EXHIBIT 10(ii)
FORD DISTRIBUTION AGREEMENT
See attached
Page 11 of 45 Pages
[FORD LOGO]
FORD AUTHORIZED DISTRIBUTOR SALES AGREEMENT
FORD CUSTOMER SERVICE DIVISION
FORD MOTOR COMPANY
AGREEMENT made as of this 1st day of October, 1998, by and between
Universal Mfg. Co. ,
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(Give Name(s) of Individual, Partners or Corporation)
[]an individual, []a partnership,
[X] a(n) Nebraska Corporation, doing business as,
------------------------
(State of Incorporation)
Universal Mfg. Co. with a principal place of business at
--------------------------
(Distributor's Trade Name)
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-------------------- --------------------------, (hereinafter called
(Street and Number) (City, State and Zip Code)
the "Distributor") and Ford Motor Company, a Delaware corporation with its
principal place of business in Dearborn, Michigan (hereinafter called the
"Company").
PREAMBLE
The purpose of this Agreement is to establish the Distributor as a Ford
Authorized Distributor of Authorized Products, as hereinafter defined, and to
set forth the respective responsibilities of the Company and the Distributor
in the sale of Authorized Products by the Company to the Distributor and the
resale of Authorized Products by the Distributor. The Distributor must
continuously demonstrate, fulfill and satisfy all of the requirements and
obligations set forth in this Agreement.
In consideration of the mutual agreements and acknowledgments herein
made, the Company and the Distributor agree as follows:
A. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
1. "Authorized Product" shall mean product(s) identified in section B
of this Agreement and the corresponding written Addendum's, if any, referred
to therein.
2. "Distributor Price" shall mean the price established by the Company
which may be changed from time to time, for each Authorized Product sold by
the Company to the Distributor.
3. "Distributor's Area" shall mean the geographic area, within the
United States, around the Distributor's location for which the Distributor
can meet all "Ford Authorized Distributor-to-Dealer Standards," which may
change from time to time.
4. "Authorized Dealers" shall mean those Ford and Lincoln-Mercury
motor vehicle dealers in the United States who are authorized by the Company
to sell and service automotive products offered by the Company.
FCS 7391 Sales, August 1998 (Previous editions may not be used)
Page 2
5. "Ford Authorized Distributor-to-Dealer Standards" shall mean those
performance standards relating to the level of service the Distributor
provides to Authorized Dealers with respect to each type of Authorized
Product, which may change from time to time.
6. "Ford Authorized Distributor Policy and Procedure Manual" shall
mean the manual provided by the Company to the Distributor setting forth the
policies and procedures affecting the business relationship between the
Company and the Distributor, as well as the standards to which the
Distributor shall comply, which may change from time to time.
B. AUTHORIZED PRODUCT(S). The Company hereby appoints the Distributor
as a Ford Authorized Distributor to purchase from the Company and sell to
Authorized Dealers and other customers, subject to the terms of this
Agreement and the Standard Provisions, the following designated products
which shall be deemed to be "Authorized Product(s)" for purposes of this
Agreement:
(INITIAL THE SUBPARAGRAPH(S) WHICH APPLY)
Initials
--------
1. Automotive replacement parts or products made or sold by the
Ford Customer Service Division under the "Motorcraft" and "Ford"
trademarks and other Ford remanufactured automotive replacement
parts or products offered by the Ford Customer Service Division
to the Distributor for resale (except Powertrain components and
Bulk Lubricants) and all such other products the Ford Customer
Service Division may offer from time to time to the Distributor
for resale. These products also shall include Motorcraft Batteries
as defined in the Addendum to Ford Authorized Distributor Sales DH
Agreement, FCS 7391E, dated August 1998. --------
2. Powertrain components which shall mean engines, transmissions,
torque converters, clutch discs, pressure plates, short blocks,
long blocks, cylinder heads, associated Navistar diesel parts, DH
and other products offered by the Company from time to time. --------
3. Motorcraft Bulk Lubricants as defined in the Addendum to Ford SECTION 3
Authorized Distributor Sales Agreement, FCS 7391D, dated STRICKEN
August 1998. TEXT
--------
4. Motorcraft Batteries as defined in the Addendum to Ford
Authorized Distributor Sales Agreement, FCS 7391E, dated DH
August 1998. --------
5. Ford Authorized Remanufactured Products, which shall mean
any automotive product approved by the Company and which is
remanufactured by the Distributor in accordance with the Company DH
specification. --------
The Distributor hereby accepts such appointment and agrees to carry out
the responsibilities as herein provided.
Page 3
C. PRODUCT DE-AUTHORIZATIONS AND CHANGES. From time to time, the
Company may change, deauthorize or discontinue offering a line (or part of a
line) of Authorized Products or deauthorize a Distributor from purchasing or
selling a line (or part of a line) or one or more of the Authorized Products,
at which time "Authorized Products" for that Distributor shall be deemed to
be redefined so as to take into account those deauthorizations or changes.
Such de-authorizations or changes may occur at any time and from time to time
and without obligation with respect to any Authorized Products previously
ordered or purchased by or delivered to the Distributor. After
deauthorization, such products may not be sold or promoted in any way by the
Distributor.
D. SOURCE OF AUTHORIZED PARTS. Unless otherwise specified in writing
by the Company, the Distributor shall purchase its inventory of Authorized
Products solely from the Company's Customer Service Division except that Ford
Authorized Distributors with Authorized Products covered by paragraph B5,
may sell (and other Ford Authorized Distributors may purchase from it) such
Authorized Products.
