specify a future date upon which a new price and/or
charge may take effect and upon that date the new price and/or charge shall take
effect automatically. 4.3 Payment. Dealer shall pay the purchase price for the
Products at the time of delivery thereof, unless Yamaha has approved other terms
of credit for Dealer. If other credit terms have been approved, Dealer shall pay
for the Products in accordance with the approved terms. Yamaha may cancel any
order placed by Dealer or refuse the shipment thereof should Dealer fail to meet
any payment term, credit, or financial requirements of Yamaha or of a financing
source to which Yamaha has a recourse obligation. The cancellation or
withholding of any order shall not be construed as a termination or breach of
this Agreement by Yamaha. 4.4 Orders. Dealer shall order the Products from
Yamaha in accordance with the ordering procedures established by Yamaha. The
effective terms and conditions of Yamaha shall supersede any conflicting terms
and conditions of any purchase order submitted by Dealer. All orders are subject
to acceptance by Yamaha based on the availability of the Products and Dealer's
compliance with the terms and conditions hereof. To enable Yamaha to plan its
purchases from the manufacturer of the Products, Dealer shall submit its
purchase orders at such times as may be requested by Yamaha. 4.5 Shipment.
Yamaha shall use its best efforts to ship all accepted orders for the Products
to Dealer F.O.B. Yamaha's warehouse with reasonable promptness; provided,
however, that Yamaha shall not be liable for any damage, consequential or
otherwise, to the Products which occurs while in transit. Further, Yamaha shall
not be liable for damages, consequential or otherwise, to Dealer which arise as
a result of a failure to fill orders, delays in delivery, or any error in the
filling of orders. 4.6 Taxes. Dealer represents and warrants that all Products
purchased hereunder are purchased for resale in the ordinary course of Dealer's
business. Dealer agrees that it is responsible for and shall comply with all
laws calling for the collection and/or payment of all taxes, including sales and
use taxes and ad valorem taxes. 5. GENERAL RESPONSIBILITIES - YAMAHA AND DEALER
5.1 Supply of Products. Yamaha shall make reasonable efforts to supply Dealer
with the Products in accordance with accepted orders; however, during any period
of shortage, Yamaha shall be permitted to allocate the Products in accordance
with applicable marketing plans. 5.2 Promotion and Assistance by Yamaha. Yamaha
shall, from time to time, provide to Dealer sales assistance, incentives, and
programs. Yamaha shall conduct an advertising program for the Products which may
include television and radio commercials, magazine advertisements, and
promotional events. Any such incentives, programs, promotion and assistance
shall be at the sole discretion of Yamaha. 5.3 Change to the Products. Dealer
acknowledges that the Products are manufactured by suppliers of Yamaha;
consequently, the Products available to Yamaha may be periodically changed as to
design, models, orfeatures or some or all of the Products maybe discontinued all
without accountability to Dealer in connection with any Products ordered by
Dealer or Dealer's inventoryof the Products. Yamaha will use reasonable efforts
to provide advance notice of any such change. 5.4 Trademarks. Yamaha agrees to
permit Dealer to identify itself as an authorized dealer for the Products and
use the trademarks of Yamaha applicable to the Products in connection with
Dealers 'efforts to
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sell and promote the Products provided, however, that such use shall be subject
to the control of Yamaha and be in a manner consistent with the high quality
image of the Products. Dealer shall not use the tradenames or trademarks of
Yamaha as a part of its corporate name or in any manner inconsistent with the
instructions of Yamaha. Dealer shall promptly notify Yamaha of any infringement
or unauthorized use by any person of such patents, trademarks, tradenames,
copyrights or designs. Dealer acknowledges that Yamaha has the sole right and
interest in such patents, trademarks, tradenames, copyrights and designs. Dealer
agrees to cease immediately all use of Yamaha trademarks, tradenames and
copyrights and any other proprietary rights on termination of this Agreement.
5.5 Financial Responsibility. Dealer shall maintain for its operations hereunder
adequate working capital and lines of wholesale credit to enable Dealer to
fulfill its responsibilities under this Agreement. Xxxxxx further agrees to
comply with financial responsibility guidelines issued by Yamaha from time to
time. Dealer agrees to furnish Yamaha, at reasonable times,.financial reports
and other financial data to enable Yamaha to determine Dealer's financial
responsibility. At least within ninety (90) days following the close of Dealer's
fiscal year, Xxxxxx agrees to submit to Yamaha Dealer's audited financial
statement for the previous year. 5.6 Compliance with Laws. Dealer shall conduct
and maintain at all times its sales and service operations in strict compliance
with all applicable federal and state laws and regulations, county and city
ordinances and regulations and any other applicable law, regulation or
ordinance. 6. TERMINATION 6.1 Effectiveness. This Agreement shall be effective
upon the execution hereof by Dealer and an authorized officer or representative
of Yamaha and upon the execution of one or more Addedum(s) attached hereto and
made a part hereof. This Agreement shall terminate upon termination of all
Product Addendum(s) attached hereto. 6.2 Termination for Cause (immediate
Effect). Unless otherwise provided for or allowed under state law, Yamaha may
terminate this Agreement with immediate effect on the giving of written notice
to Dealer should any of the following events occur, such events being of such a
serious nature so as to constitute good cause for immediate termination by
Yamaha: (a) Any misrepresentation by Dealer in entering into this Agreement or
the submission by Dealer of any false or fraudulent application, claim or report
in connection with its sales or service operations. (b) Insolvency of Dealer;
inability of Dealer to meet its debts as they mature, the filing by Dealer of a
petition of voluntary bankruptcy under any chapter of the bankruptcy laws of the
United States, the institution of proceedings to adjudge Dealer a bankrupt in an
involuntary proceeding; the execution of an assignment by Dealer for the benefit
of creditors; the appointment by a court of a receiver, trustee for Dealer or
the assets of Dealer; dissolution of Dealer; or the failure of Dealer to conduct
its operations in the ordinary course of business including closing of Dealer's
operations in any manner inconsistent with what is customary for the same type
of business in the same market area. (c) Any relocation or establishment of
branch locations without having complied with the requirements set forth in
Section 1.3 of this Agreement. (d) Any act by Dealer or any person involved in
the ownership or operating management of Dealer which violates any law and
affects adversely Dealer's operations or any conduct or unfair business practice
by Dealer or any person involved in the ownership or operating management of
Dealer which affects adversely Dealer's operation or the goodwill and reputation
of Dealer, Yamaha, or the Products. (e) Any failure by Dealer to pay to Yamaha
any sums that maybe due or become due pursuant to this Agreement or maintain
adequate lines of credit for purposes of purchasing the Products or the parts
and accessories from Yamaha. (f) Any failure by Dealer to pay any sums that
maybe due or become due to a financing source utilized to obtain financing for
the purchase of Products pursuant to this Agreement, to which Yamaha has a
recourse obligation. (g) Revocation or non-renewal of Dealer's motor vehicle
dealer license or any other license or permit necessary to conduct its
operations hereunder. (h) Any failure by Dealer to comply with Section 7. (i)
Any default under the Security Agreement. (j) Any default under the Personal
Guarantee. 6.3 Termination -By Yamaha. Unless otherwise provided for or allowed
under state law or this Agreement, Yamaha may terminate this Agreement on the
giving of at least sixty (60) days prior written notice to Dealer for failure of
Dealer to fulfill any or all of its responsibilities and obligations as set
forth in this Agreement, except for causes specified under Section 6.2 hereof.
6.4 Termination - By Dealer. Unless otherwise provided for or allowed under
state law or this Agreement, Dealer may terminate this Agreement on the giving
of at least sixty (60) days prior written notice to Yamaha. Dealer shall be
considered to have voluntarily terminated this Agreement sixty (60) days
following (i) closing of Dealer's operations, (ii) abandonment of Dealer's
business or (iii) revocation or non-renewal of Dealer's motor vehicle dealer
license or any other license or permit necessary to conduct its operations. 6.5
Transition - New Agreement. Yamaha may terminate or modify this Agreement at any
time on the giving to Dealer of at least sixty (60) days prior written notice
should Yamaha offer a new or modified form of agreement to some or all of its
dealers for the Products, or should Yamaha's right to distribute the Products be
terminated or modified. 7. ASSIGNMENT, TRANSFER. CHANGE OF OWNERSHIP 7.1
Assignment. The relationship created between Yamaha and Dealer is intended to be
personal in nature, since Yamaha isrelyingonthe continued ownership and active
participation of certain individuals in the operations of Dealer, and
consequently, any assignment or transfer by Dealer or change in ownership or
management, shall require the prior written consent of Yamaha. This is necessary
in order for Yamaha to determine that each successor will meet the continuing
performance requirements set forth in this Agreement. Yamaha may terminate this
Agreement on the giving to Dealer at least fifteen (15) days prior written
notice, if Yamaha's prior written consent to any such transfer is not obtained.
For the purposes of this Agreement, any change in ownership, the legal form of
business or active management shall be deemed a transfer which requires the
prior written consent of Yamaha. Any transfer which is not made in accordance
with this Section is void. 7.2 Owners and Management. Dealer represents that the
current owners and key personnel of Dealer are those identified on the cover
sheet and that these individuals shall continue to actively participate in the
ownership and operating management of Dealer. Yamaha reserves the right to
terminate this Agreement on the giving to Dealer of at least fifteen (15) days
prior written notice in the event any of the key personnel ceases to be involved
in an active substantial role in the operation of Dealer as a result of death,
physical or mental incapacity or otherwise and Dealer fails to obtain Yamaha's
prior written consent to the replacement of such person. Yamaha may defer such
termination for a period up to six (6) months from such event in order to allow
Dealer an opportunity to replace such person or persons with an equally
qualified person or persons or allow an orderly liquidation of Dealer's
operations; provided, however, that it can be demonstrated that the terms and
conditions of this Agreement can be fulfilled during such period and thereafter.
8. RESPONSIBILITIES UPON TERMINATION 8.1 Continuing Responsibilities. Upon
termination of this Agreement, Dealer shall no longer be an authorized dealer
for the Products; however, Dealer shall immediately pay to Yamaha all amounts
owed to Yamaha and shall immediately pay all amounts due to any financing
institution to which Yamaha has a recourse obligation, whether or not due.
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8.2 Discontinuance of Use of Trademarks. Upon termination of this Agreement,
Dealer shall (1) discontinue forthwith any and all use of the trademarks of
Yamaha, including such use in advertising, business material of Dealer and as
part of the firm or trade name of Dealer, (2) forthwith remove or obliterate any
and all signs designating Dealer as an authorized dealer for the Products or
which include any trademark of Yamaha, (3) forthwith notify and instruct
publications and others who may list or publish Dealer's name as an authorized
Yamaha dealer, including telephone directories, yellow pages, and other business
directories, to discontinue such listing of Dealer as an authorized Yamaha
dealer, and (4) cease the use of all promotional literature and material
including point of purchase materials and displays provided to Dealer by Yamaha.
In the event Dealer fails to comply with any of the provisions of this Section,
Yamaha is authorized to take all steps necessary to insure compliance with same.
8.3 Orders for the Products. Upon termination of this Agreement, all unshipped
orders for the Products shall be deemed cancelled. However, from the date of the
notice of termination to the effective date of termination, orders may be filled
by Yamaha if such orders are bona fide and reasonable in quantity, Dealer pays
for such order in cash on delivery, and Dealer is capable of meeting its sales
and service obligations hereunder. 8.4 Repurchase of Products. A. Upon
termination of this Agreement, Yamaha shall repurchase from Dealer and Dealer
shall sell to Yamaha, within sixty (60) days after the effective date of
termination, any or all new, unused, undamaged, resaleable, Products excluding
parts and accessories, which (i) were invoiced by Yamaha to Dealer within
eighteen (18) months prior to the effective date of termination, and (ii) were
purchased by Dealer and are the unencumbered property of and in the possession
of Dealer. The repurchase price shall be the net invoice price or current
wholesale dealer price whichever is less, exclusive of transportation charges
and delivery and preparation reimbursement, previously paid by Dealer therefor
less all costs incurred in regards to their repurchase and any applicable
rebates. B. Upon termination of this Agreement, Yamaha shall have the option,
but not the obligation, to repurchase any or all new, unused, undamaged,
resaleable, Products excluding parts and accessories, which (i) were invoiced by
Yamaha to Dealer more than eighteen (18) months prior to the effective date of
termination, and (ii) were purchased by Dealer and are the unencumbered property
of and in the possession of Dealer. The repurchase price shall be the net
invoice price or current wholesale dealer price whichever is less, exclusive of
transportation charges and delivery and preparation reimbursement, previously
paid by Dealer therefor less all costs incurred in regards to their repurchase
and any applicable rebates. C. Upon termination of this Agreement, Yamaha shall
have the option, but not the obligation, to repurchase any or all new, unused,
undamaged, resaleable pans and accessories, which (i) were invoiced by Yamaha to
Dealer within eighteen (18) months prior to the effective date of termination,
and (ii) were purchased by Dealer and are the unencumbered property of and in
the possession of Dealer. The repurchase price shall be the net invoice price or
current wholesale dealer price whichever is less, exclusive of transportation
charges and delivery and preparation reimbursement, previously paid by Dealer
therefor less all costs incurred in regards to their repurchase and any
applicable rebates. D. Within thirty (30) days of the date of termination of
this Agreement, Dealer shall deliver or mail to Yamaha a detailed inventory of
all of the items referred to in Section 8.4. In the event Dealer fails to supply
such a list to Yamaha within said period, Yamaha shall have the right to enter
onto Dealer's premises for the purpose of compiling such an inventory list and
Dealer shall reimburse Yamaha for any costs incurred in connection therewith. E.
As a condition of repurchase, payment for repurchase of Products, parts or
accessories will first be applied against any obligations or money owed by
Dealer to Yamaha, and will then be applied to any monies owed to a financing
source to which Yamaha has a recourse obligation. F. This Section 8.4 is not
applicable in the event of any transfer of Dealer in accordance with Section 7.
8.5 Warranty Claims. Upon termination of this Agreement, Dealer shall no longer
be authorized to provide warranty service and shall refer warranty service
requests to the nearest authorized Yamaha dealer for the Products or to Yamaha.
Dealer acknowledges that any acceptance and payment of warranty or other claims
by Yamaha after the effective date of termination shall not be construed to be a
reinstatement of Dealer. 8.6 Records on Termination. Upon the termination of
Dealer and upon the request of Yamaha, Dealer will deliver to Yamaha copies of
Dealer's records of set-up, preparation, delivery of Products, warranty service,
recall or update service or other service of the Products. 9. MISCELLANEOUS 9.1
Relationship of the Parties. This Agreement does not in any way create the
relationship of principal and agent between Dealer and Yamaha and in no
circumstance shall Dealer, its agents or employees be considered the agent of
Yamaha. Dealer shall not act or attempt to act or represent itself directly or
by implication as an agent of Yamaha or in any manner assume or create or
attempt to assume or create any obligation or to make any contract, agreement,
representation or warranty on behalf of or in the name of Yamaha, except those
authorized in writing by Yamaha. Dealer shall indemnify and hold Yamaha harmless
from any cost and liability caused by the acts of Dealer, its employees or
agents and from liability caused by any unauthorized act by Dealer, its agents,
or employees. 9.2 Force Majeure. Yamaha and Dealer shall not be responsible for
or liable for failure to perform any part of this Agreement or for any delay in
the performance of any part of this Agreement, directly or indirectly resulting
from or contributed to by any foreign or domestic embargoes, seizures, acts of
God, insurrections, wars and/or continuance of war; or the adoption or enactment
of any law, ordinance, regulation, ruling or order directly or indirectly
interfering with the production, delivery or payment hereunder; or lack of the
usual means of transportation, fires, floods, explosion, strikes; extraordinary
currency devaluations, taxes, or custom duties or other similar charges or
assessments, or other events or contingencies beyond its control, either of the
foregoing nature or of any kind, nature or description affecting the
transportation, production, sale or distribution of the Products or any
components used in or in connection with their production. 9.3 Entire Agreement.
This Agreement and its Addendum(s) supersede and terminate any and all
agreements or contracts written or oral, entered into between Yamaha and Dealer
as of the effective date of this Agreement with reference to all matters covered
by this Agreement. All conversations, negotiations, correspondence and memoranda
which passed between Yamaha and Dealer with reference to all matters covered by
this Agreement are merged herein. This Agreement constitutes the entire
agreement between Yamaha and Dealer. This Agreement may not be altered,
modified, amended or changed, in whole or in part, except in writing and
executed by Yamaha and Dealer in the same manner as is provided for the
execution of this Agreement. 9.4 Venue. Dealer agrees that any legal proceeding
between Dealer and Yamaha which arises out of this Agreement, the dealings or
relationship between the parties, including discontinuance of such relationship,
may be brought by Dealer or Yamaha in state court or federal court located in
the County of Orange, State of California. Dealer irrevocably consents to the
jurisdiction of said court. Dealer waives any objection it may now or hereafter
have to the jurisdiction of such court. 9.5 Governing Law. This Agreement shall
be governed by and construed in accordance with the law of the State of
California, including but not limited to the California Statute of Limitations.
9.6 Construction. This Agreement and all of the words, terms, and provisions
hereof shall be construed in accordance with their usual and ordinary meanings,
and not in favor of or against either party hereto. Paragraph headings are not a
part of this Agreement, but are only for convenience.
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9.7 NONWAIVER OF RIGHTS. Failure of either party hereto to enforce any of
the provisions of this Agreement or any rights with respect thereto or failure
to exercise any election provided for herein shall in no way be considered to be
a waiver of such provisions, rights or elections or in any way affect the
validity of this Agreement. The failure of either party to exercise any of said
provisions, rights or elections shall not preclude or prejudice such party from
later enforcing or exercising the same or any other provisions, rights or
elections which it may have under this Agreement. Any actions taken by Yamaha,
subsequent to termination of this Agreement, shall not be construed to be a
reinstatement of Dealer. Dealer may be reinstated only by the execution of a new
Dealer Agreement by both Dealer and Yamaha.
9.8 INVALIDITY. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
9.9 NOTICE. All notices required or permitted to be given or made under
this Agreement may be effected in writing by certified mail, postage prepaid,
return receipt requested, and shall be deemed communicated three (3) days from
the mailing thereof. Mailed notices shall be addressed to the parties as their
addresses appear above, but each party may change his address by written notice
in accordance with this paragraph.
9.10 TERMS OF AGREEMENT. The terms of this Agreement govern unless
inconsistent with the terms set forth in an Addendum(s) attached hereto and made
a part hereof, in which case the terms of the Addendum(s) will control.
9.11 RELEASE OF CLAIMS. Dealer waives and releases any and all claims of
any kind and nature whatsoever which Dealer has against Yamaha, which arises out
of or in connection with any prior agreement including but not limited to any
Addendum entered into between them.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this 18th day of March 1988. Dealer expressly acknowledges that it has read this
Agreement in its entirety and understands its rights and responsibilities under
this Agreement and the Provisions resulting to termination.
"YAMAHA"
YAMAHA MOTOR CORPORATION, U.S.A.
A CALIFORNIA CORPORATION
BY [SIGNATURE ILLEGIBLE]
----------------------------------------
TITLE Senior Vice President/General Manager
-------------------------------------
Marine Group
YAMAHA PARTS DISTRIBUTORS, INC.
A CALIFORNIA CORPORATION
BY /s/ XXX XXXXXXXXX
----------------------------------------
TITLE Senior Vice President/General Manager
-------------------------------------
"DEALER"
BY /s/ XXXXX XXXX
----------------------------------------
TITLE PRESIDENT
-------------------------------------
BY
----------------------------------------
TITLE
-------------------------------------
66
[YAMAHA LOGO]
MOTO-4 DEALER AGREEMENT
67
YAMAHA SALES AND SERVICE AGREEMENT
The information contained below is important as an integral part oft he
Agreement attached hereto and required prior tot he effectiveness of the
relationship. All information must be accurate and complete and Yamaha must be
notified of any changes to such information since it may affect your rights
under the Agreement.
A. DEALER'S COMPLETE LEGAL NAME
Name: CYCLE SPORT UNLIMITED, INC.
------------------------------------------------------------------------
(Owner, Partnership, Corporation referred to in the Agreement as "Dealer")
SOLE PROPRIETORSHIP PARTNERSHIP CORPORATION
(COMPLETE SEC. C-1) (COMPLETE SEC. C-1) (COMPLETE SEC. & C-2)
------------------------ ---------------------- -----------------------
Fictitious Business Name
-------------------------------------------------------
(if different from above)
Federal Identification No.
-----------------------
B. DEALER'S LOCATION
Address: 0000 Xxxxxxxx Xxxx, Xxxxxx, Xx 00000
---------------------------------------------------------------------
(Referred to in the Agreement as "Dealer's Location")
C. DEALER: OWNERS AND MANAGEMENT
NAME SOCIAL SECURITY NO. TITLE
1. Owners: XXXXX X. XXXX 000000000 PRESIDENT
---------------------- ------------------- --------------------
XXXXXX X. XXXXXXX, XX SECRETARY
---------------------- ------------------- --------------------
XXXXX X. XXXX ----
---------------------- ------------------- --------------------
XXXXXX X. XXXXX TREASURER
---------------------- ------------------- --------------------
NAME TITLE
2. Offices and
Manager: XXXXX X. XXXX PRESIDENT
------------------------------- -------------------------------
---- VICE PRESIDENT
------------------------------- -------------------------------
XXXXXX X. XXXXXXX, XX. SECRETARY
------------------------------- -------------------------------
XXXXXX X. XXXXX TREASURER
------------------------------- -------------------------------
------------------------------- -------------------------------
------------------------------- -------------------------------
DEALER WARRANTS AND REPRESENTS THAT THE INFORMATION AS SET FORTH ABOVE IS TRUE
AND CORRECT.
"DEALER"
X /s/ XXXXX XXXX
--------------------------------
TITLE: X PRESIDENT
--------------------------------
DATE: X
--------------------------------
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YAMAHA SALES AND SERVICE AGREEMENT
THIS AGREEMENT is made by and between YAMAHA MOTOR CORPORATION, U,S.A., a
California corporation, having its principal office located at 0000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Yamaha"), and
Dealer as identified on the cover sheet attached hereto.
RECITALS
A. Yamaha is the exclusive distributor in the United States of quality
MOTO-4s which are sold under the trademark "Yamaha" and distributes parts and
accessories therefor (hereinafter collectively referred to as the "Products").
B. Dealer has represented, as an inducement to Yamaha's entering into this
Agreement, that: (1) Dealer is capable of performing the terms and conditions of
this Agreement, (2) Dealer has a sufficient number of trained personnel and
adequate facilities to sell and service the Products, and (3) Dealer has
adequate financial resources to perform the monetary obligations herein.
C. Dealer desires to engage in sales of the Products in accordance with the
terms and conditions hereof; and Yamaha desires to appoint Dealerasaretail sales
and service location for the Products inaccordance herewith.
1. ESTABLISHMENT OF RELATIONSHIP
1.01 Appointment of Dealer. Yamaha hereby appoints Dealer as an authorized
Yamaha dealer for the sales and service of the Products only from Dealer's
location and Dealer hereby accepts such appointment. Dealer agrees not to,
directly, or indirectly, change Dealer's location nor establish or operate any
other location for the sales or service of the Products without the prior
written consent of Yamaha, which consent shall not be unreasonably withheld.
1.02 Nonexclusive. The rights granted herein are nonexclusive. Yamaha
reserves the right to appoint additional dealers of any or all of the Products
at any time pursuant to Yamaha's marketing program and policies; and in
accordance with the applicable state laws.
2. DEALER'S SALES OPERATIONS
2.01 Sales. Dealer agrees to and shall use its best efforts to vigorously
promote and sell the Products at retail, and shall continually work to increase
the market for the Products in the area served by Dealer's location. Dealer
agrees to maintain a fully qualified sales organization and conduct a continuing
program of quality. advertising and sales promotion activities for the Products
which reflect favorably on the goodwill established by Yamaha. Xxxxxx agrees to
afford the Products as much effort as Dealer gives to competitive or other
products of Dealer in terms of promotion, floor space, inventory, and service.
2.02 Performance Criteria. The relationship established hereby is intended
by the parties to be mutually beneficial. In this regard, Yamaha assumes under
this Agreement certain specific responsibilities to Dealer in order to obtain in
return an adequate level of performance by Dealer. Such level of performance
shall be evaluated periodically by Yamaha, at least once in each year, based on
reasonable criteria such as the following:
(a) The volume of Dealer's sales of the Products as compared ith the sales
of products in the market area served by Dealer's location. This comparison
shall be related to a comparison of the actual promotion efforts of Yamaha
vis-a-vis the promotion efforts of competitive product manufacturers.
(b) The volume of Dealer's sales of the Products as compared to other
dealers of the Products who are similarly situated.
(c) The actual sales volume of the Products by Dealer as compared to the
reasonable annual sales objectives which may be established by Yamaha for
Dealer.
(d) The actual promotion efforts of Dealer relating to the Products.
(e) The compliance with all of the terms and conditions of this Agreement.
2.03 Customer Relations. Dealer shall at all times conduct its operations
in such a manner so as to develop and maintain good customer relations. Dealer
shall provide prompt and courteous service to customer inquiries and complaints
relating to the Products. Dealer shall at all times properly represent the
Products and shall not make, directly or indirectly, any false, misleading, or
disparaging representations to any customer or other person in regards to Yamaha
or the Products- Dealer shall conduct its operations during usual and customary
business hours.
2.04 Inventory. Dealer agrees to maintain at Dealer's location: (1) a
prominent display of the Products which includes at least one of each of the
current models of the units, and (2) a reasonable inventory of the Products
which is adequate to meet the current and anticipated demand in the market area
served by Dealer's location, subject only to availability.
2.05 Supply of Products. Yamaha shall make reasonable efforts to supply
Dealer with the Products in accordance with accepted orders; however, during any
period of shortage, Yamaha shall be permitted to allocate the Products in an
equitable manner.
2.06 Reports and Records. In order to provide Yamaha with information
regarding sales and market trends, Dealer shall periodically provide to Yamaha
complete and accurate data regarding dealer's sales and inventories of the
Products and such other reasonable information as and when requested by Yamaha.
Dealer shall keep complete and accurate records regarding the sales and service
activities for the Products and shall retain for at least three (3) years all
such records and documents. Dealer shall permit any designated representative of
Yamaha, at reasonable times, to examine and audit such records and documents. In
the event of the discovery of any improper claim or payment, Yamaha may charge
back to Dealer all payments or credits plus interest thereon made by Yamaha to
Dealer pursuant to such claims or otherwise, as well as the costs to Yamaha for
such audit and the recovery of such payments or credit.
2.07 Changes to the Products. Yamaha may periodically change the design,
models, and features of the Products, add new products, or discontinue the
distribution of any or all of the Products to Dealer without accountability to
Dealer in connection with any Products ordered by Dealer or Dealer's inventory
of the Products.
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2.08 Cooperation with Yamaha. Dealer shall at all times cooperate and work
closely with xxxxx's representatives. In addition Dealer shall maintain close
communications with such representatives.
3. PURCHASE OF THE PRODUCTS
3.01 General Terms and Conditions. Yamaha shall sell the Products to Dealer
and Dealer shall purchase the Products from Yamaha in accordance with the terms
and conditions set forth herein. Yamaha reserves the right to change any terms
or conditions, including price and payment terms, at any time without
accountability to Dealer.
3.02 Orders. Dealer shall order the Products from Yamaha in accordance with
the ordering procedures of Yamaha. All orders are subject to acceptance by
Yamaha based on the availability of the Products and Dealer's compliance with
the terms and conditions hereof. To enable Yamaha to plan its purchases from the
manufacturer of the Products, Dealer shall submit its purchase orders at such
times as may be requested by Yamaha. The effective terms and conditions of
Yamaha shall supersede any conflicting terms and conditions of any purchase
order submitted by Dealer.
3.03 Price. Dealer shall pay to Yamaha the price and any other charges for
the Products as set forth on Yamaha's price schedules, issued periodically by
Yamaha, which is in effect at the time of shipment of Dealer's order- On the
stated future effective date, a new price or charge shall automatically
supersede any previous price or charge.
3.04 Payment. Dealer shall pay the purchase price for the Products at the
time of delivery thereof, unless Yamaha has approved other terms of credit for
Dealer. Yamaha may cancel any order placed by Dealer or refuse the shipment
thereof should Dealer fail to meet any payment term, credit, or financial
requirements of Yamaha. The cancellation or withholding of any order shall not
be construed as termination or breach of this Agreement by Yamaha.
3.05 Shipment. Yamaha shall use its best efforts to Ship all accepted
orders for the Products to Dealer F.O.B. Yamaha's warehouse with reasonable
promptness; provided, however, that Yamaha shall not be liable for any damage,
consequential or otherwise, to the Products which occurs while in transit, or as
a result of a failure to fill orders, delays in delivery, or any error in the
filling of orders.
3.06 Taxes. Dealer represents and warrants that all Products purchased
hereunder are purchased for resale in the ordinary course of Dealer's business.
Xxxxxx agrees that he is responsible for and shall comply with all laws calling
for the collection and/or payment of all taxes, including sales and use taxes
and ad valorem taxes.
4. DEALER'S SERVICE OPERATIONS
4.01 Service Operations. Dealer shall establish and maintain quality
service operations as recommended by Yamaha for the Products at Dealer's
location which shall include thoroughly trained personnel, proper tools and
equipment, and adequate service facilities. Such service operations shall
provide to owners of the Products prompt, courteous, and workmanlike service.
4.02 Delivery and Preparation Obligations. Dealer shall be responsible for
and agrees to perform set-up, preparation, and delivery obligations as
prescribed by Yamaha, prior to the delivery of the Products to purchasers
thereof; and Yamaha agrees to compensate Dealer in accordance with the policies
of Yamaha as may be issued from time to time and in accordance with applicable
law.
4.03 General Service. Dealer shall provide to owners of the Products such
general service and repair for the Products as may be necessary. Any and all
charges therefore shall be reasonable and consistent with those prevailing in
the market area of Dealer; and all such services and charges shall be in
accordance with applicable law.
4.04 Warranty Service. Dealer agrees to perform all warranty service on all
Products brought to Dealer, whether or not sold by Dealer. Dealer shall perform
such warranty service in accordance with the policies of Yamaha as they may be
issued from time to time in the Yamaha service and warranty manuals and
bulletins. Dealer shall use only genuine Yamaha parts, or parts that are
equivalent in quality and design to genuine Yamaha parts, in performing warranty
service on the Products.
(a) Dealer acknowledges the importance of providing to owners of the
Products prompt and skilled warranty service and the need to comply with all
laws relating to warranty service. Dealer shall give immediate service to such
warranty requests and/or service. Xxxxxx agrees to perform all warranty service
in a competent and workmanlike manner. Dealer agrees to maintain an inventory of
genuine Yamaha parts to provide all necessary warranty service.
(b) Dealer shall submit complete and accurate claims to Yamaha for
reimbursement for parts and labor used in performing warranty service on
warranty claim forms of Yamaha with all information required thereon; and Yamaha
shall reimburse Dealer for such parts and labor in accordance with the effective
schedules and rates applicable to Dealer. Dealer shall keep and retain complete
and accurate records and documents supporting Such claims, which recorriq and
documents are subject to the provisions of Paragraph 2.06, regarding inspection
and adjustments.
4.05 Assistance and Protection. In the event any warranty claim arises that
Dealer is unable to perform, Yamaha should a be promptly notified by Dealer and
be provided the details of the claim and Yamaha shall use reasonable efforts to
resolve such claim. Yamaha is relying upon Dealer's assurance that he is capable
of performing service obligations for the Products. Dealer agrees to fully
protect Yamaha from any claims, liability or loss that may result from a failure
of Dealer to properly perform service for the Products as required hereunder or
under applicable law.
5. GENERAL RESPONSIBILITIES -
YAMAHA AND DEALER
5.01 Promotion and Assistance by Yamaha. Yamaha shall, from time to time,
provide to Dealer such assistance, incentives, and programs as maybe offered to
all other dealers of the Products who are similarly situated. Yamaha shall
conduct an advertising program for the Products which may include television and
radio commercials, magazine advertisements, and promotional events.
5.02 Trademarks. Yamaha agrees to permit Dealer to identify itself as an
authorized "Yamaha" dealer for the Products and use the trademarks of Yamaha in
connection with Dealer's efforts to sell and promote the Products; provided,
however, that such use shall be subject to the control of Yamaha and be in a
manner consistent with the high quality image of the Products. Dealer shall not
use the name "Yamaha" or other trademarks as a part of its corporate name or in
any manner inconsistent with the instructions of Yamaha. Dealer acknowledges
that Yamaha has the sole right and interest in such trademarks and agrees to
cease immediately all use thereof on the termination of this Agreement.
5.03 Facilities. Dealer shall establish and maintain the appearance and
condition of the facilities at Dealer's location
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so as to favorbly reflect on the Products and the quality image of Yamaha As
part of the facilities at Dealer's location, Dealer shall install and maintain
prominent and suitable signs as recommended by Yamaha, which identify Dealer as
a dealer of the products.
5.04 Personnel. Dealer shall employ competent personnel for its sales
operations, service operations, and administration in order to fulfill his
responsibilities under this Agreement. All sales and service personnel shall be
thoroughly familiar with the Products; and Dealer, at his expense, shall cause
such personnel to attend training programs for the Products and study sales,
service and warranty manuals and bulletins for the Products as may be provided
by Yamaha from time to time.
5.05 Financial Responsibility. Dealer shall maintain for its operations
hereunder adequate working capital and lines of wholesale credit to enable
Dealer to fulfill his responsibilities under this Agreement. Dealer agrees to
furnish Yamaha, at reasonable times, financial reports an other financial data
to enable Yamaha to determine Dealer's financial responsibility. At least within
ninety (90) days following the close of Dealer's fiscal year, Xxxxxx agrees to
submit to Yamaha Dealer's financial statement for the previous year.
5.06 Compliance with Laws. Dealer shall conduct and maintain at all times
his sales and service operations in strict compliance with all applicable
federal and state laws and regulations, county and city ordinances and
regulations and any other applicable law, regulation or ordinance.
6. TERMINATION
6.01 Effectiveness. This Agreement shall be effective upon the execution
hereof by an authorized officer or representative of Yamaha at Cypress,
California, and shall continue until terminated as provided herein.
6.02 Termination for Cause (immediate Effect). Unless otherwise provided
for or allowed under state law, Yamaha may terminate this Agreement with
immediate effect on the giving of written notice to Dealer should any of the
following events occur, such events being of such a nature so as to constitute
good cause for immediate termination by Yamaha:
(a) Any misrepresentation by Dealer in entering into this Agreement or the
submission by Dealer of any false or fraudulent application, claim or report in
connection with its sales or service operations.
(b) Insolvency of Dealer; inability of Dealer to meet its debts as they
mature; the filing by Dealer of a petition of voluntary bankruptcy under any
chapter of the bankruptcy laws of the United States; the institution or
proceedings to adjudge Dealer a bankrupt in an involuntary proceeding; the
execution of an assignment by Dealer for the benefit of creditors; the
appointment by a court of a receiver, trustee for Dealer or the assets of
Dealer; dissolution of Dealer; or the failure of Dealer to conduct its
operations in the ordinary course of business.
(c) Any transfer or attempted transfer by Dealer of any interest in, or
right, privilege or obligation under this Agreement; or any transfer of the
principal assets of Dealer's operations hereunder; or any change in the direct
or indirect ownership or operating management of Dealer, however accomplished,
without the prior written consent of Yamaha, which consent shall not be
unreasonably withheld.
(d) Any relocation or establishment of branch locations without having
complied with the requirements set forth in Paragraph 1.01 of this Agreement.
(e) Any act by Dealer or any person involved in the ownership or operating
management of Dealer which violates any law and affects adversely Dealer's
operations or any conduct or unfair business practice by Dealer or any person
involved in the ownership or operating management of Dealer which affects
adversely Dealer's operations or the goodwill and reputation of Dealer, Yamaha,
or the Products.
(f) Any failure by Dealer to pay to Yamaha any sums that may be due or
become due pursuant to this Agreement or maintain adequate lines of credit for
purposes of purchasing the Products from Yamaha.
(g) Revocation of Dealer's motor vehicle Dealer's license or other
license.or permit necessary to conduct its operations hereunder.
6.03 Termination - Generall Nonperformance. Unless otherwise provided for
or allowed under state law or this Agreement, Yamaha or Dealer may terminate
this Agreement on the giving of at least sixty (60) days prior written notice to
the other for failure of either party to fulfill any or all of their
responsibilities and obligations as set forth in this Agreement, except for
causes specified under Paragraph 6.02 hereof.
6.04 Termination - Death, Incapacity. As an inducement to entering into
this Agreement, Dealer has represented that the persons identified on the cover
sheet shall continue to actively participate in the ownership and operating
management of Dealer; and therefore, Yamaha may terminate this Agreement on the
giving to Dealer of at least fifteen 1115) days prior written notice in the
event of death, physical or mental incapacity or disassociation of any of the
identified persons. Yamaha may defer such termination for a period up to six (6)
months from such event in order to allow Dealer an opportunity to replace such
person or persons with an equally qualified person or persons or allow an
orderly liquidation of Dealer's operations; provided, however, it can be
demonstrated that the terms and conditions of this Agreement can be fulfilled
during such period and thereafter.
6.05 Transition - New Agreement. Yamaha may terminate this Agreement at any
time on the giving to Dealer of at least sixty (60) days prior written notice
should Yamaha offer a new or modified form of agreement to all its dealers for
the Products.
7. RESPONSIBILITIES UPON TERMINATION
7.01 Continuing Responsibilities. Upon the termination of this Agreement,
Dealer shall no longer be an authorized Yamaha dealer; however, Dealer shall
immediately pay to Yamaha all amounts owed to Yamaha, whether or not due.
7.02 Discontinuance of Use of Trademarks. Upon termination, Dealer shall
(1) discontinue forthwith any and all use of the trademarks of Yamaha, including
such use in advertising, business materials of Dealer and as part of the firm or
trade name of Dealer, (2) forthwith remove or obliterate any and all signs
designating Dealer as an authorized dealer for the Products or which include any
trademark of Yamaha, and (3) forthwith notify and instruct publications and
others who may list or publish Dealer's name as an authorized Yamaha dealer,
including telephone directories, yellow pages, and other business directories,
to discontinue such listing of Dealer as an authorized Yamaha dealer.
7.03 Orders for the Products. In the event of the termination of this
Agreement, all unshipped orders for the Products shall be deemed cancelled.
However, from the date of the notice of termination to the effective date of
termination, orders may be filled by Yamaha if such orders are bona fide and
reasonable in quantity, Dealer pays for such
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order in cash on delivery, and Dealer is capable of meeting its sales and
service obligations hereunder,
7.04 Repurchase of Products.
A. Upon termination of this Agreement, Yamaha shall have the option,
but not the obligation, to repurchase from Dealer and Dealer shall sell to
Yamaha, within sixty (60) days after the effective date of termination the
following:
(1) Any or all new, unused, undamaged, then current model Products which
were purchased by Dealer from Yamaha, and are the unencumbered property of and
in the possession of Dealer, at the net invoice price, exclusive of
transportation charges and delivery and preparation reimbursement, previously
paid by Dealer therefor less all costs incurred in regards to their purchase.
(2)Any or all new, unused and undamaged resaleable parts, purchased from
Yamaha which are then the unencumbered property of and in the possession of
Dealer, at Yamaha's then current parts wholesale price list, exclusive of
transportation charges and less all costs incurred in regards to the repurchase.
Dealer shall, at Dealer's expense, inventory, tag, pack and deliver possession
of such parts to Yamaha, in accordance with Yamaha's procedures then in effect.
B. Within thirty (30) days of the date of termination of this
Agreement, Dealer shall deliver or mail to Yamaha a detailed inventory of all
the items referred to in Paragraph 7.04. In the event Dealer fails to supply
such a list to Yamaha within said period, Yamaha shall have the right to enter
onto Dealer's premises for the purpose of compiling such an inventory list and
Dealer shall reimburse Yamaha for any costs incurred in connection therewith.
C. Within ten (10) days after receipt of Dealer's detailed inventory
or after Yamaha has taken a physical inventory, whichever is later, Yamaha shall
notify Dealer of its intention in regards to Dealer's inventory of Products.
8. MISCELLANEOUS
8.01 Relationship of the Parties. This Agreement does not in any way create
the relationship of principal and agent between Dealer and Yamaha and in no
circumstances shall Dealer, its agents or employees be considered the agent of
Yamaha. Dealer shall not act or attempt to act or represent itself directly or
by implication as agent of Yamaha o; in any manner assume or create or attempt
to assume or create any obligation or make any contract, agreement,
representation or warranty on behalf of or in the name of Yamaha, except those
authorized in writing by Yamaha. Dealer shall indemnify and hold Yamaha harmless
from any cost and liability caused by the acts of Dealer, its employees or agent
and from liability caused by any authorized act by Dealer, its agents, or
employees.
8.02 Force Majeure. Yamaha shall not be responsible for or liable for
failure to perform any part of this Agreement or for any delay in the
performance 'of any part of this Agreement, directly or indirectly resulting
from or contributed to by any foreign or domestic embargoes, seizures, acts of
God, insurrections, wars and/or continuance of war; or the adoption or enactment
of any law, ordinance, regulation, ruling or order directly or indirectly
interfering with the production, delivery or payment hereunder; or lack of the
usual means of transportation, fires, floods, explosions, strikes; extraordinary
currency devaluations, taxes, or customer duties or other similar charges or
assessments; or other events or contingencies beyond its control, either of the
foregoing nature or of any kind, nature or description affecting the
transportation, production, sale or distribution of the Products or any
components used in or in connection with their production.
8.03 Entire Agreement. This Agreement supersedes and terminates any and all
prior agreements or contracts, written or oral, entered into between Yamaha and
Dealer as of the effective date of this Agreement with reference to all Matters
covered by this Agreement. All negotiations, correspondence and memoranda which
have passed between Yamaha and Dealer with reference to all matters covered by
this Agreement are merged herein and this Agreement constitutes the entire
agreement between Yamaha and Dealer. No representations not contained herein are
authorized by Yamaha, and this Agreement may not be altered, modified, amended,
or changed, in whole or in part, except in writing and executed by Yamaha and
Dealer in the same manner as is provided for the execution of this Agreement.
8.04 Assignment. The relationship created between Yamaha and Dealer is
intended to be personal in nature, since Yamaha is relying on the continued
active participation of certain individuals in the operations of Dealer, and
consequently, this Agreement shall not be assignable or transferable in any
manner whatsoever without the prior consent in writing of Yamaha. For purposes
of this Agreement, any change in ownership, the legal form of the business, or
active management shall be deemed a transfer which requires the prior consent of
Yamaha. Any determination by Yamaha in this regard shall be based on an
evaluation of assignee's or transferee's qualifications and ability to meet
Yamaha's high standards. In the event Dealer changes his legal form of business
or makes an assignment without notifying Yamaha as provided herein, Dealer shall
continue to be personally liable for all past and future debts of this or a
successor business.
8.05 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of California.
8.06 Construction. This Agreement and all of the words, terms, and
provisions hereof shall be construed in accordance with their usual and ordinary
meanings, and not in favor of or against either party hereto. Paragraph headings
are not a part of this Agreement, but are only for convenience.
8.07 Nonwaiver of Rights. Failure of either party hereto to enforce any of
the provisions of this Agreement or any rights with respect thereto or failure
to exercise any election provided for herein shall in no way be considered to be
a waiver of such provisions, rights or elections or in any way affect the
validity of this Agreement. The failure of either party to exercise any of said
provisions, rights or elections shall not prelude or prejudice such party from
later enforcing or exercising the same or any other provisions, rights or
elections which it may have under this Agreement.
8.08 Invalidity. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
8.09 Notice. All notices required or permitted to be given or made under
this Agreement may be effected in writing by certified mail, postage prepaid,
return receipt requested, and shall be deemed communicated three (3) days from
the mailing thereof. Mailed notices shall be addressed to the parties as their
addresses appear above, but each party may change his address by written notice
in accordance with this paragraph.
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8.10 Attorney's Fees. In the event any legal action is necessary to enforce
any of the terms and conditions of this Agreement, Dealer shall pay to Yamaha
all costs and fees incurred, including reasonable attorney's fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this 29th day of AUGUST, 1984. Dealer expressly acknowledges that it has read
this Agreement in its entirety and understands its rights and responsibilities
under this Agreement and the provisions relating to termination.
"Yamaha"
YAMAHA MOTOR CORPORATION, U.S.A.
a California Corporation
BY: /S/ XXXXXX XXXXXXX
-----------------------------------
TITLE: ASSISTANT SECRETARY
-----------------------------------
"DEALER"
X CYCLE SPORT UNLIMITED, INC.
-----------------------------------
BUSINESS NAME
BY: X /S/ XXXXX XXXX
-----------------------------------
TITLE: X /S/ PRESIDENT
----------------------------------
BY: X
----------------------------------
TITLE: X
----------------------------------
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[YAMAHA LOGO]
Dealer Agreement
74
YAMAHA SALES AND SERVICE AGREEMENT
The information contained below is important as an integral part oft he
Agreement attached hereto and required prior tot he effectiveness of the
relationship. All information must be accurate and complete and Yamaha must be
notified of any changes to such information since it may affect your rights
under the Agreement.
A. DEALER'S COMPLETE LEGAL NAME
Name: CYCLE SPORT UNLIMITED, INC.
------------------------------------------------------------------------
(Owner, Partnership, Corporation referred to in the Agreement as "Dealer")
SOLE PROPRIETORSHIP PARTNERSHIP CORPORATION
(COMPLETE SEC. C-1) (COMPLETE SEC. C-1) (COMPLETE SEC. & C-2)
------------------------ ---------------------- -----------------------
Fictitious Business Name
-------------------------------------------------------
(if different from above)
Federal Identification No. 00-0000-000
-----------------------
B. DEALER'S LOCATION
Address: 0000 Xxxxxxxx Xxxx, Xxxxxx, Xx 00000
---------------------------------------------------------------------
(Referred to in the Agreement as "Dealer's Location")
C. DEALER: OWNERS AND MANAGEMENT
NAME SOCIAL SECURITY NO. TITLE
1. Owners:
---------------------- ------------------- --------------------
NAME TITLE
2. Offices and
Manager: XXXXX X. XXXX PRESIDENT
------------------------------- -------------------------------
---- VICE PRESIDENT
------------------------------- -------------------------------
XXXXXX X. XXXXXXX, XX. SECRETARY
------------------------------- -------------------------------
XXXXXX X. XXXXX TREASURER
------------------------------- -------------------------------
------------------------------- -------------------------------
------------------------------- -------------------------------
DEALER WARRANTS AND REPRESENTS THAT THE INFORMATION AS SET FORTH ABOVE IS TRUE
AND CORRECT.
"DEALER"
X CYCLE SPORT UNLIMITED, INC.
--------------------------------
BY: X /s/ XXXXX XXXX, PRESIDENT
--------------------------------
DATE: X 11/29/84
--------------------------------
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YAMAHA MOTOR CORPORATION, U.S.A. SALES AND SERVICE AGREEMENT
THIS AGREEMENT is made by and between YAMAHA MOTOR CORPORATION, U.S.A., a
California corporation, having its principal office located at 0000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Yamaha"), and
Dealer as identified on the cover sheet attached hereto.
RECITALS
A. Yamaha is the exclusive distributor in the United States of quality
GENERATORS which are sold under the trademark "Yamaha" and distributes parts and
accessories therefor (hereinafter collectively referred to as the "Products").
B. Dealer has represented as an inducement to Yamaha's entering into this
Agreement, that: (1) Dealer is capable of performing the terms and conditions of
this Agreement, (2) Dealer has a sufficient number of trained personnel and
adequate facilities to sell and service the Products, and (3) Dealer has
adequate financial resourcesto perform the monetary obligations herein.
C. Dealer desires to engage in sales of the Products in accordance with the
terms and conditions hereof; and Yamaha desires to appoint Dealerasaretail sales
and service location for the Products inaccordance herewith.
Yamaha and Dealer agree to govern their relationship in accordance with the
following:
1. ESTABLISHMENT OF RELATIONSHIP
1.01 APPOINTMENT OF DEALER. Yamaha hereby appoints Dealer as an authorized
Yamaha dealer for the sales and service of the Products only from Dealer's
location and Dealer hereby accepts such appointment. Dealer agrees not to,
directly, or indirectly, change Dealer's location nor establish or operate any
other location for the sales or service of the Products without the prior
written consent of Yamaha, which consent shall not be unreasonably withheld.
1.02 NONEXCLUSIVE. The rights granted herein are nonexclusive. Yamaha
reserves the right to appoint additional dealers of any or all of the Products
at any time pursuant to Yamaha's marketing program and policies; and in
accordance with the applicable state laws.
2. DEALER'S SALES OPERATIONS
2.01 SALES. Dealer agrees to and shall use its best efforts to vigorously
promote and sell the Products at retail, and shall continually work to increase
the market for the Products in the area served by Dealer's location. Dealer
agrees to maintain a fully qualified sales organization and conduct a continuing
program of quality. advertising and sales promotion activities for the Products
which reflect favorably on the goodwill established by Yamaha. Xxxxxx agrees to
afford the Products as much effort as Dealer gives to competitive or other
products of Dealer in terms of promotion, floor space, inventory, and service.
2.02 PERFORMANCE CRITERIA. The relationship established hereby is intended
by the parties to be mutually beneficial. In this regard, Yamaha assumes under
this Agreement certain specific responsibilities to Dealer in order to obtain in
return an adequate level of performance by Dealer. Such level of performance
shall be evaluated periodically by Yamaha, at least once in each year, based on
reasonable criteria such as the following:
(a) The volume of Dealer's sales of the Products as compared ith the sales
of products in the market area served by Dealer's location. This comparison
shall be related to a comparison of the actual promotion efforts of Yamaha
Motor Corp. vis-a-vis the promotion efforts of similar product manufacturers.
(b) The volume of Dealer's sales of the Products as compared to other
dealers of the Products who are similarly situated.
(c) The actual sales volume of the Products by Dealer as compared to the
reasonable annual sales objectives which may be established by Yamaha for
Dealer.
(d) The actual promotion efforts of Dealer relating to the Products.
(e) The compliance with all of the terms and conditions of this Agreement.
2.03 CUSTOMER RELATIONS. Dealer shall at all times conduct its operations
in such a manner so as to develop and maintain good customer relations. Dealer
shall provide prompt and courteous service to customer inquiries and complaints
relating to the Products. Dealer shall at all times properly represent the
Products and shall not make, directly or indirectly, any false, misleading, or
disparaging representations to any customer or other person in regards to Yamaha
or the Products- Dealer shall conduct its operations during usual and customary
business hours.
2.04 INVENTORY. Dealer agrees to maintain at Dealer's location: (1) a
prominent display of the Products which includes at least one of each of the
current models of the units, and (2) a reasonable inventory of the Products
which is adequate to meet the current and anticipated demand in the market area
served by Dealer's location, subject only to availability.
2.05 SUPPLY OF PRODUCTS. Yamaha shall make reasonable efforts to supply
Dealer with the Products in accordance with accepted orders; however, during any
period of shortage, Yamaha shall be permitted to allocate the Products in an
equitable manner.
2.06 REPORTS AND RECORDS. In order to provide Yamaha with information
regarding sales and market trends, Dealer shall periodically provide to Yamaha
complete and accurate data regarding dealer's sales and inventories of the
Products and such other reasonable information as and when requested by Yamaha.
Dealer shall keep complete and accurate records regarding the sales and service
activities for the Products and shall retain for at least three (3) years all
such records and documents. Dealer shall permit any designated representative of
Yamaha, at reasonable times, to examine and audit such records and documents. In
the event of the discovery of any improper claim or payment, Yamaha may charge
back to Dealer all payments or credits plus interest thereon made by Yamaha to
Dealer pursuant to such claims or otherwise, as well as the costs to Yamaha for
such audit and the recovery of such payments or credit.
2.07 CHANGES TO THE PRODUCTS. Yamaha may periodically change the design,
models, and features of the Products, add new products, or discontinue the
distribution of any or all of the Products to Dealer without accountability to
Dealer in connection with any Products ordered by Dealer or Dealer's inventory
of the Products.
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2.08 COOPERATION WITH YAMAHA. Dealer shall at all times cooperate and work
closely with xxxxx's representatives. In addition Dealer shall maintain close
communications with such representatives.
3. PURCHASE OF THE PRODUCTS
3.01 GENERAL TERMS AND CONDITIONS. Yamaha shall sell the Products to Dealer
and Dealer shall purchase the Products from Yamaha in accordance with the terms
and conditions set forth herein. Yamaha reserves the right to change any terms
or conditions, including price and payment terms, at any time without
accountability to Dealer.
3.02 ORDERS. Dealer shall order the Products from Yamaha in accordance with
the ordering procedures of Yamaha. All orders are subject to acceptance by
Yamaha based on the availability of the Products and Dealer's compliance with
the terms and conditions hereof. To enable Yamaha to plan its purchases from the
manufacturer of the Products, Dealer shall submit its purchase orders at such
times as may be requested by Yamaha. The effective terms and conditions of
Yamaha shall supersede any conflicting terms and conditions of any purchase
order submitted by Dealer.
3.03 PRICE. Dealer shall pay to Yamaha the price and any other charges for
the Products as set forth on Yamaha's price schedules, issued periodically by
Yamaha, which is in effect at the time of shipment of Dealer's order- On the
stated future effective date, a new price or charge shall automatically
supersede any previous price or charge.
3.04 PAYMENT. Dealer shall pay the purchase price for the Products at the
time of delivery thereof, unless Yamaha has approved other terms of credit for
Dealer. Yamaha may cancel any order placed by Dealer or refuse the shipment
thereof should Dealer fail to meet any payment term, credit, or financial
requirements of Yamaha. The cancellation or withholding of any order shall not
be construed as termination or breach of this Agreement by Yamaha.
3.05 SHIPMENT. Yamaha shall use its best efforts to Ship all accepted
orders for the Products to Dealer F.O.B. Yamaha's warehouse with reasonable
promptness; provided, however, that Yamaha shall not be liable for any damage,
consequential or otherwise, to the Products which occurs while in transit, or as
a result of a failure to fill orders, delays in delivery, or any error in the
filling of orders.
3.06 TAXES. Dealer represents and warrants that all Products purchased
hereunder are purchased for resale in the ordinary course of Dealer's business.
Xxxxxx agrees that he is responsible for and shall comply with all laws calling
for the collection and/or payment of all taxes, including sales and use taxes
and ad valorem taxes.
4. DEALER'S SERVICE OPERATIONS
4.01 SERVICE OPERATIONS. Dealer shall establish and maintain quality
service operations as recommended by Yamaha for the Products at Dealer's
location which shall include thoroughly trained personnel, proper tools and
equipment, and adequate service facilities. Such service operations shall
provide to owners of the Products prompt, courteous, and workmanlike service.
4.02 DELIVERY AND PREPARATION OBLIGATIONS. Dealer shall be responsible for
and agrees to perform set-up, preparation, and delivery obligations as
prescribed by Yamaha, prior to the delivery of the Products to purchasers
thereof; and Yamaha agrees to compensate Dealer in accordance with the policies
of Yamaha as may be issued from time to time and in accordance with applicable
law.
4.03 GENERAL SERVICE. Dealer shall provide to owners of the Products such
general service and repair for the Products as may be necessary. Any and all
charges therefore shall be reasonable and consistent with those prevailing in
the market area of Dealer; and all such services and charges shall be in
accordance with applicable law.
4.04 WARRANTY SERVICE. Dealer agrees to perform all warranty service on all
Products brought to Dealer, whether or not sold by Dealer. Dealer shall perform
such warranty service in accordance with the policies of Yamaha as they may be
issued from time to time in the Yamaha service and warranty manuals and
bulletins. Dealer shall use only genuine Yamaha parts, or parts that are
equivalent in quality and design to genuine Yamaha parts, in performing warranty
service on the Products.
(a) Dealer acknowledges the importance of providing to owners of the
Products prompt and skilled warranty service and the need to comply with all
laws relating to warranty service. Dealer shall give immediate service to such
warranty requests and/or service. Xxxxxx agrees to perform all warranty service
in a competent and workmanlike manner. Dealer agrees to maintain an inventory of
genuine Yamaha parts to provide all necessary warranty service.
(b) Dealer shall submit complete and accurate claims to Yamaha for
reimbursement for parts and labor used in performing warranty service on
warranty claim forms of Yamaha with all information required thereon; and Yamaha
shall reimburse Dealer for such parts and labor in accordance with the effective
schedules and rates applicable to Dealer. Dealer shall keep and retain complete
and accurate records and documents supporting Such claims, which recorriq and
documents are subject to the provisions of Paragraph 2.06, regarding inspection
and adjustments.
4.05 ASSISTANCE AND PROTECTION. In the event any warranty claim arises that
Dealer is unable to perform, Yamaha should a be promptly notified by Dealer and
be provided the details of the claim and Yamaha shall use reasonable efforts to
resolve such claim. Yamaha is relying upon Dealer's assurance that he is capable
of performing service obligations for the Products. Dealer agrees to fully
protect Yamaha from any claims, liability or loss that may result from a failure
of Dealer to properly perform service for the Products as required hereunder or
under applicable law.
5. GENERAL RESPONSIBILITIES -
YAMAHA AND DEALER
5.01 PROMOTION AND ASSISTANCE BY YAMAHA. Yamaha shall, from time to time,
provide to Dealer such assistance, incentives, and programs as maybe offered to
all other dealers of the Products who are similarly situated. Yamaha shall
conduct an advertising program for the Products which may include television and
radio commercials, magazine advertisements, and promotional events.
5.02 TRADEMARKS. Yamaha agrees to permit Dealer to identify itself as an
authorized "Yamaha" dealer for the Products and use the trademarks of Yamaha in
connection with Dealer's efforts to sell and promote the Products; provided,
however, that such use shall be subject to the control of Yamaha and be in a
manner consistent with the high quality image of the Products. Dealer shall not
use the name "Yamaha" or other trademarks as a part of its corporate name or in
any manner inconsistent with the instructions of Yamaha. Dealer acknowledges
that Yamaha has the sole right and interest in such trademarks and agrees to
cease immediately all use thereof on the termination of this Agreement.
5.03 FACILITIES. Dealer shall establish and maintain the appearance and
condition of the facilities at Dealer's location
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so as to favorbly reflect on the Products and the quality image of Yamaha As
part of the facilities at Dealer's location, Dealer shall install and maintain
prominent and suitable signs as recommended by Yamaha, which identify Dealer as
a dealer of the products.
5.04 PERSONNEL. Dealer shall employ competent personnel for its sales
operations, service operations, and administration in order to fulfill his
responsibilities under this Agreement. All sales and service personnel shall be
thoroughly familiar with the Products; and Dealer, at his expense, shall cause
such personnel to attend training programs for the Products and study sales,
service and warranty manuals and bulletins for the Products as may be provided
by Yamaha from time to time.
5.05 FINANCIAL RESPONSIBILITY. Dealer shall maintain for its operations
hereunder adequate working capital and lines of wholesale credit to enable
Dealer to fulfill his responsibilities under this Agreement. Dealer agrees to
furnish Yamaha, at reasonable times, financial reports an other financial data
to enable Yamaha to determine Dealer's financial responsibility. At least within
ninety (90) days following the close of Dealer's fiscal year, Xxxxxx agrees to
submit to Yamaha Dealer's financial statement for the previous year.
5.06 COMPLIANCE WITH LAWS. Dealer shall conduct and maintain at all times
his sales and service operations in strict compliance with all applicable
federal and state laws and regulations, county and city ordinances and
regulations and any other applicable law, regulation or ordinance.
6. TERMINATION
6.01 EFFECTIVENESS. This Agreement shall be effective upon the execution
hereof by an authorized officer or representative of Yamaha at Cypress,
California, and shall continue until terminated as provided herein.
6.02 TERMINATION FOR CAUSE (IMMEDIATE EFFECT). Unless otherwise provided
for or allowed under state law, Yamaha may terminate this Agreement with
immediate effect on the giving of written notice to Dealer should any of the
following events occur, such events being of such a nature so as to constitute
good cause for immediate termination by Yamaha:
(a) Any misrepresentation by Dealer in entering into this Agreement or the
submission by Dealer of any false or fraudulent application, claim or report in
connection with its sales or service operations.
(b) Insolvency of Dealer; inability of Dealer to meet its debts as they
mature; the filing by Dealer of a petition of voluntary bankruptcy under any
chapter of the bankruptcy laws of the United States; the institution or
proceedings to adjudge Dealer a bankrupt in an involuntary proceeding; the
execution of an assignment by Dealer for the benefit of creditors; the
appointment by a court of a receiver, trustee for Dealer or the assets of
Dealer; dissolution of Dealer; or the failure of Dealer to conduct its
operations in the ordinary course of business.
(c) Any transfer or attempted transfer by Dealer of any interest in, or
right, privilege or obligation under this Agreement; or any transfer of the
principal assets of Dealer's operations hereunder; or any change in the direct
or indirect ownership or operating management of Dealer, however accomplished,
without the prior written consent of Yamaha, which consent shall not be
unreasonably withheld.
(d) Any relocation or establishment of branch locations without having
complied with the requirements set forth in Paragraph 1.01 of this Agreement.
(e) Any act by Dealer or any person involved in the ownership or operating
management of Dealer which violates any law and affects adversely Dealer's
operations or any conduct or unfair business practice by Dealer or any person
involved in the ownership or operating management of Dealer which affects
adversely Dealer's operations or the goodwill and reputation of Dealer, Yamaha,
or the Products.
(f) Any failure by Dealer to pay to Yamaha any sums that may be due or
become due pursuant to this Agreement or maintain adequate lines of credit for
purposes of purchasing the Products from Yamaha.
(g) Revocation of Dealer's motor vehicle Dealer's license or other
license.or permit necessary to conduct its operations hereunder.
6.03 TERMINATION - GENERALL NONPERFORMANCE. Unless otherwise provided for
or allowed under state law or this Agreement, Yamaha or Dealer may terminate
this Agreement on the giving of at least sixty (60) days prior written notice to
the other for failure of either party to fulfill any or all of their
responsibilities and obligations as set forth in this Agreement, except for
causes specified under Paragraph 6.02 hereof.
6.04 TERMINATION - DEATH, INCAPACITY. As an inducement to entering into
this Agreement, Dealer has represented that the persons identified on the cover
sheet shall continue to actively participate in the ownership and operating
management of Dealer; and therefore, Yamaha may terminate this Agreement on the
giving to Dealer of at least fifteen 1115) days prior written notice in the
event of death, physical or mental incapacity or disassociation of any of the
identified persons. Yamaha may defer such termination for a period up to six (6)
months from such event in order to allow Dealer an opportunity to replace such
person or persons with an equally qualified person or persons or allow an
orderly liquidation of Dealer's operations; provided, however, it can be
demonstrated that the terms and conditions of this Agreement can be fulfilled
during such period and thereafter.
6.05 TRANSITION - NEW AGREEMENT. Yamaha may terminate this Agreement at any
time on the giving to Dealer of at least sixty (60) days prior written notice
should Yamaha offer a new or modified form of agreement to all its dealers for
the Products.
7. RESPONSIBILITIES UPON TERMINATION
7.01 CONTINUING RESPONSIBILITIES. Upon the termination of this Agreement,
Dealer shall no longer be an authorized Yamaha dealer; however, Dealer shall
immediately pay to Yamaha all amounts owed to Yamaha, whether or not due.
7.02 DISCONTINUANCE OF USE OF TRADEMARKS. Upon termination, Dealer shall
(1) discontinue forthwith any and all use of the trademarks of Yamaha, including
such use in advertising, business materials of Dealer and as part of the firm or
trade name of Dealer, (2) forthwith remove or obliterate any and all signs
designating Dealer as an authorized dealer for the Products or which include any
trademark of Yamaha, and (3) forthwith notify and instruct publications and
others who may list or publish Dealer's name as an authorized Yamaha dealer,
including telephone directories, yellow pages, and other business directories,
to discontinue such listing of Dealer as an authorized Yamaha dealer.
7.03 ORDERS FOR THE PRODUCTS. In the event of the termination of this
Agreement, all unshipped orders for the Products shall be deemed cancelled.
However, from the date of the notice of termination to the effective date of
termination, orders may be filled by Yamaha if such orders are bona fide and
reasonable in quantity, Dealer pays for such
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78
order in cash on delivery, and Dealer is capable of meeting its sales and
service obligations hereunder,
7.04 Repurchase of Products.
A. Upon termination of this Agreement, Yamaha shall have the option,
but not the obligation, to repurchase from Dealer and Dealer shall sell to
Yamaha, within sixty (60) days after the effective date of termination the
following:
(1) Any or all new, unused, undamaged, then current model Products which
were purchased by Dealer from Yamaha, and are the unencumbered property of and
in the possession of Dealer, at the net invoice price, exclusive of
transportation charges and delivery and preparation reimbursement, previously
paid by Dealer therefor less all costs incurred in regards to their purchase.
(2)Any or all new, unused and undamaged resaleable parts, purchased from
Yamaha which are then the unencumbered property of and in the possession of
Dealer, at Yamaha's then current parts wholesale price list, exclusive of
transportation charges and less all costs incurred in regards to the repurchase.
Dealer shall, at Dealer's expense, inventory, tag, pack and deliver possession
of such parts to Yamaha, in accordance with Yamaha's procedures then in effect.
B. Within thirty (30) days of the date of termination of this
Agreement, Dealer shall deliver or mail to Yamaha a detailed inventory of all
the items referred to in Paragraph 7.04. In the event Dealer fails to supply
such a list to Yamaha within said period, Yamaha shall have the right to enter
onto Dealer's premises for the purpose of compiling such an inventory list and
Dealer shall reimburse Yamaha for any costs incurred in connection therewith.
C. Within ten (10) days after receipt of Dealer's detailed inventory
or after Yamaha has taken a physical inventory, whichever is later, Yamaha shall
notify Dealer of its intention in regards to Dealer's inventory of Products.
8. MISCELLANEOUS
8.01 RELATIONSHIP OF THE PARTIES. This Agreement does not in any way create
the relationship of principal and agent between Dealer and Yamaha and in no
circumstances shall Dealer, its agents or employees be considered the agent of
Yamaha. Dealer shall not act or attempt to act or represent itself directly or
by implication as agent of Yamaha o; in any manner assume or create or attempt
to assume or create any obligation or make any contract, agreement,
representation or warranty on behalf of or in the name of Yamaha, except those
authorized in writing by Yamaha. Dealer shall indemnify and hold Yamaha harmless
from any cost and liability caused by the acts of Dealer, its employees or agent
and from liability caused by any authorized act by Dealer, its agents, or
employees.
8.02 FORCE MAJEURE. Yamaha shall not be responsible for or liable for
failure to perform any part of this Agreement or for any delay in the
performance 'of any part of this Agreement, directly or indirectly resulting
from or contributed to by any foreign or domestic embargoes, seizures, acts of
God, insurrections, wars and/or continuance of war; or the adoption or enactment
of any law, ordinance, regulation, ruling or order directly or indirectly
interfering with the production, delivery or payment hereunder; or lack of the
usual means of transportation, fires, floods, explosions, strikes; extraordinary
currency devaluations, taxes, or customer duties or other similar charges or
assessments; or other events or contingencies beyond its control, either of the
foregoing nature or of any kind, nature or description affecting the
transportation, production, sale or distribution of the Products or any
components used in or in connection with their production.
8.03 ENTIRE AGREEMENT. This Agreement supersedes and terminates any and all
prior agreements or contracts, written or oral, entered into between Yamaha and
Dealer as of the effective date of this Agreement with reference to all Matters
covered by this Agreement. All negotiations, correspondence and memoranda which
have passed between Yamaha and Dealer with reference to all matters covered by
this Agreement are merged herein and this Agreement constitutes the entire
agreement between Yamaha and Dealer. No representations not contained herein are
authorized by Yamaha, and this Agreement may not be altered, modified, amended,
or changed, in whole or in part, except in writing and executed by Yamaha and
Dealer in the same manner as is provided for the execution of this Agreement.
8.04 ASSIGNMENT. The relationship created between Yamaha and Dealer is
intended to be personal in nature, since Yamaha is relying on the continued
active participation of certain individuals in the operations of Dealer, and
consequently, this Agreement shall not be assignable or transferable in any
manner whatsoever without the prior consent in writing of Yamaha. For purposes
of this Agreement, any change in ownership, the legal form of the business, or
active management shall be deemed a transfer which requires the prior consent of
Yamaha. Any determination by Yamaha in this regard shall be based on an
evaluation of assignee's or transferee's qualifications and ability to meet
Yamaha's high standards. In the event Dealer changes his legal form of business
or makes an assignment without notifying Yamaha as provided herein, Dealer shall
continue to be personally liable for all past and future debts of this or a
successor business.
8.05 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of California.
8.06 Construction. This Agreement and all of the words, terms, and
provisions hereof shall be construed in accordance with their usual and ordinary
meanings, and not in favor of or against either party hereto. Paragraph headings
are not a part of this Agreement, but are only for convenience.
8.07 NONWAIVER OF RIGHTS. Failure of either party hereto to enforce any of
the provisions of this Agreement or any rights with respect thereto or failure
to exercise any election provided for herein shall in no way be considered to be
a waiver of such provisions, rights or elections or in any way affect the
validity of this Agreement. The failure of either party to exercise any of said
provisions, rights or elections shall not prelude or prejudice such party from
later enforcing or exercising the same or any other provisions, rights or
elections which it may have under this Agreement.
8.08 INVALIDITY. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
8.09 NOTICE. All notices required or permitted to be given or made under
this Agreement may be effected in writing by certified mail, postage prepaid,
return receipt requested, and shall be deemed communicated three (3) days from
the mailing thereof. Mailed notices shall be addressed to the parties as their
addresses appear above, but each party may change his address by written notice
in accordance with this paragraph.
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79
8.10 ATTORNEY'S FEES. In the event any legal action is necessary to enforce
any of the terms and conditions of this Agreement, Dealer shall pay to Yamaha
all costs and fees incurred, including reasonable attorney's fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this 29th day of AUGUST, 1984. Dealer expressly acknowledges that it has read
this Agreement in its entirety and understands its rights and responsibilities
under this Agreement and the provisions relating to termination.
"Yamaha"
YAMAHA MOTOR CORPORATION, U.S.A.
a California Corporation
BY: /S/ XXXXXX XXXXXXX
-----------------------------------
TITLE: ASSISTANT SECRETARY
-----------------------------------
"DEALER"
X CYCLE SPORT UNLIMITED, INC.
-----------------------------------
BUSINESS NAME
BY: X /S/ XXXXX XXXX
-----------------------------------
TITLE: X /S/ PRESIDENT
----------------------------------
BY: X
----------------------------------
TITLE: X
----------------------------------
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80
[RIVA LOGO]
SCOOTER DEALER AGREEMENT
81
[YAMAHA MOTOR CORPORATION, U.S.A. LOGO]
0000 XXXXXXX XXXXXX - XXXXXXX, XXXXXXXXXX 00000
MAIL ADDRESS: P.O. BOX 762, CYPRESS, CALIFORNIA 90630
PHONE: (000) 000-0000
DISTRIBUTOR'S CERTIFICATION OF DEALER
TO: DEPARTMENT OF MOTOR VEHICLES
THIS IS TO CERTIFY THAT: CYCLE SPORT UNLIMITED INCORPORATED
--------------------------------------------------------
(NAME OF DEALER)
8338 Leesburg Pike
--------------------------------------------------------
(STREET)
Vienna, Virginia 22180
--------------------------------------------------------
(CITY AND STATE)
is a party to a written selling agreement for the present time with:
YAMAHA MOTOR CORPORATION, U.S.A.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
MAIL ADDRESS: P.O. BOX 762
Cypress, California 90630
to represent and sell: RIVA MOTOR SCOOTERS
in the city of Vienna, state of Virginia
------------------------- ------------------------------
Xxxxx Xxxx, President Xxxxxx X. Xxxxx, V. President Xxxx.X. Xxxxxxx, Sec.
--------------------------------------------------------------------------------
being (officers) in said concern and this agreement will expire under the terms
and conditions contained in the Dealer Agreement upon sixty (60) days after
notification of termination of dealership to the Dealer's License Division of
your Department of Motor Vehicles.
SIGNED: /S/ X. XXXXXXXX
----------------------------
X. Xxxxxxxx
TITLE: Executive Vice President
----------------------------
As an authorized representative of:
YAMAHA MOTOR CORPORATION, U.S.A.
0000 Xxxxxxx Xxx., Xxxxxxx, Xx. 90630
- - - -
COUNTY OF ORANGE
STATE OF CALIFORNIA
Subscribed and sworn to before me this 7th day of April, 1983.
--- ----- --
My Commission Expires:
[SEAL] /S/ XXXXXX X. XXXXXXX
-------------------------------- -------------------------------------
NOTARY PUBLIC
82
RIVA DEALER SALES AND SERVICE AGREEMENT
The information contained below is important as an integral part of the
Agreement attached hereto and required prior to the effectiveness of the
relationship. All information must be accurate and complete and Yamaha must be
notified of any changes to such information since it may affect your rights
under the Agreement.
X. XXXX DEALER'S COMPLETE LEGAL NAME
Name: Cycle Sport Unlimited Inc.
---------------------------------------------------------------------------
(Owner, Partner, Corporation, referred to in the Agreement as "Dealer")
SOLE
PROPRIETORSHIP PARTNERSHIP CORPORATION
(Complete Sec. C-1) (Incomplete Sec. C-1) (Complete Sec. C.)
---------------------- ----------------------- --------------------
Fictitious Business Name:
-------------------------------------------------------
(if different from above)
Federal Identification No.
------------------------
B. DEALER'S LOCATION
Address: 0000 Xxxxxxxx Xxxx Xxxxxx, Xx. 22180
---------------------------------------------------------------------
(Referred to in the Agreement as "Dealer Location")
C. DEALER: OWNERS AND MANAGEMENT
NAME SOCIAL SECURITY NO. TITLE
1. Owners:
-------------------------- ------------------ -------------------
-------------------------- ------------------ -------------------
-------------------------- ------------------ -------------------
-------------------------- ------------------ -------------------
NAME TITLE
2. Officers and
Manager: /S/ XXXXX X. XXXX PRESIDENT
--------------------------- -----------------------------
/S/ XXXXXX XXXXX VICE PRESIDENT
--------------------------- -----------------------------
/S/ XXXXXX X. XXXXXXX SECRETARY
--------------------------- -----------------------------
/S/ XXXXXX X. XXXXXXX TREASURER
--------------------------- -----------------------------
GENERAL MANAGER
--------------------------- -----------------------------
--------------------------- -----------------------------
--------------------------- -----------------------------
DEALER WARRANTS AND REPRESENTS THAT THE INFORMATION AS SET FORTH ABOVE IS TRUE
AND CORRECT.
"DEALER"
X XXXXX X. XXXX
-------------------------------
TITLE: X PRESIDENT
-------------------------------
DATE: X 3-10-83
-------------------------------
83
RIVA DEALER SALES AND SERVICE AGREEMENT
THIS AGREEMENT is made by and between YAMAHA MOTOR CORPORATION, U.S.A., a
California corporation, having its principal office located at 0000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Yamaha"), and
Dealer as identified on the cover sheet attached hereto.
RECITALS
A. Yamaha is the exclusive distributor in the United States of the Riva
line-make of quality motor scooters which are sold under the trademark "Riva"
and which utilize the trademark "Yamaha" and distributes parts and accessories
therefor (hereinafter collectively referred to as the "products").
B. Because of the distinctive and unique market for the Products, Yamaha
has determined that an agreement governing the Yamaha/Dealer relationship with
respect to the Products is necessary.
X. Xxxxxx has represented, as an inducement to Yamaha's entering into this
Agreement, that: (1) Dealer is capable of performing the terms and conditions of
this Agreement, (2) Dealer has a sufficient number of trained personnel and
adequate facilities to sell and service the Products, and (3) Dealer has
adequate financial resources to perform its duties and responsibilities herein.
D. Dealer desires to engage in sales of the Products in accordance with the
terms and conditions hereof; and Yamaha desires to appoint Dealer as a retail
sales and service location for the Products in accordance herewith.
Yamaha and Dealer agree to govern their relationship in accordance with
the following:
1. ESTABLISHMENT OF RELATIONSHIP
1.1 APPOINTMENT OF DEALER. Yamaha hereby appoints Dealer as an authorized
Riva Dealer for the sales and service of the Products only from Dealer's
location and Dealer hereby accepts such appointment. In order to enable Yamaha
and Dealer to ensure that Dealer's location complies with the standards
established by Yamaha and to protect the ability of Riva Dealers to compete
effectively with Dealers handling competitive products, Dealer agrees not to
sell or offer for sale the Products from any location other than that which has
been authorized by Yamaha. Any change in location shall be made only with the
prior written consent of Yamaha. Yamaha and Dealer further agree that Dealer
shall sell the Products at Dealer's location to consumers only.
1.2 NONEXCLUSIVE. The rights granted herein are nonexclusive. Yamaha
reserves the right to appoint additional dealers of any or all of the Products
at any time pursuant to Yamaha's marketing program and policies; and in
accordance with the applicable state laws.
2. MUTUAL RESPONSIBILITIES
2.1 SPECIFIC RESPONSIBILITIES - SALES
(a) SALES. Dealer agrees to and shall use its best efforts to vigorously
promote and sell the Products, and shall continually work to increase the market
for the Products served by Dealer's location. In this regard, Dealer shall use
his best efforts to attain the annual sales goal set forth in Exhibit "A".
Dealer agrees to maintain a fully qualified sales organization in order to
fulfill its responsibilities under this Agreement and conduct a continuing
program of quality advertising and sales promotion activities for the Products
which reflect favorably on the goodwill established by Yamaha. All sales
personnel shall be thoroughly familiar with the Products and Dealer, at his
expense, shall cause such personnel to attend training programs for the Products
and study sales manuals and bulletins for the Products as may be provided by
Yamaha from time to time.
(b) CUSTOMER RELATIONS. Dealer shall at all times conduct its operations in
such a manner so as to develop and maintain good customer relations. Dealer
shall provide prompt and courteous service to customer inquiries and complaints
relating to the Products. Dealer shall at all times properly represent the
Products and shall not make, directly or indirectly, any false, misleading, or
disparaging representations to any customer or other person in regards to Yamaha
or the Products. Dealer shall conduct its operations during usual and customary
business hours.
(c) INVENTORY. Dealer agrees to maintain at Dealer's location: (1) a
prominent display of the Products which includes at least one of each of the
current models of the units, and (2) a reasonable inventory of the Products
which is adequate to meet the current and anticipated demand in the market area
served by Dealer's location, subject only to availability.
(d) SUPPLY OF PRODUCTS. Yamaha shall make reasonable efforts to supply
Dealer with the Products in accordance with accepted orders; however, during any
period of shortage, Yamaha shall be permitted to allocate the Products in an
equitable manner.
(e) REPORTS AND RECORDS. In order to provide Yamaha with information
regarding sales and market trends, Dealers shall periodically provide to Yamaha
complete and accurate data regarding Dealer's sales and inventories of the
Products and such other reasonable information as and when requested by Yamaha.
Dealer shall keep complete and accurate records regarding the sales and service
activities for the Products and shall retain for at least three (3) years after
termination all such records and documents. Dealer shall permit any designated
representative of Yamaha, at reasonable times, to examine and audit such records
and documents. In the event of the discovery of any improper claim or payment,
Yamaha may charge back to Dealer all payments or credits plus interest thereon
made by Yamaha to Dealer pursuant to such claims or otherwise, as well as the
costs to Yamaha for such audit and the recovery of such payments or credit.
(f) CHANGES TO THE PRODUCTS. Yamaha may periodically change the design,
models, and features of the Products, add new products, or discontinue the
distribution of any or all of the Products to Dealer without accountability to
Dealer in connection with any Products ordered by Dealer or Dealer's inventory
of the Products.
(g) COOPERATION WITH YAMAHA. Dealer shall at all times cooperate and work
closely with Yamaha's representatives. In addition Dealer shall maintain close
communications with such representatives.
2.2 SPECIFIC RESPONSIBILITIES - SERVICE
(a) SERVICE OPERATIONS. Dealer shall establish and maintain quality service
operations as recommended by Yamaha for the Products at Dealer's location which
shall include thoroughly trained personnel, proper tools and equipment, and
adequate service facilities in order to fulfill its responsibilities under this
Agreement. Such service operations shall provide to owners of the Products
prompt, courteous, and workmanlike service. All service personnel shall be
thoroughly familiar with the Products and Dealer, at his expense, shall cause
such personnel to attend training programs for the Products and study service
and warran-
84
ty manuals and bulletins for the Products as may be provided by Yamaha from time
to time.
(b) DELIVERY AND PREPARATION OBLIGATIONS. Dealer shall be responsible for
and agrees to perform set-up, preparation, and delivery obligations as
prescribed by Yamaha, prior to the delivery of the Products to purchasers
thereof; and Yamaha agrees to compensate Dealer in accordance with the policies
of Yamaha as may be issued from time to time and in accordance with applicable
law.
(c) GENERAL SERVICE. Dealer shall provide to owners of the Products such
general service and repair for the Products as may be necessary. Any and all
charges therefore shall be reasonable and consistent with those prevailing in
the market area of Dealer; and all such services and charges shall be in
accordance with applicable law.
(d) WARRANTY SERVICE. Dealer agrees to perform all warranty service on all
Products brought to Dealer, whether or not sold by Dealer. Dealer shall perform
such warranty service in accordance with the policies of Yamaha as they may be
issued from time to time in the Yamaha service and warranty manuals and
bulletins. Dealer shall use only genuine Yamaha parts, or parts that are
equivalent in quality and design to genuine Yamaha parts, in performing warranty
service on the Products.
(1) Dealer acknowledges the importance of providing to owners of the
Products prompt and skilled warranty service and the need to comply with all the
laws relating to warranty service. Dealer shall give immediate service to such
warranty requests and/or service. Xxxxxx agrees to perform all warranty service
in a competent and workmanlike manner. Dealer agrees to maintain an inventory of
genuine Yamaha parts to provide all necessary warranty service.
(2) Dealer shall submit complete and accurate claims to Yamaha for
reimbursement for parts and labor used in performing warranty service on
warranty claim forms of Yamaha with all information required thereon; and Yamaha
shall reimburse Dealer for such parts and labor in accordance with the effective
schedules and rates applicable to Dealer. Dealer shall keep and retain complete
and accurate records and documents supporting such claims, which records and
documents are subject to the provisions of Paragraph 2.1(e), regarding
inspection and adjustments.
(e) ASSISTANCE AND PROTECTION. In the event any warranty claim arises that
Dealer is unable to perform, Yamaha should be promptly notified by Dealer and be
provided the details of the claim and Yamaha shall use reasonable efforts to
resolve such claim. Yamaha is relying upon Dealer's assurance that he is capable
of performing service obligations for the Products. Dealer agrees to fully
protect Yamaha from any claims, liability or loss that may result from a failure
of Dealer to properly perform service for the Products as required hereunder or
under applicable law.
2.3 GENERAL RESPONSIBILITIES.
(a) PROMOTION AND ASSISTANCE BY YAMAHA. Yamaha shall, from time to time,
provide to Dealer such assistance, incentives, and programs as may be offered to
all other dealers of the Products who are similarly situated. Yamaha shall
conduct an advertising program for the Products which may include television and
radio commercials, magazine advertisements, and promotional programs. Dealer
agrees to participate in such appropriate promotional programs or activities
during the initial term and each renewal term of this Agreement as may be
offered by Yamaha from time to time.
(b) TRADEMARK. Yamaha agrees to permit Dealer to identify itself as an
authorized Dealer for the Products only and use the trademarks "Riva" and
"Yamaha" in connection with Dealer's efforts to sell and promote the products;
provided, however, that such use shall be subject to the control of Yamaha and
be in a manner consistent with the high quality image of the Products. Dealer
shall not use the trademarks "Riva" or "Yamaha" as a part of its corporate name
or in any manner inconsistent with the instructions of Yamaha. Dealer shall at
all times act in a manner to protect and preserve for Yamaha any patents,
trademarks, tradenames, copyrights and/or designs which Yamaha may have with
respect to the Products. Dealer shall promptly notify Yamaha of any infringement
or unauthorized use by any person of such patents, trademarks, tradenames,
copyrights or designs. Dealer acknowledges that Yamaha has the sole right and
interest in such patents, trademarks, tradenames, copyrights and designs and
agrees to cease immediately all use thereof on the termination of this
Agreement.
(c) FACILITIES. Dealer shall establish and maintain the appearance and
condition of the facilities at Dealer's location so as to favorably reflect on
the Products and the quality image of Yamaha and the Riva line-make. As part of
the facilities at Dealer's location, Dealer shall install and maintain interior
and exterior decoration and identification in accordance with Exhibit "A" which
shall include but not be limited to suitable signs which identify Dealer as a
dealer of the Products. Dealer shall also maintain a minimum amount of floor
space set forth on Exhibit "A" which shall be exclusively devoted to the
Products.
(d) FINANCIAL RESPONSIBILITY. Dealer shall maintain for its operations
hereunder adequate working capital and independent lines of wholesale credit to
enable Dealer to fulfill his responsibilities under this Agreement. Dealer
agrees to furnish Yamaha, at reasonable times, financial reports and other
financial data to enable yamaha to determine Dealer's financial responsibility.
At least within ninety (90) days following the close of Dealer's fiscal year,
Xxxxxx agrees to submit to Yamaha Dealer's financial statement for the previous
year.
(e) COMPLIANCE WITH LAWS. Dealer shall conduct and maintain at all times
his sales and service operations in strict compliance with all applicable
federal and state laws and regulations, county and city ordinances and
regulations and any other applicable law, regulation or ordinance, and Dealer
agrees not to engage in any unfair trade practices. Dealer shall indemnify and
hold Yamaha harmless from any cost and liability that may result from a
violation of this paragraph.
(f) CONFIDENTIALITY. Dealer agrees to keep confidential and not disclose or
use, otherwise than for the purposes of this Agreement, during the term of this
Agreement, or at anytime thereafter, any trade secrets, processes, inventions,
prices, operational procedures or other proprietary information of Yamaha which
may become known to Dealer, except for such information as may be contained in
the Yamaha's promotional literature.
3. PURCHASE OF THE PRODUCTS
3.1 GENERAL TERMS AND CONDITIONS. Yamaha shall sell the Products to Dealer
and Dealer shall purchase the Products from Yamaha in accordance with the terms
and conditions set forth herein. Yamaha reserves the right to change any terms
or conditions, including price and payment terms, at any time without
accountability to Dealer.
3.2 ORDERS. Dealer shall order the Products from Yamaha in accordance with
the ordering procedures of Yamaha. All orders are subject to acceptance by
Yamaha based on the availability of the Products and Dealer's compliance with
the terms and conditions hereof. To enable Yamaha to plan its purchases from the
manufacturer of the Products, Dealer shall submit its purchase orders at such
times as may be requested by Yamaha. The effective terms and conditions of
Yamaha shall supersede any conflicting terms and conditions of any purchase
order submitted by Dealer.
85
3.3 Price. Dealer shall pay to Yamaha the price and any other charges for the
Products as set forth on Yamaha's price schedules, issued periodically by
Yamaha, which is in effect at the time of shipment of Dealer's order. On the
stated future effective date, a new price or charge shall automatically
supersede any previous price or charge.
3.4 Payment. Dealer shall pay the purchase price for the Products at the time of
delivery thereof, unless Yamaha has approved other terms of credit for Dealer.
Yamaha may cancel any order placed by Dealer or refuse the shipment thereof
should Dealer fail to meet any payment term, credit, or financial requirements
of Yamaha. The cancellation or withholding of any order shall not be construed
as a termination or breach of this Agreement by Yamaha.
3.5 Shipment. Yamaha shall use its best efforts to ship all accepted orders for
the Products to dealer F.O.B. Yamaha's warehouse with reasonable promptness;
provided, however, that Yamaha shall not be liable for any damage, consequential
or otherwise, to the Products which occurs while in transit, or as a result of a
failure to fill orders, delays in delivery, or any error in the filling of
orders.
3.6 Taxes. Dealer represents and warrants that all Products purchased hereunder
are purchased for resale in the ordinary course of Dealer's business. Xxxxxx
agrees that he is responsible for and shall comply with all laws calling for the
collection and/or payment of all taxes, including sales and use taxes and ad
valorem taxes.
4. EFFECTIVENESS AND TERMINATION
4.1 Effectiveness. Unless otherwise provided for or allowed under state law,
this Agreement shall be effective upon the execution by Dealer and by an
authorized officer or representative of Yamaha at Cypress, California and shall
automatically terminate on August 31, 1986. Yamaha at its sole option may renew
this Agreement for successive one (1) year terms at the end of the initial term
or any extensions thereof by giving thirty (30) days written notice of its
intent to renew prior to the scheduled termination.
4.2 Termination for Cause (immediate Effect). Unless otherwise provided for or
allowed under state law, Yamaha may terminate this Agreement with immediate
effect on the giving of written notice to Dealer should any of the following
events occur, such events being of such a nature so as to constitute good cause
for immediate termination by Yamaha:
(a) Any misrepresentation by Dealer in entering into this Agreement or the
submission by Dealer of any false or fraudulent application, claim or report in
connection with its sales or service operations.
(b) Inability of Dealer to meet its debts as they mature; the filing by Dealer
of a petition of voluntary bankruptcy under any chapter of the bankruptcy laws
of the United States; the institution of proceedings to adjudge Dealer of
bankrupt in an involuntary proceeding; the execution of an assignment by Dealer
for the benefit of creditors; the appointment by a court of a receiver, trustee
for Dealer or the assets of Dealer; dissolution of Dealer; or the failure of
Dealer to conduct its operations in the ordinary course of business.
(c) Any transfer or attempted transfer by Dealer of any interest in, or right,
privilege or obligation under this Agreement; or any transfer of the principal
assets of Dealer's operations hereunder; or any change in the direct or indirect
ownership or operating management of Dealer, however accomplished, without the
prior written consent of Yamaha.
(d) Any relocation or establishment of branch locations without having compiled
with the requirements set forth in Paragraph 1 - 1 of this Agreement.
(e) Any act by Dealer or any person involved in the ownership or operating
management of Dealer which violates any law and affects adversely Dealer's
operations or any conduct or unfair business practice by Dealer or any person
involved in the ownership or operating management of Dealer which affects
adversely Dealer's operations or the goodwill and reputation of Dealer, Yamaha,
or the Products.
(f) Any failure by Dealer to pay to Yamaha any sums that may be due or become
due pursuant to this Agreement or maintain adequate lines of credit for purposes
of purchasing the Products from Yamaha.
(g) Revocation of any license or permit necessary to conduct its operations
hereunder.
4.3 Termination - General Nonperformance. Unless otherwise provided for or
allowed under state law or this Agreement, Yamaha or Dealer may terminate this
Agreement on the giving of at least sixty (60) days prior written notice to the
other for failure or either party fails to fulfill any or all of their
responsibilities and obligations as set forth in this Agreement, except for
causes specified under Paragraph 4.2 hereof.
4.4 Termination - Death, Incapacity, Change of Key Personnel. As an inducement
to entering into this Agreement, Dealer has represented that the persons
identified on the cover sheet shall continue to actively participate in the
ownership and operating management of Dealer; and, therefore, Yamaha may
terminate this Agreement on the giving to Dealer of at least fifteen (15) days
prior written notice in the event of death, or physical or mental incapacity of
any of the identified persons or in the event any of the key personnel ceases to
be involved in an active and substantial role in the operation of Dealer. Yamaha
may defer such termination for a period up to six (6) months from such event in
order to allow Dealer an opportunity to replace such person or persons with an
equally qualified person or persons or allow an orderly liquidation of Dealer's
operations; provided, however, it can be demonstrated that the terms and
conditions of this Agreement can be fulfilled during such period and thereafter.
4.5 Transition - New Agreement. Yamaha may terminate this Agreement at any time
on the giving to Dealer of at least sixty (60) days prior written notice should
Yamaha offer a new or modified form of agreement to all its dealers for the
Products.
5. RESPONSIBILITIES UPON TERMINATION
5.1 Continuing Responsibilities. Upon the termination of this Agreement, Dealer
shall no longer be an authorized Dealer; however, Dealer shall immediately pay
to Yamaha all amounts owed to Yamaha, whether or not due.
5.2 Discontinuance of Use of Trademarks. Upon termination, Dealer shall (1)
discontinue forthwith any and all use of the trademarks "Riva" and "Yamaha",
including such use in advertising, business materials of Dealer and as part of
the firm or trade name of Dealer, (2) forthwith remove or obliterate any and all
signs designated Dealer as an authorized dealer for the Products or which
include the trademarks "Yamaha" or "Riva", and (3) forthwith notify and instruct
publications and others who may list or publish Dealer's name as an authorized
Xxxx Xxxxxx, including telephone directories, yellow pages, and other business
directories, to discontinue such listing of Dealer as an authorized Riva Dealer.
5.3 Orders for the Products. In the event of the termination of this Agreement,
all unshipped orders for the Products shall be deemed cancelled. However, from
the date of the notice of termination to the effective date of termination,
orders May be filled by Yamaha if such orders are bona fide and reasonable in
quantity, dealer pays for such order to cash on delivery; and Dealer in capable
of meeting its sales and service obligations hereunder.
86
5.4 Repurchase of Products.
(a) Upon termination of this Agreement, Yamaha shall have the option, but not
the obligation, to repurchase from Dealer and Dealer shall sell to Yamaha,
within sixty (60) days after the effective date of termination the following:
(1) Any or all new, unused, undamaged, then current model Products which were
purchased by Dealer from Yamaha, and are the unencumbered property of and in the
possession of Dealer, at the net invoice price, less discounts, transportation
charges and delivery and preparation reimbursement, previously paid by Dealer
therefor less all costs incurred in regards to their purchase.
(2) Any or all new, unused and undamaged resaleable parts, purchased from Yamaha
which are then the unencumbered property of and in the possession of Dealer, at
Yamaha's then current parts wholesale price list, exclusive of transportation
charges and less all costs incurred in regards to the repurchase. Dealer shall,
at Dealer's expense, inventory, tag, pack and deliver possession of such parts
to Yamaha, in accordance with Yamaha's procedures then in effect.
(b) Within thirty (30) days of the date of termination of this Agreement, Dealer
shall deliver or mail to Yamaha a detailed inventory of all of the items
referred to in this Paragraph 5.4. In the event Dealer fails to supply such a
list of Yamaha within said period, Yamaha shall have the right to enter onto
Dealer's premises for the purpose of compiling such an inventory list and Dealer
shall reimburse Yamaha for any costs incurred in connection therewith.
(c) Within ten (10) days after receipt of Dealer's detailed inventory or after
Yamaha has taken a physical inventory, whichever is later, Yamaha shall notify
Dealer of its intention in regards to Dealer's inventory of Products.
6. MISCELLANEOUS
6.1 Relationship of the Parties. This Agreement does not in any way create the
relationship of principal and agent between Dealer and Yamaha and in no
circumstances shall Dealer, its agents or employees be considered the agent of
Yamaha. Dealer shall not act or attempt to act or represent itself directly or
by implication as an agent of Yamaha or in any manner assume or create or
attempt to assume or create any obligation or make any contract, agreement,
representation or warranty on behalf of in the name of Yamaha, except those
authorized in writing by Yamaha. Dealer shall indemnify and hold Yamaha harmless
from any cost and liability caused by the acts of Dealer, its employees or
agents and from liability caused by any unauthorized act by Dealer, its agents,
or employees.
6.3 Entire Agreement. This Agreement supersedes and terminates any and all prior
dealer agreements or contracts, written or oral, entered into between Yamaha and
Dealer as of the effective date of this Agreement with reference to all matters
covered by this agreement. All negotiations, correspondence and memoranda which
have passed between Yamaha and Dealer with reference to all matters covered by
this Agreement are merged herein and this Agreement constitutes the entire
agreement between Yamaha and Dealer. No representations not contained herein are
authorized by Yamaha, and this Agreement may not be altered, modified, amended,
or changed, in whole or in part, except in writing and executed by Yamaha and
Dealer in the same manner as is provided for the execution of this Agreement.
6.4 Assignment. The relationship created between Yamaha and Dealer is intended
to be personal in nature, since Yamaha is relying on the continued active
participation of certain individuals in the operations of Dealer, and
consequently, this Agreement shall not be assignable or transferable in any
manner whatsoever without the prior written consent of Yamaha. For purposes of
this Agreement, any change in ownership, the legal form of the business, or
active management shall be deemed a transfer which requires the prior written
consent of Yamaha. Any determination by Yamaha in this regard shall be based on
an evaluation of assignee's or transferee's qualifications and ability to meet
Yamaha's high standards. In the event Dealer changes his legal form of business
or makes an assignment or transfer without notifying Yamaha as provided herein,
Dealer shall continue to be personally liable for all past and future debts of
this or a successor business.
6.5 Construction. This Agreement and all of the words, terms, and provisions
hereof shall be construed in accordance with their usual and ordinary meanings,
and not in favor of or against either party hereto. Paragraph headings are not a
part of this Agreement, but are only for convenience.
6.6 Nonwaiver of Rights. Failure to either party hereto to enforce any of the
provisions of this Agreement or any rights with respect thereto or failure to
exercise any election provided for herein shall in no way be considered to be a
waiver of such provisions, rights or elections or in any way affect the validity
of this Agreement. The failure of either party to exercise any of said
provisions, rights or elections shall not preclude or prejudice such party from
later enforcing or exercising the same or any other provisions, rights or
elections which it may have under this Agreement.
6.2 Force Majeure. Yamaha shall not be responsible for or liable for failure to
perform any part of this Agreement or any delay in the performance of any part
of this Agreement, directly or indirectly resulting from or contributed to by
any foreign or domestic embargoes, seizures, acts of God, insurrections, wars
and/or continuance of war; or the adoption or enactment of any law, ordinance,
regulation, ruling or order directly or indirectly interfering with the
production, delivery or payment hereunder; or lack of the usual means of
transportation, fires, floods, explosions, strikes; extraordinary currency
devaluations, taxes, or customer duties or other similar charges or assessments;
or other events or contingencies beyond its control, either of the foregoing
nature or of any kind, nature or description affecting the transportation,
production, sale or distribution of the Products or any components used in or in
connection with their production.
6.7 Invalidity. If any term, provision, covenant or condition of this Agreement
is held by court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the Orovisions shall remain in full force and effect and shall
in no way be affected, impaired, or invalidated.
6.8 Notice. All notices required or permitted to be given or made under this
Agreement may be effected in writing by certified mail, postage prepaid, return
receipt requested, and shall be deemed communicated three (3) days from the
mailing thereof. Mailed notices shall be addressed to the parties as their
addresses appear above, but each party may change his address by written notice
in accordance with this paragraph.
87
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this 6th
day of April, 1983. DEALER EXPRESSLY ACKNOWLEDGES THAT IT HAS READ THIS
AGREEMENT IN ITS ENTIRETY AND UNDERSTANDS ITS RIGHTS AND RESPONSIBILITIES UNDER
THIS AGREEMENT AND THE PROVISIONS RELATING TO TERMINATION.
"Yamaha"
YAMAHA MOTOR CORPORATION, U.S.A.
A California Corporation
By: [sig]
----------------------------------
Title: ASSISIANT SECRETARY
----------------------------------
"Dealer"
X Cycle Sport Unlimited
----------------------------------
Business Name
By: [sig]
----------------------------------
Title: PRESIDENT
----------------------------------
By:
----------------------------------
Title:
----------------------------------
EXHIBIT "A"
Annual Sales Goal 150
------------------------
Minimum Showroom Floor Space 500 SQ FT
-------------
Interior and Exterior Identification and
Decoration
YES
-----------------------------------------
-----------------------------------------
-----------------------------------------
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88
[YAMAHA LOGO]
DEALER AGREEMENT
89
YAMAHA SALES AND SERVICE AGREEMENT
The information contained below is important as an integral part oft he
Agreement attached hereto and required prior tot he effectiveness of the
relationship. All information must be accurate and complete and Yamaha must be
notified of any changes to such information since it may affect your rights
under the Agreement.
A. DEALER'S COMPLETE LEGAL NAME
Name: CYCLE SPORT UNLIMITED, INC. - SPRINGFIELD
------------------------------------------------------------------------
(Owner, Partnership, Corporation referred to in the Agreement as "Dealer")
SOLE PROPRIETORSHIP PARTNERSHIP CORPORATION
(COMPLETE SEC. C-1) (COMPLETE SEC. C-1) (COMPLETE SEC. & C-2)
------------------------ ---------------------- -----------------------
Fictitious Business Name CYCLE SPORT-SPRINGFIELD
-------------------------------------------------------
(if different from above)
Federal Identification No. 54-090011
-----------------------
B. DEALER'S LOCATION
Address: 0000 XXXXXXXX XX., XXXXXXXXXXX, XX. 00000
---------------------------------------------------------------------
(Referred to in the Agreement as "Dealer's Location")
C. DEALER: OWNERS AND MANAGEMENT
NAME SOCIAL SECURITY NO. TITLE
1. Owners:
---------------------- ------------------- --------------------
---------------------- ------------------- --------------------
---------------------- ------------------- --------------------
---------------------- ------------------- --------------------
NAME TITLE
2. Offices and
Manager: XXXXX X. XXXX PRESIDENT
------------------------------- -------------------------------
XXXXXX X. XXXXX VICE PRESIDENT
------------------------------- -------------------------------
XXXXXX X. XXXXXXX, XX. SECRETARY
------------------------------- -------------------------------
XXXXXX X. XXXXX TREASURER
------------------------------- -------------------------------
XXXXXX X. XXXXXXX MANAGER
------------------------------- -------------------------------
------------------------------- -------------------------------
DEALER WARRANTS AND REPRESENTS THAT THE INFORMATION AS SET FORTH ABOVE IS TRUE
AND CORRECT.
"DEALER"
X /s/ XXXXX XXXX
--------------------------------
BY: X PRESIDENT
--------------------------------
DATE: X 12/6/78
--------------------------------
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90
YAMAHA SALES AND SERVICE AGREEMENT
THIS AGREEMENT is made by and between YAMAHA MOTOR CORPORATION, U,S.A., a
California corporation, having its principal office located at 0000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Yamaha"), and
Dealer as identified on the cover sheet attached hereto.
RECITALS
A. Yamaha is the exclusive distributor in the United States of quality
MOTORCYCLES which are sold under the trademark "Yamaha" and distributes parts
and accessories therefor (hereinafter collectively referred to as the
"Products").
B. Dealer has represented, as an inducement to Yamaha's entering into this
Agreement, that: (1) Dealer is capable of performing the terms and conditions of
this Agreement, (2) Dealer has a sufficient number of trained personnel and
adequate facilities to sell and service the Products, and (3) Dealer has
adequate financial resources to perform the monetary obligations herein.
C. Dealer desires to engage in sales of the Products in accordance with the
terms and conditions hereof; and Yamaha desires to appoint Dealerasaretail sales
and service location for the Products inaccordance herewith.
1. ESTABLISHMENT OF RELATIONSHIP
1.01 Appointment of Dealer. Yamaha hereby appoints Dealer as an authorized
Yamaha dealer for the sales and service of the Products only from Dealer's
location and Dealer hereby accepts such appointment. Dealer agrees not to,
directly, or indirectly, change Dealer's location nor establish or operate any
other location for the sales or service of the Products without the prior
written consent of Yamaha, which consent shall not be unreasonably withheld.
1.02 Nonexclusive. The rights granted herein are nonexclusive. Yamaha
reserves the right to appoint additional dealers of any or all of the Products
at any time pursuant to Yamaha's marketing program and policies; and in
accordance with the applicable state laws.
2. DEALER'S SALES OPERATIONS
2.01 Sales. Dealer agrees to and shall use its best efforts to vigorously
promote and sell the Products at retail, and shall continually work to increase
the market for the Products in the area served by Dealer's location. Dealer
agrees to maintain a fully qualified sales organization and conduct a continuing
program of quality. advertising and sales promotion activities for the Products
which reflect favorably on the goodwill established by Yamaha. Xxxxxx agrees to
afford the Products as much effort as Dealer gives to competitive or other
products of Dealer in terms of promotion, floor space, inventory, and service.
2.02 Performance Criteria. The relationship established hereby is intended
by the parties to be mutually beneficial. In this regard, Yamaha assumes under
this Agreement certain specific responsibilities to Dealer in order to obtain in
return an adequate level of performance by Dealer. Such level of performance
shall be evaluated periodically by Yamaha, at least once in each year, based on
reasonable criteria such as the following:
(a) The volume of Dealer's sales of the Products as compared ith the sales
of products in the market area served by Dealer's location.
(b) The volume of Dealer's sales of the Products as compared to other
dealers of the Products who are similarly situated.
(c) The actual sales volume of the Products by Dealer as compared to the
reasonable annual sales objectives which may be established by Yamaha for
Dealer.
(d) The actual promotion efforts of Dealer relating to the Products.
(e) The compliance with all of the terms and conditions of this Agreement.
2.03 Customer Relations. Dealer shall at all times conduct its operations
in such a manner so as to develop and maintain good customer relations. Dealer
shall provide prompt and courteous service to customer inquiries and complaints
relating to the Products. Dealer shall at all times properly represent the
Products and shall not make, directly or indirectly, any false, misleading, or
disparaging representations to any customer or other person in regards to Yamaha
or the Products- Dealer shall conduct its operations during usual and customary
business hours.
2.04 Inventory. Dealer agrees to maintain at Dealer's location: (1) a
prominent display of the Products which includes at least one of each of the
current models of the units, and (2) a reasonable inventory of the Products
which is adequate to meet the current and anticipated demand in the market area
served by Dealer's location, subject only to availability.
2.05 Supply of Products. Yamaha shall make reasonable efforts to supply
Dealer with the Products in accordance with accepted orders; however, during any
period of shortage, Yamaha shall be permitted to allocate the Products in an
equitable manner.
2.06 Reports and Records. In order to provide Yamaha with information
regarding sales and market trends, Dealer shall periodically provide to Yamaha
complete and accurate data regarding dealer's sales and inventories of the
Products and such other reasonable information as and when requested by Yamaha.
Dealer shall keep complete and accurate records regarding the sales and service
activities for the Products and shall retain for at least three (3) years all
such records and documents. Dealer shall permit any designated representative of
Yamaha, at reasonable times, to examine and audit such records and documents. In
the event of the discovery of any improper claim or payment, Yamaha may charge
back to Dealer all payments or credits plus interest thereon made by Yamaha to
Dealer pursuant to such claims or otherwise, as well as the costs to Yamaha for
such audit and the recovery of such payments or credit.
2.07 Changes to the Products. Yamaha may periodically change the design,
models, and features of the Products, add new products, or discontinue the
distribution of any or all of the Products to Dealer without accountability to
Dealer in connection with any Products ordered by Dealer or Dealer's inventory
of the Products.
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91
2.08 Cooperation with Yamaha. Dealer shall at all times cooperate and work
closely with xxxxx's representatives. In addition Dealer shall maintain close
communications with such representatives.
3. PURCHASE OF THE PRODUCTS
3.01 General Terms and Conditions. Yamaha shall sell the Products to Dealer
and Dealer shall purchase the Products from Yamaha in accordance with the terms
and conditions set forth herein. Yamaha reserves the right to change any terms
or conditions, including price and payment terms, at any time without
accountability to Dealer.
3.02 Orders. Dealer shall order the Products from Yamaha in accordance with
the ordering procedures of Yamaha. All orders are subject to acceptance by
Yamaha based on the availability of the Products and Dealer's compliance with
the terms and conditions hereof. To enable Yamaha to plan its purchases from the
manufacturer of the Products, Dealer shall submit its purchase orders at such
times as may be requested by Yamaha. The effective terms and conditions of
Yamaha shall supersede any conflicting terms and conditions of any purchase
order submitted by Dealer.
3.03 Price. Dealer shall pay to Yamaha the price and any other charges for
the Products as set forth on Yamaha's price schedules, issued periodically by
Yamaha, which is in effect at the time of shipment of Dealer's order- On the
stated future effective date, a new price or charge shall automatically
supersede any previous price or charge.
3.04 Payment. Dealer shall pay the purchase price for the Products at the
time of delivery thereof, unless Yamaha has approved other terms of credit for
Dealer. Yamaha may cancel any order placed by Dealer or refuse the shipment
thereof should Dealer fail to meet any payment term, credit, or financial
requirements of Yamaha. The cancellation or withholding of any order shall not
be construed as termination or breach of this Agreement by Yamaha.
3.05 Shipment. Yamaha shall use its best efforts to Ship all accepted
orders for the Products to Dealer F.O.B. Yamaha's warehouse with reasonable
promptness; provided, however, that Yamaha shall not be liable for any damage,
consequential or otherwise, to the Products which occurs while in transit, or as
a result of a failure to fill orders, delays in delivery, or any error in the
filling of orders.
3.06 Taxes. Dealer represents and warrants that all Products purchased
hereunder are purchased for resale in the ordinary course of Dealer's business.
Xxxxxx agrees that he is responsible for and shall comply with all laws calling
for the collection and/or payment of all taxes, including sales and use taxes
and ad valorem taxes.
4. DEALER'S SERVICE OPERATIONS
4.01 Service Operations. Dealer shall establish and maintain quality
service operations as recommended by Yamaha for the Products at Dealer's
location which shall include thoroughly trained personnel, proper tools and
equipment, and adequate service facilities. Such service operations shall
provide to owners of the Products prompt, courteous, and workmanlike service.
4.02 Delivery and Preparation Obligations. Dealer shall be responsible for
and agrees to perform set-up, preparation, and delivery obligations as
prescribed by Yamaha, prior to the delivery of the Products to purchasers
thereof; and Yamaha agrees to compensate Dealer in accordance with the policies
of Yamaha as may be issued from time to time and in accordance with applicable
law.
4.03 General Service. Dealer shall provide to owners of the Products such
general service and repair for the Products as may be necessary. Any and all
charges therefore shall be reasonable and consistent with those prevailing in
the market area of Dealer; and all such services and charges shall be in
accordance with applicable law.
4.04 Warranty Service. Dealer agrees to perform all warranty service on all
Products brought to Dealer, whether or not sold by Dealer. Dealer shall perform
such warranty service in accordance with the policies of Yamaha as they may be
issued from time to time in the Yamaha service and warranty manuals and
bulletins. Dealer shall use only genuine Yamaha parts, or parts that are
equivalent in quality and design to genuine Yamaha parts, in performing warranty
service on the Products.
(a) Dealer acknowledges the importance of providing to owners of the
Products prompt and skilled warranty service and the need to comply with all
laws relating to warranty service. Dealer shall give immediate service to such
warranty requests and/or service. Xxxxxx agrees to perform all warranty service
in a competent and workmanlike manner. Dealer agrees to maintain an inventory of
genuine Yamaha parts to provide all necessary warranty service.
(b) Dealer shall submit complete and accurate claims to Yamaha for
reimbursement for parts and labor used in performing warranty service on
warranty claim forms of Yamaha with all information required thereon; and Yamaha
shall reimburse Dealer for such parts and labor in accordance with the effective
schedules and rates applicable to Dealer. Dealer shall keep and retain complete
and accurate records and documents supporting Such claims, which recorriq and
documents are subject to the provisions of Paragraph 2.06, regarding inspection
and adjustments.
4.05 Assistance and Protection. In the event any warranty claim arises that
Dealer is unable to perform, Yamaha should a be promptly notified by Dealer and
be provided the details of the claim and Yamaha shall use reasonable efforts to
resolve such claim. Yamaha is relying upon Dealer's assurance that he is capable
of performing service obligations for the Products. Dealer agrees to fully
protect Yamaha from any claims, liability or loss that may result from a failure
of Dealer to properly perform service for the Products as required hereunder or
under applicable law.
5. GENERAL RESPONSIBILITIES -
YAMAHA AND DEALER
5.01 Promotion and Assistance by Yamaha. Yamaha shall, from time to time,
provide to Dealer such assistance, incentives, and programs as maybe offered to
all other dealers of the Products who are similarly situated. Yamaha shall
conduct an advertising program for the Products which may include television and
radio commercials, magazine advertisements, and promotional events.
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92
5.02 Trademarks. Yamaha agrees to permit Dealer to identify itself as an
authorized "Yamaha" dealer for the Products and use the trademarks of Yamaha in
connection with Dealer's efforts to sell and promote the Products; provided,
however, that such use shall be subject to the control of Yamaha and be in a
manner consistent with the high quality image of the Products. Dealer shall not
use the name "Yamaha" or other trademarks as a part of its corporate name or in
any manner inconsistent with the instructions of Yamaha. Dealer acknowledges
that Yamaha has the sole right and interest in such trademarks and agrees to
cease immediately all use thereof on the termination of this Agreement.
5.03 Facilities. Dealer shall establish and maintain the appearance and
condition of the facilities at Dealer's location
so as to favorbly reflect on the Products and the quality image of Yamaha As
part of the facilities at Dealer's location, Dealer shall install and maintain
prominent and suitable signs as recommended by Yamaha, which identify Dealer as
a dealer of the products.
5.04 Personnel. Dealer shall employ competent personnel for its sales
operations, service operations, and administration in order to fulfill his
responsibilities under this Agreement. All sales and service personnel shall be
thoroughly familiar with the Products; and Dealer, at his expense, shall cause
such personnel to attend training programs for the Products and study sales,
service and warranty manuals and bulletins for the Products as may be provided
by Yamaha from time to time.
5.05 Financial Responsibility. Dealer shall maintain for its operations
hereunder adequate working capital and lines of wholesale credit to enable
Dealer to fulfill his responsibilities under this Agreement. Dealer agrees to
furnish Yamaha, at reasonable times, financial reports an other financial data
to enable Yamaha to determine Dealer's financial responsibility. At least within
ninety (90) days following the close of Dealer's fiscal year, Xxxxxx agrees to
submit to Yamaha Dealer's financial statement for the previous year.
5.06 Compliance with Laws. Dealer shall conduct and maintain at all times
his sales and service operations in strict compliance with all applicable
federal and state laws and regulations, county and city ordinances and
regulations and any other applicable law, regulation or ordinance.
6. TERMINATION
6.01 Effectiveness. This Agreement shall be effective upon the execution
hereof by an authorized officer or representative of Yamaha at Cypress,
California, and shall continue until terminated as provided herein.
6.02 Termination for Cause (immediate Effect). Unless otherwise provided
for or allowed under state law, Yamaha may terminate this Agreement with
immediate effect on the giving of written notice to Dealer should any of the
following events occur, such events being of such a nature so as to constitute
good cause for immediate termination by Yamaha:
(a) Any misrepresentation by Dealer in entering into this Agreement or the
submission by Dealer of any false or fraudulent application, claim or report in
connection with its sales or service operations.
(b) Insolvency of Dealer; inability of Dealer to meet its debts as they
mature; the filing by Dealer of a petition of voluntary bankruptcy under any
chapter of the bankruptcy laws of the United States; the institution or
proceedings to adjudge Dealer a bankrupt in an involuntary proceeding; the
execution of an assignment by Dealer for the benefit of creditors; the
appointment by a court of a receiver, trustee for Dealer or the assets of
Dealer; dissolution of Dealer; or the failure of Dealer to conduct its
operations in the ordinary course of business.
(c) Any transfer or attempted transfer by Dealer of any interest in, or
right, privilege or obligation under this Agreement; or any transfer of the
principal assets of Dealer's operations hereunder; or any change in the direct
or indirect ownership or operating management of Dealer, however accomplished,
without the prior written consent of Yamaha, which consent shall not be
unreasonably withheld.
(d) Any relocation or establishment of branch locations without having
complied with the requirements set forth in Paragraph 1.01 of this Agreement.
(e) Any act by Dealer or any person involved in the ownership or operating
management of Dealer which violates any law and affects adversely Dealer's
operations or any conduct or unfair business practice by Dealer or any person
involved in the ownership or operating management of Dealer which affects
adversely Dealer's operations or the goodwill and reputation of Dealer, Yamaha,
or the Products.
(f) Any failure by Dealer to pay to Yamaha any sums that may be due or
become due pursuant to this Agreement or maintain adequate lines of credit for
purposes of purchasing the Products from Yamaha.
(g) Revocation of Dealer's motor vehicle Dealer's license or other
license.or permit necessary to conduct its operations hereunder.
6.03 Termination - Generall Nonperformance. Unless otherwise provided for
or allowed under state law or this Agreement, Yamaha or Dealer may terminate
this Agreement on the giving of at least sixty (60) days prior written notice to
the other for failure of either party to fulfill any or all of their
responsibilities and obligations as set forth in this Agreement, except for
causes specified under Paragraph 6.02 hereof.
6.04 Termination - Death, Incapacity. As an inducement to entering into
this Agreement, Dealer has represented that the persons identified on the cover
sheet shall continue to actively participate in the ownership and operating
management of Dealer; and therefore, Yamaha may terminate this Agreement on the
giving to Dealer of at least fifteen 1115) days prior written notice in the
event of death, physical or mental incapacity or disassociation of any of the
identified persons. Yamaha may defer such termination for a period up to six (6)
months from such event in order to allow Dealer an opportunity to replace such
person or persons with an equally qualified person or persons or allow an
orderly liquidation of Dealer's operations; provided, however, it can be
demonstrated that the terms and conditions of this Agreement can be fulfilled
during such period and thereafter.
6.05 Transition - New Agreement. Yamaha may terminate this Agreement at any
time on the giving to Dealer of at least sixty (60) days prior written notice
should Yamaha offer a new or modified form of agreement to all its dealers for
the Products.
7. RESPONSIBILITIES UPON TERMINATION
7.01 Continuing Responsibilities. Upon the termination of this Agreement,
Dealer shall no longer be an authorized
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Yamaha dealer; however, Dealer shall immediately pay to Yamaha all amounts owed
to Yamaha, whether or not due.
7.02 Discontinuance of Use of Trademarks. Upon termination, Dealer shall
(1) discontinue forthwith any and all use of the trademarks of Yamaha, including
such use in advertising, business materials of Dealer and as part of the firm or
trade name of Dealer, (2) forthwith remove or obliterate any and all signs
designating Dealer as an authorized dealer for the Products or which include any
trademark of Yamaha, and (3) forthwith notify and instruct publications and
others who may list or publish Dealer's name as an authorized Yamaha dealer,
including telephone directories, yellow pages, and other business directories,
to discontinue such listing of Dealer as an authorized Yamaha dealer.
7.03 Orders for the Products. In the event of the termination of this
Agreement, all unshipped orders for the Products shall be deemed cancelled.
However, from the date of the notice of termination to the effective date of
termination, orders may be filled by Yamaha if such orders are bona fide and
reasonable in quantity, Dealer pays for such order in cash on delivery, and
Dealer is capable of meeting its sales and service obligations hereunder.
7.04 Repurchase of Products.
A. Upon termination of this Agreement, Yamaha shall have the option,
but not the obligation, to repurchase from Dealer and Dealer shall sell to
Yamaha, within sixty (60) days after the effective date of termination the
following:
(1) Any or all new, unused, undamaged, then current model Products which
were purchased by Dealer from Yamaha, and are the unencumbered property of and
in the possession of Dealer, at the net invoice price, exclusive of
transportation charges and delivery and preparation reimbursement, previously
paid by Dealer therefor less all costs incurred in regards to their purchase.
(2)Any or all new, unused and undamaged resaleable parts, purchased from
Yamaha which are then the unencumbered property of and in the possession of
Dealer, at Yamaha's then current parts wholesale price list, exclusive of
transportation charges and less all costs incurred in regards to the repurchase.
Dealer shall, at Dealer's expense, inventory, tag, pack and deliver possession
of such parts to Yamaha, in accordance with Yamaha's procedures then in effect.
B. Within thirty (30) days of the date of termination of this
Agreement, Dealer shall deliver or mail to Yamaha a detailed inventory of all
the items referred to in Paragraph 7.04. In the event Dealer fails to supply
such a list to Yamaha within said period, Yamaha shall have the right to enter
onto Dealer's premises for the purpose of compiling such an inventory list and
Dealer shall reimburse Yamaha for any costs incurred in connection therewith.
C. Within ten (10) days after receipt of Dealer's detailed inventory
or after Yamaha has taken a physical inventory, whichever is later, Yamaha shall
notify Dealer of its intention in regards to Dealer's inventory of Products.
8. MISCELLANEOUS
8.01 Relationship of the Parties. This Agreement does not in any way create
the relationship of principal and agent between Dealer and Yamaha and in no
circumstances shall Dealer, its agents or employees be considered the agent of
Yamaha. Dealer shall not act or attempt to act or represent itself directly or
by implication as agent of Yamaha o; in any manner assume or create or attempt
to assume or create any obligation or make any contract, agreement,
representation or warranty on behalf of or in the name of Yamaha, except those
authorized in writing by Yamaha. Dealer shall indemnify and hold Yamaha harmless
from any cost and liability caused by the acts of Dealer, its employees or agent
and from liability caused by any authorized act by Dealer, its agents, or
employees.
8.02 Force Majeure. Yamaha shall not be responsible for or liable for
failure to perform any part of this Agreement or for any delay in the
performance 'of any part of this Agreement, directly or indirectly resulting
from or contributed to by any foreign or domestic embargoes, seizures, acts of
God, insurrections, wars and/or continuance of war; or the adoption or enactment
of any law, ordinance, regulation, ruling or order directly or indirectly
interfering with the production, delivery or payment hereunder; or lack of the
usual means of transportation, fires, floods, explosions, strikes; extraordinary
currency devaluations, taxes, or customer duties or other similar charges or
assessments; or other events or contingencies beyond its control, either of the
foregoing nature or of any kind, nature or description affecting the
transportation, production, sale or distribution of the Products or any
components used in or in connection with their production.
8.03 Entire Agreement. This Agreement supersedes and terminates any and all
prior agreements or contracts, written or oral, entered into between Yamaha and
Dealer as of the effective date of this Agreement with reference to all Matters
covered by this Agreement. All negotiations, correspondence and memoranda which
have passed between Yamaha and Dealer with reference to all matters covered by
this Agreement are merged herein and this Agreement constitutes the entire
agreement between Yamaha and Dealer. No representations not contained herein are
authorized by Yamaha, and this Agreement may not be altered, modified, amended,
or changed, in whole or in part, except in writing and executed by Yamaha and
Dealer in the same manner as is provided for the execution of this Agreement.
8.04 Assignment. The relationship created between Yamaha and Dealer is
intended to be personal in nature, since Yamaha is relying on the continued
active participation of certain individuals in the operations of Dealer, and
consequently, this Agreement shall not be assignable or transferable in any
manner whatsoever without the prior consent in writing of Yamaha. For purposes
of this Agreement, any change in ownership, the legal form of the business, or
active management shall be deemed a transfer which requires the prior consent of
Yamaha. Any determination by Yamaha in this regard shall be based on an
evaluation of assignee's or transferee's qualifications and ability to meet
Yamaha's high standards. In the event Dealer changes his legal form of business
or makes an assignment without notifying Yamaha as provided herein, Dealer shall
continue to be personally liable for all past and future debts of this or a
successor business.
8.05 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of California.
8.06 Construction. This Agreement and all of the words, terms, and
provisions hereof shall be construed in accordance with their usual and ordinary
meanings, and not in favor of or against either party hereto. Paragraph headings
are not a part of this Agreement, but are only for convenience.
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94
8.07 Nonwaiver of Rights. Failure of either party hereto to enforce any of
the provisions of this Agreement or any rights with respect thereto or failure
to exercise any election provided for herein shall in no way be considered to be
a waiver of such provisions, rights or elections or in any way affect the
validity of this Agreement. The failure of either party to exercise any of said
provisions, rights or elections shall not prelude or prejudice such party from
later enforcing or exercising the same or any other provisions, rights or
elections which it may have under this Agreement.
8.08 Invalidity. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
8.09 Notice. All notices required or permitted to be given or made under
this Agreement may be effected in writing by certified mail, postage prepaid,
return receipt requested, and shall be deemed communicated three (3) days from
the mailing thereof. Mailed notices shall be addressed to the parties as their
addresses appear above, but each party may change his address by written notice
in accordance with this paragraph.
8.10 Attorney's Fees. In the event any legal action is necessary to enforce
any of the terms and conditions of this Agreement, Dealer shall pay to Yamaha
all costs and fees incurred, including reasonable attorney's fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this 29th day of AUGUST, 1984. Dealer expressly acknowledges that it has read
this Agreement in its entirety and understands its rights and responsibilities
under this Agreement and the provisions relating to termination.
"Yamaha"
YAMAHA MOTOR CORPORATION, U.S.A.
a California Corporation
BY: /S/ [SIGNATURE ILLEGIBLE]
-----------------------------------
TITLE: ASSISTANT SECRETARY
-----------------------------------
"DEALER"
CYCLE SPORT UNLIMITED, INC. dba
X CYCLE SPORT - SPRINGFIELD
-----------------------------------
BUSINESS NAME
BY: X /s/ XXXXX XXXX
-----------------------------------
TITLE: X /s/ PRESIDENT
----------------------------------
BY: X
----------------------------------
TITLE: X
----------------------------------
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95
YAMAHA
Dealer Agreernent
96
YAMAHA MOTOR CORPORATION, U.S.A.
SALES AND SERVICE AGREEMENT
THIS AGREEMENT is made by and between YAMAHA MOTOR CORPORATION, U.S.A., a
California Corporation, YAMAHA PARTS DISTRIBUTORS, INC., a California
Corporation, each having its principal office located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as -YMUS- and -YPDI-
respectively, and collectively referred to as "Yamaha") and Dealer as identified
below.
A. Dealer's Complete Legal Name
Name:
(Owner, Partnership, Corporation referred to in the Agreement as "Dealer")
Sole Proprietorship Partnership Corporation
(Complete Sec. C-1) (Complete Sec. C-1) (Complete Sec. C-1 & C-2)
Fictitious Business Name (if different from above)
B. Dealer's Location
Address:
(Referred to in the Agreement as "Dealer's Location")
C. Dealer: Owners and Management
1. Owner; Shareholder or Partner
2. Officers:
A. Yamaha is the exclusive distributor in the United States of quality
products which are sold under cenain trademarks owned by Yamaha ("Yamaha",
"RIVA" and "Riva by Yamaha") and distributes parts and accessories therefor
which products, parts and accessories are more specifically defined
ontheAddendum(s), attached hereto and made apart hereof (hereinafter
collectively referred to as the "Products").
B. Dealer has represented as an inducement to Yamaha's entering into this
Agreement, that: (1) Dealer is capable of performing the terms and conditions of
this Agreement, (2) Dealer has a sufficient number of trained personnel and
adequate facilities to sell and service the Products, and (3) Dealer has
adequate financial resourcesto perform the monetary obligations herein.
C. Dealer desires to engage in sales of the Products in accordance with the
terms and conditions hereof; and Yamaha desires to appoint Dealerasaretail sales
and service location for the Products inaccordance herewith. Yamaha and Dealer
agree to govern their relationship in accordance with the following:
1. ESTABLISHMENT OF RELATIONSHIP
1.1 Appointment of Dealer. Yamaha hereby appoints Dealer as an authorized
dealer for the sale and service of the Products, and Dealer hereby accepts such
appointment. Yamaha and Dealer agree that Dealer shall only sell the Products
to retail consumers and shall not sell or otherwise transfer the Products to
any other dealer except those dealers authorized by Yamaha to sell and service
the Products.
1.2 Location of Dealer. In order to enable Yamaha to maintain an effective
network of authorized Yamaha dealers, Dealer agrees not to directly or
indirectly sell or offer for sale the Products from any location other than from
Dealer's Location.
1.3 Change of Location. Dealer agrees not to change Dealer's Location
orestablish oroperate anyother locationforthe saleorserviceof the Products
without obtaining Yamaha's prior written approval of such proposed change.
Yamaha's approval shall not be unreasonably withheld. Any proposed change of
location is subject to applicable state law; however, nothing herein shall be
construedto require Yamaha totake any step to obtain governmental approval for
any proposed change of location.
1.4 Nonexclusive. The rights granted herein are nonexclusive. Yamaha
reservesthe right to appoint additional dealers of any or all of the Products at
any time pursuant to Yamaha's marketing program and policies.
2. DEALER'S SALES OPERATIONS
2.1 Sales. Dealer agrees to vigorously promote and sell the Products to
retail consumers, and shall continually work to increase the market for the
Products in the area served by Dealer's Location.
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97
Dealer shall attain the annual sales objectives, if any, established by
Yamaha for Dealer. Dealer shall conduct a continuing program of quality
advertising and sales promotion activities for the Products. Dealer may sell the
Products to retail consumers at such prices as Dealer may establish from time to
time.
2.2 Sales Organization. Dealer agrees to maintain a fully qualified sales
organization which includes qualified sales personnel who are thoroughly
familiar with the Products. Dealer, at its expense, shall cause such personnel
to attend training programs for the Products, and study sales manuals and
bulletins for the Products as may be provided by Yamaha from time to time.
2.3 Multiple Brands. Yamaha recognizes that Dealer may handle brands which
are competitive with the Products sold to Dealer pursuant to this Agreement. In
the event Dealer handles such competitive products, Dealer agrees to afford the
Products at least as much effort as Dealer gives to competitive products handled
by Dealer interns of promotion and sale, floor space, inventory and service.
2.4 Performance Criteria. Xxxxxx's level of performance may be evaluated
periodically by Yamaha, based on reasonable criteria such as the following:
(a) The volume of Dealer's sales of the Products as compared with the sale
of competitive products in the market area served by Dealer's Location.
(b) The volume of Dealer's sales of the Products as compared to other
dealers of the Products.
(c) The actual sales volume of the Products by Dealer as compared to the
reasonable annual sales objectives which may be established by Yamaha for
Dealer.
(d) The manner in which Dealer has conducted its sales operations,
including advertising, sales promotion and treatment of consumers.
(e) The trend over a reasonable period of time of Dealer's sales
performance.
(f) The availability of Products to Dealer.
(g) Significant local conditions that may have directly affected Dealer's
performance.
(h) The compliance with all of the terms and conditions of this Agreement.
Evaluations prepared pursuant to this Section 2.4 will be discussed with and
provided to Dealer, with the expectation that Dealer will take such action as
may be required to correct any deficiencies in Dealer's performance of its
responsibilities.
2.5 Customer Relations. Dealer shall at all times conduct its operations in such
a manner so as to develop and maintain good customer relations. Dealer shall
provide prompt and courteous service to customer inquiries and complaints
relating to the Products. Dealer shall at all times properly represent the
Products and shall not make, directly or indirectly, any false, misleading, or
disparaging representations to any customer or other person in regards to Yamaha
or the Products.
2.6 Hours of Business. Dealer agrees that its operations shall be conducted in
the normal course of business during usual business hours and for not less than
the usual number of days of the week and hours of the day which are customary
for the same type of business in the market area served by Dealer's Location.
2.7 Display and Inventory. Dealer agrees to maintain a prominent display of a
reasonable representation of the entire line of the Products at Dealer's
Location, which display shall be in accordance with the guidelines established
by Yamaha. Dealer also agrees to maintain a reasonable inventory of the Products
which is adequate to meet the current and anticipated demand in the market area
served by Dealer's Location, subject to availability and to guidelines
established by Yamaha.
2.8 Report and Records. In order that Yamaha may comply with applicable
regulations and achieve its marketing objective, Dealer shall report to Yamaha,
all retail sales of the Products within ten (10) days of completion of such
sale. Dealer shall periodically provide to Yamaha complete and accurate data
regarding Dealer's inventories of the Products and such other reasonable
information as and when requested by Yamaha. Dealer shall keep complete and
accurate records regarding sales and service activities for the Products,
applications for discounts, allowances, warranty claims, refunds and credits and
shall retain for at least three (3) years all such records and documents. Dealer
shall permit any designated representative of Yamaha, at reasonable times, to
examine and audit such records and documents.
2.9 Cooperation with Yamaha. Dealer shall at all times cooperate and work
closely with Yamaha's representatives and shall maintain close communications
with such representatives in regards to Dealer's operations hereunder.
2.10 Facilities. Dealer shall establish and maintain the appearance and
condition of the facilities at Dealer's Location so as to favorably reflect on
the Products and the quality image of Yamaha. As part of the facilities at
Dealer's Location, Dealer shall install and maintain prominent and suitable
signs as recommended by Yamaha, which identify Dealer as a dealer of the
Products. Dealer agrees to maintain the facilities in a neat and orderly fashion
and in accordance with the standards established by Yamaha which may be changed
from time to time. The facilities must at all times comply with such standards
with respect to appearance, location, size, layout of building, showroom,
office, parts department and service operation. Yamaha may periodically evaluate
Dealer's facilities. Dealer shall permit any designated representative of
Yamaha, at reasonable times, to inspect the facilities and Dealer agrees to make
such alterations or improvements to the facilities as Yamaha may reasonably
specify.
3. DEALER'S SERVICE OPERATIONS
3.1 Service Operations. Dealer shall establish and maintain quality service
operations as recommended by Yamaha for the Products at Dealer's Location
including a parts and accessories department which will comply with all
standards established by Yamaha. Dealer shall provide to owners of the Products
such general service and repair as may be necessary. Any and all charges
therefore shall be reasonable and consistent with those prevailing in the market
area served by Dealer's Location and all such services and charges shall be in
accordance with applicable law. Dealer agrees to provide service to any customer
who has purchased a Product, regardless of the dealer from whom the Product was
purchased.
3.2 Service Organization. Dealer agrees to maintain a fully qualified service
organization which includes service personnel who are thoroughly familiar with
the Products. Dealer, at its expense, shall cause such personnel to attend
training programs for the service of the Products and study service manuals and
bulletins for the Products as may be provided by Yamaha from time to time.
Dealer agrees to purchase and provide to its service personnel all tools and
equipment, as prescribed by Yamaha, that may be necessary to adequately and
properly service the Products.
3.3 Review of Dealer's Service and Repair Performance. Yamaha may periodically
evaluate Dealer's service and repair performance in accordance with the
standards recommended by Yamaha. Evaluations prepared pursuant to this Section
3.3 will be discussed with and provided to Dealer, with the expectation that
Dealer will take such action as maybe required to correct any deficiencies in
Dealer's performance of his responsibilities.
3.4 Delivery and Preparation Obligations. Dealer shall be responsible for and
agrees to perform set-up, preparation, and delivery obligations as prescribed by
Yamaha, prior to the delivery of the Products to purchasers thereof. Dealer
agrees that all Products sold by it will be in proper operating condition prior
to delivery to any purchaser. Dealer further agrees to provide purchasers of the
Products with information concerning proper operation of the Products prior to
delivery. Yamaha agrees to compensate Dealer in accordance with the policies of
Yamaha as may be issued from time to time.
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98
3.5 Warranty,
A. Warranty. Products supplied to Dealer by Yamaha are warranted only in
accordance with Yamaha's written warranty to consumers, which written warranty
is supplied to Dealer for distribution to Dealer's customers and which maybe
amendeclor modified from time to time only by Yamaha. OTHER THAN THE WARRANTY
CONTAINED IN YAMAHA'S WRITTEN WARRANTYOR AS REQUIRED BY LAW, YAMAHA DISCLAIMS
ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT BY WAY OF LIMITATION,
THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. YAMAHA
DISCLAIMS ANY LIABILITY FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAIVIAGES OR
COMMERCIAL LOSSES SUFFERED BY DEALER, ITS CUSTOMERS OR ANY THIRD PARTY, except
as provided under state law.
B. Warranty to Customers. Dealer shall show customers any applicable Yamaha
warranty prior to sale of the Products and will furnish customers a copy of any
applicable Yamaha warranty at the time of sale. Dealer shall not give, or
purport to give any additional or different warranty to customers on behalf of
Yamaha, other than the applicable written warranty of Yamaha for the Products.
3.6 Warranty Service. Dealer agrees to perform all warranty service on all
Products brought to Dealer, whether or not sold by Dealer. Dealer shall perform
such warranty service in accordance with the policies of Yamaha as they may be
issued from time to time in the Yamaha service and warranty manuals and
bulletins. Any charges for such warranty service shall be reasonable and
consistent with those prevailing in the market area served by Dealer's Location.
When performing warranty service on the Products, Dealer shall use only genuine
Yamaha parts, or parts that are equivalent in quality and design to genuine
Yamaha parts.
(a) Dealer acknowledges the importance of providing to owners of the Products
prompt and skilled warranty service and the need to comply with all laws
relating to warranty service. Dealer shall give immediate service to such
warranty requests. Xxxxxx agrees to perform all warranty service in a competent
and workmanlike manner. Dealer agrees to maintain an inventory of genuine Yamaha
parts in accordance with Section 2.7 and to provide all necessary warranty
service.
(b) Dealer shall submit complete and accurate claims to Yamaha for reimbursement
for parts and labor used in performing warranty service on warranty claim forms
of Yamaha with all information required therein; and Yamaha shall reimburse
Dealer for such parts and labor in accordance with the effective schedules and
rates applicable to Dealer. Dealer shall keep and retain complete and accurate
records and documents supporting such claims, which records and documents are
subject to the provisions of Section 2.8, regarding inspection. In the event of
the discovery of any improper claim or payment, Yamaha may charge back to Dealer
all payments or credits plus interest thereon made by Yamaha to Dealer pursuant
to such claims or otherwise, as well as the costs to Yamaha for such audit and
the recovery of such payments or credit.
3.7 Assistance and Protection. In the event any warranty claim arises that
Dealer is unable to perform, Yamaha should be promptly notified by Dealer and be
provided the details of the claim and Yamaha shall use reasonable efforts to
resolve such claim. Yamaha is relying upon Dealer's assurance that it is capable
of performing service obligations for the Products. Dealer agrees to fully
protect Yamaha from any claims, Iiability or loss that may result from a failure
of Dealer to properly perform service for the Products as required hereunder or
under applicable law.
3.8 Technical Advice. Yamaha will have service representatives available for
Dealer to consult with, if necessary, in connection with service problems.
3.9 Recall and Update. Regardless of where Products covered by a recall or a
modification program sponsored by Yamaha were purchased, Dealer will perform any
inspection, recall, or modification service as may be required from time to
time. All such service shall be performed in accordance with the announced
policies and procedures of Yamaha.
4. PURCHASE OF THE PRODUCTS
4.1 General Terms and Conditions. Yamaha shall sell the Products to Dealer and
Dealer shall purchase the Products from Yamaha in accordance with the terms and
conditions set forth herein and the sales programs offered by Yamaha from time
to time. Yamaha reserves the right. to change any terms or conditions, including
price and payment terms, at any time without accountability to Dealer. However,
Yamaha shall endeavor to provide Dealer with advance notice of any such changes.
4.2 Price. Dealer shall pay to Yamaha the price and any other charges for the
Products as set forth on Yamaha's price schedules, which are in effect at the
time of invoicing of Dealer's order unless the sales program pursuant to which
the Products were ordered specifies a different price- Yamaha may specify a
future date upon which a new price and/or charge may take effect and upon that
date the new price and/or charge shall take effect automatically.
4.3 Payment. Dealer shall pay the purchase price for the Products at the time of
delivery thereof, unless Yamaha has approved other terms of credit for Dealer.
If other credit terms have been approved, Dealer shall pay for the Products in
accordance with the approved terms. Yamaha may cancel any order placed by Dealer
or refuse the shipment thereof should Dealer fail to meet any payment term,
credit, or financial requirements of Yamaha or of a financing source to which
Yamaha has a recourse obligation. The cancellation or withholding of any order
shall not be construed as a termination or breach of this Agreement by Yamaha.
4.4 Orders. Dealer shall order the Products from Yamaha in accordance with the
ordering procedures established by Yamaha. The effective terms and conditions of
Yamaha shall supersede any conflicting terms and conditions of any purchase
order submitted by Dealer. All orders are subject to acceptance by Yamaha based
on the availability of the Products and Dealer's compliance with the terms and
conditions hereof. To enable Yamaha to plan its purchases from the manufacturer
of the Products, Dealer shall submit its purchase orders at such times as may be
requested by Yamaha.
4.5 Shipment. Yamaha shall use its best efforts to ship all accepted orders for
the Products to Dealer F.O.B. Yamaha's warehouse with reasonable promptness;
provided, however, that Yamaha shall not be liable for any damage, consequential
or otherwise, to the Products which occurs while in transit. Further, Yamaha
shall not be liable for damages, consequential or otherwise, to Dealer which
arise as a result of a failure to fill orders, delays in delivery, or any error
in the filling of orders.
4.6 Taxes. Dealer represents and warrants that all Products purchased hereunder
are purchased for resale in the ordinary course of Dealer's business. Dealer
agrees that it is responsible for and shall comply with all laws calling for the
collection and/or payment of all taxes, including sales and use taxes and ad
valorem taxes.
5. GENERAL RESPONSIBILITIES -
YAMAHA AND DEALER
5.1 Supply of Products. Yamaha shall make reasonable efforts to supply Dealer
with the Products in accordance with accepted orders; however, during any period
of shortage, Yamaha shall be permitted to allocate the Products in accordance
with applicable marketing plans.
5.2 Promotion and Assistance by Yamaha. Yamaha shall, from time to time, provide
to Dealer sales assistance, incentives, and programs. Yamaha shall conduct an
advertising program for the Products which may include television and radio
commercials, magazine advertisements, and promotional events. Any such
incentives, programs, promotion and assistance shall be at the sole discretion
of Yamaha.
5.3 Change to the Products. Dealer acknowledges that the Products are
manufactured by suppliers of Yamaha; consequently, the Products available to
Yamaha may be periodically changed as to design, models, orfeatures or some or
all of the Products maybe discontinued all without accountability to Dealer in
connection with any Products ordered by Dealer or Dealer's inventoryof the
Products. Yamaha will use reasonable efforts to provide advance notice of any
such change.
5.4 Trademarks. Yamaha agrees to permit Dealer to identify itself as an
authorized dealer for the Products and use the trademarks of Yamaha applicable
to the Products in connection with Dealers 'efforts to
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sell and promote the Products provided, however, that such use shall be subject
to the control of Yamaha and be in a manner consistent with the high quality
image of the Products. Dealer shall not use the tradenames or trademarks of
Yamaha as a part of its corporate name or in any manner inconsistent with the
instructions of Yamaha. Dealer shall promptly notify Yamaha of any infringement
or unauthorized use by any person of such patents, trademarks, tradenames,
copyrights or designs. Dealer acknowledges that Yamaha has the sole right and
interest in such patents, trademarks, tradenames, copyrights and designs. Dealer
agrees to cease immediately all use of Yamaha trademarks, tradenames and
copyrights and any other proprietary rights on termination of this Agreement.
5.5 Financial Responsibility. Dealer shall maintain for its operations hereunder
adequate working capital and lines of wholesale credit to enable Dealer to
fulfill its responsibilities under this Agreement. Xxxxxx further agrees to
comply with financial responsibility guidelines issued by Yamaha from time to
time. Dealer agrees to furnish Yamaha, at reasonable times,.financial reports
and other financial data to enable Yamaha to determine Dealer's financial
responsibility. At least within ninety (90) days following the close of Dealer's
fiscal year, Xxxxxx agrees to submit to Yamaha Dealer's audited financial
statement for the previous year.
5.6 Compliance with Laws. Dealer shall conduct and maintain at all times its
sales and service operations in strict compliance with all applicable federal
and state laws and regulations, county and city ordinances and regulations and
any other applicable law, regulation or ordinance.
6. TERMINATION
6.1 Effectiveness. This Agreement shall be effective upon the execution hereof
by Dealer and an authorized officer or representative of Yamaha and upon the
execution of one or more Addedum(s) attached hereto and made a part hereof. This
Agreement shall terminate upon termination of all Product Addendum(s) attached
hereto.
6.2 Termination for Cause (immediate Effect). Unless otherwise provided for or
allowed under state law, Yamaha may terminate this Agreement with immediate
effect on the giving of written notice to Dealer should any of the following
events occur, such events being of such a serious nature so as to constitute
good cause for immediate termination by Yamaha:
(a) Any misrepresentation by Dealer in entering into this Agreement or the
submission by Dealer of any false or fraudulent application, claim or report in
connection with its sales or service operations.
(b) Insolvency of Dealer; inability of Dealer to meet its debts as they mature,
the filing by Dealer of a petition of voluntary bankruptcy under any chapter of
the bankruptcy laws of the United States, the institution of proceedings to
adjudge Dealer a bankrupt in an involuntary proceeding; the execution of an
assignment by Dealer for the benefit of creditors; the appointment by a court of
a receiver, trustee for Dealer or the assets of Dealer; dissolution of Dealer;
or the failure of Dealer to conduct its operations in the ordinary course of
business including closing of Dealer's operations in any manner inconsistent
with what is customary for the same type of business in the same market area.
(c) Any relocation or establishment of branch locations without having complied
with the requirements set forth in Section 1.3 of this Agreement.
(d) Any act by Dealer or any person involved in the ownership or operating
management of Dealer which violates any law and affects adversely Dealer's
operations or any conduct or unfair business practice by Dealer or any person
involved in the ownership or operating management of Dealer which affects
adversely Dealer's operation or the goodwill and reputation of Dealer, Yamaha,
or the Products.
(e) Any failure by Dealer to pay to Yamaha any sums that maybe due or become due
pursuant to this Agreement or maintain adequate lines of credit for purposes of
purchasing the Products or the parts and accessories from Yamaha.
(f) Any failure by Dealer to pay any sums that maybe due or become
due to a financing source utilized to obtain financing for the purchase of
Products pursuant to this Agreement, to which Yamaha has a recourse obligation.
(g) Revocation or non-renewal of Dealer's motor vehicle dealer license or any
other license or permit necessary to conduct its operations hereunder.
(h) Any failure by Dealer to comply with Section 7.
(i) Any default under the Security Agreement.
(j) Any default under the Personal Guarantee.
6.3 Termination -By Yamaha. Unless otherwise provided for or allowed under state
law or this Agreement, Yamaha may terminate this Agreement on the giving of at
least sixty (60) days prior written notice to Dealer for failure of Dealer to
fulfill any or all of its responsibilities and obligations as set forth in this
Agreement, except for causes specified under Section 6.2 hereof.
6.4 Termination - By Dealer. Unless otherwise provided for or allowed under
state law or this Agreement, Dealer may terminate this Agreement on the giving
of at least sixty (60) days prior written notice to Yamaha. Dealer shall be
considered to have voluntarily terminated this Agreement sixty (60) days
following (i) closing of Dealer's operations, (ii) abandonment of Dealer's
business or (iii) revocation or non-renewal of Dealer's motor vehicle dealer
license or any other license or permit necessary to conduct its operations.
6.5 Transition - New Agreement. Yamaha may terminate or modify this Agreement at
any time on the giving to Dealer of at least sixty (60) days prior written
notice should Yamaha offer a new or modified form of agreement to some or all of
its dealers for the Products, or should Yamaha's right to distribute the
Products be terminated or modified.
7. ASSIGNMENT, TRANSFER. CHANGE OF OWNERSHIP
7.1 Assignment. The relationship created between Yamaha and Dealer is intended
to be personal in nature, since Yamaha isrelyingonthe continued ownership and
active participation of certain individuals in the operations of Dealer, and
consequently, any assignment or transfer by Dealer or change in ownership or
management, shall require the prior written consent of Yamaha. This is necessary
in order for Yamaha to determine that each successor will meet the continuing
performance requirements set forth in this Agreement. Yamaha may terminate this
Agreement on the giving to Dealer at least fifteen (15) days prior written
notice, if Yamaha's prior written consent to any such transfer is not obtained.
For the purposes of this Agreement, any change in ownership, the legal form of
business or active management shall be deemed a transfer which requires the
prior written consent of Yamaha. Any transfer which is not made in accordance
with this Section is void.
7.2 Owners and Management. Dealer represents that the current owners and key
personnel of Dealer are those identified on the cover sheet and that these
individuals shall continue to actively participate in the ownership and
operating management of Dealer. Yamaha reserves the right to terminate this
Agreement on the giving to Dealer of at least fifteen (15) days prior written
notice in the event any of the key personnel ceases to be involved in an active
substantial role in the operation of Dealer as a result of death, physical or
mental incapacity or otherwise and Dealer fails to obtain Yamaha's prior written
consent to the replacement of such person. Yamaha may defer such termination for
a period up to six (6) months from such event in order to allow Dealer an
opportunity to replace such person or persons with an equally qualified person
or persons or allow an orderly liquidation of Dealer's operations; provided,
however, that it can be demonstrated that the terms and conditions of this
Agreement can be fulfilled during such period and thereafter.
8. RESPONSIBILITIES UPON TERMINATION
8.1 Continuing Responsibilities. Upon termination of this Agreement, Dealer
shall no longer be an authorized dealer for the Products; however, Dealer shall
immediately pay to Yamaha all amounts owed to Yamaha and shall immediately pay
all amounts due to any financing institution to which Yamaha has a recourse
obligation, whether or not due.
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8.2 Discontinuance of Use of Trademarks. Upon termination of this Agreement,
Dealer shall (1) discontinue forthwith any and all use of the trademarks of
Yamaha, including such use in advertising, business material of Dealer and as
part of the firm or trade name of Dealer, (2) forthwith remove or obliterate any
and all signs designating Dealer as an authorized dealer for the Products or
which include any trademark of Yamaha, (3) forthwith notify and instruct
publications and others who may list or publish Dealer's name as an authorized
Yamaha dealer, including telephone directories, yellow pages, and other business
directories, to discontinue such listing of Dealer as an authorized Yamaha
dealer, and (4) cease the use of all promotional literature and material
including point of purchase materials and displays provided to Dealer by Yamaha.
In the event Dealer fails to comply with any of the provisions of this Section,
Yamaha is authorized to take all steps necessary to insure compliance with same.
8.3 Orders for the Products. Upon termination of this Agreement, all unshipped
orders for the Products shall be deemed cancelled. However, from the date of the
notice of termination to the effective date of termination, orders may be filled
by Yamaha if such orders are bona fide and reasonable in quantity, Dealer pays
for such order in cash on delivery, and Dealer is capable of meeting its sales
and service obligations hereunder.
8.4 Repurchase of Products.
A. Upon termination of this Agreement, Yamaha shall repurchase from Dealer and
Dealer shall sell to Yamaha, within sixty (60) days after the effective date of
termination, any or all new, unused, undamaged, resaleable, Products excluding
parts and accessories, which (i) were invoiced by Yamaha to Dealer within
eighteen (18) months prior to the effective date of termination, and (ii) were
purchased by Dealer and are the unencumbered property of and in the possession
of Dealer. The repurchase price shall be the net invoice price or current
wholesale dealer price whichever is less, exclusive of transportation charges
and delivery and preparation reimbursement, previously paid by Dealer therefor
less all costs incurred in regards to their repurchase and any applicable
rebates.
B. Upon termination of this Agreement, Yamaha shall have the option, but not the
obligation, to repurchase any or all new, unused, undamaged, resaleable,
Products excluding parts and accessories, which (i) were invoiced by Yamaha to
Dealer more than eighteen (18) months prior to the effective date of
termination, and (ii) were purchased by Dealer and are the unencumbered property
of and in the possession of Dealer. The repurchase price shall be the net
invoice price or current wholesale dealer price whichever is less, exclusive of
transportation charges and delivery and preparation reimbursement, previously
paid by Dealer therefor less all costs incurred in regards to their repurchase
and any applicable rebates.
C. Upon termination of this Agreement, Yamaha shall have the option, but not the
obligation, to repurchase any or all new, unused, undamaged, resaleable pans and
accessories, which (i) were invoiced by Yamaha to Dealer within eighteen (18)
months prior to the effective date of termination, and (ii) were purchased by
Dealer and are the unencumbered property of and in the possession of Dealer. The
repurchase price shall be the net invoice price or current wholesale dealer
price whichever is less, exclusive of transportation charges and delivery and
preparation reimbursement, previously paid by Dealer therefor less all costs
incurred in regards to their repurchase and any applicable rebates.
D. Within thirty (30) days of the date of termination of this Agreement, Dealer
shall deliver or mail to Yamaha a detailed inventory of all of the items
referred to in Section 8.4. In the event Dealer fails to supply such a list to
Yamaha within said period, Yamaha shall have the right to enter onto Dealer's
premises for the purpose of compiling such an inventory list and Dealer shall
reimburse Yamaha for any costs incurred in connection therewith.
E. As a condition of repurchase, payment for repurchase of Products, parts or
accessories will first be applied against any obligations or money owed by
Dealer to Yamaha, and will then be applied to any monies owed to a financing
source to which Yamaha has a recourse obligation.
F. This Section 8.4 is not applicable in the event of any transfer of Dealer in
accordance with Section 7.
8.5 Warranty Claims. Upon termination of this Agreement, Dealer shall no longer
be authorized to provide warranty service and shall refer warranty service
requests to the nearest authorized Yamaha dealer for the Products or to Yamaha.
Dealer acknowledges that any acceptance and payment of warranty or other claims
by Yamaha after the effective date of termination shall not be construed to be a
reinstatement of Dealer.
8.6 Records on Termination. Upon the termination of Dealer and upon the request
of Yamaha, Dealer will deliver to Yamaha copies of Dealer's records of set-up,
preparation, delivery of Products, warranty service, recall or update service or
other service of the Products.
9. MISCELLANEOUS
9.1 Relationship of the Parties. This Agreement does not in any way create the
relationship of principal and agent between Dealer and Yamaha and in no
circumstance shall Dealer, its agents or employees be considered the agent of
Yamaha. Dealer shall not act or attempt to act or represent itself directly or
by implication as an agent of Yamaha or in any manner assume or create or
attempt to assume or create any obligation or to make any contract, agreement,
representation or warranty on behalf of or in the name of Yamaha, except those
authorized in writing by Yamaha. Dealer shall indemnify and hold Yamaha harmless
from any cost and liability caused by the acts of Dealer, its employees or
agents and from liability caused by any unauthorized act by Dealer, its agents,
or employees.
9.2 Force Majeure. Yamaha and Dealer shall not be responsible for or liable for
failure to perform any part of this Agreement or for any delay in the
performance of any part of this Agreement, directly or indirectly resulting from
or contributed to by any foreign or domestic embargoes, seizures, acts of God,
insurrections, wars and/or continuance of war; or the adoption or enactment of
any law, ordinance, regulation, ruling or order directly or indirectly
interfering with the production, delivery or payment hereunder; or lack of the
usual means of transportation, fires, floods, explosion, strikes; extraordinary
currency devaluations, taxes, or custom duties or other similar charges or
assessments, or other events or contingencies beyond its control, either of the
foregoing nature or of any kind, nature or description affecting the
transportation, production, sale or distribution of the Products or any
components used in or in connection with their production.
9.3 Entire Agreement. This Agreement and its Addendum(s) supersede and terminate
any and all agreements or contracts written or oral, entered into between Yamaha
and Dealer as of the effective date of this Agreement with reference to all
matters covered by this Agreement. All conversations, negotiations,
correspondence and memoranda which passed between Yamaha and Dealer with
reference to all matters covered by this Agreement are merged herein. This
Agreement constitutes the entire agreement between Yamaha and Dealer. This
Agreement may not be altered, modified, amended or changed, in whole or in part,
except in writing and executed by Yamaha and Dealer in the same manner as is
provided for the execution of this Agreement.
9.4 Venue. Dealer agrees that any legal proceeding between Dealer and Yamaha
which arises out of this Agreement, the dealings or relationship between the
parties, including discontinuance of such relationship, may be brought by Dealer
or Yamaha in state court or federal court located in the County of Orange, State
of California. Dealer irrevocably consents to the jurisdiction of said court.
Dealer waives any objection it may now or hereafter have to the jurisdiction of
such court.
9.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of California, including but not limited to
the California Statute of Limitations.
9.6 Construction. This Agreement and all of the words, terms, and provisions
hereof shall be construed in accordance with their usual and ordinary meanings,
and not in favor of or against either party hereto. Paragraph headings are not a
part of this Agreement, but are only for convenience.
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9.7 Nonwaiver of Rights. Failure of either party hereto to enforce any of the
provisions of this Agreement or any rights with respect thereto or failure to
exercise any election provided for herein shall in no way be considered to be a
waiver of such provisions, rights or elections or in any way affect the validity
of this Agreement. The failure of either party to exercise any of said
provisions, rights or elections shall not preclude or prejudice such party from
later enforcing or exercising the same or any other provisions, rights or
elections which it may have under this Agreement. Any actions taken by Yamaha,
subsequent to termination of this Agreement, shall not be construed to be a
reinstatement of Dealer. Dealer may be reinstated only by the execution of a new
Dealer Agreement by both Dealer and Yamaha.
9.8 Invalidity. If any term, provision, covenant or condition of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
9.9 Notice. All notices required or permitted to be given or made under this
Agreement maybe effected in writing by certified mail, postage prepaid, return
receipt requested, and shall be deemed communicated three (3) days from the
mailing thereof. Mailed notices shall be addressed to the parties as their
addresses appear above, but each party may change his address by written notice
in accordance with this paragraph.
9.10 Terms of Agreement. The terms of this Agreement govern unless inconsistent
with the terms set forth in an Addendum(s) attached hereto and made a part
hereof, in which case the terms of the Addendum(s) will control.
9.11 Release of Claims. Dealer waives and releases any and all claims of any
kind and nature whatsoever which Dealer has against Yamaha, which arises out of
or in connection with any prior agreement including but not limited to any
Addendum entered into between them.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this 20th
day of October 1987. Dealer expressly acknowledges that it has read this
Agreement in its entirety and understands its rights and responsibilities under
this Agreement and the provisions resulting to termination.
"Yamaha"
YAMAHA MOTOR CORPORATION, U.S.A.
a California Corporation
BY: /S/ [SIGNATURE ILLEGIBLE]
-----------------------------------
TITLE: ASSISTANT SECRETARY
-----------------------------------
YAMAHA PARTS DISTRIBUTORS, INC.
A CALIFORNIA CORP
BY: /S/ [SIGNATURE ILLEGIBLE]
-----------------------------------
TITLE: XXXXXX X. XXX, XX. VICE PRESIDENT
-----------------------------------
"DEALER"
X
-----------------------------------
BUSINESS NAME
BY: X /S/
-----------------------------------
TITLE: X /S/
----------------------------------
BY: X
----------------------------------
TITLE: X
----------------------------------
102
[YAMAHA LOGO]
MOTO-4 DEALER AGREEMENT
103
YAMAHA SALES AND SERVICE AGREEMENT
The information contained below is important as an integral part oft he
Agreement attached hereto and required prior tot he effectiveness of the
relationship. All information must be accurate and complete and Yamaha must be
notified of any changes to such information since it may affect your rights
under the Agreement.
A. DEALER'S COMPLETE LEGAL NAME
Name: CYCLE SPORT UNLIMITED, INC.
------------------------------------------------------------------------
(Owner, Partnership, Corporation referred to in the Agreement as "Dealer")
SOLE PROPRIETORSHIP PARTNERSHIP CORPORATION
(COMPLETE SEC. C-1) (COMPLETE SEC. C-1) (COMPLETE SEC. & C-2)
------------------------ ---------------------- -----------------------
DBA CYCLE SPORT - SPRINGFIELD
-------------------------------------------------------
(if different from above)
Federal Identification No.
-----------------------
B. DEALER'S LOCATION
Address: 0000 Xxxxxxxx Xxxx, Xxxxxx, Xx 00000
---------------------------------------------------------------------
(Referred to in the Agreement as "Dealer's Location")
C. DEALER: OWNERS AND MANAGEMENT
NAME SOCIAL SECURITY NO. TITLE
1. Owners:
---------------------- ------------------- --------------------
---------------------- ------------------- --------------------
---------------------- ------------------- --------------------
---------------------- ------------------- --------------------
NAME TITLE
2. Offices and
Manager: XXXXX X. XXXX PRESIDENT
------------------------------- -------------------------------
--- VICE PRESIDENT
------------------------------- -------------------------------
XXXXXX X. XXXXXXX, XX. SECRETARY
------------------------------- -------------------------------
XXXXXX X. XXXXX TREASURER
------------------------------- -------------------------------
------------------------------- -------------------------------
------------------------------- -------------------------------
DEALER WARRANTS AND REPRESENTS THAT THE INFORMATION AS SET FORTH ABOVE IS TRUE
AND CORRECT.
"DEALER"
X CYCLE SPORT - SPRINGFIELD
--------------------------------
BY: X /s/ XXXXX XXXX, PRESIDENT
--------------------------------
DATE: X 9/17/84
--------------------------------
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YAMAHA SALES AND SERVICE AGREEMENT
THIS AGREEMENT is made by and between YAMAHA MOTOR CORPORATION, U,S.A., a
California corporation, having its principal office located at 0000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Yamaha"), and
Dealer as identified on the cover sheet attached hereto.
RECITALS
A. Yamaha is the exclusive distributor in the United States of quality
MOTO-4s which are sold under the trademark "Yamaha" and distributes parts and
accessories therefor (hereinafter collectively referred to as the "Products").
B. Dealer has represented, as an inducement to Yamaha's entering into this
Agreement, that: (1) Dealer is capable of performing the terms and conditions of
this Agreement, (2) Dealer has a sufficient number of trained personnel and
adequate facilities to sell and service the Products, and (3) Dealer has
adequate financial resources to perform the monetary obligations herein.
C. Dealer desires to engage in sales of the Products in accordance with the
terms and conditions hereof; and Yamaha desires to appoint Dealerasaretail sales
and service location for the Products inaccordance herewith.
1. ESTABLISHMENT OF RELATIONSHIP
1.01 Appointment of Dealer. Yamaha hereby appoints Dealer as an authorized
Yamaha dealer for the sales and service of the Products only from Dealer's
location and Dealer hereby accepts such appointment. Dealer agrees not to,
directly, or indirectly, change Dealer's location nor establish or operate any
other location for the sales or service of the Products without the prior
written consent of Yamaha, which consent shall not be unreasonably withheld.
1.02 Nonexclusive. The rights granted herein are nonexclusive. Yamaha
reserves the right to appoint additional dealers of any or all of the Products
at any time pursuant to Yamaha's marketing program and policies; and in
accordance with the applicable state laws.
2. DEALER'S SALES OPERATIONS
2.01 Sales. Dealer agrees to and shall use its best efforts to vigorously
promote and sell the Products at retail, and shall continually work to increase
the market for the Products in the area served by Dealer's location. Dealer
agrees to maintain a fully qualified sales organization and conduct a continuing
program of quality. advertising and sales promotion activities for the Products
which reflect favorably on the goodwill established by Yamaha. Xxxxxx agrees to
afford the Products as much effort as Dealer gives to competitive or other
products of Dealer in terms of promotion, floor space, inventory, and service.
2.02 Performance Criteria. The relationship established hereby is intended
by the parties to be mutually beneficial. In this regard, Yamaha assumes under
this Agreement certain specific responsibilities to Dealer in order to obtain in
return an adequate level of performance by Dealer. Such level of performance
shall be evaluated periodically by Yamaha, at least once in each year, based on
reasonable criteria such as the following:
(a) The volume of Dealer's sales of the Products as compared ith the sales
of products in the market area served by Dealer's location.
(b) The volume of Dealer's sales of the Products as compared to other
dealers of the Products who are similarly situated.
(c) The actual sales volume of the Products by Dealer as compared to the
reasonable annual sales objectives which may be established by Yamaha for
Dealer.
(d) The actual promotion efforts of Dealer relating to the Products.
(e) The compliance with all of the terms and conditions of this Agreement.
2.03 Customer Relations. Dealer shall at all times conduct its operations
in such a manner so as to develop and maintain good customer relations. Dealer
shall provide prompt and courteous service to customer inquiries and complaints
relating to the Products. Dealer shall at all times properly represent the
Products and shall not make, directly or indirectly, any false, misleading, or
disparaging representations to any customer or other person in regards to Yamaha
or the Products- Dealer shall conduct its operations during usual and customary
business hours.
2.04 Inventory. Dealer agrees to maintain at Dealer's location: (1) a
prominent display of the Products which includes at least one of each of the
current models of the units, and (2) a reasonable inventory of the Products
which is adequate to meet the current and anticipated demand in the market area
served by Dealer's location, subject only to availability.
2.05 Supply of Products. Yamaha shall make reasonable efforts to supply
Dealer with the Products in accordance with accepted orders; however, during any
period of shortage, Yamaha shall be permitted to allocate the Products in an
equitable manner.
2.06 Reports and Records. In order to provide Yamaha with information
regarding sales and market trends, Dealer shall periodically provide to Yamaha
complete and accurate data regarding dealer's sales and inventories of the
Products and such other reasonable information as and when requested by Yamaha.
Dealer shall keep complete and accurate records regarding the sales and service
activities for the Products and shall retain for at least three (3) years all
such records and documents. Dealer shall permit any designated representative of
Yamaha, at reasonable times, to examine and audit such records and documents. In
the event of the discovery of any improper claim or payment, Yamaha may charge
back to Dealer all payments or credits plus interest thereon made by Yamaha to
Dealer pursuant to such claims or otherwise, as well as the costs to Yamaha for
such audit and the recovery of such payments or credit.
2.07 Changes to the Products. Yamaha may periodically change the design,
models, and features of the Products, add new products, or discontinue the
distribution of any or all of the Products to Dealer without accountability to
Dealer in connection with any Products ordered by Dealer or Dealer's inventory
of the Products.
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105
2.08 Cooperation with Yamaha. Dealer shall at all times cooperate and work
closely with xxxxx's representatives. In addition Dealer shall maintain close
communications with such representatives.
3. PURCHASE OF THE PRODUCTS
3.01 General Terms and Conditions. Yamaha shall sell the Products to Dealer
and Dealer shall purchase the Products from Yamaha in accordance with the terms
and conditions set forth herein. Yamaha reserves the right to change any terms
or conditions, including price and payment terms, at any time without
accountability to Dealer.
3.02 Orders. Dealer shall order the Products from Yamaha in accordance with
the ordering procedures of Yamaha. All orders are subject to acceptance by
Yamaha based on the availability of the Products and Dealer's compliance with
the terms and conditions hereof. To enable Yamaha to plan its purchases from the
manufacturer of the Products, Dealer shall submit its purchase orders at such
times as may be requested by Yamaha. The effective terms and conditions of
Yamaha shall supersede any conflicting terms and conditions of any purchase
order submitted by Dealer.
3.03 Price. Dealer shall pay to Yamaha the price and any other charges for
the Products as set forth on Yamaha's price schedules, issued periodically by
Yamaha, which is in effect at the time of shipment of Dealer's order- On the
stated future effective date, a new price or charge shall automatically
supersede any previous price or charge.
3.04 Payment. Dealer shall pay the purchase price for the Products at the
time of delivery thereof, unless Yamaha has approved other terms of credit for
Dealer. Yamaha may cancel any order placed by Dealer or refuse the shipment
thereof should Dealer fail to meet any payment term, credit, or financial
requirements of Yamaha. The cancellation or withholding of any order shall not
be construed as termination or breach of this Agreement by Yamaha.
3.05 Shipment. Yamaha shall use its best efforts to Ship all accepted
orders for the Products to Dealer F.O.B. Yamaha's warehouse with reasonable
promptness; provided, however, that Yamaha shall not be liable for any damage,
consequential or otherwise, to the Products which occurs while in transit, or as
a result of a failure to fill orders, delays in delivery, or any error in the
filling of orders.
3.06 Taxes. Dealer represents and warrants that all Products purchased
hereunder are purchased for resale in the ordinary course of Dealer's business.
Xxxxxx agrees that he is responsible for and shall comply with all laws calling
for the collection and/or payment of all taxes, including sales and use taxes
and ad valorem taxes.
4. DEALER'S SERVICE OPERATIONS
4.01 Service Operations. Dealer shall establish and maintain quality
service operations as recommended by Yamaha for the Products at Dealer's
location which shall include thoroughly trained personnel, proper tools and
equipment, and adequate service facilities. Such service operations shall
provide to owners of the Products prompt, courteous, and workmanlike service.
4.02 Delivery and Preparation Obligations. Dealer shall be responsible for
and agrees to perform set-up, preparation, and delivery obligations as
prescribed by Yamaha, prior to the delivery of the Products to purchasers
thereof; and Yamaha agrees to compensate Dealer in accordance with the policies
of Yamaha as may be issued from time to time and in accordance with applicable
law.
4.03 General Service. Dealer shall provide to owners of the Products such
general service and repair for the Products as may be necessary. Any and all
charges therefore shall be reasonable and consistent with those prevailing in
the market area of Dealer; and all such services and charges shall be in
accordance with applicable law.
4.04 Warranty Service. Dealer agrees to perform all warranty service on all
Products brought to Dealer, whether or not sold by Dealer. Dealer shall perform
such warranty service in accordance with the policies of Yamaha as they may be
issued from time to time in the Yamaha service and warranty manuals and
bulletins. Dealer shall use only genuine Yamaha parts, or parts that are
equivalent in quality and design to genuine Yamaha parts, in performing warranty
service on the Products.
(a) Dealer acknowledges the importance of providing to owners of the
Products prompt and skilled warranty service and the need to comply with all
laws relating to warranty service. Dealer shall give immediate service to such
warranty requests and/or service. Xxxxxx agrees to perform all warranty service
in a competent and workmanlike manner. Dealer agrees to maintain an inventory of
genuine Yamaha parts to provide all necessary warranty service.
(b) Dealer shall submit complete and accurate claims to Yamaha for
reimbursement for parts and labor used in performing warranty service on
warranty claim forms of Yamaha with all information required thereon; and Yamaha
shall reimburse Dealer for such parts and labor in accordance with the effective
schedules and rates applicable to Dealer. Dealer shall keep and retain complete
and accurate records and documents supporting Such claims, which recorriq and
documents are subject to the provisions of Paragraph 2.06, regarding inspection
and adjustments.
4.05 Assistance and Protection. In the event any warranty claim arises that
Dealer is unable to perform, Yamaha should a be promptly notified by Dealer and
be provided the details of the claim and Yamaha shall use reasonable efforts to
resolve such claim. Yamaha is relying upon Dealer's assurance that he is capable
of performing service obligations for the Products. Dealer agrees to fully
protect Yamaha from any claims, liability or loss that may result from a failure
of Dealer to properly perform service for the Products as required hereunder or
under applicable law.
5. GENERAL RESPONSIBILITIES -
YAMAHA AND DEALER
5.01 Promotion and Assistance by Yamaha. Yamaha shall, from time to time,
provide to Dealer such assistance, incentives, and programs as maybe offered to
all other dealers of the Products who are similarly situated. Yamaha shall
conduct an advertising program for the Products which may include television and
radio commercials, magazine advertisements, and promotional events.
5.02 Trademarks. Yamaha agrees to permit Dealer to identify itself as an
authorized "Yamaha" dealer for the Products and use the trademarks of Yamaha in
connection with Dealer's efforts to sell and promote the Products; provided,
however, that such use shall be subject to the control of Yamaha and be in a
manner consistent with the high quality image of the Products. Dealer shall not
use the name "Yamaha" or other trademarks as a part of its corporate name or in
any manner inconsistent with the instructions of Yamaha. Dealer acknowledges
that Yamaha has the sole right and interest in such trademarks and agrees to
cease immediately all use thereof on the termination of this Agreement.
5.03 Facilities. Dealer shall establish and maintain the appearance and
condition of the facilities at Dealer's location
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106
so as to favorbly reflect on the Products and the quality image of Yamaha As
part of the facilities at Dealer's location, Dealer shall install and maintain
prominent and suitable signs as recommended by Yamaha, which identify Dealer as
a dealer of the products.
5.04 Personnel. Dealer shall employ competent personnel for its sales
operations, service operations, and administration in order to fulfill his
responsibilities under this Agreement. All sales and service personnel shall be
thoroughly familiar with the Products; and Dealer, at his expense, shall cause
such personnel to attend training programs for the Products and study sales,
service and warranty manuals and bulletins for the Products as may be provided
by Yamaha from time to time.
5.05 Financial Responsibility. Dealer shall maintain for its operations
hereunder adequate working capital and lines of wholesale credit to enable
Dealer to fulfill his responsibilities under this Agreement. Dealer agrees to
furnish Yamaha, at reasonable times, financial reports an other financial data
to enable Yamaha to determine Dealer's financial responsibility. At least within
ninety (90) days following the close of Dealer's fiscal year, Xxxxxx agrees to
submit to Yamaha Dealer's financial statement for the previous year.
5.06 Compliance with Laws. Dealer shall conduct and maintain at all times
his sales and service operations in strict compliance with all applicable
federal and state laws and regulations, county and city ordinances and
regulations and any other applicable law, regulation or ordinance.
6. TERMINATION
6.01 Effectiveness. This Agreement shall be effective upon the execution
hereof by an authorized officer or representative of Yamaha at Cypress,
California, and shall continue until terminated as provided herein.
6.02 Termination for Cause (immediate Effect). Unless otherwise provided
for or allowed under state law, Yamaha may terminate this Agreement with
immediate effect on the giving of written notice to Dealer should any of the
following events occur, such events being of such a nature so as to constitute
good cause for immediate termination by Yamaha:
(a) Any misrepresentation by Dealer in entering into this Agreement or the
submission by Dealer of any false or fraudulent application, claim or report in
connection with its sales or service operations.
(b) Insolvency of Dealer; inability of Dealer to meet its debts as they
mature; the filing by Dealer of a petition of voluntary bankruptcy under any
chapter of the bankruptcy laws of the United States; the institution or
proceedings to adjudge Dealer a bankrupt in an involuntary proceeding; the
execution of an assignment by Dealer for the benefit of creditors; the
appointment by a court of a receiver, trustee for Dealer or the assets of
Dealer; dissolution of Dealer; or the failure of Dealer to conduct its
operations in the ordinary course of business.
(c) Any transfer or attempted transfer by Dealer of any interest in, or
right, privilege or obligation under this Agreement; or any transfer of the
principal assets of Dealer's operations hereunder; or any change in the direct
or indirect ownership or operating management of Dealer, however accomplished,
without the prior written consent of Yamaha, which consent shall not be
unreasonably withheld.
(d) Any relocation or establishment of branch locations without having
complied with the requirements set forth in Paragraph 1.01 of this Agreement.
(e) Any act by Dealer or any person involved in the ownership or operating
management of Dealer which violates any law and affects adversely Dealer's
operations or any conduct or unfair business practice by Dealer or any person
involved in the ownership or operating management of Dealer which affects
adversely Dealer's operations or the goodwill and reputation of Dealer, Yamaha,
or the Products.
(f) Any failure by Dealer to pay to Yamaha any sums that may be due or
become due pursuant to this Agreement or maintain adequate lines of credit for
purposes of purchasing the Products from Yamaha.
(g) Revocation of Dealer's motor vehicle Dealer's license or other
license.or permit necessary to conduct its operations hereunder.
6.03 Termination - Generall Nonperformance. Unless otherwise provided for
or allowed under state law or this Agreement, Yamaha or Dealer may terminate
this Agreement on the giving of at least sixty (60) days prior written notice to
the other for failure of either party to fulfill any or all of their
responsibilities and obligations as set forth in this Agreement, except for
causes specified under Paragraph 6.02 hereof.
6.04 Termination - Death, Incapacity. As an inducement to entering into
this Agreement, Dealer has represented that the persons identified on the cover
sheet shall continue to actively participate in the ownership and operating
management of Dealer; and therefore, Yamaha may terminate this Agreement on the
giving to Dealer of at least fifteen 1115) days prior written notice in the
event of death, physical or mental incapacity or disassociation of any of the
identified persons. Yamaha may defer such termination for a period up to six (6)
months from such event in order to allow Dealer an opportunity to replace such
person or persons with an equally qualified person or persons or allow an
orderly liquidation of Dealer's operations; provided, however, it can be
demonstrated that the terms and conditions of this Agreement can be fulfilled
during such period and thereafter.
6.05 Transition - New Agreement. Yamaha may terminate this Agreement at any
time on the giving to Dealer of at least sixty (60) days prior written notice
should Yamaha offer a new or modified form of agreement to all its dealers for
the Products.
7. RESPONSIBILITIES UPON TERMINATION
7.01 Continuing Responsibilities. Upon the termination of this Agreement,
Dealer shall no longer be an authorized Yamaha dealer; however, Dealer shall
immediately pay to Yamaha all amounts owed to Yamaha, whether or not due.
7.02 Discontinuance of Use of Trademarks. Upon termination, Dealer shall
(1) discontinue forthwith any and all use of the trademarks of Yamaha, including
such use in advertising, business materials of Dealer and as part of the firm or
trade name of Dealer, (2) forthwith remove or obliterate any and all signs
designating Dealer as an authorized dealer for the Products or which include any
trademark of Yamaha, and (3) forthwith notify and instruct publications and
others who may list or publish Dealer's name as an authorized Yamaha dealer,
including telephone directories, yellow pages, and other business directories,
to discontinue such listing of Dealer as an authorized Yamaha dealer.
7.03 Orders for the Products. In the event of the termination of this
Agreement, all unshipped orders for the Products shall be deemed cancelled.
However, from the date of the notice of termination to the effective date of
termination, orders may be filled by Yamaha if such orders are bona fide and
reasonable in quantity, Dealer pays for such
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107
order in cash on delivery, and Dealer is capable of meeting its sales and
service obligations hereunder,
7.04 Repurchase of Products.
A. Upon termination of this Agreement, Yamaha shall have the option,
but not the obligation, to repurchase from Dealer and Dealer shall sell to
Yamaha, within sixty (60) days after the effective date of termination the
following:
(1) Any or all new, unused, undamaged, then current model Products which
were purchased by Dealer from Yamaha, and are the unencumbered property of and
in the possession of Dealer, at the net invoice price, exclusive of
transportation charges and delivery and preparation reimbursement, previously
paid by Dealer therefor less all costs incurred in regards to their purchase.
(2)Any or all new, unused and undamaged resaleable parts, purchased from
Yamaha which are then the unencumbered property of and in the possession of
Dealer, at Yamaha's then current parts wholesale price list, exclusive of
transportation charges and less all costs incurred in regards to the repurchase.
Dealer shall, at Dealer's expense, inventory, tag, pack and deliver possession
of such parts to Yamaha, in accordance with Yamaha's procedures then in effect.
B. Within thirty (30) days of the date of termination of this
Agreement, Dealer shall deliver or mail to Yamaha a detailed inventory of all
the items referred to in Paragraph 7.04. In the event Dealer fails to supply
such a list to Yamaha within said period, Yamaha shall have the right to enter
onto Dealer's premises for the purpose of compiling such an inventory list and
Dealer shall reimburse Yamaha for any costs incurred in connection therewith.
C. Within ten (10) days after receipt of Dealer's detailed inventory
or after Yamaha has taken a physical inventory, whichever is later, Yamaha shall
notify Dealer of its intention in regards to Dealer's inventory of Products.
8. MISCELLANEOUS
8.01 Relationship of the Parties. This Agreement does not in any way create
the relationship of principal and agent between Dealer and Yamaha and in no
circumstances shall Dealer, its agents or employees be considered the agent of
Yamaha. Dealer shall not act or attempt to act or represent itself directly or
by implication as agent of Yamaha o; in any manner assume or create or attempt
to assume or create any obligation or make any contract, agreement,
representation or warranty on behalf of or in the name of Yamaha, except those
authorized in writing by Yamaha. Dealer shall indemnify and hold Yamaha harmless
from any cost and liability caused by the acts of Dealer, its employees or agent
and from liability caused by any authorized act by Dealer, its agents, or
employees.
8.02 Force Majeure. Yamaha shall not be responsible for or liable for
failure to perform any part of this Agreement or for any delay in the
performance 'of any part of this Agreement, directly or indirectly resulting
from or contributed to by any foreign or domestic embargoes, seizures, acts of
God, insurrections, wars and/or continuance of war; or the adoption or enactment
of any law, ordinance, regulation, ruling or order directly or indirectly
interfering with the production, delivery or payment hereunder; or lack of the
usual means of transportation, fires, floods, explosions, strikes; extraordinary
currency devaluations, taxes, or customer duties or other similar charges or
assessments; or other events or contingencies beyond its control, either of the
foregoing nature or of any kind, nature or description affecting the
transportation, production, sale or distribution of the Products or any
components used in or in connection with their production.
8.03 Entire Agreement. This Agreement supersedes and terminates any and all
prior agreements or contracts, written or oral, entered into between Yamaha and
Dealer as of the effective date of this Agreement with reference to all Matters
covered by this Agreement. All negotiations, correspondence and memoranda which
have passed between Yamaha and Dealer with reference to all matters covered by
this Agreement are merged herein and this Agreement constitutes the entire
agreement between Yamaha and Dealer. No representations not contained herein are
authorized by Yamaha, and this Agreement may not be altered, modified, amended,
or changed, in whole or in part, except in writing and executed by Yamaha and
Dealer in the same manner as is provided for the execution of this Agreement.
8.04 Assignment. The relationship created between Yamaha and Dealer is
intended to be personal in nature, since Yamaha is relying on the continued
active participation of certain individuals in the operations of Dealer, and
consequently, this Agreement shall not be assignable or transferable in any
manner whatsoever without the prior consent in writing of Yamaha. For purposes
of this Agreement, any change in ownership, the legal form of the business, or
active management shall be deemed a transfer which requires the prior consent of
Yamaha. Any determination by Yamaha in this regard shall be based on an
evaluation of assignee's or transferee's qualifications and ability to meet
Yamaha's high standards. In the event Dealer changes his legal form of business
or makes an assignment without notifying Yamaha as provided herein, Dealer shall
continue to be personally liable for all past and future debts of this or a
successor business.
8.05 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of California.
8.06 Construction. This Agreement and all of the words, terms, and
provisions hereof shall be construed in accordance with their usual and ordinary
meanings, and not in favor of or against either party hereto. Paragraph headings
are not a part of this Agreement, but are only for convenience.
8.07 Nonwaiver of Rights. Failure of either party hereto to enforce any of
the provisions of this Agreement or any rights with respect thereto or failure
to exercise any election provided for herein shall in no way be considered to be
a waiver of such provisions, rights or elections or in any way affect the
validity of this Agreement. The failure of either party to exercise any of said
provisions, rights or elections shall not prelude or prejudice such party from
later enforcing or exercising the same or any other provisions, rights or
elections which it may have under this Agreement.
8.08 Invalidity. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
8.09 Notice. All notices required or permitted to be given or made under
this Agreement may be effected in writing by certified mail, postage prepaid,
return receipt requested, and shall be deemed communicated three (3) days from
the mailing thereof. Mailed notices shall be addressed to the parties as their
addresses appear above, but each party may change his address by written notice
in accordance with this paragraph.
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108
8.10 Attorney's Fees. In the event any legal action is necessary to enforce
any of the terms and conditions of this Agreement, Dealer shall pay to Yamaha
all costs and fees incurred, including reasonable attorney's fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this 29th day of AUGUST, 1984. Dealer expressly acknowledges that it has read
this Agreement in its entirety and understands its rights and responsibilities
under this Agreement and the provisions relating to termination.
"Yamaha"
YAMAHA MOTOR CORPORATION, U.S.A.
a California Corporation
BY: /S/ XXXXXX XXXXXXX
-----------------------------------
TITLE: ASSISTANT SECRETARY
-----------------------------------
"DEALER"
X CYCLE SPORT UNLIMITED, INC.
-----------------------------------
BUSINESS NAME
BY: X /S/ XXXXX XXXX
-----------------------------------
TITLE: X /S/ PRESIDENT
----------------------------------
BY: X
----------------------------------
TITLE: X
----------------------------------
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109
* SUZUKI.
SUZUKI PRODUCTS DEALER AGREEMENT
THIS AGREEMENT, entered into by and between the Motorcycle Division of AMERICAN
SUZUKI MOTOR CORPORATION, a California corporation (hereinafter "Suzukr'), and
(Dealership Name) CYCLE SPORT UNLIMITED, INC. of-- 632 GRANT STREET (Business
Address) doing business as Dealer No. Z38546, at Herndon VA 22070 (City and
State) (hereinafter "Dealer"). Suzuki is the exclusive distributor in the
continental United States of the Suzuki brand products listed in Attachment A.
Dealer desires to purchase such Suzuki products from Suzuki for the purpose of
reselling them at retail in the United States at the location designated above.
PURPOSE
The purpose of the Agreement is to establish a good working relationship between
Suzuki and its independent Dealer based on a mutual understanding relating
to the sale and service of Suzuki products in a manner that will best serve the
interests of retail customers and will be of benefit to Dealer and Suzuki.
In entering into this Agreement Suzuki and Dealer recognize that their success
depends upon how well Dealer fulfills the retail customers! needs - upon the
quality and value which Suzuki offers to the public in the Suzuki products it
distributes - and upon how well each authorized independent Suzuki dealer
fulfills its obligations through aggressive, sound and ethical sales and service
efforts at the retail level. Suzuki and Dealer agree that the keystone to
success is conscientious regard for quality customer service.
Suzuki expects and Dealer in executing this Agreement acknowledges, that
Dealerwill actively, aggressively and honestly promote the sale of Suzuki
products to retail customers and will give to the public prompt efficient and
courteous service; and that Dealer will conduct its business in an independent
and responsible manner which will reflect favorably upon Suzuki and Suzuki
products, and upon Dealer and its operations; and that Dealer will preserve and
promote the goodwill of Suzuki and Suzuki products that has been created bythe
manufacturer and sale of Suzuki products of the highest quality and desigri. To
achieve the purposes set forth above and the mutual obligations of the parties
to each other, it is agreed as follows:
Dealer's Responsibility
Subject to the terms and conditions hereof, Suzuki will sell Suzuki products to
Dealer and Dealer will use its best efforts to sell Suzuki products at retail.
The Dealer is authorized to sell Suzuki products from the Dealers business
location set forth above to retail customers without regard to geographical
limitations. Dealerwill act independently of Suzuki in its sales and service
responsibilities to its customers and its representations to the public.
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110
[CYCLE SPORT LETTERHEAD]
American Suzuki Motor Corporation
Brea, California
Gentlemen:
Please accept this dealer agreement signed by us with the understanding
that, in reference to paragraph 2.3, on page 5, the dealer will follow and be
governed by the guidelines set forth as to dealer conduct in the display and
sales of ATVs, as stated in the consent decree on ATVs signed by the CPSC and
the manufacturers.
Signed,
/s/ XXXXX X. XXXX
-------------------------------
Xxxxx X. Xxxx
/s/ XXXXXXX XXXXXXX
-------------------------------
Xxxxxxx Xxxxxxx
/s/ XXXXXX X. XXXXXXX, XX.
-------------------------------
Xxxxxx X. Xxxxxxx, Xx.
/s/ XXXXXX X. XXXXX
-------------------------------
Xxxxxx X. Xxxxx
/s/ XXXXX X. XXXX
-------------------------------
Xxxxx X. Xxxx
111
[SUZUKI LOGO]
OWNERSHIP AND MANAGEMENT
This agreement is entered into by Suzuki with Dealer in reliance upon the
ability of Dealer as an independent business to meet and perform the operating
requirements hereof and in consideration of the personal qualifications and
business ability of the following named person or persons who will participate
in the ownership of Dealer. Dealer further represents that the following
individuals are the sole legal and/or beneficial owners of Dealer in the
proportions set forth, each of whom will personally guarantee the dealership's
financial obligations to Suzuki.
Xxxxx X. Xxxx /s/ XXXXX X. XXXX 51%
--------------------------------------------------------------------------------
(Full Name) (% Ownership)
Yes
--------------------------------------------------------------------------------
(Residence Address) (Management Participation? Yes/No)
Xxxxxxx Xxxxxxx /s/ XXXXXXX XXXXXXX 10%
--------------------------------------------------------------------------------
(Full Name) (% Ownership)
Yes
--------------------------------------------------------------------------------
(Residence Address) (Management Participation? Yes/No)
Xxxxxx X. Xxxxxxx, Xx. 16%
--------------------------------------------------------------------------------
(Full Name) (% Ownership)
Yes
--------------------------------------------------------------------------------
(Residence Address) (Management Participation? Yes/No)
Xxxxxx X. Xxxxx 9%
--------------------------------------------------------------------------------
(Full Name) (% Ownership)
No
--------------------------------------------------------------------------------
(Residence Address) (Management Participation? Yes/No)
Xxxxx X. Xxxx * (See note below) 14%
--------------------------------------------------------------------------------
(Full Name) (% Ownership)
No
--------------------------------------------------------------------------------
(Residence Address) (Management Participation? Yes/No)
*As a stockholder with no management participation in this company, I disavow
and disassociate myself with the statement made in the second clause of the
second sentence of the first paragraph on this page 2. I further state that I
do not personally guarantee this dealership's financial obligations to
American Suzuki.
/s/ XXXXX X. XXXX
---------------------------
signed: Xxxxx X. Xxxx
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112
* SUZUKI.
The following named persons have full authority and responsibility for the
operation and management of the Dealership and Dealer's signature below
constitutes written authority for the belownamed persons to bind the dealership:
Xxxxx X. Xxxx President
(Full Name) (Title)
(Residence Address)
(Full Name) (Title)
(Residence Address)
(Full Name) (Title)
(Residence Address)
(Full Name) (Title)
(Residence Address)
(Full Name) (Title)
(Residence Address)
The ownership interests and managing personnel set forth above may not be
changed without 30 days prior written notice to Suzuki, prior review by Suzuki
and prior written approval of Suzuki concerning the business qualifications of
new owners and managing personnel. Suzuki will give such approval provided the
proposed -changes meet Suzuki requirements Any change in the addresses set
forth above shall be communicated in writing to Suzuki The terms of any change
in ownership must be disclosed to Suzuki on the form provided Duration of
Agreement
This Agreement is notvalid until and unless it is executed byan officer of
Suzuki at its main office in California. From its effective date this Agreement
shall remain in full force and effect so long as Dealer performs in accordance
with the terms and conditions hereof. Suzuki may terminate this Agreement under
the provisions set forth in Section 9. Dealer may terminate this Agreement upon
sixty (60) days' written notice to Suzuki.
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113
SUZUK16
GENERAL CONDITIONS
1. PLACE OF BUSINESS.
1.1 Location. Dealer will operate his dealership including showroom, sales~
service and parts, only in a permanent facility that meetsthe requirements of
thisAgreement, and only at the authorized dealer location and addresssetforth
above. If authorized Dealer desires to change the business location, it must
provide Suzuki with a minimum of thirty(30) days written notice to allow Suzuki
adequate time to review the new facility. The notice should be given on the
attached form, as soon as the Dealer gives a change of location serious
consideration. AfterSuzuki reviews the newfacility, Dealer must receivefrom
Suzuki written approval of the new location before it makes acommitmentto move
the dealership. Suzuki will not unreasonably withhold written approval so long
as the new facility meets Suzuki's requirements as published by Suzuki from time
to time.
1.2 Expansion. Dealer, at its expense, shall equip and maintain in a manner
acceptable to Suzuki~ the authorized place of business where Suzuki products are
sold In this regard, Dealer will make necessary expansions of the authorized
place of business or move to a larger place of business if in the judgment of
Suzuki such expansion or change in location is necessitated due to changes or
growth in local marketing conditions.
1.3 Size. Dealers place of business must conform to the minimum size
requirements of Suzuki as published from time to time or be of adequate size to
allow for display and storage of Suzuki products and provide for office space, a
parts area and service facilities of sufficient size to accommodate the volume
of sales and service of the Dealer in conformance with written recommendations
from Suzuki.
1.4 Appearance and Maintenance. The Dealer's place of business will at all times
be maintained so as to present a good image for Dealer and Suzuki. It is
Dealer's responsibility to maintain an attractive store for the benefit of the
customer, Dealer, and Suzuki. Dealer acknowledges that modern marketing studies
show that an attractive, well-lighted, neat and clean store will attract more
customers and contribute more to thedevelopment and growth of the Dealer's
business
1.5 BusinessHours. Dealer shall remain open during normal retail business hours
to benefit his customers. If Dealer closes for ten (10) or more successive days
without the prior written permission of Suzuki~ he will be subject to
termination, unless such closing is due to adverse weather or reasons beyond
Dealer's control.
1.6 Identification. The Dealer's place of business will be properly and
appropriately identified as a Suzuki retail store by display of authorized
Suzuki outdoor signs Suzuki will review all Suzuki identification at Dealer's
place of business on a periodic basis to assure that it is adequate, attractive
and well-maintained Dealer will follow Suzuki's recommendations regarding Suzuki
identification.
1.7 Legal Right of Use. Upon Suzuki's request Dealer will submit to Suzuki a
copy of the legal title to Dealer's facility, the lease underwhich Dealer is
leasing thefacility, orthe document granting Dealer's rightto use the facility
as the case may be
2. RETAIL SALES. *
2.1 Sales Personnel. Dealer shall at all times have competent and adequate
personnel to develop maximum sales opportunities for Suzuki products, Dealer
will employ qualified sales personneL The quality of sales personnel will be
reviewed by Suzuki from time to time. Dealer will be responsible forthe sales
personnel and assure that they practice fair and ethical selling methods. Such
personnel will be knowledgeable about all Suzuki products
2.2 Promotion Materials. Suzuki will make available to Dealer various
promotional materials at a reasonable cost and Dealer will stock an adequate
supply of these materials for the promotion of Suzuki products.
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114
SUZUKI.
2.3 Types of Sales. Dealer will sell Suzuki products to retail customers only,
except for sales to other authorized Suzuki dealers. Dealer will not sell Suzuki
products to unauthorized Suzuki dealers or any other person for resale either in
this country ora foreign country. Dealerwill not sell Suzuki products to
customers who do not meetthe age requirements in regard to the size of vehicle
sold, as setforth by Suzuki from timetotime in accordance with the rules and
regulations of the CPSC and other legal authorities. Any such unauthorized sales
will subject Dealer to termination as set forth below.
2.4 Terms of Sale. Suzuki has the right at any time to change charges, discounts
and other terms of sale affecting any Suzuki product as reflected on the dealer
invoice.
2.5 SalesProcedure. All retail sales made by Dealer must conform to the
requirements for product set-up and warranty presentation as published by
Suzuki from time to time. Dealer will forward all sales registration cards
to Suzuki immediately upon conclusion of the sales transaction.
2.6 Prices. All sales to Dealer will be at such prices as from time to time are
established by Suzuki and in eff ect at the time of shipment and as invoiced.
Such prices will be herein refered to as the"Dealer Price' ' Suzuki reserves the
right to change its "Dealer Price" for any reason. Suzuki will not be bound by
Dealer's pre-sale of products to a customer in the event of a price increase.
Suzuki shall give written notice to Dealer of any change increasing the price to
be paid by Dealer before shipping any current models to which such change is
applicable. Dealer may cancel or modify orders for products to which any such
change applies, provided written notice of cancellation is delivered to Suzuki
within ten (10) days after receipt by Dealer of Suzuk?s price change notice.
2.7 Dealer Sales Responsibility. Dealer will maintain a minimum annual sales
volume for each product category mutually agreed upon each yearbySuzuki and
Dealer. Dealer will establish a target growth factorwhich it will strive to
achieve through aggressive marketing and promotion of Suzuki products. Dealer
agrees that the best method of measuring its market area share is by comparison
of its Suzuki sales against the national, state~ county and local area Suzuki
sales percentages in the product category as determined bya recognized reporting
organization. Dealer also agrees that comparison of its sales to similarly
located Suzuki dealers in comparable trade areas is a proper criteria to measure
its sales performance
2.8 Inventory Responsibility. Dealer must maintain the level of Suzuki product
inventory recommended by Xxxxxx. It must also maintain the capability of
purchasing and stocking Suzuki products through a line of credit exclusively for
Suzuki products with financial organizations acceptable to Suzuki. Evidence of a
line of credit must be furnished to Suzuki upon Suzuki's request
2.9 Dealer Reports. Dealer will furnish reports of its sales and inventory as
requested Dealer will also furnish reports and statements concerning its
financial condition as Suzuki may request
2.10 Inventories. Dealer shall maintain at all times a minimum inventory of
Suzuki products for display, demonstration and sale. A minimum inventory is the
quantity, and models, necessaryfora sixty- day supply, based on the current
Dealer sales plan but subject to availability.
2.11 Sales Information. Dealer shall comply with Suzuki's existing and future
bulletins and manuals pertaining to the sale of Suzuki products.
2.12 Sales Records. Dealer shall keep an accurate record of all sales of Suzuki
products. These records shall be subject to inspection by Suzuki personnel upon
reasonable notice to Dealer.
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115
SUZUKI.
2.13 Stock Orders. Suzuki will not accept orders from Dealer for a
specific retail customer. Suzuki will accept only stock orders for products from
Dealer. Dealerwil I be responsible for providing the customers, specific product
parts and accessory needs from its inventory.
2.14 Allocations. If the demand for Suzuki products is so great that
in Suzuki's judgment it is necessary to make allocations of the products on an
individual dealer basis, Dealer will accept the judgment of Suzuki that such
allocation of products is necessary and Dealer will also accept the allocations
actually made by Suzuki based on Suzuki's sole and exclusive judgment as to the
reasonableness of such allocations.
2.15 Title. Title to Suzuki products passes to Dealer only upon
payment in full for said Suzuki products delivered to Dealer. Until full payment
for Suzuki products is made, Suzuki retains a security interest therein which
shall allow Suzuki atany reasonable time, andwithout notice ordemand, and with
orwithout legal process, to take possession of said Suzuki products
2.16 Accessories. Dealer understands and acknowledges that Dealer is
responsible for the after market and accessory items that Dealer installs on
Suzuki products and must caution the customer regarding the proper use of
accessory items and any effect accessory items may have on the products handling
characteristics, mileage, Environmental Protection Act regulations or safety.
Dealer will not recommend any accessory products that will or could cause unsafe
handling or dangerous riding characteristics
2.17 Product Discontinuance. Suzuki retains the right to discontinue~
cancel, or alter any product line or model as well asthe styling, color,
or other features of said lines ormodels, Suzuki does not and will not represent
that any product or product line will continue for any period of time. Suzuki
will incur no obligation for pre-existing product or product in inventory that
does not contain a change or alteration
2.18 Foreclosure of Dealer. If Dealer loses title to his dealership
or any of his Suzuki inventory through liens, encumbrances orany lawful means~
it isa violation of thisAgreement The person orentitygaining legaltitle or
control may not operate the dealership without the written approval of Suzuki.
3. SERVICE
3.1 Service Satisfaction. Dealer as an independent business shall
strive to offer the best possible customer service to owners and users of all
Suzuki products.
3.2 Service Compliance. Dealer shall provide prompt efficient and
courteous maintenance and repairservice to all owners and users of Suzuki
products. All service shall be performed in accordance with recommendations,
specifications and instructions as may be furnished Dealer by Suzuki However,
Dealer shall be solely responsible to his customers and the public to have all
service work performed properly and in a good and workmanlike manner. Dealer
will also be solely responsible for the use of other than genuine Suzuki parts
in performing service work for his customer.
3.3 Service Area and Equipment Dealer shall maintain an appropriate
sized service department which shall be painted neat and properly organized to
insure efficient operation and inspire consumer confidence Dealer shall equip
this department with the appropriate and necessary shop equipment furniture,
Suzuki "Special" tools and those tools used in normal day to day operations.
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116
SUZUKI.
3.4 Records and Manuals. Dealer shall maintain and keep updated all
manuals, bulletins, microfiche, video training tapes and records received from
Suzuki. Dealer and its service personnel will have available and be familiar
with all service and maintenance manuals provided by SuzukL
3.5 Customer Service. Dealer will receive, investigate and handle all
customer service problems and complaints receivedfrom ownersof Suzuki
productswith aviewtoward securingand maintaining the goodwill of the public
toward Dealer, Suzuki and Suzuki products.
3.6 Service Personnel. Service personnel in the dealership will be
competent and properly trained to handle all service work of Dealers customers.
Dealerwill have at least one full-time mechanicwho has been to Suzuki Service
School, but more than one full-time mechanic if the service department volume
warrants additional mechanics. Dealer accepts the responsibility to provide fast
efficient and accurate serviceworkto its customers. From time to time, Suzuki
will make suggestions regarding the improvement and upgrading of Dealer's
service department and personnel; however, Dealer is solely responsible for all
work performed in its Service Department by its service personnel.
3.7 Special Tools. Dealer shall purchase and maintain the special
tools required by Suzuki Dealer is aware of and accepts the need for such
special tools to provide its customers fast efficient and accurate service.
3.8 Set-up, Assembly and Inspection. Dealer must comply with Suzuki's
new product assembly, set-up and inspection instructions as published from time
to time. Dealer is solely responsible to see that this work is performed in a
proper and careful manner to assure customer satisfaction with the performance
of Suzuki products, to maintain good customer relations, and to protect Dealer
and Suzuki from lawsuits by customers Failure to properly perform this set-up,
assembly and inspection service is a violation of this Agreement Acknowledgment
of proper set-up, asssembly and inspection must be made on forms provided by
Suzuki.
3.9 Service Records. Dealer will maintain accurate and complete
service records of all service performed on Suzuki products for the mutual
benefit of the customer, Dealer and Suzuki.
3.10 Prices. Dealer will charge fair and reasonable prices forthe
service work performed as customary in its area. Dealer agrees that it will not
overcharge its customers or do any unnecessary service work Dealer acknowledges
that fair and competitive pricing will help insure customer satisfaction.
3.11 Suzuki Inspections. Dealer will permit Suzuki agents and
employees to inspect and review the Dealer's service area and records from time
to time. Dealer will be aware of and discuss any and all customer problems with
XxxxxX s. representatives from time to time.
3.12 Service Schools. Dealer will send his Dealer personnel to and
participate in, service training classes, service schools, seminars and other
dealer employee training courses as provided by Suzuki from time to time Dealer
acknowledges the need for such school and training to keep current on all Suzuki
products for the protection of Dealers customers.
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SUZUKle
3.13 Recall And Safety Procedures. If at any time Dealer receives
from Suzuki a notification of certain procedures that Dealer is to follow
concerning a recall or other safety or product improvement campaign or program,
Dealer shall comply with it If for any reason, Dealer fails or refuses to comply
with the procedures specified in such notification, Dealer shall be in violation
of this Agreement and assumes liability for noncompliance. Dealer acknowledges
the necessity of complying with recall and other safety or product improvement
notices to insure the protection of the consumer and to comply with government
laws, orders, rules and regulations.
4. CREDIT FINANCING AND PAYMENTS.
4.1 Payments. Dealer must pay for all Suzuki products shipped to it
Payments for products shall be by prepayment prior to shipment bill bank, or
sight draft, or payment may be made in accordance with wholesale financing
arrangements in effect between Suzuki, Dealer and a financial institution at the
time of shipment but not more than fifteen (15) days after receipt of the
product invoice. Any collection charges will be paid by Dealer Any such
financing arrangement will guarantee payment to Suzuki through the financial
institution. Loss of the financing guarantee or loss of the financial capability
for the purchase of Suzuki products will constitute a violation of this
Agreement Payments for other Suzuki products will be in accordance with the
Dealer terms established by the Credit Department
4.2 Security and Guarantee Documents. Xxxxxx agrees that it will
execute and immediately return to Suzuki the continuing guarantees of all owners
or stockholders of the Dealership. Each individual owner or stockholderwho signs
this Agreement and/or a continuing guaranty, understands and acknowledges his or
her joint and individual liability and responsibility for all of the
Dealership's debts to Suzuki In addition, each signator accepts the
responsibility to provide current dealer financial statements at le ast twice a
year, as well as upon written request from XxxxxX
4.3 Account Payments. Dealer's product purchases are to be paid
promptly but not later than the fifteenth (15th) day after receipt of the
invoice. All invoices are payable in full without regard to any pending Dealer
credit claims. Dealers parts, accessories and promotional purchases are to be
paid in accordance with terms established by the Credit Department from time to
time. Dealer will be delinquent in its accounts if it fails to comply with the
terms of payment for products and parts, accessories and promotional
material.
If Dealer becomes deliquent in any of its accounts with Suzuki~
Dealerwill be in default on all of its accounts with Suzuki. All accounts will
then be accelerated and become immediately due and payable. A default in any
credit account including a "special terms" account will result in such
acceleration of all of Dealer's accounts.
A default may be any of the following.
Delinquent Parts Account Delinquent Interest Payments on Finance
Delinquent Product (Vehicle) Account NSF Checks
Delinquent Accessory Account Sold Out of Trust Product (Vehicle)
Inventory
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SUZUKI.
4.4 Suspension by Suzuki. If dealer is delinquent in payment of any
indebtedness or obligation to Suzuki or fails to sign and immediately return any
security documents, Suzuki may suspend all pending orders and shipments until
said delinquency is cured or said security documents are received
4.5 Repossession. If Dealer becomes delinquent in its required
account payments asset forth in paragraph 4.3, Suzuki may repossess the
inventory of Dealer. If Suzuki repossesses Dealers inventory, Dealer shall be
responsible for all repossession charges including, but not limited to, handling
expenses, freight costs, a $1 00.00 per vehicle restocking charge, storage,
resale costs and attorneys' fees. Any and all such expenses will be charged to
Dealers account
4.6 Financial Statements. Dealer will maintain sufficient working
capital and net worth to allow Dealerto perform its obligations under this
Agreement In this regard Dealer will provide Suzuki with a current financial
statement upon request of XxxxxX Dealer will sign the financial statement and
attest to its accuracy.
4.7 Financial Changes. Any significant change in the Dealer's
financial capability will be reported immediatelyto Suzuki. Any significant
change in Dealer's financial capability must be approved by Suzuki. Failure to
report a change in financial capability constitutes a violation of this
Agreement
5. TRANSPORTATION
5.1 Dealer Pays Freight. On all Suzuki products ordered by Dealer, it
shall pay all transportation charges from Suzuki's warehouse facility. If
Dealer refuses a deliver)4 Dealer will pay freight costs forsaid shipment These
costs will be added to Dealers account with SuzukL This includes any shipment
made on a C.O.D. basis. All charges on C.O.D. shipments are the Dealers
responsibility.
5.2 Unloading. In accordance with federal and Interstate Commerce
Commission regulations. Dealer shall provide equipment and labor for unloading
from delivery trucks all shipments weighing over 500 pounds,
5.3 Delays. Although Suzuki will use due diligence to ship promptly
orders accepted by it Suzuki shall not be liable for any delay in shipment
caused by a shortage of supplies at the Suzuki warehousing facility nearest
Dealer, riots, war, willful acts of third parties, strikes or other union labor
problems, import restrictions, Acts ofGod, or any other cause beyond Suzuki's
control. It is specifically understood that Suzuki will attempt to fill all
orders accepted by it but takes no responsibility for failure to fill any of
Dealer's orders~ orfor placing Dealers orders in a "back-order" statur.
5.4 Concealed Shortage and Damage Reports. Any concealed shortages
in, or concealed damages to, merchandise in any shipments of products, parts or
accessories received by Dealer must be reported to Suzuki immediately on the
Suzuki form provided If notification is not made within ten (10) days,
Dealerwill have waived its right to reimbursement for the shortages or damages.
5.5 Product Return. Suzuki will not accept the return of Suzuki
products from Dealer except under Paragraph 10.2 or where required by law. All
such product returned will be subject to a $100.00 per vehicle restocking fee.
If Suzuki must by local law accept the return of Suzuki products from Dealer,
Dealer will pay all transportation charges and Suzuki will deduct any handling
and restocking charges from the original invoice price. All products returned
must be new, unused, and in their original package
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SUZUKle
5.6 Dealer Responsibility for Shipments. When a shipment to Dealer
leaves the Suzuki warehouse, the responsibility for the shipment isthe
Dealer'sand any lossordamage during shipment must be resolved between the
carrier and the Dealer, except for concealed loss or damage, as noted in
Paragraph 5.4.
5.7 Routing. Suzuki will attempt to use the best available carrier of
Dealer's choice for all shipments to Dealer, but Suzuki reserves the right to
make the final choice of the carrier at Suzuki's sole discretion.
6. PARTS.
6.1 Inventory. Dealer agrees to maintain an adequate inventory of
Suzuki parts to fulfill customer service and warranty requirements Failure to
maintain an adequate inventory of Suzuki parts to satisfy customer needs in the
sole judgment of Suzuki will constitute a violation of this Agreement
6.2 Shipment Acceptance. Dealer will accept all shipments of Suzuki
parts ordered by it In the event of an error in a shipment by Suzuki, the Dealer
must submit a parts discrepancy report and receive the prior written approval of
Suzuki before returning the parts.
6.3 PartsSales. Dealer will sell all Suzuki parts in an ethical
manner under a proper and reasonable pricing structure and with concern that the
customer receives the right Suzuki parts for his needs.
6.4 Genuine Suzuki Replacement Parts. Dealerwill not sell any part to
a customeras a Suzuki part unless it is a genuine Suzuki part If Dealer does so
it may constitute fraud and may be a violation of this agreement
7. WARRANTY.
7.1 Warranty Repairs. Dealer understands that properand efficient
warranty repairs are an essential part of good customer relations. Dealer will
use its best efforts to complete all warranty repairs in a timely and courteous
manner without charge to the warranty customer.
7.2 Warranty Responsibility. Dealer will deliver a copy of the Suzuki
warranty and will fully explain its provisions to each customerwho purchases a
new Suzuki product that carries a Suzuki warranty. In accordance with the
provisions of the warranty policy and service bulletins furnished by Suzuki to
Dealer from time to time~ Dealer will perform any-warranty repairs of any Suzuki
products which qualify for repairs without charge to the customer under the
provisions of such warranties and service bulletins regardless of whether Dealer
sold the Suzuki products or not Dealer will be solely responsible for the
service work performed in making the warranty repair.
7.3 Warranty Information. Dealer acknowledges its responsibility to
be completely familiar with Suzuki warranties and any changes published by
Suzuki from time to time Dealer will display in his showroom the complete text
of the warranties in accordance with government regulations and instructions
from Suzuki.
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SUZUKIv
7.4 No Other Warranties. Dealer understands that Suzuki makes no
warranties or representations express or implied for itself or the manufacturer
except as provided in the current Suzuki warranty policy. Dealer will promote
only Suzuki approved and sanctioned warranties and extended service contracts as
Suzuki warranties and service contracts, and will not promote any other warranty
or extended warranty as a Suzuki warranty.
7.5 Warranty Claim Procedure. Suzuki will reimburse Dealer only for
warranty repairs performed in accordancewith prevailing Suzuki policyand
procedures, as published by Suzuki frorntimetotime. Dealerwill use only
properwarranty claim forms furnished by Suzuki. Credit for authorized warranty
repairs will be issued by Suzuki in a timely manner. Dealer shall not charge any
customer for warranty repairs
7.6 Sales Registration Card. Upon sale of any new Suzuki product
Dealer must send to Suzuki within three days a Sales Registration Card properly
filled out as a record of that sale. This information is essential for Suzuki to
comply with government regulations and to provide Suzuki with essential owner
information.
8. ADVERTISING.
8.1 Advertising Suzuki Products. Dealer acknowledges his
responsibility to use advertising programs to promote Suzuki products in his
sales area
8.2 Ethical Standards. To build and maintain public confidence and
respect in Dealer, Suzuki, and Suzuki products, both Dealer and Suzuki will
maintain the highest ethical standards of advertising.
8.3 Customer Confidence. Dealer will advertise only in a manner that
will develop customer confidence in Suzuki products, and will not use any
advertising tending to mislead or deceive the public. Dealerwill discontinue any
advertising that Suzuki may reasonably find in its sole judgment to be injurious
to Suzuki business or likely to deceive the public.
8.4 Cooperative Advertising Program. Dealerwill participate in
SuzukFs cooperative advertising program in accordance with Suzuki's Co-op Policy
and advertising bulletins published from time to time.
8.5 Retail Only. In its advertising Dealer must identify itself as a
retai I dealer and must not in anyway attempt to mislead the public into a
belief that Dealer is a"wholesalee', "jobber", "factory direct dealer",
oranythinqother than a retail dealer.
8.6 Stand 8ehind Advertisements. Dealer acknowledges that it is
solely responsible for and must stand behind its advertising of price~
performance, specifications~ equipment warranty and other information contained
in its advertisements. If Dealer advertises promotions of Suzuki products,
Dealer must fulfill the obligations and offers set forth in the promotion
advertisements.
8.7 Suzuki Advertising Promotions. If Suzuki makes an offer to retail
customers by an advertising promotion, Dealer will fulfill Suzuki's obligations
to the retail customers and will comply and cooperate with Suzuki's promotions
in a fair and accurate manner.
8.8 Suzuki Promotions. To further expose and popularize the
name"SUZUKI", Suzuki will from time to time participate in promotional
activities with other parties, which may include the sale or exchange of Suzuki
products for advertising or promotional value. Dealer will cooperate by
rendering assembly, pre-delivery and warranty service in connection with such
promotions, for which service Dealer will be compensated at the established
rates.
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SUZUKle
9. TERMINATION.
9.1 Written Notice. If Dealer does not conduct its business in
accordance with the requirements set forth herein, Suzuki may terminate this
Agreement by giving to Dealer written notice of termination.
9.2 Fifteen Days? Wriften Notice. Suzuki may terminate this Agreement
with 15 days'written notice after the occurrence of any of the following events,
(1) Insolvency of Dealer, i.e., inability to pay its bills in a
timely manner,
(2) Filing of a petition by or against the Dealer under any
bankruptcy or receivership law,
(3) Assignment for the benefit of creditors;
(4) Appointment of a personal representative, receiver or trustee for
Dealer, or if any legal proceedings or process renders Dealer's
business substantially inoperative in the sole judgment of Suzuki;
(5) Failure of Dealer to be duly licensed to sell Suzuki products;
(6) Transfer of any ownership or interest in the dealership without
the written consent of Suzuki;
(7) Moving the location of the dealership without Suzuki's prior
written authorization.
(8) The submission of false documents to XxxxxX
(9) Closing the dealership for ten (10) consecutive business days
without prior written permission from Suzuki.
(10) Abandonment of the dealership by Dealer.
(11) Conviction of the Dealership owner(s) and/or officers of a
felony or any crime involving moral turpitude, or a criminal offense
directly related to the business conducted pursuant to this agreement
(12) Failure to comply with instructions of Suzuki regarding recalls
or other safety or pr8duct improvement campaigns or programs, and/or
failure to make a good faith effort to comply with the National Traff
ic and Motor Vehicle Safety Act or Consumer Product Safety Act or any
other laws, orders, rules or regulations regarding recalls or other
safety or product improvement campaigns or programs,
(13) Sale of any Suzuki product to any person or entity for resale,
either in this country or a foreign country other than another
authorized Suzuki Dealer.
(14) Sale of any product or part on the representation that it is a
genuine Suzuki product with knowledge that it is not
(15) Failure to obtain and carry the insurance required under
Paragraph 10.5.
If the fifteen (l5) day written notice specified in this paragraph is lessthan
the period required byapplicable laws, such period of notice shall be deemed
increased to the minimum period required by such laws.
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SUZUKle
9.3 Sixty Days Written Notice. Suzuki may terminate this Agreement
with sixty (60) days written notice after the occurrence of any of the following
events:
(1) Failure of the Dealer to maintain the sales volume established
for the dealership by mutual agreement of Suzuki and Dealer.
(2) Failure to keep the dealership in a proper state of repair and in
an orderly, clean and attractive condition and appearance.
(3) Improper or unethical advertising.
(4) Failure to properly perform warranty service.
(5) Failure to employ an adequate number of qualified service and
sales personnel.
(6) Failure to carry an adequate inventory of Suzuki products.
(7) Failure to have sufficient capital and/or sufficient flooring to
maintain an adequate inventory and to report a significant change in
financial capability.
(8) Dealer's sale of any product without prompt payment to Dealer's
flooring source(s) or being in an "out of trust" condition whether
financed by a separate financial organization or by Suzuki;
(9) Default by Dealer in its credit obligations, as set forth in
Paragraph 4.3 above.
(10) Any material misrepresentation by Dealer in the Dealership
Application to Suzuki.
(11) Dissension among the dealership owners which in the sole
judgment of Suzuki is detrimental to the proper operation of the
dealership.
10. LEGAL
10.1 Non-Assignable. This Agreement based on mutual trust between
Dealer and Xxxxxx may not be assigned or transferred by Dealer without the prior
written consent of Suzuki. Any assignment without the prior written consent of
Suzuki will be void.
10.2 Death of an Owner. If an owner or interest holder of any portion
of the dealership dies and leaves a spouse who becomes the sole owner or a
majority owner of the dealership, Suzuki reserves the right in its sole
discretion, to terminate the dealership if the spouse is not capable of
operating the dealership because of a lack of business experience and/or
knowledge of financial affairs. I n such event Suzuki will repurchase the new
and unused Suzuki product inventory subject to the prevailing restockin g and
repossession charges, and all Suzuki signs, and special tools. Suzuki will also
assist the spouse in attempting to locate a buyer for the dealership.
If in the judgment of Suzuki the spouse can operate the dealership,
it may be transferred into the spouse!s. name; however, no other heirs
ordescendants of the deceased Dealer maytake overand operatethe dealership
without the express written consent of Suzuki.
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SUZUKle
10.3 Incapacity of Dealer. If the Dealer becomes physically or
mentally incapacitated, Suzuki will allow the Dealer to continue operation of
the dealership if the operation of the dealership and service to Suzuki
customers does not-suffer. If necessary, Suzuki will assist in the transfer or
liquidation of the dealership. Suzuki will act in a reasonable manner under the
circumstances presented to best resolve the problem of the Dealer and Suzuki if
the dealership is being operated in conformance with the terms of this
Agreement
10.4 Divorce or Sepa rate Maintenance. If the owners and/or officers
of the dealership become parties to a lawsuit for divorce or separate
maintenance, Suzuki will be notified immediately. In such event the owner and/or
officer of the dealership will not allow the operation of the dealership to be
transferred to a non-operating spouse or anyone else without the written
approval of Suzuki. Any attempt to establish the non- operating spouse or other
person as an operator of the Suzuki dealership through the divorce or separate
maintenance action without the written consent of Suzuki will be grounds for
termination of this Agreement
Owners and officers of the dealership will cause the contents of this
paragraph to be brought to the attention of the Court in any such divorce or
separate maintenance action.
10.5 Insurance. The dealership is an independent business and the
Dealer is responsible for its actions and conduct; therefore, Dealer shall
maintain continuously in effect at its own expense, insurance against the acts
of omissions of the Dealer or any of its employees, agents, servants, or
contractors in connection with the sale of products or rendering of services by
the Dealer, and for all claims for damage to property, or for injury or death of
any persons directly or indirectly resulting from such acts or omissions. Such
insurance shall include Comprehensive General Liability Insurance and also
Garage Liability Insurance. The Garage Liability Insurance shall include
products and completed operations coverage. All insurance shall be obtained from
insurance companies rated A:XII or better in Bests Insurance Ratings in the form
of a Combined Single Limit Policy in an amount not less than Five Hundred
Thousand Dollars ($500,000.00) for bodily injury and/or property damage.
The property insurance shall include coverage on all Suzuki products
as to all perils included within the classifications of fire, extended coverage,
vandalism, malicious mischief.and special extended perils (All Risk). Such
property insurance shall also cover all Suzuki products on which title and/or
security interests have not passed to Dealer.
The Garage Liability Insurance and insurance for Suzuki productsshall
name Suzuki as an additional insured Dealer shall furnish to Suzuki a
Certificate of Insurance with evidence that premiums therefore have been paid at
leastannually, and the Dealer's insurance company shall be required to provide
ten(l0) day prior written notice to Suzuki in the event of cancellation or any
material change in the policy.
Failure to provide the insurance required herein may be grounds for
termination of this agreement
10.6 Hold Harmless Agreement Dealer acknowledges its responsibility
for proper assembly, set-up, inspection and service work In this regard, Dealer
agrees that for any lawsuit that results from the dealership failing to properly
assemble, set up, inspect and/or service a Suzuki product Dealer will hold
Suzuki harmless from any and all claims of any customer plaintiff, including
attorneys' fees and costs of defense, if Dealer does not accept the tender of
Suzuki's defense, and will indemnify Suzuki to the extent of any such damages,
costs and attorneys fees,
10.7 Construction, Jurisdiction and Severability. This Agreement
shall be construed according to the laws of the State of California. If suit is
brought by either party to enforce the terms hereof, jurisdiction will be in the
Superior Court Orange County, California. If any provisions of this Agreement
should be held invalid or unenforceable for any reason whatsoever, or should
violate any law of the United States~ the District of Columbia or any State or
Territory thereof, this Agreement shall be considered divisible as to such
provisions, and such
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SUZUKle
provisions shall be deemed deleted from this Agreement in such jurisdiction as
if such provisions were not included herein. In the event that any provision of
this Agreement should be held to violate only the laws of the District of
Columbia, or of any State or Territory, the remainder of this Agreement shall be
valid and binding with respect to jurisdictions outside of such District State
or Territory.
10.8 Attorneys' Fees. If Suzuki sues Dealer for lack of performance,
monies due, or for any other reason undertheterms of thisAgreement, Suzuki shall
be entitled to reasonable attorneys' fees as determined byacourt of competent
jurisdiction.
10.9 Only Agreement. This Agreement constitutes the entire and only
Agreement between the parties concerning Suzuki products and service. There are
no understandings between the parties hereto, either oral or written, which are
in conflict with this Agreement
10.10 Vendor-Vendee Relationship. The relationship between Suzuki and
Dealer shall be that of vendor and vendee. Dealer is an independent business and
solely responsible for its own acts, conduct and relations with itscustomers;
and the public~ and is notthe agent or legal representative of Suzuki orSuzuki
MotorCo., Ltd, the manufacturer of Suzuki products, for any purpose whatsoever.
Dealerdoes not have any express or implied right or authority to assume or
create any obligations or responsibilities on be half of or in the name of
Suzuki or Suzuki Motor Co., Ltd. However, during the term of the Agreement,
Dealer is authorized to use the Suzuki trademark and logo "S" in connection with
its business
10.11 Mutual Indemnification. Mutual indemnification between Suzuki
and Dealer shall be as follows:
(1) Indemnification by SuzukiL Subject to the provisions of this
subpargaraph, Suzuki shall indemnify and hold Dealer harmless against
any judgment including settlement against Dealer, plus reasonable
attorneys~ fees and court costs~ resulting from lawsuits commenced
against Dealer by third parties concerning bodily injury or property
damage claimed to have been caused by an alleged defect in the
design, manufacture or assembly of a Suzuki product if the claimed
defect was not detectable by Dealer in a rea sonable inspection of
the product
In the event that any lawsuit making such allegations is
brought naming Dealer as a defendant, Suzuki may, following receipt of notice as
provided in Paragraph 10.11(3), undertake the defense of said action on behalf
of Dealer at Suzuki's sole expense and with counsel of Suzuki's choice.
Suzuki shall have the right to decline to undertake such defense
or, after undertaking the defense, to tender the defense back to Dealer, and
Dealer must accept such tender, if Suzuki reasonably concludes that the
allegations being pursued are no longer those set forth above.
(2) Indemnification by Dealer. Subject to the provisions of this
subparagraph, Dealer shall indemnify and hold Suzuki harmless against
any judgment including settlement against Suzuki, plus reasonable
attorneys' fees and court costs, resulting from lawsuits commenced
against Suzuki by third parties concerning:
(a) Dealer's alleged failure to perform or negligent
performance of (i) the service obligations assumed by
Dealer, or (ii) any maintenance or repair service on
Suzuki products; or (iii) the assembly, set-up and
inspection required of Dealer before delivery of a new
product to a customer, or
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SUZUKI.
(b) Dealers alleged breach of any contract between Dealer
and Dealer's customer, or
(c) Dealer's alleged misleading statements,
misrepresentations, or unfair or deceptive acts or
practices, whether through advertisements or otherwise~
affecting any customer of Dealer.
In the event that any lawsuit making
allegations as set forth in (a) through (c) above is
brought naming Suzuki as a defendant Dealer will,
following receipt of notice as provided in Paragraph 10.
11(3), undertake the defense of said action on behalf of
Suzuki at Dealer's sole expense and with counsel of
Xxxxxx's choice.
Dealer shall have the right to decline to
undertake such defense or, after undertaking the defense
to tender the defense back to Suzuki, and Suzuki must
accept such tender, if Dealer reasonably concludes that
the allegations being pursued are no longer those set
forth in (a) through (c) above
(3) Notification. Whenever a lawsuit is commenced against either
Suzuki or Dealer or both of thern, each shall, within fifteen(l5)
days after service of the complaint notify the other in writing, of
any request toassume its defenseand to indemnify it The
request to assume the defense and to indemnify shall be accepted or
rejected by the party towhich it is made within fifteen(l5) days
following its receipt
11. MISCELLANEOUS.
11.1 Notices. Any notice pursuant to this Agreement must be
personally delivered or sent by Certified Mail to the address of the party shown
on this Agreement All notices to Suzuki must be sent to the attention of the
National Sales Director, Motorcycle Division, AMERICAN SUZUKI MOTOR CORPORATION
in Brea, California. When so delivered such service of notice shall satisfy all
requirements for notice under this agreement
11.2 Amendments. Any modifications or amendments to this Agreement
must be executed in the same manner as the Agreement itself and will become
effective upon publication to the Dealer by Suzuki.
11.3 Effective Date. This Agreement is not valid and binding unless
and until executed by a duly authorized officer of Suzuki, and its effective
date will be the date entered upon the execution hereof by such officer of
Suzuki.
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SUZUKIe
The Dealer understands that this Agreement will have a very sign if
icant impact on its legal rights and liabilities in its relationship with
Xxxxxx. It is important that the Dealer understand the Agreement. Dealer
acknowledges that it has had the opportunity to seek professional assistance
concerning the details of the Agreement
Dealer has thoroughly reviewed all of the terms and provisions of
this Agreement and understands them fully, and xxxxxxxxx voluntarily enters into
this Agreement Dealers signature below acknowledges receipt of a copy of the
Agreement
Made and entered into at Brea, California on the effective date of
this Agreement which is the 19th day of January '19 90
AMERICAN SUZUKI MOTOR CORPORATION
SUZUKI Motorcycle Division
By. Xxxx Xxxxxxxxx Marketing Director
(Name) (Title)
(Signature)
(Dealership Legal Name - Not DBA)
By.
(Sole Proprietor Only Name) (Signature~
or if corporation or partnership
DEALERSHIP By Xxxxx X. Xxxx x /s/
(Officer's or Partners Name) (Signature)
By Xxxxxxx Xxxxxxx x /s/
(Officer's or Partners Name) (Signature)
By ' Xxxxxx X. Xxxxxxx, Xx. x /s/
(Officer's or Partner's Name) (Signature)
bY. Xxxxxx X. Xxxxx x /s/
(Officer's or Partners Name) (Signature)
By Xxxxx X. Xxxx x /s/
(Officer's or Partner's Name) (Signature)
All owners, shareholders, and/or partners must sign.
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SUZUKIs
ATTACHMENT A
The following Suzuki Brand Products are the subject of this Suzuki Products
Dealer Agreement:
1. MOTORCYCLE
2. QUADRUNNER
3.
4.
5.
6.
7.
8.
9.
10.
AMERICAN SUZUKI MOTOR CORPORATION
SUZUKI Motorcycle Division
By. XXXX XXXXXXXXX MARKETING DIRECTOR
(Name) (Title)
/s/ Signature
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128
KAWASAKI AUTHORIZED WATERCRAFT DEALER SALES AND SERVICE AGREEMENT
PARTIES TO AGREEMENT
This Agreement is made by and between KAWASAKI MOTORS CORP. 9 U.S.A., 0000
Xxxxxxxx Xxxx Xxxxxx Xxxxxxxxxx 00000-0000x a Delaware corporation, hereinafter
called "DISTRIBUTOR P" and
Cycle sport unlimited, Inc.
000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000
hereinafter called "DEALER". The purpose of this Agreement is to appoint DEALER
during the continuance of this Agreement as an authorized independent dealer
for Kawasaki brand products as hereinafter designated and to establish the
basic rules which will govern the relationship between DISTRIBUTOR and DEALER.
DURATION OF AGREEMENT
This Agreement shall be in effect from the date of execution by DISTRIBUTOR to
and including December 31, 1993, unless sooner terminated as hereinafter
provided. No act by either party to this Agreement shall be construed as an
extension or renewal of this Agreement except renewals or extensions in writing
and signed by both parties.
GRANTING OF DEALERSHIP
A. DISTRIBUTOR hereby grants to DEALER, during the continuance of this
Agreement, the non-exclusive privilege of purchasing for DEALER'S own account
for resale to retail purchasers solely at DEALER'S place of business in the
city and at the address indicated above those Kawasaki brand power products
specified in Appendix "A" to this Agreement and related parts and accessories
hereinafter collectively called "Products") which are supplied by DISTRIBUTOR.
No obligation exists on the part of DISTRIBUTOR to sell any other Kawasaki
products to DEALER.
B. DEALER will not move its place of business to any new or different location
than that specified in Paragraph 1, or establish any additional place or places
of business for the sale servicing or display of Products without the prior
written consent of DISTRIBUTOR.
C. DEALER will not establish, directly or indirectly, an associate dealer or a
sub-dealer for the sale or service of new or used Products or permit someone
else to act on DEALER'S behalf or perform DEALER'S obligations under this
Agreement in connection with the sale or service of new or used Products
without the prior written consent of an executive officer of DISTRIBUTOR.
AREA OF PRIMARY RESPONSIBILITY
A. DISTRIBUTOR and DEALER agree that DEALER'S area of primary responsibility
for the sales and service of the Products shall be a five (5) mile radius of
DEALER'S place of business as specified in this Agreement.
B. DISTRIBUTOR reserves the unrestricted right to sell the Products and grant
the privilege of using the name Kawasaki and the Kawasaki trademarks to other
dealers or persons whether located in DEALER'S area of primary responsibility
or elsewhere.
SALES PERFORMANCE
DEALER agrees, at its own cost and expense, to use its best efforts and due
diligence to energetically and aggressively develop and promote the sale of
Products including each model and type thereof. DEALER and DISTRIBUTOR agree
that DISTRIBUTOR shall evaluate DEALER'S development and promotion of the sale
of Products both as a whole and separately for each model and type based on
such reasonable criteria as DISTRIBUTOR may determine from time to time which
may include but not be limited to: (a) fair and reasonable sales objectives
which may be established from time to time by DISTRIBUTOR for DEALER after
review with DEALER$ (b) the ratio of sales of Products by DEALER to sales of
other makes of similar products as compared with (i) such ratio on a local,
state, and/or nationwide bases, (ii) the average ratio for all Kawasaki dealers
appointed by DISTRIBUTOR, and (iii) such ratios for at least two other
comparable Kawasaki dealers; (c) the development of DEALER'S sales performance
over a reasonable period of time; and (d) particular conditions in DEALER'S
areas of primary responsibility if any, affecting such performance or potential
sales performance.
OWNERSHIP AND MANAGEMENT
To induce DISTRIBUTOR to enter into this Agreement. DEALER represents that the
persons identified in Appendix "B" to this Agreement, are all of the owners and
persons executing managerial authority on behalf of DEALER. DISTRIBUTOR is
entering into this Agreement in reliance upon these representations. DEALER
agrees there will be no change in DEALER'S owners or general managers without
DISTRIBUTOR'S prior written consent.
Prices TERMS AND CONDITIONS
A. DISTRIBUTOR shall invoice Products sold to DEALER under this Agreement at
prices and on terms and conditions established by DISTRIBUTOR and that are
current at the time of shipment to DEALER. Prices, terms and conditions of sale
may be changed by DISTRIBUTOR from time to time without prior notice or
liability from DISTRIBUTOR to DEALER. Unless otherwise expressly stated by
DISTRIBUTOR., said prices to DEALER do not include sales use, excise, or
similar taxes. DEALER warrants that all Products purchased from DISTRIBUTOR are
purchased for resale only in the ordinary course of DEALER'S business and that
DEALER has complied with all pertinent state and local laws pertaining to the
collection and payment by DEALER of all sales, use and like taxes applicable to
such resale transactions.
B. If DEALER is delinquent in payment of any indebtedness or obligation to
DISTRIBUTOR or fails to execute and return any security documents requested by
DISTRIBUTOR, or if DEALER is in default with respect to any provisions of this
Agreement then DISTRIBUTOR at its sole discretion and in addition to any other
rights and remedies it may have under this Agreement or at law, may without
further notice suspend all pending orders and shipments until said delinquency
is cured or said security documents are received or until said default is
cured, as the case may be.
C. DEALER agrees that DISTRIBUTOR may apply toward the payment of any
indebtedness due DISTRIBUTOR by DEALER, whether under this Agreement or
otherwise, any credit owing to DEALER by DISTRIBUTOR.
129
SECURITY AGREEMENT
Dealer shall execute a security agreement granting DISTRIBUTOR and/or its
designee a security interest in the Products. The security agreement shall not
cause DISTRIBUTOR to retain or obtain any interest in the Products other than a
security interest, and it shall not cause DISTRIBUTOR to retain or obtain title
to the Products for any purpose other than taking the security interest
provided for in the security agreement. To the extent permitted by law, DEALER
hereby authorizes DISTRIBUTOR to execute and deliver on behalf of DEALER and
file without DEALER'S signature all financing statements or other instruments
which DISTRIBUTOR deems necessary to effect the security interest provided for
in the security agreement.
SHIPMENT OF PRODUCTS
A. DISTRIBUTOR shall ship Products purchased by DEALER during the duration of
this Agreement by whatever mode of transportation DISTRIBUTOR shall select from
whatever geographic point DISTRIBUTOR may from time to time establish. All
shipments of Products shall be at DEALER'S risk and DEALER shall be responsible
for and shall pay any and all transportation and/or handling charges resulting
from shipment of Products to DEALER, unless otherwise specified in writing by
DISTRIBUTOR. B. DISTRIBUTOR will endeavor as far as practical to make
deliveries to DEALER in accordance with DEALER'S orders, but if for any cause
DISTRIBUTOR fails to make deliveries within the time stated in the order, or
cancels any of such orders, DISTRIBUTOR will not be liable to DEALER for any
payment whatsoever by reason of such failure to deliver, delays in making
deliveries or cancellation, nor for any loss of profits resulting directly or
indirectly therefrom. C. In the event that DEALER should fail or refuse, for
any reason whatsoever, to accept delivery of any Product ordered by DEALER,
DEALER will pay DISTRIBUTOR the amount of all expenses incurred by DISTRIBUTOR
in shipping such Product to DEALER and in returning it to the original point of
shipment or directing it to another destination. DEALER shall also be
responsible for and will pay any and all charges for demurrage, storage, or
other expenses accruing as a result of DEALER's failure or refusal to accept
delivery. The liability of DEALER pursuant to this clause will be in addition
to, and not in lieu of, such other liabilities as may arise from DEALER'S
failure or refusal to accept delivery.
DISCONTINUANCE OR UNAVAILABILITY OF PRODUCTS
A. DISTRIBUTOR reserves for itself, and where applicable for the manufacturer,
the right to discontinue the manufacture or sale of any of the Products or to
make changes in design, color or appearance or to add improvements to
particular Products at any time, all without notice to DEALER and without
incurring arty obligation to DEALER either with respect to any Products
previously ordered or purchased by DEALER or otherwise.
B. In the event of a Product shortage or Product introduction, DISTRIBUTOR
shall have the right to allocate or apportion said available Product or
Products among its customers as DISTRIBUTORP in the exercise of its discretion,
deems appropriate.
EQUAL REPRESENTATION
In the event DEALER sells other brands or lines of products which are
competitive with those Products purchased by DEALER from DISTRIBUTOR, DEALER
agrees to provide the Products with at least an equal representation to that
provided other competitive brands or lines.
DEALER BUSINESS FACILITIES
A. DEALER agrees to establish, staff, equip and maintain a salesroom and
service facility for the Products which will provide a first-class display of
the full line of Products and provide adequate service for the retail customer.
Each such facility will comply with reasonable written layout, appearance and
size standards established by DISTRIBUTOR from time to time. DEALER understands
that DISTRIBUTOR shall evaluate DEALER'S compliance with such standard in
determining its performance under this Agreement.
B. In carrying out its obligations under this Agreement, DEALER agrees to
maintain posted opening and closing hours, which business hours shall not be
less than that which is customary for similar business establishments in
DEALER'S area of primary responsibility.
DEALER IDENTIFICATION
DEALER shall, in the event it has not already done so, purchase, erect and
maintain at DEALER'S expense an illuminated outdoor sign, or other sign
approved by DISTRIBUTOR, identifying the Products in a conspicuous. location
outside DEALER'S salesroom and service facilities, provided the erection
thereof is not prohibited by law. DEALER shall further erect and maintain
during the term of this Agreement such other authorized Product and service
signs and identification as are necessary to properly advertise DEALER'S
capital business on a basis mutually satisfactory to both DISTRIBUTOR and
DEALER. DEALER agrees to place and maintain on the business premises signs and
other means of notification to the public that DEALER is an independent
business person, separate and distinct from Distributor.
FINANCIAL RESPONSIBILITY
A. DEALER shall at all times maintain and employ, in connection with its
business and operations under this Agreement, such working capital and not
worth together with a line of credit with a financing institution satisfactory
to DISTRIBUTOR which will permit DEALER to properly and fully carry out and
perform DEALER'S duties and obligations under this Agreement, including an
inventory of Products commensurate with annually set objectives established by
DISTRIBUTOR and DEALER. Such working capital, net worth and/or line of credit
shall be of amounts not less than minimum standards established by DISTRIBUTOR
from time to time for dealers similarly situated.
B. DEALER shall at all times maintain insurance coverage reasonably required by
dealers in such xxxxxxxx0 including, without limitation, general liability,
property damage, and products liability to adequately protect DEALER from loss
resulting from the assembly, sale, service or repair of the Products or arising
out of any acts or omissions of the DEALER.
MODEL INVENTORY
Subject to the ability of DISTRIBUTOR to supply, DEALER agrees to purchase from
DISTRIBUTOR and at all times maintain an inventory of then available models of
Products, which inventory shall at no time be less than the number of Products
reasonably established by Distributor after consultation with DEALER.
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16. SERVICE PARTS
Xxxxxx agrees to organize and maintain a complete parts department, including a
qualified parts manager. DEALER at all times will keep in DEALER'S place of
business an inventory of service parts of an assortment and in quantities that
in DISTRIBUTOR'S judgment is necessary to meet the current anticipated
requirements of owners of Kawasaki Products. DEALER agrees that it will not
sell or offer for sale or use in the repair of any Products, as a genuine new
Kawasaki part, any part that is not in fact a genuine new Kawasaki part.
7. EMPLOYEE TRAINING
DEALER will participate in and will make available to its employees training
courses, service schools, sales and management seminars and personnel
development programs as may be provided from time to time by DISTRIBUTOR.
DEALER agrees to have in its employ at all times during the continuance of this
Agreement at least one fully trained mechanic who has attended current service
training schools provided by DISTRIBUTOR.
18. REPORTS AND FINANCIAL INFORMATION
DEALER will provide DISTRIBUTOR, by the 30th day of the month following the end
of DEALER'S calendar or fiscal business year, a complete and accurate financial
and operating statement covering DEALER'S preceding calendar or fiscal year
operations and showing the true and accurate conditions of DEALER'S business.
DEALER further agrees to furnish to DISTRIBUTOR, at the time and on the forms
prescribed by DISTRIBUTOR, such other completes accurate and true statements of
the financial condition and operating results of DEALER'S business as
DISTRIBUTOR may request. DEALER will also furnish to DISTRIBUTOR, on such forms
and at such times as DISTRIBUTOR reasonably may require, complete and accurate
reports of DEALER'S sales activity and stock of Products then being held by
DEALER.
19. ADVERTISING AND TRADE PRACTICES
A. DEALER agrees to develop, utilize and participate in various advertising and
sales promotion programs in fulfilling its responsibilities for selling,
promoting and advertising the Products. In so doings DEALER agrees to (a)
maintain a display advertising listing in the Yellow Pages of the principal
telephone directory in its marketing area and in a form approved by
DISTRIBUTOR; (b) make reasonable use of newspapers direct mail* televisions
radio or other appropriate advertising media as suggested by DISTRIBUTOR; 1c)
participate to the greatest extent feasible in advertising or sales promotion
programs offered from time to time by DISTRIBUTOR and in accordance with the
applicable provisions and rules thereof; and (d) make every reasonable effort
to build and maintain customer interest in activities involving Products and
confidence in DEALERP DISTRIBUTOR and the Products.
B. To assist DEALER in fulfilling his advertising and promotion
responsibilities DISTRIBUTOR may develop and offer from time to time various
advertising and sales promotion programs to promote the sale of Products for
the mutual benefit of DISTRIBUTOR and DEALER. DISTRIBUTOR may also offer DEALER
from time to time advertising and sales promotion materials without charge or
for purchase by DEALER at DISTRIBUTOR'S discretion. XXXXXX agrees to pay
promptly for any such materials.
C. DEALER agrees to at all times conduct its business in a manner that will
reflect favorably on the good name and reputation of the Products and on
DISTRIBUTOR. DEALER expressly recognizes its obligation to avoid in every way
any discourteous deceptive, misleading or unethical practice or advertising
that is or might be detrimental to the Products, DISTRIBUTORP or the public.
DEALER agrees when notified by DISTRIBUTOR of such objections, to immediately
discontinue such practice or advertising.
20. PRE-DELIVERY SERVICE
DEALER expressly recognizes its obligation to effectively assemble, inspect,
service and/or prepare Products in accordance with schedules or instructions
furnished from time to time by DISTRIBUTOR before delivery to the retail
purchaser by DEALER. DEALER agrees to uncrate, set up, inspect and test each
new Kawasaki brand power Product at DEALER'S place of business as specified in
this Agreements prior to delivery to the retail purchaser, in accordance with
the written instructions furnished from time to time by DISTRIBUTOR. DEALER
agrees to make all necessary repairs to such power Products and agrees that
each such power Product will be received directly by the retail purchaser at
DEALER'S place of business in safe and lawful operating condition. The
pre-delivery service obligations set forth in this paragraph shall not apply to
power Products sold by DEALER to other currently authorized Kawasaki dealers.
Upon requests DEALER will furnish evidence to DISTRIBUTOR of the performance of
such pre-delivery services on forms prescribed by DISTRIBUTOR. DEALER will
report promptly, in writings, to DISTRIBUTOR'S Chief Executive Officer any act
or failure to act on the part of DISTRIBUTOR or any of its personnel which
DEALER believes was not any and equitable towards it in the establishment or
performance of pre-delivery obligations or which results in unfair or
unreasonable compensation to DEALER for the performance of preparation and
delivery obligations imposed by DISTRIBUTOR.
21. REPAIR AND MAINTENANCE SERVICE
A. DEALER expressly recognizes its obligation to obtain necessary tools and to
effectively perform repair or maintenance services required on Products in
accordance with DISTRIBUTOR'S current recommendations and specifications.
B. DEALER shall develop and maintain competent qualified and efficient service
mechanics for the service and repair of the Products and shall employ said
persons in DEALER'S service and repair facilities. DEALER shall not use service
or repair facilities or personnel other than its own in connection with the
service and repair of the Products without the prior written consent of an
executive officer of DISTRIBUTOR.
C. DEALER shall give due consideration and maintain copies of bulletins which
may from time to time be issued by DISTRIBUTOR pertaining to the service or the
use or operation of the Products, and to the maintenance of requisite tools to
perform service work on the Products.
D. DEALER shall perform all Product services under this Agreement, including
pre-delivery, warranty and recall service, as an independent contractor. XXXXXX
agrees to post his labor rates in a conspicuous manner so that they are plainly
visible to his service customers. Service provided by DEALER shall include only
those services which are specifically requested by the customer or those
services discussed in advance by the DEALER with the customers as being
required.
131
22. WARRANTY
A. DISTRIBUTOR makes no representations or warranties, express or implied, with
respect to the Products either for itself or for the manufacturer except as may
be provided in a standard written or printed warranty offered to the retail
purchaser with respect to one or more of the Products from time to time. THE
FOREGOING IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXCEPT TITLE,
WHETHER EXPRESS OR IMPLIED, AND DISTRIBUTOR MAKES NO WARRANTY OF
MERCHANTABILITY OR FITNESS FOR PURPOSE TO DEALER. THE FULFILLING OF THE TERMS
OF THE PRINTED WARRANTY SHALL CONSTITUTE THE SOLE REMEDY OF DEALER AND THE SOLE
LIABILITY OF DISTRIBUTOR, WHETHER ON Warranty CONTRACT OR NEGLIGENCE.
B. DEALER expressly recognizes its obligation to effectively perform warranty
work on Products whether delivered by DEALER or by another authorized dealer
and to fulfill the conditions of the warranty as applicable to particular
Products where indicated without charge to the retail purchaser. Within three
(3) business days after delivery of a new power Product to a retail purchaser,
DEALER shall complete and send to DISTRIBUTOR a true and complete sales
warranty registration report on such Product in a manner then prescribed by
DISTRIBUTOR, including the name and address of the owner. DISTRIBUTOR may
utilize the information provided by the DEALER for purposes of establishing
warranty protection, providing essential information in the event of a recall
of a Product, and/or to provide DISTRIBUTOR with useful marketing information.
C. DEALER will report promptly, in writing, to DISTRIBUTOR'S Chief Executive
Officer, any act or failure to act on the part of Distributor's any of its
personnel which DEALER believes was not fair and equitable towards it in the
performance of warranty obligations or which resulted in DEALER not receiving
reasonable and adequate compensation for warranty labor and parts provided by
DEALER.
D. DEALER shall process and dispose of warranty claims on the Products in
accordance with the procedure which may be prescribed from time to time by
DISTRIBUTOR, and DISTRIBUTOR shall have no obligation to recognize any warranty
claims unless the prescribed procedure is complied with by DEALER. In support
of DEALER'S claim for warranty compensation DEALER agrees to provide
DISTRIBUTOR with such supportive documents as DISTRIBUTOR may request.
E. DEALER expressly warrants that should any of the Products be modified by
DEALER or at DEALER'S requests DEALER will attach to the Product prior to
retail sale a conspicuous statement which will clearly disclose the extent or
nature of the modification and the resultant warranty coverage, if any2 which
will then apply to the Products.
F. Dealer expressly acknowledges that DEALER is performing warranty work on the
Products as an independent contractor and is compensated for such services
separate and apart from the purchase price of the Products.
23. KAWASAKI TRADEMARKS AND TRADE NAMES
DISTRIBUTOR and its related companies are exclusively entitled to the use of
the trademark "Kawasaki" and to the use of all trade names and trademarks used
in connection with the Products and the goodwill attached thereto in the United
States of America (hereinafter collectively called the "Marks"). DISTRIBUTOR
grants to DEALER the non-exclusive permission to advertise and otherwise inform
the general public of the fact that DEALER sells the Products and is a
"Kawasaki Dealer" at the location specified in Paragraph 1 of this Agreement,
including the use of outdoor signs signs on buildings and other means of
identification for such specified location. DEALER will not use, or permit the
use of the Marks either as part of any corporate title firm name or trade name
unless DISTRIBUTOR shall first consent thereto in writing. on termination of
this Agreement, DEALER agrees to immediately discontinue all use of the Marks
and other means of identification that might make it appear or imply that
DEALER is still an authorized representative of the Products including, without
limitation, removal of any listing in any telephone directory, display
advertising or outdoor sign. DISTRIBUTOR shall have the right, but not the
obligation, to acquire any or all such signs in possession of DEALER an date of
termination at a price that is not in excess of the price, if any, originally
paid by DEALER. DEALER further agrees to discontinue any use of the Marks or
any semblance of same as a part of its business or corporate name any if
appropriate, file a change or discontinuance of such name with the appropriate
authorities. In the event DEALER fails to comply with the terms and conditions
of this Paragraph DISTRIBUTOR shall have the right to enter upon DEALER'S
premises and remove all such signs bearing the Kawasaki designation or Marks
without liability of DISTRIBUTOR to DEALER. DEALER agrees to reimburse
DISTRIBUTOR for all costs and expenses, including attorneys' fees incurred by
DISTRIBUTOR in effecting or enforcing compliance with this Paragraph. The
provisions of this Paragraph shall survive after termination of this Agreement.
24. INDEPENDENT PERSON
DEALER is an independent business person and the conduct of its business is
within the sole discretion of DEALER. This Agreement does not create the
relationship of principal and agent, master and servant, or employer and
employee between DISTRIBUTOR and DEALER. Nothing herein contained shall be
construed or interpreted to grant any authority to DEALER to commit or bind
DISTRIBUTOR in any manner to any person. DEALER shall be solely responsible for
all the acts and omissions of DEALER* its agents and employees. This Agreement
is not intended to govern, control or manage the day-to-day business activities
of DEALER. DEALER agrees to defend, indemnify and save DISTRIBUTOR and its
suppliers harmless from any claim, demand, damage, liability, cost or expense,
including attorneys' fees and expenses, arising out of any acts or omissions of
DEALER, its agents or employees.
25. SALE OF DEALER'S BUSINESS
A. DEALER may not sell, transfer or assign the whole or any part of DEALER'S
rights or obligations under this Agreement, without DISTRIBUTOR'S prior written
consent. DEALER shall give DISTRIBUTOR at least thirty (30) days' prior written
notice of any such proposed sale, transfer or assignment. DISTRIBUTOR'S failure
to object to the proposed sale, transfer, or assignment following notice from
DEALER shall not constitute DISTRIBUTOR'S consent.
B. Provided that this Agreement is still in effect, and provided further that
notice of termination or notice of nonrenewal has not been provided to DEALER
and is not then in effect between DEALER and DISTRIBUTOR, DISTRIBUTOR agrees to
not unreasonably refuse to enter into a new Sales and Service Agreement for the
remainder of the term provided in Paragraph 2 of this Agreement with a person
contracting to purchase DEALER'S business as pertains to the Products, provided
that said purchaser as of the date of sale meets all then current requirements
established by DISTRIBUTOR for the appointment of new dealers.
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26. EARLY TERMINATION OF AGREEMENT
A. This Agreement may be terminated at any time without notice by mutual
consent of DEALER and DISTRIBUTOR.
B. Either party may terminate this Agreement prior to the expiration date
provided in Paragraph 2 hereof, without cause, on a minimum of sixty (60) days'
prior written notice from one party to the other. If applicable State law
should require notice of termination of a fixed period of time greater than
that provided by this Agreement for a stated reason, then such required notice
in the form prescribed shall be given by the terminating party.
C. DISTRIBUTOR may immediately terminate this Agreement by written notice given
to DEALER in the event of any of the following: (1) death, incapacity, removal
or resignation of DEALER or any person in the employment thereof and in
reliance upon whom this Agreement was entered into by DISTRIBUTOR$ (2) any sale
or transfer of any substantial interest in the managerial control and/or
ownership of DEALER without DISTRIBUTOR'S prior written consent (3) an
unauthorized change made by DEALER in the location of DEALER'S place of
business as specified in this Agreement or the addition of any place of
business for Products (4) discontinuance of the operation of DEALER'S business
for a period of five (5) consecutive days, unless such discontinuance is the
result of a natural disaster; 15) the appointment of an assignee, referee,
receivers or trustee for DEALER or upon its adjudication in bankruptcy or the
liquidation of DEALER; (6) any dispute, disagreement or controversy between. or
among partners, managers, officers, or shareholders of DEALER which, in the
opinion of DISTRIBUTOR, adversely affects the operation management or business
of DEALER or DISTRIBUTOR and is not resolved within thirty (30) days after
notice is given to DEALER by DISTRIBUTOR~ (7) submission by DEALER to
DISTRIBUTOR of a fraudulent report, statement or claim for reimbursement,
refund or credit or falsification of warranty claim or registration or of
DEALER'S retail labor rate or providing of fraudulent financial information;
(a) submission to DISTRIBUTOR or a customer of DEALER of false or fraudulent
statements relating to pro-delivery preparation testing, servicing repairing or
maintenance of the Products; (9) failure by DEALER to conduct his business in
compliance with any of the provisions of this Agreement; (10) failure to
maintain DEALER'S account on a current basis and in accordance with
DISTRIBUTORS terms and conditions of sale; (11) sale of Products by DEALER
which are subject to a flooring or other financing agreement without prompt
payment on sale as required by the terms and conditions of the flooring or
financing arrangement; (12) failure by DEALER, within five (5) days following
notification by DISTRIBUTOR, to replace with cash or cashier's check any check
provided DISTRIBUTOR by DEALER which has been returned from the bank on which
the check was drawn without payment to DISTRIBUTOR; (13) conviction in any
court of competent jurisdiction of DEALER, or any principal officer or manager
of DEALER, of any crime tending to affect adversely the ownership operation
management business or interest of the DEALER or Distributor or (14) failure of
DEALER to obtain or maintain any license required by law.
D. The date of notice of termination shall be the date of mailing of such
notice. If any period of notice of termination required hereunder is less than
that required by applicable laws, such period of notice shall be increased and
be deemed to be the minimum period required by such laws.
27. PROCEDURE ON TERMINATION
A. Upon termination or expiration and nonrenewal of this Agreement, DEALER will
immediately pay to DISTRIBUTOR all sums owing from DEALER to DISTRIBUTOR. Any
amount due DISTRIBUTOR by DEALER may be deducted from credits owing DEALER.
B. In the event of early termination or expiration and nonrenewal of this
Agreement, DISTRIBUTOR shall continue to fill orders from DEALER for such
Products as may be affected by the termination or nonrenewal up to the
specified termination or expiration date. DISTRIBUTOR shall have the right to
impose reasonable limitations on such orders for such Products during the
notice period. on the specified date of termination or expiration, all unfilled
orders for such Products will be automatically cancelled. Payment terms for
such Products supplied by DISTRIBUTOR to DEALER after notice of intention to
terminate or upon expiration and nonrenewal may be changed to cash, certified
check or other terms determined by DISTRIBUTOR.
C. After the effective date of the termination of this Agreement, the
acceptance of orders from DEALER by DISTRIBUTOR, or the continuation of the
sale by DEALER of Products, or the referring of inquiries to DEALER by
DISTRIBUTOR, or any business relations either party has with the other will not
be construed as a renewal of this Agreement nor a waiver of the termination. If
DISTRIBUTOR accepts any orders from DEALER after termination of this Agreement,
all such transactions will be governed, unless the contrary intention appears,
by the terms of this Agreement applicable to such transactions.
28 FINANCING AND REPOSSESSION OF PRODUCTS
A. Should DEALER enter into an agreement for the flooring of power Products
with DISTRIBUTOR and should DEALER fail to make payments thereunder when due,
or should DEALER fail to pay or have paid on its behalf any C.O.D. charges or
bill bank terms when due or presented for payment by DISTRIBUTOR, or should
DEALER fail to pay DISTRIBUTOR for any parts and/or accessories charges
incurred by DEALER when due, DISTRIBUTOR, in addition to other remedies at law
or in equity, may assess late charges against DEALER for any of such failures
in such amounts and in such a manner as DISTRIBUTOR may have in effect at the
time of such nonpayment.
B. If DISTRIBUTOR or any flooring or financial institution or agency shall
repossess or otherwise acquire any new Kawasaki brand power Products from or
through DEALER, and DISTRIBUTOR shall repurchase such power Products either
voluntarily or pursuant, to a repurchase agreement, then DEALER (i) shall pay
any cost of repairs or replacement required to place any damaged or
deteriorated units in a new and original condition, (ii) shall pay any
transportation charges incurred by DISTRIBUTOR and/or any flooring or financial
institution or agency in repossessing such power Products, (iii) shall pay any
restocking or handling charge in effect by DISTRIBUTOR at time of repurchase or
repossession, and (iv) shall pay any other sums which might be incurred by
DISTRIBUTOR and/or the flooring or financing institution or agency in the
repurchase or repossession of such power Products.
C. Should DEALER participate in a "flooring support" program (either provided
directly by DISTRIBUTOR or interest charges paid in whole or in part by
DISTRIBUTOR to a flooring source on behalf of DEALER) for certain power
Products and should such power Products thereafter be repossessed or otherwise
acquired by DISTRIBUTOR or the flooring source, DISTRIBUTOR shall be entitled
to receive from DEALER an amount equal to the interest and other charges paid
or incurred by DISTRIBUTOR on behalf of DEALER as flooring support for such
power Products.
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29. COMPLIANCE WITH SAFETY AND REGULATORY REQUIREMENTS
A. DEALER agrees to comply with and operate consistently with all applicable
federal state and local Product safety and regulatory requirements.
B. In the event that the laws of the state in which DEALER is located require
watercraft dealers to install in new or used Products, prior to the retail sale
thereof, any safety devices or other equipment not installed or supplied as
standard equipment by DISTRIBUTOR or Kawasaki, then DEALER* prior to its sale
of any such Kawasaki Products, shall properly install such equipment.
30. DEALER SAFETY OBLIGATIONS
DEALER hereby agrees to adopt, promote and implement safety programs developed
and provided by DISTRIBUTOR upon written notification from DISTRIBUTOR. DEALER
agrees to place and display safety notices and warnings and proper user
information labels on Kawasaki Products and in the dealership as appropriate,
and to adhere to established user recommendations and restrictions on the sale
of Kawasaki Products as directed by DISTRIBUTOR. DEALER agrees to promote and
require safety awareness and training for purchasers and users of Kawasaki
Products in accordance with programs and materials developed or provided by
DISTRIBUTOR upon written notification by DISTRIBUTOR.
DEALER agrees to provide to customers safety notices and warnings and other
safety awareness materials prepared or provided by DISTRIBUTOR, and/or which
may from time to time be developed and provided by industry and/or safety
associations, regarding use of Kawasaki Products. DEALER agrees to require the
reading or viewing of such safety awareness materials by the customer in
conjunction with the sale of a Kawasaki Product as specified in writing by
DISTRIBUTOR.
DEALER agrees that violation of its safety obligations described in this
Paragraph constitutes grounds for DISTRIBUTOR action under Paragraphs 7.B and
26.C19) of the Agreement. DISTRIBUTOR retains the right, through written
notification, to amend the "DEALER SAFETY OBLIGATIONS" specified in this
Paragraph and to add such other Dealer Safety Obligations as may be necessary
or advisable.
31. XXXXXX'S SUCCESSOR ON DEATH OR INCAPACITY
Upon termination of this Agreement because of death or incapacity of the
principal of DEALER, DISTRIBUTOR will offer to a nominated successor of the
principal of DEALER acceptable to DISTRIBUTOR, or to spouse of the principal of
DEALER, continuation of this Agreement for the duration of the Agreement as
provided in Paragraph 2 hereof provided that:
(i) DEALER, within fifteen (15) days of the occurrence of such death or
incapacity, gives notice to DISTRIBUTOR of such occurrence and the name and
qualifications of the DEALER'S successor)
(ii) The facilities and capital of the dealership are then satisfactory in the
option of DISTRIBUTOR; and,
(iii) The person to whom the continuation of the Agreement is offered provides
written notice to DISTRIBUTOR of acceptance within fifteen (15) days from the
extension of the offer by DISTRIBUTOR.
32. DISPUTE RESOLUTION
All controversies claims and disputes arising in connection with this
Agreement, except any controversies, claims and disputes relating to amounts
due and unpaid to DISTRIBUTOR, relating to DISTRIBUTOR'S rights to retake
possession of any Product or relating to third party personal injury, shall be
settled by mutual consultation between the parties in good faith as promptly as
possible, but failing an amicable settlement shall be settled finally by
arbitration in accordance with the provisions of this Section 32. Such
arbitration shall be conducted in Los Angeles, California, in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and
the parties hereto agree that such arbitration shall be the sole and exclusive
method of resolving any and all such controversies, claims or disputes, except
those expressly excluded above. Judgement upon such award may be entered in the
Superior Court of the State of California for the County of Orange if the award
is rendered against DISTRIBUTOR, or in any court which has jurisdiction over
DEALER, if the award is rendered against DEALER. The prevailing party shall be
entitled to recover from the nonprevailing party all costs and expenses of the
arbitration including without limitation, attorneys' fees.
33. SERVICE OF NOTICE Any notice which may be required to be served by DEALER on
DISTRIBUTOR, or by DISTRIBUTOR on DEALER* shall be in writing and may be made
by personal delivery or sent by certified or registered mail, return-receipt
requested, addressed to the party for whom intended at its last known address.
Each party will promptly advise the other, in writing, of any change of
address.
34. GENERAL PROVISIONS
DEALER agrees that it neither has nor may acquire by performance under the
terms and provisions of this Agreement, any vested right in the sales and
service responsibility assigned to it hereunder and any investments made by
DEALER in the performance hereof are made with the knowledge that this
Agreement may expire and not be renewed or be terminated as herein provided.
Except for any separate documents relating to DISTRIBUTOR'S security in and to
the Products, this Agreement is the entire agreement between the parties and
terminates and supersedes all prior agreements, verbal or written, between the
parties. Neither trade usage nor course of dealing shall serve to modify, amend
or change this Agreement. This Agreement may be altered or amended in writing
only and must be signed by an executive officer o-f DISTRIBUTOR. Both parties
shall be excused from nonperformance in the case of FORCE MAJEURE or other
causes beyond the control of the parties. The paragraph headings contained
herein are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. It is understood that this is a general form
of agreement designated for use in any state. Should any provision of this
Agreement or the application thereof to any particular person or circumstance
be contrary to or prohibited by applicable laws or regulations, such provision
shall be inapplicable and deemed omitted and the remaining provisions of this
Agreement will be valid and binding and of like effect as though such
provisions were not included herein. DISTRIBUTOR has a right to amend, modify
or change this Agreement in case of legislation, government regulation or
changes in circumstances beyond the control of DISTRIBUTOR that might affect
materially the relationship between DISTRIBUTOR and DEALER. This Agreement and
the rights and obligations arising thereunder shall be governed by and
construed according to the laws of the State of California.
134
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate the
day and year hereinafter written.
DEALER DIS OR
Signature: /s/ XXXXX XXXX Signature: /s/ [illegible]
Position/Title: PRES.
Signature:
Position/Title: Position/
Dated: 4/27/93 Dated 4/30/93
Circle One: CORPORATION PARTNERSHIP INDIVIDUAL
This Agreement shall be executed on behalf of DEALER by the owner in case of a
sole proprietorship, by a general partner in case of a partnership or by a duly
authorized officer in case of a corporation, showing position or title of
person signing.
135
RECEIVF-D
APR 2 5 1997
DEALER SERVICES
ADDENDUM TO
KAWASAKI AUTHORIZED
DEALER SALES AND SERVICE AGREEMENT
This Addendum is made this 30th day of December 1996 to the Kawasaki Authorized
Dealer Sales and Service Agreement ("the Agreement").
The duration under Paragraph 2 of the current Agreement is extended to and
including December 31, 1999.
If DEALER is a limited liability company, all references in the Agreement to
partners, managers, officers or shareholders shall also include "members."
All other provisions of the Agreement remain unchanged.
IN WITNESS WHEREOF, the parties have executed this Addendum in duplicate the
day and year above written.
DEALER DISTRIEBUTOR
CYCLE SPORT UNLIMITED, INC. 0653 KAWASAKI MOTORS CORP., U.S.A.
000 XXXXX XX.
HERNDON, VA 220N
Signature: /s/ XXXXX XXXX Signature: /s/ (illegible)
Position/Title: President
Signature:
Position/Title: Position/Title: REGIONAL SALES MANAGER
Dated: December 30, 1996 Dated: 4-22-97
Circle One: CORPORATION Limited Liability Company Partnership Individual
This Addendum shall be executed on behalf of DEALER by the owner in case of a
sole proprietorship, by a general partner in case of a partnership, by a duly
authorized officer in case of a corporation, or by a duly authorized member in
case of a limited liability company, showing position or title of person
signing.
.0653
136
Triumph Motorcycles America Limited
000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxx, Xxxxxxx 00000
Authorized Dealership Agreement
TRIUMPH AUTHORIZED DEALERSHIP AGREEMENT
THIS AUTHORIZED DEALERSHIP AGREEMENT ("Agreement") is made and entered
into as of the 11 day of October by and between Triumph Motorcycles (America)
Limited, a Georgia corporation ("Triumph"), and Cycle Sport Unlimited, Inc.,
whose legal form and domicile are described more particularly on the Appendix
hereto ("Dealer").
BACKGROUND
A. Triumph is the owner of exclusive United States importation,
distribution and trademark rights with respect to "Triumph" brand motorcycles
manufactured by Triumph Motorcycles Limited ("Triumph UK"), a United Kingdom
limited company and principal owner of Triumph, as well as certain related
parts and accessories for Triumph motorcycles.
B. Triumph desires to appoint Dealer as an authorized dealer for the
resale of certain "Triumph" products at Dealer's Approved Location as described
below.
C. Dealer wishes to act as an authorized dealer for certain Triumph
products in accordance with the terms and conditions of this Agreement and the
sales policies which Triumph may establish from time to time.
AGREEMENT
In consideration of the mutual obligations contained herein and other
consideration, the receipt and sufficiency of which is acknowledged, the
parties agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following words and terms shal.1
have the meanings described below:
1.1 The term "Approved Location" shall mean the address described in the
Appendix here to, or such other location as Triumph may approve from time to
time in accordance with the provisions of this Agreement.
1.2 The term "Products" shall mean Triumph's then-current line of Triumph
motorcycles, Triumph parts and accessories, as the same may be updated,
modified or discontinued by Triumph from time to time in accordance with
Section 2.3 below. A summary description of Triumph's current line of Products
is attached as part of the Appendix hereto.
1.3 The term "Trademarks" shall mean the name "Triumph," the corporate
logotype shown on, the Appendix hereto, as well as any other trademark, service
mark, trade name, design, logo, trade dress, color scheme or similar features
used by Triumph from time to time in conjunction with the marketing and sale of
the Products.
137
2. GRANT OF DEALERSHIP
2.1 Appointment . Subject to the terms and conditions of this Agreement,
Triumph hereby appoints Dealer as an authorized dealer of Products and grants
to Dealer the non-exclusive right to sell Products from the Approved Location,
and Dealer hereby accepts such appointment upon the terms and conditions of
this Agreement. Dealer agrees that it shall purchase Products for resale only
from Triumph and pursuant to the terms of this Agreement.
2.2 No Territorial Exclusivity. Dealer acknowledges that Dealer's rights
as an authorized dealer of the Products are non-exclusive and Triumph retains
and reserves to itself all rights with respect to marketing, distribution and
sale of the Products and the Trademarks. Triumph reserves the right to appoint
other authorized dealers for the Products, either within Dealer's market area
or elsewhere, as Triumph, in its sole discretion, may from time to time
determine in order to implement its marketing plans or as it may deem desirable
to provide Products and service to. owners or potential owners of the Products.
2.3 Reservation of Product Rights. Triumph reserves the right to change
the composition, design or packaging of any Product at any time without notice
to Dealer, or to discontinue particular Product lines from time to time as
Triumph shall deem necessary or appropriate in its sole discretion.
2.4 Approved Location. Dealer is authorized to sell Products only from the
Approved Location. Dealer cannot sell Products from any other location, or move
its place of business for sale of the Products to another location, without the
prior written approval of Triumph.
3. PRODUCT PRICES
3.1 Determination of Price. Products shall be sold to Dealer by Triumph at
such prices as are established by Triumph and communicated to the Dealer from
time to time. Whenever Triumph gives Dealer notice of a price increase for any
of the Products, Dealer shall have the right within ten (10) days after receipt
of such notice from Triumph, to cancel any outstanding orders for any Products
which have not been delivered on the date Triumph receives the cancellation
notice. If the Dealer fails to notify Triumph of cancellation within such ten
(10) day period, such failure to notify shall constitute a confirmation of
Dealer's order for such undelivered Products at the increased price. Unless
otherwise specified by Triumph, all prices shall be F.O.B. Atlanta, Georgia or
such other F. 0. B. point as Triumph may designate from time to time.
3.2 Current Price . Triumph's current price list for the Products is shown
as part of the Appendix hereto.
3.3 Time There wi.11 be added to the price of the Products an amount equal
to any applicable value added, sales, use, excise or other similar taxes
imposed with respect to the sale by Triumph to Dealer of such Products. Dealer
represents that all Products delivered to Dealer shal.1 be purchased by Dealer
for resale in the ordinary course of Dealer's business, other than a reasonable
number of demonstrator products. Dealer shall hold Triumph harmless from any
claims, demands, assessments or penalties which may be made by any taxing
authorities against Triumph with respect to Products purchased by Dealer, and
Xxxxxx agrees to reimburse Triumph for any and all taxes paid by Triumph in
good faith on account of Products sold by Triumph to Dealer.
3.4 Reimbursement for Labor or Material Regarding Similar Delivery
Conditions. In the event that any labor or material is required to be supplied
by Triumph in an effort to comply with any special
Rev. 9/8/94
138
delivery condition(s) requested by Dealer, any and all costs and expenses
incurred by Triumph for such labor or material shall be added to the invoice
price of the Products involved.
4. PAYMENTS FOR PRODUCTS
4.1 Terms of Payment . All Products will be sold to Dealer upon such
payment terms as Triumph may in its sole discretion establish from time to
time. Until further notice from Triumph, the payment terms for Products shall
be as described in the Appendix hereto. Triumph reserves the right to vary
payment terms at any time and from time to time upon written notice to Dealer.
Without limiting the generality of the foregoing, Triumph may require, in its
sole discretion and at any time, cash payment or satisfactory security before
proceeding with delivery or as a condition to Triumph's acceptance of a Dealer
order for Products. In all events, time shall be of the essence with regard to
the Dealer's payment obligations to Triumph. Any amount riot paid by Dealer
when due shall accrue interest at the lower of two percent (2 %) per month or
the highest legal rate allowed under applicable law. All payments due hereunder
shall be tendered in United States currency. In the event Triumph engages legal
counsel to collect any debt owing from Dealer to Triumph under this Agreement,
Dealer shall pay 15 % of all principal and interest due as attorneys' fees, in
addition to all other expenses of collection. Triumph may set off the amount of
any monies owed by Dealer to Triumph against any monies owed by Triumph to
Dealer.
4.2 No Setoffs or Deductions. All obligations of Dealer to Triumph under
this Agreement shall be absolute and independent of any other obligations
imposed by this Agreement or by law, and shall not be subject to any setoff,
deduction or counterclaim.
4.3 Retention of Title Triumph shall retain title to all Products
delivered to Dealer until Dealer has paid Triumph the full invoice price due
with respect to a particular Product. Dealer agrees to execute any documents,
financing statements or similar instruments as Triumph may from time to time
require in order to protect Triumph's interest in the Products and to give
third parties public notice of such interest. Any deposits, proceeds of sale or
insurance proceeds received by Dealer with respect to any such Products shall
be deemed to be held by the Dealer as use of an express trust for the benefit
of Triumph, and Dealer agrees to segregate all such proceeds in a separate
trust account and not to commingle such funds with other funds of Dealer.
Notwithstanding Triumph's retention of title to the Products, all risk of
damage or loss with respect to Products shall pass to Dealer upon delivery of
the Products to Dealer F.O.B. Atlanta, Georgia or such other delivery point as
Triumph may designate from time to time. Dealer will maintain insurance
covering the Products against loss or damage by fire, theft, collision and
against such other risks as Triumph may from time to time require, with loss
payable to Dealer and Triumph as their respective interests may appear. Dealer
shall furnish certificates and other evidences of insurance to Triumph upon
Triumph's request. Dealer's policy or policies of insurance covering the
Products shall provide that Triumph shall receive written notice prior to any
cancellation or nonrenewal of such policies. Triumph shall be entitled, at any
time and without notice, to enter into Dealer's premises and reclaim any
Products for which Dealer is delinquent in any payment due with respect to such
Products, or if for any reason Triumph deems itself to be insecure with respect
to its interest in the Products.
5. ACCEPTANCE OF ORDERS AND SHIPMENT OF PRODUCTS
5.1 Acceptance. Triumph will not be bound by any order for the Products
placed by Dealer until such order has been accepted by Triumph. Triumph may
accept or reject any order in whole or in part. Upon Triumph's acceptance of an
order submitted by the Dealer, such order shall constitute a binding agreement
of Triumph to sell and ship, and of Dealer to purchase and tender payment for,
the Products specified.
Rev. 9/8/94
139
Triumph's acceptance of Dealer's order shall be evidenced by either an invoice
or shipment to Dealer, unless otherwise specified by Triumph.
5.2 Inconsistent Terms in an Order. In the event any terms or conditions
contained in an order from Dealer are inconsistent with, or in addition to, the
terms of this Agreement, such inconsistent or additional terms or conditions in
the order shall be null and void and shall not be binding on Triumph in the
event that the order containing such inconsistent or additional terms or
conditions is accepted by Triumph.
5.3 Shipping Of Products . Triumph shall ship to Dealer the Products set
forth in an accepted order to Dealer, within a reasonable time after Triumph's
acceptance of such order; provided, however, that the parties understand and
agree that lead times will vary according to manufacturing and other conditions
and that any and all shipping dates shall be approximate and shall be computed
from the date that an order is accepted by Triumph. Triumph may from time to
time designate the point(s) from which any shipments and deliveries of the
Products shall he made to Dealer. Triumph may ship the Products by such mode of
transportation and on such route as it selects from time to time. Procedures
for shipping and delivery shall be according to such terms and conditions as
Triumph may adopt from time to time. Freight, delivery and all related charges
for Products shipped to Dealer shall be Dealer's sole responsibility, unless
otherwise agreed in writing. Any carrier of Products for delivery to Dealer
shall be deemed Dealer's agent, regardless of whether the carrier is selected
by Triumph or Dealer, and regardless of whether shipping is paid for by Dealer
or Triumph.
5.4 Allocation of Products. Dealer acknowledges that Dealer is not
entitled to any priority in the supply of Products over Triumph's other
authorized dealers and customers. If at any time orders for Products exceed
Triumph's supply, Triumph may in its sole discretion allocate the supply of
available Products among its dealers and customers, including Dealer, in any
manner in which Triumph deems reasonable.
5.5 Discharge of Triumph's Obligation. Triumph's obligation to ship the
Products shall be fully and completely discharged, and all risk of loss or
damage shall immediately pass to Dealer at the time the Products are delivered
F.O.B. Atlanta, Georgia or such other delivery point(s) as Triumph may
designate from time to time; provided, however, that Triumph shall retain legal
title to all Products until full payment is received as provided in Section
4.3.
5.6 Claims for Incomplete Delivery. All claims for incomplete delivery of
Products invoiced to Dealer must be made promptly and in accordance with such
procedures and within such limits as Triumph may from time to time specify.
5.7 Return or Diversion on Failure to Accept. If Dealer should fail or
refuse or for any reason be unable to accept delivery of any Products ordered
by Dealer, or if Dealer should request diversion of a shipment from Triumph,
Dealer shall be responsible for and pay Triumph promptly on demand the amount
of all costs and expenses incurred by Triumph in filling and shipping Dealer's
order, diversion (including but not limited to return to the original place of
shipment), demurrage and storage, plus restocking charges as determined by
Triumph. Triumph may direct that such Products be returned to another
destination, but the cost to Dealer for return to such other destination shall
not be greater than the cost of returning such Products to their original place
of shipment.
6. DEALER'S UNDERTARNGS
Rev. 9/8/94
140
6.1 Sale of Products. Dealer, for itself and its representatives and
employees, agrees to conduct all of its business activities relating to the
sale or distribution of the Products in a lawful manner, consistent with the
highest standards of fair trade, fair competition and business ethics.
6.2 Marketing Efforts. Dealer agrees to use its best efforts to diligently
and faithfully to promote and develop demand for the Products within the
Dealer's market area and to solicit purchases of the Products so as to maintain
a substantial and increasing volume of sales of the Products while preserving
the goodwill that is presently associated with the name and reputation of
Triumph and the Products.
6.3 Review and Approval of Advertising. Triumph reserves the right to
approve any and all advertisements or promotional materials used by Dealer with
respect to the Products. Dealer agrees not to make any Product performance
claims or representations in Product advertising, promotion or registration
other than those specifically shown on Triumph's packaging or sales literature
or otherwise expressly approved by Triumph. Notwithstanding the foregoing,
Dealer acknowledges that the purpose of Triumph's review of such materials is
solely to enable Triumph to protect its trademarks, reputation ad the goodwill
associated with Triumph and its Products, and Triumph shall not be obligated,
and does not undertake, to review all advertisements or promotional materials
submitted by Dealer to Triumph and used by Dealer with respect to the Products.
Any review or approval by Triumph of any advertisements or promotional
materials submitted to it by Dealer shall not be considered an endorsement by
Triumph of the content thereof. Dealer shall bear sole responsibility for, and
shall be solely liable for, any and all claims arising out of advertisements or
promotional materials developed and used by Dealer (except advertisements or
promotional materials that have been developed and provided by Triumph). In
furtherance and not in limitation of the indemnification obligations of Dealer
set forth in Section 10 of this Agreement, Dealer shall indemnify and hold
harmless Triumph and its officers, directors, agents, employees, shareholders,
legal representatives, successors and assigns, and each of them, from and
against any and all claims, actions and suits, whether groundless or otherwise,
and from and against any and all liabilities, judgments, losses, damages,
costs, charges, attorneys' fees, and other expenses of every nature, kind and
character incurred or suffered by reason of any and all claims arising out of
advertisements or promotional materials developed or used by Dealer (except
advertisements and promotiona l materials that have been developed and provided
by Triumph).
6.4 Operating Standards. Dealer shall operate its Products dealership at
all times according to Triumph's Dealer Operating Standards, as the same may be
revised and updated by Triumph from time to time. Triumph's current Dealer
Operating Standards are attached as part of the Appendix hereto. Triumph
reserves the right to revise and update the Dealer Operating Standards at any
time and from time to time as Triumph in its sole discretion deems necessary.
Dealer shall promptly comply with any revised or updated Dealer Operating
Standards upon receipt of written notice from Triumph of such revisions or
updates.
6.5 Signage. At all times while this Agreement remains in effect, Dealer
shall prominently display signage at the Approved Location of a type, size and
quality specified in the Dealer Operating Standards in an agreed-upon location
or locations, which signage shall contain the Triumph name and logo and shall
identify Dealer as an authorized independent dealer of Triumph motorcycles,
parts and accessories. Dealer expressly warrants as a condition precedent to
Triumph's entering into this Agreement that there are no contractual, lease,
zoning or other restrictions applicable to Dealer which would prevent Dealer
from displaying Triumph signage in accordance with the Dealer Operating
Standards.
6.6 Employees Dealer shall at all times maintain an adequate staff of
qualified and experienced employees for sales, servicing, supply and
administration of the Products, all as determined by Triumph from time to time.
Dealer's employees shall deal with customers in a courteous and professional
manner and shall
Rev. 9/8/94
141
conduct themselves at all times according to the highest ethical standards.
Dealer shall be solely responsible for all wages, taxes, benefits, unemployment
insurance and all other obligations and claims relating to Dealer's hiring,
employment and termination of Dealer's employees. Dealer shall bear sole
responsibility for, and shall be solely liable for, the quality of Dealer's
employees and for the actions or omissions of its employees, whether in
connection with the sales, service or repair of Products or otherwise. In
furtherance and not in limitation of the indemnification obligations of Dealer
set forth in Section 10 of this Agreement, Dealer shall indemnify and hold
harmless Triumph and its officers, directors, agents, employees, shareholders,
legal representatives, successors and assigns, and each of them, from and
against any and all claims, actions and suits, whether groundless or otherwise,
and from and against any and all liabilities, judgments, losses, damages,
costs, charges, attorneys' fees, and other expenses of every nature, kind and
character incurred or suffered by reason of any actions or omissions of
Dealer's employees, whether in connection with the sales, service or repair of
Products or otherwise.
6.7 Training. Triumph may from time to time require that Dealer or
designated members of Dealer's staff attend and complete training courses or
seminars relating to sales or service of the Products. Dealer shall bear the
full cost of attendance at such training courses or seminars. Because retention
and comprehension of training and instruction varies on an individual basis,
Triumph shall not bear responsibility for, and shall not be liable for, and
Dealer shall bear sole responsibility for, and shall be solely liable for, the
actions or omissions of its employees, whether in connection with the sales,
service or repair of Products or otherwise, regardless of whether training for
Dealer's employees has been provided by Triumph. In furtherance and not in
limitation of the indemnification obligations of Dealer set forth in Section 10
of this Agreement, Dealer shall indemnify and hold harmless Triumph and its
officers, directors, agents, employees, shareholders, legal representatives,
successors and assigns, and each of them, from and against any and all claims,
actions and suits, whether groundless or otherwise, and from and against any
and all liabilities, judgments, losses, damages, costs, charges, attorneys'
fees, and other expenses of every nature, kind and character incurred or
suffered by reason of any actions or omissions of Dealer's employees, whether
in connection with the sales, service or repair of Products or otherwise,
regardless of whether training for Dealer's employees has been provided by
Triumph.
6.8 Approved Location- Hours of Operation. The Dealer shall at all times
maintain all areas of the Approved Location in a clean, orderly and
professional state. Dealer shall maintain such hours of operation as Triumph
shall from time to time determine to be competitive with other motorcycle
dealers within Dealer's market area. The Dealer's initial hours of operation
shall be as described in the Appendix hereto. Triumph may require a change in
Dealer's hours of operation by giving Dealer sixty (60) days' notice of such
change.
6.9 Pre-Delivery Inspection. The Dealer shall cause each new or used
Triumph motorcycle sold by Dealer to undergo a thorough inspection by a
qualified mechanic prior to delivery to the purchaser. No new or used Triumph
motorcycle shall be sold by Dealer unless and until such inspection has been
completed and the motorcycle has been found to be safe and in proper working
condition. The inspection shall be conducted according to a pre-delivery
inspection form included within the Dealer Operating Standards, as the same may
be revised and updated from time to time. AH Dealer demonstration motorcycles
shall also undergo such inspection before being used by Dealer or its
customers.
6.10 Product Invent. Dealer shall maintain at all times an adequate and
representative inventory of Triumph motorcycles, parts, service tools and other
Products, all subject to availability from Triumph, as described more
particularly by Triumph in the Dealer Operating Standards, as the same may be
revised and updated from time to time.
142
6.11 Repairs. Dealer acknowledges that top quality repair and maintenance
service is essential to the maintenance of the goodwill and reputation of
Triumph, and that Dealer's failure to provide service in accordance with
Triumph's high standards could result in damage to Triumph. The Dealer shall
provide efficient, courteous and professional repair and maintenance service
for all Triumph motorcycle owners at fair and competitive rates regardless of
whether such motorcycles were purchased from Dealer and regarding of whether
such motorcycles are covered by Triumph's warranty. Dealer shall adhere to the
highest standards of ethics and honesty in conducting its repair operations.
All service shall be performed in accordance with Triumph service standards as
communicated from time to time by Triumph to Dealer. Triumph may from time to
time inspect and evaluate Dealer's service performance, and Dealer agrees to
implement any changes or improvements to its service operations which may be
suggested by Triumph from time to time. Notwithstanding the foregoing, Dealer,
as an independent contractor, shall bear sole responsibility for, and shall be
solely liable for, the manner of performance by Dealer of any and all service
and repairs of any Triumph Products or motorcycles. In furtherance and not in
limitation of the indemnification obligations of Dealer set forth in Section 10
of this Agreement, Dealer shall indemnify and hold harmless Triumph and its
officers, directors, agents, employees, shareholders, legal representatives,
successors and assigns, and each of them, from and against any and all claims,
actions and suits, whether groundless or otherwise, and from and against any
and all liabilities, judgments, losses, damages, costs, charges, attorneys'
fees, and other expenses of every nature, kind and character incurred or
suffered by reason of any and all claims in connection with the manner of
performance by Dealer of any service or repairs of Triumph Products or
motorcycles.
6.12 Tools. Dealer shall purchase all specialized tools, equipment,
manuals and other materials which Triumph shall from time to time specify as
being necessary for the proper assembly, maintenance and repair of the
Products.
6.13 Spare Dealer shall use its best efforts to promote the sale of
Triumph brand spare parts and accessories (i.e., spare parts and accessories
bearing the authorized "Triumph" brand name, whether manufactured by Triumph or
authorized suppliers of Triumph brand parts). Dealer agrees to maintain an
adequate inventory of Triumph parts consistent with the volume or anticipated
volume of Dealer's sales and service. Dealer shall in no event sell or use in
its repair and service of Triumph motorcycles any parts which have not been
expressly approved in writing by Triumph. Dealer shall not identify any parts
as being Triumph parts unless such spare parts are in fact genuine Triumph
brand parts. In no event shall Dealer sell or offer for sale any parts for use
with Triumph motorcycles which are not in full compliance with all
requirements, standards and specifications required by applicable law. In
furtherance and not in limitation of the indemnification obligations of Dealer
set forth in Section 10 of this Agreement, Dealer shall indemnify and hold
harmless Triumph and its officers, directors, agents, employees, shareholders,
legal representatives, successors and assigns, and each of them, from and
against any and all claims, actions and suits, whether groundless or otherwise,
and from and against any and all liabilities, judgments, losses, damages,
costs, charges, attorneys' fees, and other expenses of every nature, kind and
character incurred or suffered by reason of any breach of the foregoing.
6.14 Safety Recalls. In the event Triumph notifies Dealer of any Product
recalls, Dealer shall carry out the recall in accordance with the terms of the
recall notice regardless of whether any recalled Product was purchased from
Dealer. All recall work shall be performed at no charge to customers unless
otherwise indicated by Triumph, and shall be considered as warranty service
work performed by Dealer for compensation and all other purposes.
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6.15 Maintenance of Records. The Dealer shall keep and maintain detailed
and accurate records of all Dealer sales and service activities, inventories
and warranty claims, on such forms and such manner as Triumph shall specify
from time to time. Records shall be maintained for so long as Triumph may from
time to time specify.
6.16 Access to Premies and Records. Dealer shall permit Triumph, through
its authorized representatives, to have full access to Dealer's place of
business during normal business hours for purposes of inspection and assuring
Dealer's compliance with the terms of this Agreement. Triumph shall also have
the right from time to time during normal business hours to enter Dealer's
premises in order to inspect and photocopy any of Dealer's books and records
relating to Products sold or serviced by the Dealer. Triumph's rights under
this Section 6.16 shall survive any termination or expiration of this
Agreement.
6.17 Compliance with Law. Dealer shall be solely responsible for
ascertaining all applicable laws, regulations, ordinances, licensing
requirements, and other governmental requirements ("Laws") which must be
complied with in connection with the operation of Dealer's business and the
sale of the Products, and shall comply fully with such Laws. Without limiting
the foregoing, Dealer shall take all action necessary to comply with all
applicable Laws in Dealer's jurisdiction relating to Dealer licensing,
Salesperson licensing, title registration, odometer certification, model year
requirements, advertising, and sales taxes, each with respect to both new and
used Products.
6.18 Expenses Unless otherwise expressly agreed in writing, Dealer shall
pay any and a of its costs and expenses under this Agreement and shall be
solely responsible for the acts and expenses of its employees and
representatives.
6.19 Resale Prices.of the Product . Dealer shall at its own discretion
establish the prices at which it resells the Products.
6.20 Forecasts. Dealer shall submit to Triumph quarterly and annual
written forecasts of its purchases and sales of Products in a format approved
by Triumph and containing marketing information about Products and competitive
goods, as well as such other data and details as Triumph may from time to time
reasonably request.
6.21 Restrictive Covenants. Dealer, for itself and for any owner,
shareholder, subsidiary and affiliate of Dealer, covenants and agrees that it
shall refrain from directly or indirectly (through employees, agents,
contractors or otherwise), while this agreement is in effect, selling,
distributing, marketing, developing or otherwise dealing in products that are
competitive with or similar to the Products, except for the competing product
lines listed on the Appendix hereto.
6.22 Purchaser Registration. Dealer acknowledges that in the event that
Triumph is required by law or otherwise to notify purchasers of Triumph
motorcycles and other Products of significant information (e.g., because of a
recall or warranty notice), it is essential that Triumph be able to provide
such notifications promptly, and Dealer therefore agrees that it shall promptly
provide written notice to Triumph of the names and addresses of all persons or
entities that purchase any Triumph Products from Dealer on such customer
registration forms as are approved by Triumph from time to time. Dealer shall
bear sole responsibility for, and shall be solely liable for, any failure to
provide such written notice to Triumph. In furtherance and not in limitation of
the indemnification obligations of Dealer set forth in Section 10 of this
Agreement, Dealer shall indemnify and hold harmless Triumph and its officers,
directors, agents, employees, shareholders, legal representatives, successors
and assigns, and each of them, from and against any and all
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claims, actions and suits, whether groundless or otherwise, and from and
against any and all liabilities, judgments, losses, damages, costs, charges,
attorneys' fees, and other expenses of every nature, kind and character
incurred or suffered by reason of Dealer's failure to promptly provide written
notice to Triumph of the names and addresses of all persons or entities that
purchase any Triumph Products from Dealer.
6.23 Purchaser Manuals and Guides. Upon the sale of any Products by
Dealer, Dealer shall provide to the purchaser of such Products any applicable
owners manual, warranty guides and other manuals or guides prepared for use
with such Products. In addition, in the case of the sale of Triumph motorcycles
by Dealer, Dealer shall also provide to each purchaser of such motorcycles a
copy of the Motorcycle Safety Foundation Manual. Dealer shall bear sole
responsibility for, and shall be solely liable for, any failure to provide such
manuals or guides to purchasers of motorcycles or other Products. In
furtherance and not in limitation of the indemnification obligations of Dealer
set forth in Section 10 of this Agreement, Dealer shall indemnify and hold
harmless Triumph and its officers, directors, agents, employees, shareholders,
legal representatives, successors and assigns, and each of them, from and
against any and all claims, actions and suits, whether groundless or otherwise,
and from and against any and all liabilities, judgments, losses, damages,
costs, charges, attorneys' fees, and other expenses of every nature, kind and
character incurred or suffered by reason of Dealer's failure to provide such
manuals or guides to purchasers of motorcycles or other Products.
6.24 Product Liability Ins Dealer shall at all times maintain in full
force and effect policies of insurance providing coverage in the amount of
$500,000 per occurrence and in the aggregate for product liability claims and
claims of negligence in the service and repair of Triumph motorcycles and other
Products. Dealer shall furnish certificates and other evidences of such
insurance to Triumph upon Triumph's request. Triumph makes no representation to
Dealer that such amount of insurance is adequate to protect Dealer from such
claims and Dealer is advised to exercise its own business judgment in
consultation with its professional advisors in determining an adequate amount
of such insurance. Dealer shall bear sole responsibility for, and shall be
solely liable for, any failure to maintain such policies of insurance in full
force and effect. In furtherance and not in limitation of the indemnification
obligations of Dealer set forth in Section 10 of this Agreement, Dealer shall
indemnify and hold harmless Triumph and its officers, directors, agents,
employees, shareholders, legal representatives, successors and assigns, and
each of them, from and against any and all claims, actions and suits, whether
groundless or otherwise, and from and against any and all liabilities,
judgments, losses, damages, costs, charges, attorneys' fees, and other expenses
of every nature, kind and character incurred or suffered by reason of Dealer's
failure to maintain such policies of insurance in full force and effect,
7 SALES LITERATURE
Triumph shall, in its sole discretion, furnish Dealer with the following:
(i) Triumph's then current price list, mailers, brochures, catalogs, technical
specifications, service manuals, business forms, and the like pertaining to its
Products as from time to time revised by Triumph, and (ii) such packaging,
artwork, advertising, display and promotional material as Triumph deems
appropriate. All such materials shall remain the property of Triumph on loan to
Dealer (except to the extent disposed of for their intended purpose in the
ordinary course of business) and must be returned to Triumph immediately upon
its request or immediately upon expiration, cancellation or termination of this
Agreement. Triumph may require Dealer to pay a deposit with respect to any such
materials, which shall be refunded to Dealer when such materials are returned
to Triumph in accordance with the preceding sentence. Unless supplied by
Triumph, Dealer agrees to prepare and furnish, at its own cost, such packaging,
artwork, advertising, display and promotional materials as are necessary for
the promotion of the Products in Dealer's market area; provided, however, that
prior to display
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or use thereof, Dealer shall submit such material to Triumph for prior review
and written approval and shall make any changes or modifications required by
Triumph and, further provided, that it shall be Dealer's responsibility to
comply with all applicable laws pertaining to the marketing, trademark, unfair
competition or otherwise regulating the marketing, or selling of Products. All
packaging, artwork, advertising, display and promotional materials used by
Dealer in connection with the distribution, advertising, promotion or marketing
of Products, regardless of whether supplied by Triumph or submitted by Dealer
to Triumph for its review and approval, will be and remain the exclusive
property of Triumph. Notwithstanding the foregoing, Dealer acknowledges that
the purpose of Triumph's review of such materials is solely to enable Triumph
to protect its trademarks, reputation and the goodwill associated with
Triumph.and its Products, and Triumph shall not be obligated, and does not
undertake, to review all advertisements or promotional materials submitted by
Dealer to Triumph and used by Dealer with respect to the Products. Any review
or approval by Triumph of any advertisements or promotional materials submitted
to it by Dealer shall not be considered an endorsement by Triumph of the
content thereof. Dealer shall bear sole responsibility for, and shall be solely
liable for, any and all claims arising out of advertisements or promotional
materials developed and used by Dealer (except advertisements or promotional
materials that have been developed and provided by Triumph). In furtherance and
not in limitation of the indemnification obligations of Dealer set forth in
Section 10 of this Agreement, Dealer shall indemnify and hold harmless Triumph
and its officers, directors, a 3,ents, L employees, shareholders, legal
representatives, successors and assigns, and each of them, from and against any
and all claims, actions and suits, whether groundless or otherwise, and from
and against any and all liabilities, judgments, losses, damages, costs,
charges, attorneys' fees, and other expenses of every nature, kind and
character incurred or suffered by reason of any and all claims arising out of
advertisements or promotional materials developed or used by Dealer (except
advertisements and promotional materials that have been developed and provided
by Triumph). Upon the expiration, cancellation or termination of this Agreement
for any reason whatsoever, Dealer shall promptly return to Triumph, or to
Triumph's designated agent, all artwork, labels, containers, packages,
packaging, advertising, display and promotional material respecting the
Products, or, at Triumph's option, and upon its written request, Dealer shall
destroy the same under the supervision of Triumph or its designated agent.
8. CONFIDENTIAL INFORMATION
Dealer shall treat as confidential and prevent unauthorized duplication or
disclosure of any confidential information concerning the Products or the
business affairs of Triumph which Dealer may acquire during the course of its
activities under ft Agreement (or any prior agreements between Triumph and
Dealer) and shall riot use any of such confidential information for any purpose
other than in furtherance of Dealer's obligations under this Agreement. In
addition, Dealer shall take all necessary precautions to prevent any such
disclosure. by its employees and representatives. Dealer further acknowledges
and agrees that any right, tide and interest in and to the aforesaid
confidential information is vested in Triumph and that such information is the
sole property of Triumph. For purposes of this Agreement, the term
"confidential information" means any information concerning the business of
Triumph or the Products which is not in the public domain and shall include,
but is not limited to, the terms of this Agreement. The obligations of
confidentiality provided hereunder shall survive for a period of five (5) years
after the expiration, cancellation or termination of this Agreement, for any
reason; provided, however, that with respect to any item of confidential
information which is a trade secret under applicable law, the obligations of
confidentiality hereunder shall survive the expiration of such five (5) year
period and remain in full force and effect for so long as such confidential
information remains a trade secret under applicable law.
9. TRADEMARKS, PATENTS AND COPYRIGHTS
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9.1 Use of Trademarks. Subject to the terms and conditions of this
Agreement, the Dealer is granted a nonexclusive license to use the Trademarks
in connection with the operation of the dealership granted by this Agreement,
but for no other purpose. Subject to Triumph's right to review the use of the
Trademarks, the Dealer may indicate, in approved signs, advertising, publicity,
or other sales or marketing media or materials, that Dealer is an authorized
independent dealer of Triumph's Products. Dealer shall not use Triumph's name
or Trademarks in either its own corporate name or any fictitious business name.
9.2 Prominence of Trademarks. Xxxxxx agrees to give due prominence to the
fact that the Trademarks are the property of Triumph and in the event that
Dealer refers to the Trademarks in advertising, promoting or in any other
manner so as to identify the Products, Dealer shall clearly indicate Triumph's
ownership of the Trademarks.
9.3 Limitation on Dealer s Rights. Dealer acknowledges that Triumph is the
exclusive owner of the Trademarks and all goodwill and other rights therein.
Dealer agrees that, except to the extent expressly provided herein, Dealer
shall acquire no right or license with respect to the Trademarks. Dealer agrees
that at no time during the term of this Agreement nor at any time after this
Agreement's cancellation, expiration or termination shall Dealer adopt,
register or use in any manner whatsoever, without Triumph's prior written
consent, any word, symbol or combination thereof, which in any way imitates,
resembles or is similar to the Trademarks.
9.4 Dealer Contributions. Dealer agrees that all artwork, graphics,
layouts, slogans, names, tides or similar materials incorporating, or being
used in association with, the Trademarks which may be created by the Dealer,
its employees, agents and subcontractors and any other party with whom it may
contract to create such materials pursuant to this Agreement shall become the
sole property of Triumph, including copyright rights, and Dealer agrees on
behalf of itself, its employees, its agents, its subcontractors and any other
party with whom it may contract to create such materials, to promptly execute
any and all appropriate documents in this regard.
9.5 Protection and Defense Triumph shall have sole responsibility for
protection and defense of the Trademarks in such manner as Triumph may in its
sole discretion elect. Triumph shall not be liable to Dealer for lost profits,
lost opportunity, or for any incidental and indirect costs, losses or expenses
Dealer might have in connection with the Trademarks. Xxxxxx agrees to cooperate
and assist My with Triumph in the defense and protection of the Trademarks at
Dealer's cost and shaH promptly advise Triumph in writing of any potentially
infringing uses by others in addition to any suits brought, or claims made,
against Dealer involving the Trademarks. Decisions regarding action involving
the protection and defense of the Trademarks shall be solely in the discretion
of Triumph and Dealer shall take no action in this regard without the express
written permission of Triumph.
9.6 Preservation of Markings. Dealer agrees that it will in no way alter,
deface, remove, cover up or mutilate in any manner whatsoever, any trademark,
serial or model number, the word "patent" and/or the patent number, copyright
symbol, brand or name which Triumph may attach or affix to or make a part of
any of Triumph's Products, spare parts, components and/or assemblies of the
Products, or any packaging or sales literature relating thereto.
Rev. 9/8/94
147
10. INDEMNIFICATION
Dealer shall indemnify and hold harmless Triumph and its officers,
directors, agents, employees, shareholders, legal representatives, successors
and assigns, and each of them, from and against any and all claims, actions and
suits, whether groundless or otherwise, and from and against any and a
liabilities, judgments, losses, damages, costs, charges, attorneys' fees, and
other expenses of every nature, kind and character incurred or suffered by
reason of Dealer's business and/or actions with respect to Dealer's sale,
distribution, service or repair of Products (including, but not limited to,
claims by Dealer's customers, employees or agents), except for claims, actions
and suits covered under Triumph's warranty as set forth in Section I I hereof
and except for claims, actions or suits arising solely from the negligent acts
or omissions of Triumph. Triumph may undertake the responsibility of defending
any claims with counsel chosen by Triumph in its sole discretion, or upon
Triumph's request, Dealer shall assume responsibility for such defense; in
either event, Dealer shall pay all expenses, fees and costs associated with
such defenses and judgments, fines, penalties or interest imposed on or against
Triumph as a result thereof, including, without limitation, the expenses, fees
and costs of defense counsel chosen by Triumph in Triumph's sole discretion.
Dealer further agrees that the provisions contained in this Section 10 and any
other provisions in this Agreement concerning indemnification obligations of
Dealer shall survive the termination or expiration of this Agreement and shall
be liberally construed in favor of Triumph.
11. LIMITED PRODUCT WARRANTY
1 11.1 Limited Customer Warranty. All Triumph Products supplied to Dealer
from Triumph shall be warranted by Triumph solely as provided in Triumph's
written warranty to customers which may be revised and amended from time to
time by Triumph. TRIUMPH'S WRITTEN LIMITED CUSTOMER WARRANTY AS REVISED AND
AMENDED FROM TIME TO TIME SHALL BE EXCLUSIVE AND TRIUMPH EXPRESSLY DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO
EVENT WILL TRRJMPH BE LIABLE TO DEALER, ITS CUSTOMERS OR ANY OTHER PARTY FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE,
WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, THAT ARISE IN CONNECTION WITH THE
PRODUCTS OR IN CONNECTION WITH EITHER TRIUMPH'S FAILURE TO DELIVER OR ITS LATE
DELIVERY OF THE PRODUCTS (INCLUDING, BUT NOT LIAHTED TO, LOSS OF USE OF THE
PRODUCTS AND LOSS OF PROFITS).
11.2 Customer Warranty . Dealer shall provide each customer purchasing
Products from Dealer with a copy of Triumph's then current limited customer
warranty at the time of sale. Dealer shall not make any statement or
representation purporting to grant to the customer any warranty on behalf of
Triumph other than Triumph's then current limited customer warranty and Dealer
shall bear sole responsibility for, and shall be solely liable for, any other
statements, representations or warranties (whether oral or written) made by
Dealer or on Dealer's behalf with respect to any of the Products. If Dealer
should elect to give its customers any Dealer warranty with respect to the
Triumph Products in addition to Triumph's limited customer warranty, such
Dealer warranty shall provide in a clear and conspicuous manner that such
warranty is being provided by Dealer and not by Triumph. In furtherance and not
in limitation of the indemnification obligations of Dealer set forth in Section
10 of this Agreement, Dealer shall indemnify and hold harmless Triumph and its
officers, directors, agents, employees, shareholders, legal representatives,
successors and assigns, and each of them, from and against any and all claims,
actions and suits, whether groundless or otherwise, and from and against any
and all liabilities, judgments, losses, damages, costs, charges, attorneys'
fees, and other
Rev. 9/8/94
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expenses of every nature, kind and character incurred or suffered by reason of
any statements, representations or warranties (whether oral or written), other
than Triumph's then current limited customer warranty, made by Dealer or on
Dealer's behalf with respect to any of the Products.
11.3 Performance of Warranty Work; Compensation. Dealer shall perform a
warranty service work requested for Triumph Products, regardless of whether
such Products were purchased from Dealer. Triumph shall provide compensation to
Dealer for labor and Triumph parts used in the performance of Triumph warranty
work in such reasonable amounts, and subject to such terms and conditions, as
Triumph may from time to time establish. Dealer shall not charge any customer
for any work covered by a Triumph warranty and reimbursed from Triumph to
Dealer. Dealer shall use Triumph parts in work performed under the Triumph
customer warranty or otherwise reimbursed by Triumph. determination whether
any work is covered under the Triumph limited customer warranty shall be made
solely by Triumph. Notwithstanding the foregoing, Dealer, as an independent
contractor, shall bear sole responsibility for, and shall be solely liable for,
the manner of performance by Dealer of any and all warranty service and
repairs. In furtherance and not in limitation of the indemnification
obligations of Dealer set forth in Section 10 of this Agreement, Dealer shall
indemnify and hold harmless Triumph and its officers, directors, agents,
employees, shareholders, legal representatives, successors and assigns, and
each of them, from and against any and all claims, actions and suits, whether
groundless or otherwise, and from and against any and all liabilities,
judgments, losses, damages, costs, charges, attorneys' fees, and other expenses
of every nature, kind and character incurred or suffered by reason of the
manner of performance by Dealer of any and all warranty service and repairs.
11.4 Warranty Procedure . Dealer shall follow and comply with all
procedures, instructions, guidelines and policies communicated from time to
time by Triumph to Dealer regarding warranty work to be performed by Dealer
under the Triumph limited customer warranty, including without limitation
procedures, forms and standards for submission and approval of warranty claims.
All revisions and changes to warranty procedures, instructions, guidelines and
policies shall be effective upon conmunication of such revisions from Triumph
to Dealer unless otherwise expressly provided in writing.
12. INDEPENDENT CONTRACTOR RELATIONSHIP
Dealer shall be deemed to be an independent contractor and shall bear all
of its own expenses in connection with this Agreement. Dealer acknowledges that
it is not a partner, joint venturer, franchisee, employee or agent of Triumph.
Dealer shall have no authority, whether express or implied, to assume or create
any obligation on behalf of Triumph nor shall Dealer issue or cause to be
issued any quotations or draft any letters or documents over the name of
Triumph.
13. FORCE MAJEURE AND AVAILABILITY OF MATERIALS
13.1 Force Majeure. Except for Dealer's monetary obligations to Triumph
hereunder, neither party will be in default in the performance of its
obligations under this Agreement if such performance is prevented or delayed
because of war, hostilities, revolution, civil commotion, riot, strike, labor
dispute, lack or failure of transportation facilities, failure of equipment,
lack of necessary products or materials, epidemic, fire, wind, earthquake,
storm or flood, use of any law, order, proclamation, regulation or ordinance of
any government, or of any subdivision thereof, because of acts of God or for
any other cause, whether similar or dissimilar to those enumerated, that is
beyond the reasonable control and without the fault or negligence of the party
whose performance is affected (any such event is hereinafter called "Force
Majeure").
149
13.2 Availability of Materials. All deliveries by Triumph are contingent on
Triumph UK's receiving timely shipment of necessary products, materials, parts
and components for the production, assembly or supply of the Products, and
Triumph may delay, reduce or cancel deliveries to Dealer to the extent such
deliveries are affected by delay, reduction or cancellation of shipments of
necessary products, materials, parts and components to Triumph UK.
14. TERM OF AGREEMENT
14.1 Initial Term and Renewal. The initial term of this Agreement is for a
five (5) year period commencing and effective as of the date of this Agreement.
Upon expiration of the initial term, this Agreement shall renew automatically
for successive three (3) year terms, unless either party gives notice to the
other of its intent not to renew at least 120 days prior to the expiration date
of the then-current initial term or renewal term. At Triumph's option, Dealer
may be required, as a condition to any xxxx wal, to execute Triumph's
then-current standard Dealership Agreement and any related agreements, which
shall supersede this Agreement (except that the term thereof shall be modified
if necessary to be consistent with the terms of this Section 14. 1).
14.2 Notice of Nonrenewal. Either party may, at any time, terminate this
Agreement, without cause, effective as of the end of the initial term or any
successive renewal term hereof, by giving the other party written notice of its
desire not to renew the term of this Agreement at least one hundred twenty (120)
days prior to the end of such initial term or successive renewal term.
14.3 Termination With Cause. At any time either party may terminate this
Agreement for cause, as follows:
(a) If a parry breaches any provision contained in this Agreement,
the other party may cancel or terminate this Agreement upon thirty (30) days'
written notice; provided that the breaching party has not (i) cured the breach
during the thirty (30) day period following such notice, or (ii) taken
substantial steps, during such thirty (30) day period, to cure a nonmonetary
breach which in good faith could not be totally cured within such thirty (30)
day period. In the event termination is delayed pursuant to ( ii) above due to
the breaching party's taking substantial steps to cure a nonmonetary breach,
termination shall become effective immediately and without further notice if
such party ceases diligent efforts to cure such breach, or in any case if such
breach is not cured or is not curable within 120 days following the date of the
termination notice.
(b) Notwithstanding the provisions of subsection (a) above, Triumph
may cancel or terminate this Agreement upon giving written notice with no
opportunity for Dealer to cure in the following circumstances:
(1) If Dealer becomes insolvent by any definition, makes any
assignment for the benefit of its creditors, or is placed in
receivership, liquidation or bankruptcy (voluntary or
involuntary).
(2) On the commencement of the winding up of the Dealer, other than
voluntary winding up for the purposes of amalgamation or
reorganization.
(3) If the management or control, or both, of all or any part of
Dealer's business is vested, by law, decree, ordinance of other
governmental action, in or made subject
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150
to the control or direction of any government agent, officer,
appointee or designee, or of any other person, firm or company not a
party to this Agreement.
(4) If after Triumph shall have given Dealer notice of a default
under subsection (a) above and Dealer shall commit the same, or
substantially the same, default within a period of twelve (12)
consecutive months after the date of Dealer's initial default.
(5) If Dealer's default is material and results from intentional
misconduct or grossly negligent acts or omissions.
(6) If Triumph should terminate any other agreement between the
parties as a result of a Dealer default thereunder.
(7) If the Dealer should attempt to assign any of its rights under
this Agreement in contravention of Section 19 hereof.
(8) If Dealer has engaged in any deceptive, unethical or illegal
trade practice in connection with the sale of Triumph Products.
(9) Dealer's abandonment of the operations of the dealership or
failure to operate as a going concern during hours and days of
operation customary for retail businesses in Dealer's market area.
For purposes of this subparagraph (9), if Dealer fails to open for
business for any period of seven (7) or more consecutive days,
Dealer shall be deemed to have abandoned the dealership.
(10) If Dealer submits or makes to Triumph any false or fraudulent
statement, application (including Dealer's initial Dealership
Application), reimbursement request or report, including without
limitation false or fraudulent claims with respect to any warranty
matters.
(11) If Dealer should violate any federal, state or local laws,
rules or regulations applicable to Dealer's operation of the
dealership, including without limitation dealership licensing laws,
the National Traffic and Motor Vehicle Safety Act of 1966, as
amended, or the Clean Air Act.
(12) If Dealer should enter into any contract, conspiracy,
combination or agreement, whether written or oral, for the purpose
of fixing prices of Triumph Products or other illegal practices.
(13) If Dealer should attempt to sell Triumph Products from any
location other than the Approved Location without the express
written consent of Triumph.
(14) If Dealer or any principal owner of Dealer should be convicted
or plead no contest to a felony or any crime involving fraud or
dishonesty.
In the event Triumph gives notice of termination under this Section 14.3(b), the
grounds specified by Triumph in such notice of termination shall not be
exclusive and shall not preclude Triumph from later proving that additional
grounds for termination existed at the time such notice was given.
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14.4 Withdrawal From Market . In addition to the foregoing, Triumph may
cancel this Agreement upon notice to Dealer at any time that Triumph withdraws
from distribution of Triumph Products, either within Dealer's market area or
generally, or at any time Triumph ceases to be an authorized distributor of
Triumph Products.
14.5 Termination Due to Governmental Action. Notwithstanding any other
provision of this Agreement to the contrary, Triumph shall have the right, in
its sole discretion, to terminate this Agreement in the event that a law, decree
or regulation is enacted or adopted by any governmental authority which would
impair or restrict in any manner whatsoever the right of Triumph to terminate or
elect not to renew this Agreement; provided, however, that such termination
shall not take effect until the day prior to t he effective date of the
aforementioned law, decree or regulation.
14.6 Suaival of Obligations. The expiration, cancellation or termination
of this Agreement, for whatever reason, will not discharge or relieve either
party from any obligation which accrued prior to such expiration, cancellation
or termination, will not relieve any party that has breached this Agreement from
liability for damages resulting from such breach and will not destroy or
diminish the binding force and effect of any of the provisions of this Agreement
that expressly, or by reasonable implication, c ome into or continue in effect
on or after cancellation or termination hereof.
14.7 Repurchase of Products and Related Items.
(a) Upon any termination or expiration without renewal of this
Agreement, upon written request from either party hereto to the other delivered
within five (5) days following such termination or expiration, Dealer shall
sell, and Triumph shall purchase from Dealer, all Triumph Products in Dealer's
inventory, all approved signage bearing the Trademarks, and all special tools
and equipment designed specifically for use in connection with the Triumph
Products and the purchase of which was required. by Triumph hereunder. In the
case of Triumph motorcycles, Triumph shall be obligated to repurchase only those
motorcycles which are new, of the then current model year, unused, undamaged,
and in first class, salable condition. In the case of Triumph parts, Triumph
shall be obligated to repurchase only those parts which are new, listed in
Triumph's then current price book, in original packaging, unused, undamaged and
in first class, salable condition. In the case of signs, tools and equipment,
Triumph shall be obligat ed to purchase only signs approved by Triumph bearing
the Triumph Trademarks, and such special tools and equipment designed
specifically. for service with Triumph Products, the purchase of which was
required by Triumph and which are in good repair and working condition. In the
event either party exercises its option hereunder, Dealer shall promptly supply
to Triumph a list of all Triumph Products, tools, signs and equipment subject to
repurchase by Triumph hereunder.
(b) The purchase price for any Triumph motorcycles or parts
purchased by Triumph pursuant to this Section 14.7 shall be equal to 85 % of
Triumph's then-current standard list price to dealers for such motorcycles and
parts, less any refunds allowances, or credits previously granted to Dealer with
respect to the motorcycles and parts being purchased. The purchase price for
signs, tools and equipment shall be the price paid by Dealer less all
depreciation computed on a straight-line basis over a five (5) year useful life.
(c) In the event of any repurchase by Triumph pursuant to this
Section 14.7, Dealer shall permit Triumph's personnel and representatives to
enter Dealer's premises and inspect and count all Triumph Products, signs, tools
and equipment proposed to be repurchased hereunder.
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(d) Dealer shall store, at Dealer's sole expense, all Triumph
Products and other items which Triumph becomes obligated to repurchase pursuant
to this Section 14.7 until receipt of shipping instructions from Triumph. Dealer
shall have sole responsibility for packing such Triumph Products suitably for
shipping and for paying all freight and insurance charges from Dealer to
Triumph's central distribution or such other location within the United States
as Triumph shall designate.
(e) Dealer shall bear all risk of loss or damage to any Triumph
Products or other items which Triumph becomes obligated to purchase hereunder
until such items have been delivered to the destination designated by Triumph
and have been inspected and accepted by Triumph, and in no event shall -Triumph
be required first to claim against any carrier or insurer with respect to any
such loss or damage for items lost or damaged in transit.
(f) Dealer represents and warrants that all Triumph Products and
other items tendered to Triumph for repurchase pursuant to this Section 14.7
shall be sold to Triumph free and clear of any liens, encumbrances, security
interests or claims and attachments whatsoever at the time of purchase by
Triumph. Dealer shall, at Dealer's sole expense, take such actions and execute
such documents as are necessary to vest in Triumph clear title, free of liens,
encumbrances, security interests, claims and attachments, in cluding without
limitation compliance with all applicable bulk sales laws. Dealer understands
and agrees that Triumph shall have no obligation to purchase any Triumph
Products or other items hereunder unless Dealer can convey clear title as
provided herein.
(g) All payments due from Triumph to Dealer hereunder shall be made
promptly after all items tendered for repurchase have been delivered to Triumph,
inspected and accepted by Triumph with clear title as provided in subsection (f)
above, and, :in the case of Triumph motorcycles, after Triumph shall have
received the manufacturer's certificate of origin or other applicable
certificates of tide. Triumph shall have the right to set off and deduct from
any amounts due Dealer in connection with such repurchase, any sums due and
owing from Dealer to Triumph or any of its affiliates for any reason.
14.8 No Claim for Compensation. The Dealer expressly acknowledges
that it is not entitled to and will not assert any claim for any compensation of
any nature whatsoever from Triumph with respect to the sales of Products, or its
distribution of Products or otherwise in connection with this Agreement. The
Dealer's sole source of compensation in relation to this Agreement will be from
the revenue, if any, derived from its resale of the Products. In the event this
Agreement expires or is cancelled or terminate d pursuant to the provisions of
this Section 14, Dealer will have no right to receive, and Triumph will have no
obligation to pay, any compensation, indemnity or reimbursement for any of the
following: loss of profit, loss of goodwill, loss of clientele, costs of
advertising, promotional materials or samples, termination of employees,
employees' salaries, the losses associated with buildings, stocks, machinery,
transportation, or other similar assets or expenditures in which Dealer invests
or expends funds in connection herewith, or for any other reason whatsoever.
14.9 Further Obligations After Termination. In the event of a
termination or expiration of this Agreement in any manner, the following further
provisions shall take effect:
(a) All rights granted to Dealer under or pursuant to this Agreement
shall cease, and, where legally possible, revert to Triumph.
(b) Dealer shall cease to hold itself out in any way as a dealer of
Triumph Products.
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(c) Dealer shall cease to use the Trademarks and shall refrain from
using any colorable imitation thereof. Dealer shall immediately cease to use and
destroy any stationery, order sheets, advertising materials and other printed
matter bearing the Trademarks and shall remove all signs containing same.
(d) Dealer shall immediately return to Triumph any originals and
copies of all confidential information, technical data or material, including
but not limited to brochures, letters, price or customer lists and memoranda,
service records, warranty information or other information pertaining to the
Products.
(e) At Triumph's option, all sums owed by each party hereto to the
other shall become due and payable immediately upon expiration or other
termination of this Agreement. Triumph, at its option, may offset any sums due
or to become due to Triumph from Dealer against any sums owed by Triumph to
Dealer.
15. REPRESENTATIONS AND WARRANTIES
15.1 Representations, Warranties and Covenants of Triumph. Triumph hereby
covenants, represents and warrants that:
(a) it is entitled to grant to the Dealer all rights, licenses and
authorities granted by it herein;
(b) it is not a party to or subject to any other agreement in
conflict with this Agreement,
(c) the execution and delivery of this Agreement by it has been duly
authorized; and
(d) the execution and delivery of this Agreement by it and the
fulfillment of the terms and conditions hereof (i) do not and will not result in
the breach of any of the terms, conditions, provisions of its constituting
documents, by-laws or resolutions of its directors or shareholders, or any
license, permit, contract, agreement, instrument, order, decree or writ issued
to it or to which it is a party or by which it or its properties or assets are
bound and (ii) does not or would not with the passage of time or the giving of
notice constitute a default under any contract, agreement or instnunent to which
it is a party or by which it or its properties or assets are bound.
15.2 Representations. Warranties and Covenants of Dealer. The Dealer
hereby represents, covenants, warrants and acknowledges that:
(a) it is not a party to or subject to any agreement in conflict
with this Agreement;
(b) the execution and delivery of this Agreement by it has been duly
authorized;
(c) the execution and delivery by it of this Agreement and the
fulfillment of the terms and conditions hereof (i) do not and will not result in
the breach of any of the terms, conditions, provisions of its constituting
documents, by-laws or resolutions of its directors or shareholders, or any
license, permit, contract, agreement, instrument, order, decree or writ issued
to it or to which it is a party or by which it or its properties or assets are
bound and (ii) does not or would not with the passage of ti me or the giving of
notice constitute a default under any contract, agreement or instrument to which
it is a party or by which it or its properties or assets are bound;
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(d) all information provided by Dealer to Triumph on the Triumph
Dealership Application and in the Appendix to this Agreement is true, complete
and correct;
(e) Dealer and/or one or more of Dealer's directors or executive
officers has at least two (2) years prior management experience in the sale of
motorcycles; and
(f) Dealer does not anticipate that Dealer's sales of Products
hereunder will exceed 20% in dollar volume of Dealer's projected gross sales
during the first full year after Dealer begins selling Products hereunder.
16. ENTIRE AGREEMIENT; AMENDMENT
This Agreement, including the Appendix hereto, contains the entire
understanding between the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous written or oral negotiations and
agreements between them regarding the subject matter hereof. Except as expressly
contained herein, neither party has made or relied upon any representations,
warranties, assurances, "side deals" or understandings. Without limiting the
generality of the foregoing, Dealer acknowledges that T riumph has made no
forecasts, guarantees, representations or assurances regarding Dealer's
potential sales, profits or earnings capability as a dealer of the Products
under this Agreement. This Agreement may be amended orgy by a writing signed by
both of the parties. With respect to any consents, approvals, waivers or
amendments which may be granted by Triumph to Dealer hereunder, including
without limitation consents to assignment or to a change in the Approved
Location, no such consent, approvals, waiver s or amendments shall be valid or
binding upon Triumph unless in writing and signed by an officer of Triumph of at
least Vice President. Under no circumstances may Dealer rely upon any oral
representations or assurances from Triumph personnel with respect to consents,
approvals, waivers or amendments.
17. NOTICES
All notices and other communications hereunder shall be in writing and shall
be deemed to have been given only if and when (i) personally delivered or (h)
five (5) business days after mailing, postage prepaid, first class, certified or
registered mad, or (iii) when delivered (and receipted for) by an express
delivery service, or (iv) when first sent by telex, telecopy or other means of
instantaneous communication, provided such communication is properly confirmed
by personal delivery, mail or an express de livery service as provided above, to
the respective addresses shown in the Appendix hereto. Xxxxxx xxxxx may change
the address for the giving of notices and communications to it by written notice
to the other party in conformity with the foregoing. Nothing contained herein
shall justify or excuse failure to give oral notice for the purpose of informing
the other party hereto when prompt notification is required, but it is
understood that such oral notice shall in no way satisfy the requirement of a
writte n notice. In the event Triumph cannot effect notice to Dealer because
Dealer has abandoned its place of business or refuses to accept such notice,
such notice may be served by Triumph through the Department of Motor Vehicles
(or its equivalent) in the state in which the Approved Location is located.
18. SEVERABILITY
If any provision of this Agreement should be held invalid or unenforceable
for any reason whatsoever or to violate any law, this Agreement shall be
considered divisible as to such provisions and such provisions shall be deemed
amended to comply with such law, or if it cannot be so amended without
materially altering
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the tenor of the Agreement, then such provision(s) shall be deemed deleted from
the Agreement in such jurisdiction, and in either case, the remainder of this
Agreement shall be valid and binding.
19. ASSIGNMENT
The parties acknowledge that this Agreement constitutes a personal services
contract between Triumph and Dealer. Dealer may not transfer or assign this
Agreement or any of its rights hereunder without Triumph's prior written
approval, and any attempted assignment shall be void and shall constitute
grounds for termination by Triumph pursuant to Section 14.3(b)(7) hereof. This
Agreement shall be binding upon and shall inure to the benefit of Triumph and
its successors and assigns, and shall be binding upon a nd inure to the benefit
of Dealer and its permitted assignees. For purposes of this Section 19, any
transfer of any shares of stock or other ownership interest in Dealer to any
party other than the current owners or shareholders listed in the Appendix shall
be deemed as an assignment of Dealer's rights under this Agreement.
20. NO IMPLIED WAIVERS
The failure of either party at any time to require performance by the other
party of any provision hereof shall not affect in any way the right to require
such performance at any later time nor shall the waiver by either party of a
breach of any provision hereof be taken or held to be a waiver of such
provision.
21. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
22. SECTION REFERENCES
Any reference in this Agreement to a section or subsection shall be deemed
to include a reference to any subsidiary sections whenever the context requires.
23. CAPTIONS
The captions of the sections and subsidiary sections of this Agreement are
included for reference purposes only and are not intended to be a part of the
Agreement or in any way to define, limit or describe the scope or intent of the
particular provision to which they refer.
24. GENDER
Masculine, feminine and neuter terms shall be interchangeable (and shall
include a corporation, a partnership, or another entity), and shall be singular
and plural, where the context makes a change of gender or number appropriate.
25. GOVERNING LAW
The parties acknowledge that this Agreement shall take effect upon execution
by Triumph at its Offices in Atlanta, Georgia. The parties further acknowledge
that the mutual performance hereof by Triumph and Dealer constitutes a
substantial contact with that State. Accordingly, the parties invoke the
protection of the laws of Georgia with respect to the protection of their rights
and enforcement of their obligations hereunder
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and they mutually stipulate that this Agreement is in all respects (including,
but not limited to, all matters o interpretation, validity, performance and the
consequences of breach) to be construed, governed and enforced in accordance
with the internal laws (excluding all conflict of laws rules) of Georgia, as
from time to time amended and in effect, and any applicable federal laws of the
United States of America, as from time to time amended and in effect.
26. ARBITRATION
(a) The parties agree to use every reasonable effort to settle any dispute
or disagreement between them relative to this Agreement by amicable means and if
appropriate utilize assistance of their respective chief executive officers and
not to resort to legal action unless and until the parties have in good faith
attempted to settle such dispute or disagreement in the foregoing manner.
(b) If this method of resolution should have proved to be impracticable, any
controversy or claim arising out of or relating to this Agreement shall be
submitted to and be finally resolved by arbitration pursuant to the provisions
of the United States Arbitration Act (9 U.S.C. I et seq.), to be conducted by
the American Arbitration Association ("AAA"), with such arbitration to be held
in Atlanta, Georgia in accordance with the AAA's Commercial Arbitration Rules
then in effect. Each party hereby irrevocab ly agrees that service of process,
summons, notices or other communications related to the arbitration procedure
shall be deemed served and accepted by the other party if given in accordance
with Section 17. The arbitrator shall render a judgment of default against any
party who fails to appear in a properly noticed arbitration proceeding. The
arbitration shall be conducted by one arbitrator, as selected by the AAA. Any
award or decision rendered in such arbitration shall be final and binding on
both parti es, and judgment may be entered thereon in any court of competent
jurisdiction if necessary. Judgments rendered in any arbitration proceedings
shall be limited to actual damages sustained by the party in whose favor such
judgment is rendered, and no consequential, punitive, exemplary, special or
multiplied damages shall be awarded. Each party shall bear its own costs and
expenses of such arbitration proceeding. Notwithstanding the foregoing, the
following categories of claims and disputes shall = be subjec t to mandatory
arbitration pursuant to the provisions of this Section 26: (i) any claim by
Triumph for monies owed by Dealer in connection with any sale of Products and
(ii) any claim or dispute arising under the Xxxxxx Act, or under any state law
or common law alleging infringement or misuse of the Trademarks. In case any
dispute arises involving the claims described in (i) and (ii) of the preceding
sentence which also involve matters subject to mandatory arbitration hereunder,
unless both parties agree o therwise the matters subject to mandatory
arbitration shall be severed from the claims which are not subject to mandatory
arbitration, and claims subject to mandatory arbitration shall be decided by
arbitration as provided herein, while the claims not subject to arbitration wUl
be decided in the appropriate judicial forum.
(c) Notwithstanding subsections (a) and (b) of this Section to the contrary,
any party may seek injunctive relief against the other party at any court of
proper jurisdiction with respect to any and all preliminary injunctive or
restraining procedures pertaining to this Agreement or the breach thereof. Any
provisions to the contrary herein notwithstanding, the law applicable in the
jurisdiction of such court shall apply with respect, but limited to, all such
preliminary injunctive or restraining procedures.
(d) Any judicial proceeding challenging the validity of the parties'
agreement to arbitrate pursuant to this Paragraph 26 shall be brought in a state
or federal court located in Atlanta, Georgia and each of the parties hereby
submits to the personal jurisdiction and consents to venue in any such court for
such proceeding, and hereby waives to the fullest extent possible any defense of
forum non conveniens.
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Each of the parties has executed this Agreement through their duly
authorized officers or agents whose signatures appear below, effective as of the
date shown at the beginning of this Agreement.
TRIUMPH
TRIUMPH MOTORCYCLES (AMERICA) LIMITED
BY: [signature]
-----------------------------------
TITLE: CEO
-----------------------------------
DEALER
CYLCE SPORT UNLIMTED, INC.
-----------------------------------
[Print name of Dealer]
BY: /s/ XXXXX XXXX
-----------------------------------
TITLE: PRESIDENT
-----------------------------------
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SCHEDULE E
LEASE AGREEMETNS
FOR
THE MOTOR CYCLE DIVISON
OF CYCLE SPORT UNLIMITED, INC.
159
SCHEDULE E-1
THE HERNDON LEASE
FOR
THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
160
DRAFT 6.2 SCHEDULE F-1
HERNDON LEASE AGREEMENT
161
STORE LEASE Draft 6.2
CYCLE SPORT UNLIMITED, INC.,
LANDLORD
and
V-TWIN ACQUISITIONS, INC.
TENANT
for
000 Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxx
162
DRAFT 6.2 DEED OF LEASE
THIS DEED OF LEASE (the "Lease") made this day of
19____, b y and between CYCLE SPORT UNLIMITED, INC., . Virginia, hereinafter
designated "Landlord", and V-TWIN ACQUISITIONS, INC., 00000 Xxxxxx Xxxxx Xxxxx,
Xxxxxx, Xxxxxxxx, _, hereinafter designated "Tenant".
WITNESSETH:
1. DATA SHEET. This Section I is an integral part of this Lease and
all of the terms, dates and requirements hereof are incorporated into this Lease
in all respects. In addition to the other provisions which are elsewhere defined
in this Lease, the following terms, whenever used in this Lease, shall have the
meanings set forth in this Section 1, subject to adjustments thereto or more
detailed definitions set forth elsewhere in this Lease. If there is any conflict
between any of the Lease provisions set fo rth in this Section I and any other
provisions of this Lease, the latter shall control.
(a) Leased Premises: 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
(b) Gross Rentable Square Feet of Premises: 12,907 (c) Lease Dates: (1) Date
Lease Executed: (2) Date of Tender: (3) Rent Commencement Date: see Section 4.A
(d) Lease Term: ten (10) Lease Years, and one (1) five (5) year option
(1) Commencing:
(2) Ending: ten (10) Lease Years after Rent Commencement Date
(3) Initial Partial Lease Year: From: To:
(4) First Lease Year: From: see Sec. 4.A To: see Sec. 4.A
(e) Minimum Rent: Yearly: see Section 5.A; Monthly: see Sec. 5.A
(f) AdditionalCharges to Tenant:
(1) Utilities: to be paid directly by Tenant (3) Real Estate Taxes: 100% by
Tenant (g) Security Deposit: $7,260 (h) Tenant's Trade Name: (i) Permitted
Uses:retail sales service of motorcycles, water vehicles, mopeds and related
equipment and items as subject to Sec. 13
(j)Dimensions of Sign Box: In compliancewith Herndon & Fairfax County
Requirements
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2. LEASED PREMISES.
A. In consideration of all Tenant's undertakings hereinafter set forth,
including payment of rent as hereinafter specified, Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord the premises (the "Leased
Premises") which are located at 000 Xxxxx Xxxxxx xx Xxxxxxx, Xxxxxxxx, which
Leased Premises bear the street address set forth in Section 1(a) of the Data
Sheet, contain the approximate number of gross rentable square feet set forth in
Section 1(b) of the Data Sheet.
B. For purposes hereof, the Leased Premises shall be deemed to extend to and
include the exterior faces of all exterior walls, or to the building line where
there is no wall, or to the center line of any walls separating the Leased
Premises from any adjacent premises not included in the Leased Premises, and
shall consist of the space therein, including the structural floors and the
bottom of the roof above. Landlord reserves the right to make such changes in
the Leased Premisies and the improvements thereo n as Landlord deems advisable,
including, without limitation, the right, exercisable in Landlord's sole
discretion, to construct additional building(s) and/or other improvements
thereon, provided that any such change will not involve unreasonable
interference with the conduct of Tenant's business. Xxxxxxxx agrees that any
change in the placement of pipes, ductwork and electrical lines in the Leased
Premises will not involve unreasonable interference with the conduct of Xxxxxx's
business.
3. TENANT'S WORK.
A.(i) Xxxxxx agrees to perform, at its risk and expense, all work which is
necessary to prepare the Leased Premises for Xxxxxx's intended business,
including fixturing ("Tenant's Work"), commencing on the date the Landlord makes
written tender of the Leased Premises to Tenant, or, with Landlord's approval
(which shall not be unreasonably withheld), prior to such date. Specifications
for Tenant's Work shall be submitted to Landlord at least twenty (20) days prior
to commencement thereof and shall be subject to Landlord's approval, which
shall not be unreasonably withheld. Tenant's Work shall be performed in
accordance with requirements of governmental authorities and all reasonable
rules made by Landlord and its contractors and without interference with or
damage to work performed or to be performed by Landlord or its agents. If Tenant
causes any such interference or damage, Tenant shall be liable therefor.
(ii) Tenant shall not permit any lien on account of the performance of services
or supply of materials for any item of Tenant's Work, or for any other item of
construction or repair performed by Tenant, to be filed against the Leased
Premises. If any such lien is filed, Tenant shall, within thirty (30) days after
notice thereof, discharge the lien of record or, if Tenant elects to contest the
lien by appropriate proceedings, bond the lien and diligently prosecute the
proceedings. If Xxxxxx fails to dischar ge the lien, Landlord may do so, and any
monies expended by Landlord in doing so, including court costs and attorneys
fees, shall be reimbursed by Tenant promptly upon demand.
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4. TERM, TENANTS ACCEPTANCE.
A. The term of this Lease (the "Lease Term") shall be ten (10) years commencing
on . The first "Lease Year" during the term hereof shall be the period
commencing on the commencement date of the Lease Term if it occurs on the first
day of a calendar month, or on the first day of the next succeeding calendar
month if the commencement date occurs on any date other than the first day of a
calendar month, and shall terminate twelve (12) full calendar months thereafter.
Each subsequent Lease Year during the term hereof shall commence on the day
immediately following the last day of the preceding Lease Year, and shall
continue for a period of twelve (12) full calendar months, except that the last
Lease Year during the term hereof shall terminate on the day that this Lease
expires or is otherwise terminated.
B. At the commencement of the Lease Term, at Landlord's request, Tenant shall
execute and deliver to Landlord a certificate of commencement in a form
reasonably acceptable to Landlord's lender. After commencement of the Lease
Term, Tenant shall have no right to assert any remedy based on a claim that
Landlord failed to deliver possession of the Leased Premises, or failed to
furnish any other facilities, in accordance with the terms hereof.
5. FIXED RENT.
A. Commencing with the Rent Commencement Date, Tenant covenants to pay to
Landlord as fixed minimum annual rent for the Leased Premises for the Lease Term
("Minimum Rent") the following annual sums during the following Lease Years,
payable in the following equal monthly installments:
Lease Year Minimum Rent Monthly Installments
1st Lease Year $106,104 $8,842
2nd Lease Year $118,740 $9,895
3rd Lease Year $129,072 $10,756
4th Lease Year $135,528 $11,294
5th Lease Year $141,972 $11,813
6th Lease Year $146,232 $12,186
7th Lease Year $150,624 $12,552
8th Lease Year $155,148 $12,929
9th Lease Year $159,804 $13,317
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165
10th Lease Year $164,604 $13,717
All such monthly installments of Minimum Rent shall be payable in advance on the
first day of each month or part thereof during the Lease Term. If the Lease Term
commences on other than the first day of a month, the rent for that month shall
be prorated and paid based on the days in such month after and including the
commencement date.
B. All rent shall be payable, without demand and without setoff or other
reduction, at Landlord's address above or such other place as Landlord
designates in writing.
C. No payment by Xxxxxx or receipt by Landlord of a lesser amount than the
monthly installment of rent or other charges herein stipulated shall be deemed
to be other than on account of the earliest stipulated rent or other charges,
nor shall any endorsement or statement of any check or letter accompanying any
check or payment as rent be deemed an accord and satisfaction, and Landlord may
accept such check for payment without prejudice to Landlord's right to recover
the balance of such rent or pursue any ot her remedy in this Lease provided.
X. Xxxxxx agrees to operate the business during reasonable retail business
hours, and shall conduct its business so as to maximize the volume of business
at the Leased Premises, all subject to causes beyond Tenant's reasonable
control. For all purposes of this Lease, "causes beyond Tenant's reasonable
control" shall include acts of God, the elements, weather conditions,
earthquakes, settlements, fires, acts of governmental authorities, wars, riots,
shortages of labor and materials, acts of third parties fo r which Tenant is not
responsible, strikes, picketing, work slowdowns or stoppages, and labor
disputes. Tenant shall keep on the Leased Premises only such goods and
merchandise as Tenant intends to offer for sale at wholesale or retail in or
from the Leased Premises. Tenant shall use for office or other non-selling
purposes only such space in the Leased Premises as is reasonably required for
Tenant's business in the Leased Premises.
E. As provided in Section 45, in addition to the Minimum Rent, Tenant shall pay
as "Additional Rent" such other obligations as are imposed under this Lease.
6. PERCENTAGE RENT. [Intentionally deleted.]
7. LATE CHARGES. Any rental or other payment required to be made by Tenant
hereunder which is not made within seven (7) days of its due date shall be
payable by Tenant to Landlord, without demand, with interest thereon from the
due date until paid at the rate of eighteen percent (18%) per annum (1 1/2% per
month), but no less than One Hundred Dollars ($ 100.00), to cover Landlord's
administrative expenses, and Tenant shall reimburse Landlord for reasonable
attorneys fees, if any, incurred by Landlord by re ason of said late payment by
Xxxxxx.
8. REAL ESTATE TAXES. X. Xxxxxx shall be responsible for reimbursement to
Landlord of all Real Estate
Page 4 of 21
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Taxes levied on the land and building of the Leased Premises. Tenant shall
reimburse Landlord for the Real Estate Taxes within 10 days from receipt of
notice from Landlord of the amount of reimbursement then due. In the event that
the Real Estate Taxes paid by the Tenant are not correct, the balance due shall
be paid by Tenant to Landlord, or the overpayment shall be obtained by Tenant
form the taxing authority at Tenant's expense.
B. Landlord may reasonably contest the real estate tax assessment. Reasonable
expenses, including attorneys fees, expert witness fees and similar costs,
incurred by Landlord in obtaining or attempting to obtain a reduction of any
Real Estate Taxes shall be added to and included in the amount of any such Real
Estate Taxes. Real Estate Taxes which are being contested by Landlord shall
nevertheless be included for purposes of the computation of the liability of
Tenant under the above paragraph, provided, xxxx ver, that in the event that
Tenant shall have paid any amount of increased rent pursuant to this Section 8
and the Landlord shall thereafter receive a refund of any portion of any Real
Estate Taxes on which such payment shall have been based, Landlord shall pay to
Tenant the appropriate portion of such refund. Landlord shall have no obligation
to contest, object or litigate the levying or imposition of any Real Estate
Taxes and may settle, compromise, consent to, waive or otherwise determine in
its discret ion to abandon any contest with respect to the amount of any Real
Estate Taxes without consent or approval of the Tenant. Without making any
representation that Xxxxxx has legal standing to do so, Xxxxxxxx has no
objection to Xxxxxx's contesting Real Estate Taxes, so long as Tenant continues
to make timely payment of Real Estate Taxes hereunder.
C. A tax bill or true copy thereof submitted by Landlord to Tenant shall be
conclusive evidence of the amount of taxes assessed or levied, as well as of the
items taxed. If any real property tax or assessment levied against the land,
building or improvements covered hereby or the rents reserved therefrom, shall
be evidenced by improvement bonds or other bonds, or in any other form, which
may be paid in annual installments, only the amount paid or payable in any real
estate tax fiscal year shall be included as Real Estate Taxes for that real
estate tax year for purposes of this Section 8.
9. PERSONAL PROPERTY TAXES. Tenant shall pay all property taxes and assessments
on its personality, fixtures and other property installed in the Leased Premises
and on improvements made by Tenant.
10. UTILITIES. Tenant shall pay directly to the supplier all charges for water,
gas, electricity, sewer, telephone and other utilities used upon the Leased
Premises after the Tender Date. Expenses for installation and maintenance of
utility meters shall be borne by Tenant, and if Landlord pays any such expenses,
Tenant shall reimburse Landlord promptly upon demand. Landlord shall not be
liable for any failure to furnish or for any interruption of utility services.
13. USE OF LEASED PREMISES. Tenant shall use the Leased Premises exclusively for
conduct of the business set forth in Section 1(i) of the Data Sheet. Tenant
shall not, without the prior written consent of Landlord (in Landlord's sole and
absolute discretion), (a) use all
Page 5 of 21
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or any portion of the Leased Premises for any other purpose, (b) conduct any
fire, auction, "going out of business", or bankruptcy sales on the Leased
Premises, (c) use any loudspeaker or other communications equipment that may be
heard or seen outside the Leased Premises, or (d) permit the installation or use
in any portion of the Leased Premises of one or more pinball, video, electronic,
mechanical or other amusement or game machine of any kind. At no time shall
Tenant offer for sale or display any type of illicit drug or any type of drug
use paraphernalia. In its sole and absolute discretion, Xxxxxxxx may agree to a
change of the permitted use. In the event that Xxxxxxxx agrees to a change of
use for the Premises, then Landlord may adjust the Fixed Rent to the market rate
for such use.
14. COMPLIANCE WITH LAWS, NUISANCES, UNUSUAL RISKS. Tenant shall comply with all
laws, ordinances, rules and regulations pertaining to its use and occupancy of
the Leased Premises. Tenant shall not permit (a) any objectionable noise or odor
to emit from the Leased Premises, (b) any act upon the Leased Premises tending
to disturb other persons, including occupants of neighboring property, (c) any
act upon the Leased Premises which might subject Landlord to liability for
injury to any person or damage to any property, or (d) any act upon the Leased
Premises which invalidates, or which increases the rate of insurance of, any
policy of insurance on the Leased Premises, including the building or any
property therein. Tenant shall be liable for and shall pay to Landlord the
amount of any such increase caused by Xxxxxx's activities.
15. CONDITION OF LEASED PREMISES. Tenant, at its expense, shall keep the Leased
Premises in clean condition, shall keep the sidewalks in front of the Leased
Premises clean and free of ice and snow, shall maintain a "dumpster" trash
receptacle suitable to handle all of Tenant's refuse, and shall remove all
refuse from the Leased Premises and adjacent areas.
16. SIGNS. The present signage on the premises is hereby accepted by the Tenant.
Should Tenant wish to make any changes to the signage, then Tenant shall submit
the changes to the locality and the Landlord for approval at Tenant's expense.
The dimensions and color of said signage shall be approved by the Landlord. At
Tenant's expense, the sign shall be installed by Tenant in compliance with
applicable law following approval of the sign by Landlord and the locality.
After installation Tenant shall maintain the sign in good repair at Tenant's
expense. Tenant shall not display any other signs, lights or advertisements on
the exterior of the Leased Premises, or on or in the immediate proximity to the
inner or outer face of the show windows, or in any other location within the
Leased Premises from which same may readily be seen from outside the Leased
Premises, unless Landlord, in its discretion, consents thereto in writing.
Tenant shall keep any signs, lights or advertisements approved by Landlord in
good repai r.
17. ALTERATIONS. Tenant shall not alter the exterior of the Leased
Premises or the building in any way. Tenant may, at its expense, alter or
improve the interior of the Leased Premises for the conduct of its business
after obtaining the written approval of Landlord as to the alterations or
improvements and the contractor to perform same, which approval shall not be
unreasonably withheld. Landlord may condition its approval upon Xxxxxx's
delivery to Landlord of a policy or policies of workmen's compensation ,
liability and property damage insurance, naming
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Landlord as additional insured, in limits and with companies acceptable to the
Landlord. Such alterations and improvements shall in no way be harmful to the
structure of, nor overload the electrical, plumbing, heating or air conditioning
facilities of, the Leased Premises or the building in which it is located, and
must comply with all applicable building codes, regulations and laws. Except for
modifications previously approved by Landlord, no later than fifteen (15) days
after the expiration of the Lease Term, Tenant shall, at its expense, promptly
restore the Leased Premises to their original condition, reasonable wear and
tear excepted; in default thereof, Landlord may effect such restoration, and
Tenant shall reimburse Landlord for the cost thereof.
18. FIXTURES AND EQUIPMENT. All trade or lighting fixtures and equipment placed
in the Leased Premises by Tenant shall remain Tenant's property, and Tenant
shall have sole responsibility therefor. Tenant may remove same at any time,
provided that Xxxxxx is not then in default hereunder and further provided that
Tenant repairs any damage to the Leased Premises occasioned by removal.
19. LANDLORD'S MAINTENANCE. Prior to the commencement of Tenant's Lease,
Landlord will repair any existing roof leaks on the Leased Premises at its sole
expense. Also, prior to the commencement of the Lease, Landlord shall inspect
and service the Hvac system at its sole expense. At the commencement of the
Lease Term the Hvac systems, plumbing system and electrical system shall be in
good working order. During the Lease Term at Tenant's expense Landlord shall
make all necessary repairs to the structure and roof of the building and the to
the exterior of the Leased Premises (except doors, windows and store front),
after notice from Tenant of the need therefor. During the Lease Term, Xxxxxxxx
will maintain the parking lot at Tenant's expense. Tenant will exercise best
efforts to notify Landlord of any necessary Landlord's maintenance. Landlord
will notify Tenant before incurring Landlord's maintenance expenses.
20. TENANT'S MAINTENANCE. On the commencement Date Tenant is deemed to accept
the HVAC system, plumbing system, and electrical system "AS IS" but in good
working condition as required by Section 19. During the term of the Lease,
Tenant will be responsible for all repairs and maintenance of the HVAC system,
plumbing system, and electrical system. Tenant, at its expense, shall (a) make
all repairs and replacements not required to be made by Landlord under SECTION
19, (b) maintain a service contract, satisfactory to Landlord, for the heating,
ventilating and air conditioning equipment in or exclusively serving the Leased
Premises, and (c) redecorate and repaint the interior of the Leased Premises
whenever necessary to keep the Leased Premises well maintained. If Tenant fails
to promptly perform such obligations, Landlord may make the repairs and maintain
the service contract, all at Tenant's expense, and Tenant shall reimburse
Landlord for the cost thereof promptly upon demand.
21. LANDLORD'S RIGHT OF ENTRY. Provided that entry shall not unreasonably
interfere with the conduct of the Tenant's business, Landlord and its agents may
enter the Leased Premises at reasonable hours to inspect or exhibit same; to
repair or alter same; to place and maintain a "FOR RENT" sign thereon at any
time within six (6) months prior to termination of the Lease Term.
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22. LIABILITY, TENANT'S INDEMNITY, INSURANCE.
A. Except for damages resulting from the willful or negligent act or omission of
Landlord, LANDLORD SHALL NOT BE LIABLE FOR, AND TENANT SHALL INDEMNIFY AND HOLD
LANDLORD HARMLESS FROM AND AGAINST, any and all liabilities, damages, causes of
action, suits, claims, judgments, costs and expenses (including attorneys fees)
arising from any injury, loss or damage to any persons or property (a) arising
within the Leased Premises, or (b) arising out of any act, omission or
negligence of Tenant or any person on th e Leased Premises by the license,
express or implied, of Tenant. Similarly, except for damages resulting from the
willful or negligent act or omission of Landlord, Landlord shall not be liable
to Tenant, its employees, agents, business invitees, licensees, customers,
guests or trespassers, for any damage or loss to the property of Tenant or
others located on the Leased Premises, or in the Building or the Land on which
it is built, or for any accident or injury to persons in the Leased Premises or
the Build ing, resulting from the necessity of repairing any portion of the
Building; the use or operation (by Tenant or any other person) of any heating,
cooling, electrical or plumbing equipment or apparatus; any fire or other
casualty; any leaking in any part or portion of the Leased Premises or the
Building; any water, wind, rain, or snow that may leak into, or flow from, any
part of the Leased Premises or the Building; any water, gas, steam, fire,
explosion, electricity or falling plaster; or the bursting, stop page or leakage
of any pipes, sewer pipes, drains, conduits, appliances or plumbing works.
Landlord shall, however, be liable for damages resulting from the willful or
negligent act or omission of Landlord. On or prior to occupancy by Tenant, and
thereafter throughout the Lease Term, Tenant shall maintain, at its sole
expense, general comprehensive public liability and property damage insurance
insuring Tenant and Landlord with respect to the Leased Premises and their
appurtenances, in a company satisfacto ry to Landlord, in which the combined
single limit of such policy shall be at least Five Million Dollars
($5,000,000.00).
B. Tenant, at Tenant's sole cost and expense, shall also obtain and maintain in
effect at all times during the term of this Lease, policies providing the
following coverage:
(i) insurance covering Tenant's leasehold improvements, trade fixtures,
equipment and personal property from time to time in, on or upon the Leased
Premises, in an amount not less than eighty percent (80%) of the full
replacement value of said items, providing protection against perils included
within the standard Virginia form of fire and extended coverage insurance
policy, together with insurance against sprinkler damage, vandalism and
malicious mischief. All proceeds recovered under such insurance shall be paid to
Tenant and, unless this Lease terminates pursuant to Section 24, shall be used
by Tenant for the repair, reconstruction, restoration or replacement of the
property damaged or destroyed; and
(ii) plate glass insurance covering all plate glass and doors in the Leased
Premises, unless Tenant elects to self-insure for plate glass. In either event,
Tenant shall be and remain liable for the repair and restoration of all such
plate glass.
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C. All insurance policies herein required to be procured by Tenant: (i) shall be
issued in the name of the Tenant with the Landlord and any other parties in
interest from time to time designated in writing by notice from Landlord to
Tenant listed as additional insurers; (ii) shall be written as primary policy
coverage and not contributing with or in excess of any coverage which Landlord
may carry; and (iii) shall, subject to the provisions of Section 22.D, contain
an express waiver of any right of subrogat ion by the insurance company against
the Landlord. With respect to every one of the insurance policies herein
required to be procured by Tenant, on or before the commencement of the term of
this Lease, and before any such insurance policy shall expire, Tenant shall
deliver to Landlord certificates of insurance for, certified copies of, or
duplicate originals of, each such policy or renewal thereof, as the case may be,
together with evidence of payment of all applicable premiums. Any insurance
required to b e carried hereunder may be carried under a blanket policy covering
the Leased Premises and other locations of Tenant. Every insurance policy
required to be carried hereunder by or on behalf of Tenant shall provide that,
unless Landlord shall first have been given ten (10) days prior written notice
thereof. (i) such insurance policy shall not be canceled and shall continue in
full force and effect; (ii) the insurance carrier shall not, for any reason
whatsoever, fail to renew such insurance policy; and (iii ) no material change
may be made in such insurance policy. In the event that Tenant shall fail to
promptly furnish any insurance coverage herein required to be procured by
Tenant, Landlord, at its sole option, shall have the right to obtain the same
and pay the premium therefor for a period not exceeding one (1) year in each
instance, and the premiums so paid by Landlord shall be immediately payable by
Tenant to Landlord as additional rent.
D. Except as otherwise specifically provided for herein, neither party shall be
liable to the other party or to any insurance company (by way of subrogation or
otherwise) insuring the other party for any loss or damage to any building,
structure or other tangible property, even though such loss or damage may have
been occasioned by the negligence of such parties, its agents or employees;
provided, however, that this release shall apply and be effective if and only to
the extent that the loss or damage in q uestion shall be covered by a policy or
policies containing a clause or endorsement substantially to the effect that any
such release by the insured shall not adversely affect, impair or prejudice the
right of the insured to recover for such loss or damage, and that the insurer
waives its right of subrogation. If by reason of the foregoing waiver either
party shall be unable to obtain any such insurance, such waiver shall be deemed
not to have been made by such party, and provided, further, that if either party
shall be unable to obtain any such insurance without the payment of an
additional premium therefor, then, unless the party claiming the benefit of such
waiver shall agree to pay such party for the cost of such additional premium
within thirty (30) days after notice setting forth such requirement and the
amount of the additional premium, such waiver shall be of no force and effect
between such party and such claiming party.
23. FORCE MAJEURE. Landlord shall not be liable for any failure or delay in
performing its obligations hereunder due to causes or conditions beyond
Landlord's control, nor shall there be any abatement or reduction of rent or
other charges payable by Tenant as a result of any inconvenience, interruption
or loss of business or other loss caused thereby. "Causes or conditions beyond
Landlord's control" shall include acts of God, the elements, weather conditions,
earthquakes,
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settlements, fires, acts of governmental authorities, wars, riots, shortages of
labor or materials, acts of third parties for which Landlord is not responsible,
strikes, picketing, work slowdowns or stoppages, and labor disputes.
24. DAMAGESTO LEASED PREMISES. of the Leased Premises or fifty percent (50%) or
more of the building are damaged by fire or other casualty, and if Landlord
notifies Tenant within sixty (60) days after such damage of its intention not to
repair same, this Lease shall thereupon terminate. If Landlord does not so
notify Tenant, and if such damage was not caused by the fault of Tenant,
Landlord shall repair the Leased Premises, provided that Landlord shall not be
required to repair or replace any of Tenant's f ixtures or equipment in the
Leased Premises; provided, further, that Landlord shall not be required to
expend for such repairs an amount in excess of the insurance proceeds made
available to Landlord for such purpose, after application of same in repayment
of any institutional deeds of trust, if required by the lender. If the damage
does not interfere with Xxxxxx's use of the Leased Premises, there shall be no
abatement of rent. If the damage interferes with the Tenant's use of the Leased
Premises, the Min imum Rent shall be abated by the percentage that the unusable
rentable area of the Leased Premises bears to the total rentable area thereof,
for the period commencing with the damage and ending with substantial completion
by Landlord of the repairs; or, if the damage makes it impossible for Tenant to
carry on its business, all rent shall be abated in full during the period
commencing with the damage and ending with substantial completion by Landlord of
the repairs; provided, however, that if the damage was caused by the fault of
Tenant or its agents, employees, customers, invitees, subtenants,
concessionaires or licensees, then there shall be no abatement of rent.
25. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer, mortgage or
otherwise encumber this Lease or sublet or otherwise permit others to use all or
any part of the Leased Premises, whether voluntarily, by operation of law or
otherwise (collectively, an "Assignment"), without the prior written consent of
Landlord, such consent not to be unreasonably withheld (taking into account
Landlord's application of reasonable criteria such as those relating to credit
worthiness, reputation and experience), so long as the Leased Premises continues
to be used for the conduct of the business set forth in Section 1 (i) of the
Data Sheet, or any other business acceptable to Landlord, in Landlord's sole and
absolute discretion. Any attempted Assignment without Xxxxxxxx's consent shall
be void and confer no rights upon any third party. If an Assignment is effected
without consent Landlord may collect rent from the assignee, transferee,
subtenant or occupant (collectively the "Assignee") and apply the net amount col
lected to the rent herein reserved, but no such Assignment or collection shall
be deemed a waiver of this covenant, acceptance of the Assignee as tenant, or
release of Tenant hereunder. If Xxxxxxxx's consent is given, Tenant shall
nevertheless remain liable on this Lease and shall guarantee performance
hereunder by the Assignee, and Xxxxxxxx's prior written consent to any further
Assignment shall be required. The sale or transfer of equitable control, if
Tenant is a non-natural person, or the sale or trans fer of substantially all
the inventory or assets of Tenant, shall constitute an Assignment.
26. SUBORDINATION, ATTORNMENT, NON-DISTURBANCE. This Lease shall be subordinate
to all deeds of trust, mortgages, assignments of rents and leases, UCC financing
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statements and other security agreements that may now or at any time hereafter
be placed against the Leased Premises, made by Landlord, its predecessors,
successors or assigns, to secure money borrowed, and which may now or hereafter
affect the Leased Premises, and to any renewals, modifications, consolidations,
replacements or extensions thereof Tenant hereby attorneys, in accordance with
the terms of this Lease, to the lender in any such deed of trust (the "Lender"),
such attornment to be effective upon Xxxxxx's acquisition of title to the Leased
Premises; provided, however, that Xxxxxx agrees in writing with Xxxxxx, at the
time of Xxxxxx's acquisition of title, to recognize the validity of this Lease,
notwithstanding any foreclosure or deed in lieu thereof, but this proviso shall
be applicable only so long as Tenant is not in default hereunder and only so
long as Tenant's right to possession hereunder is not terminated in accordance
with the provisions of this Lease. Tenant's attornment shall not be term inated
by foreclosure of any such deed of trust or by deed in lieu thereof. At the
request of Landlord or Lender, Tenant shall promptly execute any certificate or
agreement in confirmation of this attornment or any subordination prescribed in
this Section, and Tenant appoints Landlord as Xxxxxx's attorney-in-fact to
execute any such certificates or agreements on behalf of Tenant. In the event of
Lender's acquisition of title to the Leased Premises, Lender shall not be
responsible or liable for any deposits made by Tenant to Landlord unless such
deposits are specifically assigned to Lender.
27. BANKRUPTCY.
A. In the event that Tenant or any guarantor of this Lease shall become or be
adjudicated bankrupt or insolvent, or if Tenant shall file or acquiesce in a
petition in any court in any bankruptcy, reorganization, composition, extension,
arrangement or insolvency proceedings, or if Tenant shall make an assignment or
other conveyance in trust for the benefit of its creditors, or if any execution
or attachment shall be issued against Tenant or Tenant's property whereupon the
Leased Premises shall be taken or o ccupied or attempted to be taken or occupied
by someone other than Tenant and such execution or attachment shall not be
dismissed, vacated, discharged or bonded within sixty (60) days after issuance
of same, or if a receiver or Trustee shall be appointed for the property and
assets of the Tenant and such receivership be not discharged within twenty (20)
days from the date of such appointment, then upon the happening of any of said
events, the term hereby demised shall, at the option of the Landlord, cease (it
being expressly agreed that the covenant hereinafter contained against the
assignment of this Lease shall cover the case of the assignment of this Lease by
operation of law as well as the assignment of this Lease by a voluntary act of
the Tenant).
B. If this Lease shall be so canceled and terminated, neither Tenant nor any
person claiming through or under Tenant by virtue of any statute or order of any
court shall be entitled to remain in possession of the Leased Premises but shall
forthwith quit and surrender the Leased Premises. In no event, without the
written approval of Landlord, which approval may be granted or withheld at its
sole discretion, shall this Lease be or be considered an asset of Tenant's
estate in bankruptcy or insolvency, or any receiver or trustee (hereafter
referred to as a "Trustee") with respect thereto.
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C. To the extent that Xxxxxxxx's right to cancel this Lease in accordance with
the provisions of Section 27(A) and Section 27(B) of this Lease is invalid or
unenforceable under the Bankruptcy Reform Act of 1978 (the "Act"), as the same
may be amended from time to time, or any other statute or rule of law, then the
following provisions shall apply, to the extent valid and enforceable:
(1) If there has been a default by Tenant under any provision of this Lease
(other than this Section 27), the Trustee may not assume this Lease, unless, at
the time of assumption of this Lease, the Trustee:
(A) cures, or provides adequate assurance (to Landlord's reasonable
satisfaction) that the Trustee will promptly cure such default; and
(B) provides adequate assurance (to Landlord's reasonable satisfaction) of
future performance under the Lease, which shall include, without limitation,
adequate assurance of the source of rent and other consideration due under such
Lease;
(2) If there has been a default by Tenant, the Trustee may not require the
Landlord to provide services or supplies incidental to this Lease before
assumption of this Lease unless the Landlord is compensated under the terms of
this Lease for any services and supplies provided under this Lease before
assumption of this Lease.
D . If this Lease is terminated under the provisions of this Section 27, or by
reason of rejection by the Trustee, Landlord shall be entitled to the recovery
of damages, and such other remedies, as are provided for in Section 29. The
foregoing sentence shall not, however, limit or prejudice the right of Landlord
to petition for and obtain as liquidated damages in any bankruptcy, insolvency,
receivership, reorganization or arrangement proceeding an amount equal to the
maximum allowed by the Act or any other statute or rule of law governing such
proceedings and in effect at the time when such damages are to be proved,
whether or not such amount be greater, equal to or less than the amount of the
damages referred to in the preceding sentence.
28. TENANT'S DEFAULTS. Tenant shall be in default hereunder if (a) Tenant fails
to pay any rent or other sum required hereunder on its due date, and such
default is not remedied within ten (10) days after written notice thereof from
Landlord; or (b) Tenant fails to furnish any statement required hereunder on its
due date; or (c) Tenant fails to maintain any insurance required hereunder; or
(d) Xxxxxx abandons the Leased Premises or fails to conduct business therein for
a period of fifteen (15) or more cons ecutive days; or (e) Tenant neglects or
fails to perform or observe any of the other terms, covenants or conditions
contained in this Lease on Tenant's part to be performed or observed; or (f)
Tenant defaults under Section 27 of the Lease; or (g) Tenant fails to take
possession of the Leased Premises and open for business therein within thirty
(30) days after the Rent Commencement Date. Notwithstanding anything to the
contrary contained in Subparagraphs (b) through (g) of the immediately preceding
sentence , Tenant shall not be in default under said subparagraphs unless the
violation, neglect or failure referenced in said
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subparagraphs is not remedied by Tenant within fifteen (15) days after Landlord
shall have given to Tenant written notice specifying such violation, neglect or
failure.
29. LANDLORD'S REMEDIES IN CASE OF TENANT'S DEFAULT.
A. In addition to all other remedies allowed by law or equity, if Tenant is in
default hereunder Landlord may at any time and without further demand or notice
terminate this Lease and/or re-enter or otherwise take possession of the Leased
Premises summarily (and, if necessary, forcibly) remove all persons and property
therefrom (and store the property so removed at Tenant's expense) without being
deemed guilty of trespass and without liability for any loss or damage caused
thereby. Tenant waives service of notice of intention to re-enter. Should
Landlord so take possession of the Leased Premises, (a) the rent to the time of
such possession shall thereupon become due and shall be paid by Xxxxxx, together
with all expenses of such possession, including legal and brokerage fees and the
cost of preparing the Leased Premises for reletting; (b) Landlord may at any
time thereafter terminate this Lease by notice to Tenant; (c) Landlord may
prepare the Leased Premises for reletting; (d) Landlord may relet the Leased
Premises, or any part thereof, for such term, at such rental, and upon such
conditions as Landlord deems advisable; (e) Tenant shall pay to Landlord, for
each month during the balance of the Lease Term, any deficiency between (i) all
the Minimum Rent and Additional Rent herein reserved, including Tenant's Real
Estate Taxes for such month, and (ii) the net rent received including the Real
Estate Taxes and other additional rent and for each such month collected upon
such reletting; (f) Tenant shall pay to L andlord the cost of providing
insurance during the balance of the Lease Term which Tenant is required to
provide; (g) the net rent collected upon such reletting shall be applied first
to the payment of any indebtedness of Tenant to Landlord other than for rent due
hereunder, second to the payment of the expenses of reletting (including legal
and brokerage fees and the cost of preparing the Leased Premises for reletting),
and third to the payment of rent due and unpaid hereunder; and (h) Tenant waives
all r ights of redemption granted by an present or future laws. Should Landlord
terminate this Lease at any time after default by Tenant, it may, in addition to
any other remedies, recover from Tenant all damages incurred by it as a result
of such default, including the value at the time of such termination of the
excess, if any, of the rent and additional rent herein reserved for the
remainder of the Lease Term(e) above multiplied by the number of Lease Years and
parts thereof during such remainder over the the n reasonable rental value of
the Leased Premises for such remainder.
B. If either Landlord or Tenant shall default in the performance of any covenant
on its part to be performed by virtue of any provision in this Lease (including,
without limitation, Landlord's maintenance obligation under Section 19 of this
Lease), and if in connection with the enforcement of the non-defaulting party's
rights or remedies, such non-defaulting party shall properly and reasonably
incur fees and expense for services rendered (including reasonable attorneys
fees), then such fees and expenses sh all, if said non-defaulting party shall
prevail in litigation, be immediately reimbursed by the defaulting party on
demand. The foregoing notwithstanding, no noteholder, mortgagee, other secured
party, purchaser at foreclosure or grantee under a deed in lieu of foreclosure
shall have any liability under the preceding sentence on account of any default
by Landlord. Notwithstanding the foregoing, in the event Landlord shall file any
legal action for the
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collection of rent or any eviction proceeding, whether summary or otherwise, for
the non-payment of rent, and Tenant shall make payment of such rent due and
payable prior to the rendering of any judgment, and not pursuant to any written
settlement agreement, then Landlord shall be entitled to collect, and Tenant
shall be obligated to pay, all court filing fees and the reasonable fees of
Landlord's attorneys.
30. CONDEMNATION. If the whole of the Leased Premises is taken in fee simple or
if there is a temporary taking in excess of ninety (90) days, under eminent
domain, the Lease Term shall terminate as of the date of such taking. If less
than the whole of the Leased Premises is so taken, and such partial taking
materially and adversely affects the continuance of Tenant's business on the
Leased Premises, the Lease Term may, at the election of either party, terminate
upon notice to the other within sixty (60) da ys after surrender of possession
pursuant to such taking; if neither party so elects, the Lease Term shall
terminate as to the part taken and shall continue as to the part not taken, and
the Minimum Rent shall be reduced by the percentage that the part taken bears to
the whole of the Leased Premises. If more than twenty percent (20%) of the
Leased Premises is so taken, the Lease Term may, at the election of Landlord,
terminate upon notice to Tenant within sixty (60) days after surrender of
possession pursu ant to such taking. If, as a result of a taking, the number of
parking spaces is reduced by one-third or more, the Lease Term may, at the
election of either party, terminate upon notice to the other party within sixty
(60) days after surrender of possession pursuant to such taking. In the event of
termination pursuant to this Section, rent and other sums due from Tenant to
Landlord shall be apportioned as of the date of termination. Landlord shall be
entitled to all damages and compensation awarded for any taking, and Xxxxxx
assigns to Landlord all its right to any such award. Tenant, however, may claim
any award made specifically for fixtures and other equipment installed by it,
but only if such award shall be made by the condemnation court in addition to
and stated separately from the award made by it for the land and building or
part thereof so taken, but Tenant shall not claim any award for its leasehold.
31. HOLDING OVER. If Tenant, or anyone claiming under it, remains in possession
of the Leased Premises after the expiration of the Lease Term, Tenant shall be a
tenant from month to month, upon all the terms hereof which are not inconsistent
with such tenancy; provided, however, that Tenant covenants to pay to Landlord
as rent during such tenancy, in equal monthly installments in advance, one
hundred fifty percent (150%) of the Minimum Rent in effect immediately before
expiration of the Lease Term. Such te xxxxx xxx be terminated by Landlord or
Tenant upon thirty (30) days notice. Tenant's failure to give such notice shall
obligate it to pay rent for one full calendar month following the month in which
it vacates the Leased Premises. Except for purposes of the first sentence of
this Section, during any holdover term, references to the "Lease Term" shall
include the period of such holdover. The obligations of the parties under the
Lease shall continue during any holdover period.
32. TERMINATION OF LEASE. Upon termination of the Lease Term for any reason,
Tenant shall surrender the Leased Premises, remove its property, and deliver the
Leased Premises to Landlord in the condition required by Section 17. Tenant
shall have a reasonable period of time, not exceeding fifteen (15) days after
termination of the Lease Term, to restore the Leased Premises
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to its required condition. If Tenant fails to remove its property, the same
shall be the property of Landlord or, at Landlord's option, shall be removed and
stored for the account of and at the expense of Tenant, without Landlord being
liable for trespass, conversion or negligence in respect of such property.
33. NO PERSONAL LIABILITY. The parties agree that there shall be no personal
liability on the part of the President of Landlord, or any other agent or
officer of the Landlord, or any mortgagee in possession with respect to any
terms of this Lease, and that Tenant shall look solely to the assets of Landlord
(including without limitation, the equity of Landlord in the Leased Premises)
for the satisfaction of every remedy of Tenant for any breach by Landlord
hereunder. In the event of the sale or transfer of Landlord's interest in the
Leased Premises, (i) Landlord shall thereupon and without further act by either
party hereto be released and discharged of all covenants and obligations of
Landlord hereunder thereafter accruing, and (ii) it shall be deemed and
construed conclusively, without further agreement between the parties, that the
purchaser or other transferee or assignee has assumed and agreed to perform the
obligations of Landlord thereafter accruing.
34. NO WAIVER. Landlord's waiver of any breach of any covenant or condition of
this Lease shall not be construed as a waiver thereof or of any subsequent
breach thereof. The acceptance by Landlord of rent, with knowledge of any breach
by Xxxxxx, shall not be deemed a waiver of such breach, nor shall the acceptance
by Landlord of rent after the termination in any way operate to reinstate,
continue or extend the Lease Term or affect any notices. No receipt of rent
after the commencement of suit, or after fin al judgment for possession of the
Leased Premises, shall reinstate, continue or extend the Lease Term or affect
said suit or said judgment. No waiver by Landlord shall be effective unless in
writing signed by Landlord.
35. NOTICES, DESIGNATION OF AGENT TO ACCEPT SERVICE OF PROCESS. All notices and
other communications hereunder shall be in writing, delivered in person or by
certified or registered U.S. mail, postage prepaid, to Landlord at its address
set forth in this Lease, and to Tenant to the address set forth in Paragraph
2(a) of this Lease, or, at Landlord's option, by posting same at the Leased
Premises, or to such place as designated by either party in writing. Either
party may designate in writing a change in its notice address, except that
Landlord may always give notice to Tenant by posting same at the Leased
Premises.
36. QUIET ENJOYMENT. Tenant, so long as it is not in default under this Lease,
shall have the quiet and peaceful use and possession of the Leased Premises,
subject to encumbrances and underlying leases to which this Lease is
subordinate.
37. SECURITY DEPOSIT, TENANT'S PERSONAL LIABILITY.
Tenant has deposited with Landlord the sum set forth in Section 1(g) of the Data
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Sheet as security for performance of its obligations hereunder. The security
deposit shall be returned to Tenant, without interest, within forty five (45)
days after the expiration of this Lease Term, provided that Tenant has
discharged all such obligations. Landlord may apply all or part of the security
deposit to cure any default of Tenant, and if Landlord does so, Tenant shall
deposit with Landlord the amount so applied within ten (10) days after written
demand therefor, and Xxxxxx's failure to do so sh all be a default under this
Lease. Tenant shall provide Landlord with personal guaranties from entities and
in a form acceptable to Landlord's lender, in its sole discretion.
38. SEVERABILITY. If any provision of this Lease or any application thereof
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and any other application
thereof shall not be impaired thereby.
39. RECORDATION. The parties agree to execute a short form of this Lease, which
either party may record at its expense.
40. ESTOPPEL CERTIFICATES. Xxxxxx agrees that, upon five (5) days prior request
by Xxxxxxxx, Xxxxxx will execute, acknowledge and deliver to Landlord, or to
such person(s) as may be designated by Landlord, a written statement in the form
acceptable to Landlord's lender or future lender, or with such modifications as
Landlord may reasonably request. Any such statement delivered pursuant hereto
may be relied upon by any owner of the Leased Premises. Failure by Xxxxxx to
deliver a requested statement to Landl ord, or state in writing the exceptions
to the requested statement, within ten (10) days of Landlord's request therefor,
shall for all purposes constitute Tenant's direction to Landlord to execute and
deliver such statement on Xxxxxx's behalf, and Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact (which
appointment shall be deemed to be irrevocable and coupled with an interest) to
execute and deliver any such statement on Xxxxxx's behalf, except that the
foregoing sha ll not relieve Tenant of the obligation to deliver any such
statement to Landlord and shall not be deemed to cure Xxxxxx's default for
failure to deliver any such statement.
41. RULES AND REGULATIONS. Landlord may establish from time to time rules and
regulations which are reasonable.
42. JOINT AND SEVERAL OBLIGATIONS. Tenant and all guarantors shall be jointly
and severally liable for Tenant's obligations under this Lease following a
default by Tenant.
43. BINDING EFFECT. All covenants, conditions and terms hereof shall be binding
upon and inure to the benefit of the parties and their respective successors,
permitted assigns, heirs and legal representatives.
44. RELATIONSHIP OF PARTIES. The relationship between Landlord and Tenant shall
not be construed as that of a principal and agent or partners or joint
venturers.
45. ADDITIONAL RENT. If Landlord shall incur any charge or expense on behalf
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of Tenant under the terms of this Lease, or Landlord elects to cure any default
of Tenant under this Lease, or is forced to incur any other expense arising out
of such default by Tenant (including, without limitation, reasonable attorneys
fees and disbursements in successfully instituting, prosecuting or defending any
suits, actions or proceedings (including any bankruptcy or insolvency
proceedings) to enforce Landlord's rights under this or any other Section of
this Lease or otherwise) the sums so paid by Landlord with all interest, costs
and damages shall be paid by Tenant to Landlord upon written demand and if not
immediately paid shall be deemed to be additional rent, payable with the next
due installment of Minimum Rent; and in addition to and not in limitation of any
other rights and remedies which Landlord may have in case of the failure by
Tenant to pay such sums when due, such non-payment shall entitle Landlord to the
remedies available to it hereunder for non-payment of rent.
46. APPLICABLE LAW. This Lease shall be construed under the laws of the
Commonwealth of Virginia.
47. MODIFICATION, GENERAL INFORMATION SHEET.
A. This writing is intended by the parties as final expression of their
agreement and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having been
incorporated herein. No course of prior dealings between the parties of their
affiliates shall be relevant or admissible to supplement, explain or vary any of
the terms of this Lease. Acceptance of, or acquiescence in, a course of
performance rendered under this or any prior agre ement between the parties or
their affiliates shall not be relevant or admissible to determine the meaning of
any of the terms of this Lease. No representations, understandings, or
agreements have been made or relied upon in the making of this Lease other than
those specifically set forth herein. This Lease can only be modified by a
writing signed by all of the parties of their duly authorized agents.
48. WAIVER OF JURY TRIAL. Tenant and Landlord hereby waive all right to trial by
jury in any claim, action, proceeding or counterclaim by either Landlord or
Tenant against the other or any matters arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant and/or Xxxxxx's use or
occupancy of the Leased Premises.
49. LENDERS APPROVAL. This Lease is subject and conditioned upon the approval of
Landlord's lender on or before thirty (30) days from the date of this Lease. If
said approval is not obtained on or before thirty (30) days from the date of
this Lease, then either party may, by written notice to the other party,
terminate this Lease, in which event any money or security deposited hereunder
shall be returned to Tenant, and neither party shall thereafter have any further
liability or obligation to the other her eunder. Xxxxxxxx agrees that it will
notify Tenant in writing within five (5) business days if Xxxxxx's approval is
not obtained.
50. LANDLORD'S DISTRAINT LIEN.
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179
INTENTIONALLY OMITTED
51. NO OPTION. The submission of this Lease for examination does not constitute
a reservation of or option for the Leased Premises, and this Lease becomes
effective only upon execution and delivery thereof by Landlord.
52. OPTION TO RENEW.
A. Provided that this Lease is in full force and effect and Tenant is not in
default under any of the terms, conditions or provisions hereof, Tenant shall
have an option to extend this Lease for one (1) additional period of five (5)
years (such additional period being hereinafter referred to as the "Renewal
Period"). Such renewal option shall be exercisable by Xxxxxx giving written
notice of the exercise of such renewal option to Landlord at least nine (9)
months prior to the expiration of the original Lea se Term. In the event that
Tenant exercises the option to renew this Lease, then the Lease Term shall be
extended accordingly upon the same terms, covenants and conditions as set forth
in this Lease with respect to the original Lease Term as if the original term of
this Lease included the exercised Renewal Period, except that the Minimum Rent
during such Renewal Period shall be determined pursuant to the following
provisions of this Section 52.
B. Notwithstanding the provisions of Section 5(A), at the commencement of the
Renewal Period, and effective simultaneously with such date, the Minimum Rent
herein provided for (and the monthly installments thereof) shall be adjusted to
reflect the current market rate as reasonably determined by Landlord. The
Minimum Rent shall escalate annually during the renewal period in an amount
agreed to by the parties. If tenant fails to accept the new Minimum rent or the
escalation provisions, the renewal option sha ll terminate.
54. OPTION TO PURCHASE REAL ESTATE. Provided that Tenant shall not be in default
hereunder, and provided that Tenant shall have paid Landlord in full under the
terms of the Sales Contract, Tenant shall have the option to purchase the
Premises (current Fairfax County Tax Map No. 16-2-2-212C ). Tenant may exercise
the option during the initial Lease Term. Landlord shall convey the demised
Premises by special warranty deed, free and clear of all liens and encumbrances,
except those that Tenant may have created or suffered, and except any assess
ments, rates, duties, imposts, or charges that may have become a lien against
the Premises since the date of this lease. Landlord shall provide the deed and
an abstract of title, showing a good and unencumbered title, passing under and
by the resulting conveyance. Title to the Premises shall be marketable and
insurable at regular rates. Taxes shall be prorated as of the date of closing.
The Premises shall be properly zoned for the use permitted under this Lease with
requisite access to a public right of wa y and appropriate public parking. The
purchased price for the Premises shall be: $1,200,000 during the 1 Lease Year;
$1,23 6,000 during the 2 Lease Year; and 120% of the Fairfax County real estate
tax assessed value for the tax year in which the closing occurs, but in no event
less than $1,300,000, for the 3' Lease Year and thereafter. The
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180
purchase price shall be paid by certified or cashier's check at closing. Tenant
shall give Landlord 90 days written notice of intent to exercise the option and
shall pay a deposit of $50,000 to be applied toward the purchase price at the
time of closing. In the event that Tenant exercises the option and fails to
complete closing within the 90 period, then at the election of Landlord the
Tenant's option to purchase under this Lease shall terminate and the option
deposit shall be paid over to Landlord as liq uidated damages for Xxxxxx's
default. Following notice of intent to exercise the option to purchase, Tenant
may assign the option to purchase the Premises, provided that Tenant and any
guarantor shall not be relieved of personal liability upon any such assignment.
At the time of closing the option to purchase the real estate may be assigned by
Xxxxxx to a third party.
55. MISCELLANEOUS PROVISIONS.
X. Xxxxxxx and Burden. Except as otherwise expressly set forth herein, the
provisions of this lease shall be binding upon, and shall inure to the benefit
of, the parties hereto and each of their respective assigns and successors in
interest.
B. Governing Law. This Lease shall be construed and enforced in accordance with
the laws of the Commonwealth of Virginia.
C. No Partnership. Nothing contained in this Lease shall be deemed or construed
to create a partnership or joint venture of or between Landlord and Tenant, or
to create any other relationship between the parties other than that of Landlord
and Tenant.
D. Representations by Landlord. Neither Landlord nor any agent of Landlord has
made any representations or promises with respect to the Premises or the
Building except as herein expressly set forth, and no rights, privileges,
easements or licenses are granted to Tenant except as herein expressly set
forth.
X. Xxxxxxxx. Feminine or neuter pronouns shall be substituted for those of the
masculine form, and the plural shall be substituted for the singular number, in
any place or places in this Lease in which the context may require such
substitution or substitutions. For convenience the Landlord and Tenant have bee
referred to in neuter form in this Lease.
F. Captions. The captions used herein are for convenience of reference only and
are not part of this Lease, and shall in no way be deemed to define, limit,
describe, or modify the meaning of any provision of this Lease.
G. Meaning of Including. Whenever the word "including" is used herein, it shall
be deemed to mean "including but not limited to".
H. Invalidity of Particular Provisions. If any term or provision of this Lease
or applications thereof to any person or circumstances shall, to any extent, be
invalid or
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181
unenforceable, the remaining terms and provisions of this Lease, or the
application of such term or provisions to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
I. Counterparts. This Lease has been executed in several counterparts, but all
counterparts shall constitute one and the same legal document.
J. Entire Agreement. Except as noted in this Lease, this Lease, and any exhibits
and addenda attached hereto, contain and embody the entire agreement of the
parties hereto, and no representations, inducements, or agreements, oral or
otherwise, between the parties not contained in this Lease or in the exhibits or
addenda, if any, shall be of any force or effect. This Lease may not be modified
except in writing duly signed by the parties. This Lease shall be construed
together with the Sales Contract, of eve n date herewith, and all other
instruments executed pursuant to that Agreement.
K. Mortgagee's Performance. Tenant shall accept performance of any of Landlord's
obligations hereunder by any Mortgagee, and shall attorn to such Mortgagee upon
its termination of Landlord's interest in the Premises.
L. Recordation. Landlord and request Xxxxxx shall execute a short form of this
Lease for purposes of recordation. The party desiring recordation shall pay the
recording costs.
M. Time of the Essence. Time shall be of the essence in the performance of
obligations under this Agreement.
WITNESS the following signatures and seals:
LANDLORD:
CYCLE SPORT UNLIMITED, INC.
By:__________________
Xxxxx X. Xxxx, President
TENANT:
V-TWIN ACQUISITIONS, INC.
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182
By: ___________________
Xxx X. Xxxxxxxxxxxx, Chairman
and Authorized Representative
STATE OF
COUNTY OF
Before me, a Notary Public in and for the jurisdiction aforesaid, personally
came XXXXX X. XXXX, the President of CYCLE SPORT UNLIMITED, INC., the Landlord
in the foregoing Lease, and acknowledging the signing to be his voluntary act.
Witness my hand official seal __________this day ___________of 19______
____________________________
Notary Public
[Notarial Seal] My Commission Expires:_____________
STATE OF
COUNTYOF
Before me, a Notary Public in and for the jurisdiction aforesaid, personally
came XXX X. XXXXXXXXXXXX, the Chairman and duly authorized representative for
V-TWIN ACQUISITIONS, INC., the Tenant in the foregoing Lease, and acknowledging
the signing to be his voluntary act.
Witness my hand official seal __________this day ______of '19________
Notary Public
[Notarial Seal] My Commission Expires:_______________________
Page 21 of 21
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SCHEDULE E-2
SPRINGFIELD LEASE
FOR
THE MOTOR CYCLE DIVISION
CYCLE SPORT UINLITMITED, INC.
184
LEASE AGREEMENT
This Lease Agreement is made effective as of July 1, 1998, by and between "1998,
Ltd," Landlord") and Cycle Sport (Tenant"). The parties agree as follows:
1. LEASED PREMISES. Landlord, in consideration of the lease payments provided in
this Lease, leases to Tenant the building area located at Xxx Center (herein
called the shopping center) - 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 (the
premises).
2. TERM. This lease term will begin on July 1, 1998 and will terminate on June
30, 1998. The rent commencement date shall be July 1, 1998.
3. STORE PURPOSE. The leased premises shall be used by Tenant solely for the
purpose of conducting therein the business of. Sale & repair of motorcycles,
related equipment and accessories. Tenant will occupy the leased premises
promptly upon commencement of the term and will immediately begin the continuous
operation of the specified business in the leased premises, Tenant does further
understand and agree that the leased premises shall be used for no other purpose
than that specified above without the written consent of the Landlord. It is
further understood that the landlord has absolute and arbitrary discretion as to
approval of any proposed change of the use specified above.
No nuisances shall be allowed on the leased promises nor shall any use be
allowed which is a source of annoyance or embarrassment to the Landlord or other
tenants of the Shopping Center, or which is deemed by the Iandlord as not in
keeping with the character of the neighborhood, nor shall the [cased premises be
used for any unlawful, or improper purpose. Without limiting the generality of
the foregoing, in no event shall the leased premises be used as a so-called
"adult bookstore" selling obscene or pornog raphic books, magazines or movies,
or for the sale of drug paraphernalia or related items.
4. LEASE PAYMENTS. Tenant shall pay to Landlord for the first full year, the
amount of Four Thousand Five Hundred Dollars & 00/000 ($4,500.00) (base rent)
per month. All rent is payable in advance on the first day of each month, for a
total annual lease payment of Fifty Four Thousand Dollars & 00/000 ($54,000.00).
Payment of rent for years N/A through N/A of this lease agreement will be in
accordance with the following schedule: Base rent (with previous adjustments),
Consumer Price Index (CPI) plus one percent. If the CPI Index is discontinued or
altered, Landlord and Tenant shall attempt to agree upon a substitute index or
formula, and if said parties are not able to agree upon such substitute, the CPI
average for the preceding five years will be used for the duration of lease
agreement. Te nant also agrees to pay, and the Landlord agrees to accept as
additional rent for each lease year of the term, the Tenant's proportionate
share of the increases in any real estate or other taxes as specified in this
least 7? agreement. Xxxxxx also agrees to pay, and the Landlord agrees to accept
as additional rent for each lease year of the term, the Tenant's proportionate
share of the cost of maintenance and operation of common areas as defined
hereinafter The Landlord will provide Tenant, when appropriate, a detailed
invoice showing what additional amounts of money due. Said invoices will be
presented to Tenant twice during the calendar year, one for the period of
January through June and one for the period July through December. When
received, Xxxxxx agrees to pay said 'invoice within ten (10) days of receipt.
5. LATE PAYMENTS. Rent due and payable on the first day of the month and
considered to be late if not receivced by the 10th day of the mouth. A five
percent late charge is due and payable for all rent not received by the fifth of
the month. A second late charge in the amount of $25.00 will be added for rent
not received by the sixteenth day of the month. Partial payment of rent is not
acceptable.
6. NON-SUMCEIENT FUNDS. Tenant shall be charged $25.00 for each check that is
returned to Landlord for lack of sufficient funds. After two returned chocks,
Xxxxxxxx has the right to demand payments for form mat and services in the form
of a money order or certified check.
7. SECURITY DEPOSIT. At the time of the signing of this Lease, Tenant shall pay
to Landlord, in trust, a security deposit in the amount of Four Thousand Five
Hundred Dollars & 00/00 ($4,5000.00) to be held and disbursed for Tenant damages
to the Premises (if any) as provided by law. Tenant is in default in payment of
rent or other services, Landlord may use, apply or retain all or any part of the
Security Deposit for the payment of any rent-or apy.9ther so- of money which
Tenant was obligated to pay but did not pay. Should the entire deposit, or any
portion t4ercof, be applied by the Landlord as aforesaid, Tenant shall, upon the
written demand by Landlord, rent to landlord a sufficient amount to r estore
said deposit to the original sum deposited. Tenant's failure to make such
additional deposit within five (5) business days after receipt of such demand
shall constitute a breach of this Lease, Tenant complies with all of the terms,
covenants and conditions of this Lease, the said security deposit shall be
returned in full to Tenant at the end of the term of this or upon any later date
after which Xxxxxx has vacated the premises. The security deposit shall bear no
interest.
(1)
185
8. REAL ESTATE TAXES, "Real Estate Taxes" means real estate taxes, assessments
and governmental charges assessed levied or imposed against the Shopping Center
and includes real estate taxes, assessments, and other government charges which
are special extraordinary and unforeseen. The term "Base Year means calendar
year 1998. The term "real estate tax year means each successive twelve (12)
month period following and corresponding to the Base Year, irrespective of the
period or Periods which may from time to time in the future be established by
competent authority for the purpose of levying or imposing Real Estate Taxes.
Each real estate tax year after the Base Year, Tenant shall pay to the Landlord
within ten (10) days after demand in writing Tenant's Percentage Sham of
increases in Real Estate Taxes.
9. COMMON AREA MAINTENANCE COST& Common area maintenance costs means expenses
incurred with respect to the operation, maintenance, protection, replacement and
repair of the Shopping Center, including, without limitation, the costs and
expenses which belong within any one or more of the following categories:
Reasonable reserves for painting, resurfacing, and replacement of cubs and
gutters, water, sanitary, storm and other utility systems, roofs and parking.
Premiums and other charges for casualty. liability, fidelity and any other
maintain or is required to maintain with regard to the Shopping Center or the
maintenance of operation thereof the cost of cleaning supplies hand tools and
other materials used in the repair, maintenance or operation of the Shopping
Center. The cost of charges for any janitorial or security services that may be
used. Snow, ice and trash removal. Landscaping and striping of the parking areas
charges of independent contractors, HVAC repair and maintenance. Holiday or
other decorations. Reasonable legal, accounting and other professional fees
incurred in connection with the operation, maintenance or management of the
Shopping Center. Fees, dues and other contributions paid by Landlord to civic or
other organizations for the benefit of the Shopping, Center. Water, sewer
charges and other utility charges, except as billed directly to Tenants.
10. LAWS AND ORDINANCES At the time when Landlord lenders possession, in
accordance with its obligations under this Lease, to Tenant, landlord shall
certifies that said premises and all of the work Landlord has Performed therein
is in accordance with all State, County and municipal building and safety
requirements. From that point forward, Tenant will, at its own cost, promptly
comply with and carry out all orders, requirements or conditions now or
hereafter imposed upon it by the ordinances, laws and/or regulations of the
municipality, County and/or State in which the premises are located, whether
required of the Landlord or otherwise, in the conduct of Tenant's business,
except that landlord shall comply with any orders affecting structural walls and
columns unless due to Tenant's particular business or use of the premises.
Tenant will indemnify and save Landlord harmless from all penalties. claim, and
demands resulting from Xxxxxx's failure or negligence in this respect
11. REPAIR The Tenant agrees to maintain the premises in good repair during the
term of this Lease at his own expense, including the floors and ceiling.
Xxxxxxxx agrees that within a reasonable time after receipt of written notice
from the Tenant to make all repairs necessary to the structural portion and
roof, including gutters and downspouts, of the demised Premises. The Tenant also
agrees, at his own expense, to replace all plate glass in the demised premises
which shall be damaged or broken from any cause. The Tenant also agrees at his
own cost and expense to maintain his exterior sip face, sip box, sip lighting.
heating ventilating and air conditioning equipment servicing the demised
premises. AR new signage must be approved by the Landlord prior to being
installed.
12. ALTERATIONS. Tenant shall make no alterations, modifications or changes to
any pan of the demised premises either exterior or interior, without Landlord's
written consent which shall not be unreasonably withheld. In the event of any
such approved changes, Tenant shall have all work done at its own expense
Request for such consent shall be accompanied by plans stating in detail
precisely what is to be done. Tenant shall comply with the building codes
regulations and laws now or hereafter to be made or enforced in the
municipality, County and/or State in which said premises are located and which
Pertain to such work. Any approved additions, improvements, alterations and/or
installations made by Tenant (except for movable store and office furniture and
fixtures) shall become and remain a part of the building and be and remain
Landlord's property upon the termination of Tenant's occupancy of Premises;
Provided, however, that if Landlord gives written notice to Tenant at the
expiration or prior termination of this Lease to such Landlord way require
Tenant to remove said premises to its original condition. Tenant shall save
landlord harmless from and against all expenses. liens, claims or damages to
either Property or person which may or might arise by reason of the making of
any such additions, improvements, alterations and/or installations.
(2)
186
13. DAMAGE. If the Shopping Center or the demised premises shall be partially
damaged by fire or other cause, without the fault of or neglect of the Tenant,
his servants, employees, agents, visitor or licensees, the damage to the
premises and that part of the demised premises shall be repaired by and at the
expense of the Landlord; tenant shall repair the damage to the remainder of the
demised premises at his own expense. Nothing in this agreement is intended to
relieve Xxxxxx from his obligations arising from the neglect or fault of
himself or his servants, employees, agents, visitors or licensees. Until such
repairs shall have been made by the Landlord, the rent shall be apportioned
according to the part of the demised premises which is usable by the Tenant.
Due allowance shall be made for reasonable delay which may arise by reason of
adjustment of fire insurance on the part of the Landlord and/or the Tenant, and
for reasonable delay on account of "labor troubles" or any other cause beyond
the Landlord's control. If, however, the demised premises are rendered wholly
untenable by fire or other cause, and the Landlord shall decide not to rebuild
the same, or if the building be so damaged that the landlord shall decide to
demolish it or not to rebuild it, then, or in any of such events, the Landlord
may, at its option, cancel and terminate this Lease by giving to the Tenant,
within sixty (60) days from the date of such damage, notice in writing of its
intention to cancel this Lease, whereupon the term of this Lease shall cease
and determine upon the third day after such notice is given and the Tenant
shall vacate the demised premises and surrender the same to landlord, but in
neither of the certain contingencies in this paragraph mentioned shall there be
any liability on the part of the Landlord to the Tenant, its heirs or assigns,
covering or in respect to any period during which the occupation of said leased
premises by the Tenant because of the matters hereinabove stated, may not be
possible.
14. EMINENT DOMAIN. If the Shopping Center or any part thereof shall be taken by
any governmental or quasi-governmental authority pursuant to the power of
eminent domain, Xxxxxx agrees to make no claim for compensation in the
proceedings, and hereby assigns to landlord any rights which Tenant may have to
any portion of any award made as a result of such taking and this Lease shall
terminate as to the portion of the premises taken by the condemning authority
and rent shall be adjusted to such date. The foregoing notwithstanding, the
Tenant shall be entitled to claim, prove and receive in the condemnation
proceedings such awards as may be allowed for relocation expenses and for
fixtures and other equipment installed by it which shall not, under the terms
of this Lease, be or become the property of Landlord at the termination hereof,
but only if such awards shall be made by the condemnation court in addition to
and stated separately from the award made by it for the land and the building
or part thereof so taken.
If the nature, location or extent of any proposed condemnation affecting
the Shopping Center is such that the Landlord elects in good faith to demolish
all or substantially all of the buildings in the Shopping Center, then the
Landlord may terminate this Lease by giving at least sixty (60) days' written
notice of termination to the Tenant at any time after such condemnation and
this Lease shall terminate on the date specified in such notice.
Should the Shopping Center be remodeled, refurbished or otherwise upgraded
in a manner that would necessitate a change in the amount of rent during the
period of this lease agreement, Xxxxxxxx agrees to offer Tenant first right of
refusal of new rental rate. If Xxxxxx does not agree to and accept the new
rental rate then Xxxxxx agrees that his lease will be terminated and he must
vacate said Premises within sixty (60) days.
15. ROOF RIIGHTS. Landlord shall have the exclusive right to use all or any
portion of the roof of the leased premises for any purpose, and shall have the
right to erect additional stories or other structures over all or any part of
said premises.
16. HOURS OF LIGHTING. If requested by Landlord, Tenant shall keep the display
windows in the demised premises well-lighted from dusk until 10:00 p.m., or such
other reasonable time as determined by Landlord, during each and every day.
17. PARKING AND COMMON AREAS. All automobile parking areas, driveways, and other
facilities furnished by Landlord in or near the Shopping Center, including
employee parking areas the truckway or truckways, loading docks, package pick-up
stations, pedestrian sidewalks and ramps, landscaped areas, exterior stairways,
and other areas and improvements provided by Landlord for the general use, in
common, of tenants, their officers, agents, employees and customers, shall at
all times be subject to the exclusive control and management of the Landlord,
and Landlord shall have the right from time to time establish, modify and
enforce reasonable rules and regulations with respect to all facilities and
areas, the right to construct, maintain and operate lighting facilities on all
said areas and improvements, the right to change the area, level, location and
arrangement of parking areas and other facilities hereinabove referred to and
the right to restrict parking by tenants, their officers, agents and employees
to employee parking areas. Landlord shall not, however, have any duty to police
the traffic in the parking areas.
(3)
187
Tenant further agrees that its employees will not park their cars or other
vehicles an the adjacent to the leased Premises, or in the space provided for
public use, but will use such space as Landlord shall designate from time to
time as parking space for the use of tenants and employee Landlord may designate
space provided for public parking for employee or term parking at specific
times. At Landlord's request, Tenant shall supply Landlord with the names of all
employees, along with the license numbers of their respective automobiles or
vehicles. In addition, Xxxxxx agrees to supply Landlord with the license numbers
of all vehicles owned or operated by Tenant.
The parties agree that damages will accrue from the breach of the covenant
relating to parking and that amount of such damage will be difficuit to
establish, and that by reason thercol; liquidated damages in the amount of
$20.00 per day, per vehicle, parked in violation of said covenant may be
recovered by Landlord from Tenant, following written notification to Tenant
naming the vehicles in violation.
The parties agree that damages will accrue from the breach of the covenant
relating to loading or unloading of deliveries and that the amount of such
damage will be difficult to establish; that by reason there liquidated damages
in the amount of $20.00 per day, per vehicle, loaded or unloaded in violation of
said covenant may be recovered by Landlord from Tenant, following written
notification to Tenant naming the supplier violating this Covenant.
Vehicles parked on Xxx Center property without current license tags, inspection
and county stickers displayed will be towed from Xxx Center property without
notice and at no expense to the Landlord. All vehicles parked on Xxx Center
property must be in operational condition at all times Vehicles not in
operational condition will be towed from Xxx Center property without notice and
at no cxpense to the Landlord. is.
18. COMMON AREAS MAINTENANCE AND OPERATION. Landlord agrees to keep the parking
areas in the Shopping Center and the other common area (excepting service areas
immediately adjacent and contiguous to the demised premises, the maintenance of
which shall be Tenant's responsibility) reasonably free of snow, ice and debris
and to keep the same lighted during the business hours of a majority of the
tenants in the Shopping Center. Landlord further agrees to keep the parking
-area in the Shopping Center and other common areas in good repair and order.
19. UTILITIES GENERAL Tenant shall, at its sole cost and expense, pay all
charges when due for water, sewer, gas, electricity, heat, air-conditioning and
any other utility or energy charges and taxes incurred by Tenant in the use of
the demised premises. in the event separate utility meters am installed for the
demised premises, Tenant shall maintain such meters, at its own expense, and pay
all charges and taxes measured thereby. If Landlord shall elm to supply water,
gas, electricity, sewer or any other utility service, Tenant shall pay within
ten (10) days all charges and taxes therefore upon the receipt of a bill for
such charges rendered at the applicable rates.
20. UTIOLMES - WATER. Tenant shall pay to Landlord, within ten (10) days after
rendition of a bill therefore by Landlord or the Fairfax County Water Authority,
or successor, in addition to ad other charges provided herein and as additional
rent, a sum equal to the amount provided herein and as additional rent, a sum
equal to the amount (or Xxxxxx's pro-rata share, as reasonably determined by
Landlord) of any water or sewer rent or charge, or any other tax, rent, fee,
levy or charge, imposed in connection with Xxxxxx's use, consumption or supply
of water, or Tenant's water system, or Tenant's sewage connection or system.
21. TRASH, Tenant will keep the demised premises free of trash. and dirt
accumulations and shall furnish adequate and proper receptacles for trash and
garbage in a locati6n designated by the Landlord.
22. KEEP CLEAN. The Tenant agrees to keep the sidewalks abutting the demised
premises in clean and orderly fashion, and agrees not to use any space, other
than within the walls of the demised premises, for the sale or storage of
merchandise or for service of any kind.
(4)
188
23. HOLD HARMLESS. Tenant agrees that it will indemnify and Law the Landlord
harmless from any and all liabilities, damages, causes of action, suits, claims,
judgments, costs and expenses of any kind (including attorney fees) relating to
or arising from or in connection with the possession, use, occupation,
management repair, maintenance or control of the demised premises of any Portion
thereof, or arising from or in connection with any act " Commission of Tenant or
Tenant's agents, employees or invitees, or resulting from any fault, violation
of nonperformance, of this Term by Xxxxxx, or resulting in injury to person or
property or loss of life sustained in or about the demised premises. To assure
such indemnity, Tenant shall carry and keep in XXX form and effect at all times
during the term of this low for the protection of the Landlord and Tenant
herein, public liability insurance with limits of at least One Thousand Dollars
($1,000, 000.00). for each accident and Five Hundred Thousand Dollars ($500,000.
00), for each separate injury, and property damage insurance in the amount of
One Hundred Thousand ($100,000.00). with an approved insurance company and to
deliver to Laundered a copy of said policy or a certificate showing the same to
be in force and effect. Insurance policy must indicate "1999, Lid," as
additional insured In the event Tenant shall fail to maintain such policy of
insurance then Landlord may, niter three (3) days written notice to Tenant,
obtain such policy and pay the premium thereon and the amount so paid shall be
added to the next installment of rent. In the event the Tenant shall operate
motor vehicles on the premises, whether private passenger type or commercial
type, and whether driven by Tenant or his agent (except vehicles used
exclusively for commuting to and from the demised premises), Tenant shall carry
automobile liability insurance either (a) with bodily injury liability limits of
Five Hundred Thousand Dollars ($500,000.00) each person; One Hundred Thousand
Dollars ($100,000.00) each accident, or (b) with a combined bodily injury and
property damage liability limit of not less than Five Hundred Thousand Dollars
($500,000.00). Tenant shall keep in force a policy covering leasehold
improvements, trade fixtures, equipment and personal property from time to time,
in, on or upon the demised premises, in an amount of not less than eighty
percent (80%) of the full replacement value of sad items, providing protection
against sprinkler damage, vandalism and malicious mischief. Tenant shall keep in
force a policy coming all plate glass in the demised premises Tenant shall be
and remain liable for the repair and restoration of all such plate glass.
24. INSURANCE MX The Tenant shall not keep gasoline or other inflammable UMUMW
or any other explosive in the building or use the demised premises in any which
will increase the rate of insurance on the building beyond the ordinary risk
established for the type of business hereinabove provided to be conducted
therein, and any such increase in the insurance rate shall be borne by the
Tenant Tenant shall not do any act or thing upon the premises or in or about the
building which may nuke void or voidable any insurance on the same premises or
building and the Tenant expressly agrees to concur to all rules and regulations
from time to time established by the Virginia Insurance Rating Bureau.
25. PROPERTY AT TENANT`S RISK. It is understood and agreed that all personal
property, goods, wares and merchandise in said premises shall be and remain at
the Tenant's sole risk and the Landlord shall not be liable for any damage to or
loss of such personal property, goods and merchandise arising from the bursting
overflowing. or leaking of the room or of water, sewer, or stem pipes, or from
heating or Plumbing wires or from the handling of electric wins or fixtures or
from any other cause whatsoever, unle ss said damages am caused through the
negligence of the Landlord, its servants, employees or contractors.
26. LANDLORD ACCESS, The Landlord and it Agent shall have access to the demised
premises at any and all reasonable times for the purpose of protecting said
premises against fire, for the prevention of damage and injury to the leased
premises, or for the purpose of inspecting the same.
27. BANKRUPTCY. It is further agreed between the parties hereto that in the
event that Tenant shall become or be adjudged bankrupt, or shall make an
assignment for the benefit of creditors or in any manner become insolvent and/or
cease to do and carry on business, then and in such even this Lease and all
things herein contained shall cease and determine and the tenancy terminate at
the option of the Landlord.
(5)
189
28. LANDLORD'S RE-ENTRY. This Lease is subject to the limitation that if at
any time, either of the following events (hereafter called a "Default") shall
occur:
(i) if Tenant shall fail to pay any installment of rent or any other
charge required to be paid by Tenant hereunder, when the same shall
become due and payable (it being specifically understood and agreed
that the term rent includes the rent, the increases in any real estate
or other taxes or any other consideration under the Lease that is
identified as rent in this Lease) and such failure shall continue for
five (5) days; or
(ii) if Tenant shall fail to perform or observe any other term, provision,
covenant, condition or requirement of this Lease on the part of
Tenant to be performed or observed, and such failure shall continue
for thirty (30) days after written notice from landlord:
then upon the happening of either of the aforementioned defaults,
this Lease shall, at Landlord's option, cease and determine and shall
operate as a Notice to Quit, any written Notice to Quit being hereby
expressly waived. Landlord may proceed to recover possession of said
premises by virtue of any legal process as may at the time be in operation
and force in like cases relative to proceedings between Landlord and
Tenant, and Tenant shall pay for any Court costs relative to such
proceedings and reasonable attorney fees, or Landlord may at its option
re-enter and re-rent that demised premises for the account of the Tenant,
and in such event, Tenant shall remain liable to landlord for any and all
deficiencies in the rent under this Lease.
29. RE-LETTING. Should Landlord elect to re-enter, as herein provided, or
should it take possession pursuant to legal proceedings or pursuant to any
notice provided by law, it may either terminate this Lease or it may from time
to time without terminating this Lease, make such reasonable alterations and
reasonable repairs as may be necessary in order to re-let the premises, and
re-let said premises or any part thereof for such term or terms (which may be
for a term extending beyond the term of this Lease) and at such rental or
rentals and upon other terms and conditions as Landlord in its discretion may
deem advisable; upon each such re-letting all rentals received by the Landlord
from such re-letting shall be applied first to the payment of any indebtedness,
other than rent due hereunder from Tenant to Landlord; second, to the payment
of any costs and expenses of such re-letting, including brokerage fees and
attorneys' fees and of costs of such reasonable alterations and reasonable
repairs; third, to the payment of rent due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in payment of future
rent as the same may become due and payable hereunder. If such rentals
received from re-letting during any month be less than that to be paid during
that month by Tenant hereunder, Tenant shall pay any such deficiency to
Landlord. Such deficiency shall be calculated and paid monthly. No such
re-entry or taking possession of said premises by landlord shall be construed
as an election on its part to terminate this Lease unless written notice of
such intention be given to Tenant or unless the termination thereof be decreed
by a Court of competent jurisdiction. Notwithstanding any such re-letting
without termination, Landlord may at any time thereafter elect to terminate
this Lease for any such previous breach. Should Landlord at any time terminate
this Lease for any breach, in addition to any other remedies it may have, it
may recover from Tenant, damages it may incur by reason of such breach,
including reasonable attorneys' fees and other costs of recovering the leased
premises.
30. HOLD-OVER. If the Tenant shall not immediately surrender said premises on
the day after the end of the term hereby created, then the Tenant shall, by
virtue of this agreement, become a Tenant by the month at rental rate
established by the Landlord. Xxxxxx agrees to provide the Landlord with a
minimum of thirty (30) days notice from the first day of the month of his
intention to vacate said premises. Upon notification of intent to vacate
Xxxxxx agrees to give Landlord permission to place a "For Lease" sign in the
window and to advertise and show premises to prospective Tenants.
31. SUBORDINATION TO MORTGAGE. This Lease shall be subject and subordinate to
the lien of any mortgage or deed of trust now on the demised premises, and
subject and subordinate to the lien of any mortgage or deed of trust
encumbrance which may at any time hereafter be made a lien upon the premises.
The Tenant shall execute and deliver within ten (10) days after a request
therefore, such further instruments subordinating this lease to the lien of any
such mortgage or deed of trust encumbrance and/or estoppel certificates as
shall be desired by any mortgagee or party secured or proposed mortgagee or
proposed secured party.
32. ESTOPPEL CERTIFICATE BY TENANT. Xxxxxx further agrees at any time and from
time to time, upon not less than ten (10) days' prior written request by
Landlord, to execute, acknowledge and deliver to Tenant a statement in writing,
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified, and stating the modifications), and the date to which the rental and
other charges have been paid in advance, if any, that the Tenant is in
possession and has accepted the premises and that the obligations of the
Landlord and Tenant have been performed and that there are no defaults under
the Lease, it being intended that any such statements delivered may be relied
upon by any prospective purchaser of the fee, or mortgagee or assignee of any
mortgage upon the fee, of the demised premises.
(6)
190
33. NOTICES, All notices required or desired to be given hereunder by either
Fifty to the other shall be given by certified or registered mad. Notices to the
respective parties shall be addressed as follows:
If to Landlord- if to Tenant
1998 Ltd. Cycle Sport
0000 Xxxxxxxx Xxxx Attention: Xx. Xxxxx Xxxx
Suite 000 000 Xxxxx Xx.,
Xxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
34. SUBLETTING AND ASSIGNMENT. Tenant will not sublet demised premises or any
pan thereof or transfer possession or occupancy thereof to any person (including
but not by way of limitation, concessionaires or licensees of Tenant)
corporation to transfer, assign, mortgage or encumber this Lease without the
prior written consent of landlord in each instance, nor shall any subletting or
assignment hereof be effected by merger, liquidation or otherwise by operation
of law or otherwise than by the prior written consent of the Landlord.
35. NOT PARTNERS, The parties hereto by this agreement expressly do not intend
as a matter of fact or law to create or constitute a partnership.
36. OMITTED.
37. ADDMONAL RENT, If Landlord shall incur any charge or expense on behalf of
Tenant under the terms of this Lease, such charge or expense shall be considered
additional rent hereunder, in addition to and am in limitation of any other
rights and remedies which Landlord may have in case of the failure by Xxxxxx to
pay such sums when due, such nonpayment shall entitle Landlord to the remedies
available to it hereunder for non-payment of rent. All such charges or expenses
shall be paid to Landlord at its offi ce or its successor, assignee or nominee
in Springfield, Virginia, or at such other place and to such other person as
Landlord may from time to time designate in writing.
39. QUIET ENJOYMENT. Landlord covenants that if Tenant pays the rent and all
other charges provided for herein, performs all of its obligations provided for
hereunder, and observe all of the other provisions hereof, Tenant shall at all
times during the term hereof peaceably and quietly have, hold and enjoy the
defused premises, without any interruption or disturbance from Landlord, or
anyone claiming through or under Landlord, subject to the terms hereof.
39. JOINT AND SEVERAL LIABILITY. If two or more individuals, corporations,
partnerships or other business associations (or any combination of two or more
thereof) shall sip this Lease as Tenant, the liability of each such individual,
corporation, partnership, or other business association to pay rent and perform
all other obligations hereunder shall be deemed to be joint and several. In like
manner, if the Tenant names in this I case shall be a partnership or other
business association, die members of whic h am, by virtue of statue or general
law, subject to personal liability, the liability of each such member Shall be
joint and several.
40. MODIFICATION. This writing is intended by the parties as final expression of
their agreement and as a complete and exclusive statement of the terms here of
all negotiations, considerations and representations between the parties having
been incorporated herein. No course of prior dealings between the parties or
then affiliates shall be relevant or admissible to supplement, explain, or vary
any of the terms of this Lease No representations, understandings, or agreements
have been made " relied upon in t he making of this Lease other than those
specifically set forth herein. This Lease can only be modified in writing signed
by all of the parties or their duly authorized agents.
41. NO DISCRMINATTON. It is intended that the Shopping Center be operated so
that all prospective tenants tend, and all customers, employees, licensees and
invitees of all tenants shall have the opportunity to obtain all the goods,
services, accommodations, advantages, facilities and privileges of the Shopping
Center without discrimination because of race, creed, color, national origin or
ancestry. To that end, Tenant will not discriminate in the conduct and operation
of its business in the premises against any person or group of persons because
of the race, creed, color, national origin or ancestry of such person or group
of persons.
42. CAPTIONS AND READINGD Captions and headings are for convenience and
reference only.
43. APPLICABLE LAW. This Lease shall be construed under the laws of the State of
Virginia. Tenant hereby elects domicile at the premises for the purposes of
service of all notices, writs of summons, or other Legal documents, or process,
in any suit, action, or proceeding which Landlord may undertake under this lease
(7)
191
44. GENDER. Feminine or neuter pronouns shall be substituted for those of the
masculine f a form, and the plural may be substituted for the singular number,
in any place or places herein in which the content may require such substitution
or substitutions-, and the covenants and agreement herein contained shall.
wherever appropriate, be binding upon the heirs, administrator executors,
personal representatives, successors and assigns of the parties hereto.
45. OPTION. The submission of this Lease for examination does not constitute a
reservation of or option for the premises, and this Lease becomes effective only
upon execution and delivery thereof by:Landlord
ADDENDA
It is further understood and agreed that any type of "candle burning" or
"Incense burning" of any "incense burning" on the demised premises is not
permitted under any circumstances. (INITIALS)
It is further understood and agreed that the use of or storage of any type of
illegal drugs or substances on the demised property will be cause for immediate
termination of lease agreement (INITIALS)
GIVEN under our hands and seals this __________day of______________
LANDLORD: 1998, Ltd
By. _______________-(Seal
TENANT:
By: ________________(SEAL)
By: _________________(SEAL)
By:__________________(SEAL)
By: ________________(SEAL)
192
SCHEDULE F
BILL OF SALE
FOR THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
193
BILL OF SALE
FOR ASSETS
OF
THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
IN CONSIDERATION for the sum of $300,000.00, the receipt of which is
hereby acknowledged, CYCLE SPORT UNLIMITED, INC., a Virginia corporation,
("Seller"), hereby does grant, sell, transfer and deliver to V-TWIN
ACQUISITIONS, INC., a Virginia corporation, ("Buyer"), all of Seller's right,
title and interest in all assets of Seller for the conduct of a business known
as "Cycle Sport Unlimited" located in Herndon and Springfield Virginia, as more
fully described in "SCHEDULE A" attached hereto and the trade name "Cycle Sport
Unlimited".
Seller warrants that it has good title to the goods sold, free from any
security interest or other lien or encumbrance of which the Buyer has no
knowledge, and that Seller has the right to sell and transfer the goods.
THE GOODS ARE SOLD "AS IS", WITHOUT ANY OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTY OR MERCHANTABILITY AND
USAGE OF TRADE OR IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE.
CYCLE SPORT UNLIMITED, INC.
A Virginia Corporation
By:
---------------------------------
Xxxxx X. Xxxx, President
ACCEPTED:
V-TWIN ACQUISITIONS, INC.
A Virginia Corporation
By:
---------------------------
Xxx X. Xxxxxxxxxxxx, CEO
194
SCHEDULE G
LICENSES
FOR
THE MOTOR CYCLE DIVISION
OF
CYCLE SPORT UNLIMITED, INC.