E. PERSONAL AGREEMENT; OWNERSHIP AND MANAGEMENT. In view of the
personal nature of this Agreement, the Company has entered into this
Agreement in reliance upon the Distributor's representation and agreement
that (i) the following person(s) or corporation and only the following
person(s) or corporation shall substantially participate in the ownership of
the Distributor:
PERCENTAGE
NAME MAILING ADDRESS OF OWNERSHIP
---- --------------- ------------
Various Stockholders (Public Corporation) 85.07 %
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9.26 %
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5.67 %
and (ii) the following person(s) and only the following person(s) shall have
full managerial authority for the operation of the Distributor, and are
authorized to execute any and all agreements and related documents on behalf
of the Distributor.
NAME MAILING ADDRESS TITLE
---- --------------- -----
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Vice President/Treasurer
T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Secretary
The Distributor shall give the Company prior written notice of any
proposed change in the above ownership or managerial authority of any such
person(s) or corporation, and immediate written notice of the death or physical
or mental incapacity of any such person or the dissolution of any such
corporation. No such change or notice and no assignment of this Agreement or of
any right or interest herein, shall be effective against the Company until
approved by the Company by executing and delivering an appropriate amendment to
this Agreement executed in accordance with paragraph H.
Page 4
F. AUTHORIZED LOCATIONS. In addition to the location identified above
as the Distributor's principal place of business, the Distributor shall
maintain facilities and operate its distribution business from the following
locations (hereinafter called "Authorized Locations").
DISTRIBUTOR NAME SHIPPING ADDRESS
---------------- ----------------
Universal Mfg. Co. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Universal Mfg. Co. ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Universal Mfg. Co. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
The Distributor shall not move or directly or indirectly operate its
distribution business pursuant to this Agreement, in whole or in part, in
facilities other than an Authorized Location without the prior written
consent of the Company and a written Amendment to this Agreement.
G. STANDARD PROVISIONS. The attached Ford Authorized Distributor Sales
Agreement Standard Provisions (Form FCS 7390, August 1998, hereinafter
referred to as the "Standard Provisions"), which have been read and agreed to
by the Distributor, are hereby made a part of this Agreement with the same
force and effect as if set forth in full herein.
H. EXECUTION. This Agreement shall bind the Company when it bears the
facsimile signature of the Vice President-General Manager of the Ford
Customer Service Division of the Company (or his/her designee or successor)
and is countersigned by the Director Global Parts Supply and Logistics (or
his/her designee or successor) or the Ford Authorized Distributor Manager of
the Ford Customer Service Division of the Company (or his/her designee or
successor), and a fully executed copy is delivered personally or postpaid
registered or certified U.S. mail to the Distributor at the Distributor's
principal place of business.
I. AMENDMENTS/TERMINATIONS. The Distributor acknowledges that (i) this
Agreement may be executed only in the manner provided in paragraph H; (ii) no
one except the Vice President-General Manager or the Director Global Parts
Supply and Logistics (or his/her designee or successor) or the Ford Authorized
Distributor Manager of the Ford Customer Service Division of the Company (or
his/her designee or successor) or the Secretary or an Assistant Secretary of
the Company is authorized to make or execute any other agreement relating to
the subject matter hereof, or in any manner to enlarge, vary or modify the
terms hereof, and then only by an instrument in writing; and (iii) no one
except the Vice President-General Manager (or his/her designee or successor)
or the Director Global Parts Supply and Logistics (or his/her designee or
successor) or the Ford Authorized Distributor Manager of the Ford Customer
Service Division (or his/her designee or successor) or the Secretary or an
Assistant Secretary of the Company is authorized to terminate this Agreement
on behalf of the Company, and then only by notice in writing.
Page 5
J. DURATION. The Agreement shall continue in force and effect from and
after the date of its execution until terminated by either party under the
provisions of paragraph 14 of the Standard Provisions made a part hereof.
IN WITNESS HEREOF, the parties hereto have duly executed this Agreement
in duplicate as of the day and year first above written.
FORD MOTOR COMPANY Universal Mfg. Co.
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(Distributor's Trade Name)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
/s/ ▇▇▇▇▇▇ ▇._________ Title: President
---------------------------------
By:
Vice President - General Manager ---------------------------------
Ford Customer Service Division Title:
------------------------------
By:
---------------------------------
Title:
------------------------------
Countersigned by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
G.L. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ Authorized Distributor Manager
[LOGO]
FORD AUTHORIZED DISTRIBUTOR SALES AGREEMENT - STANDARD PROVISIONS
FORD CUSTOMER SERVICE DIVISION
FORD MOTOR COMPANY
1. PUBLICATIONS. The Company, from time to time, shall publish and
distribute to the Distributor procedures governing the relationship between
the Company and the Distributor, including, but not limited to definitions,
administration of warranty and policy, credit and other terms of sale, and
such other information as the Company may deem necessary to enable the
Distributor to carry out its responsibilities under this Agreement. If
anything in any such publication is or appears to be inconsistent with the
terms contained herein, the terms contained herein shall govern.
2. OPERATION OF BUSINESS. The responsibilities of the Distributor shall
including the following:
a. SALES.
(i) The Distributor shall actively and aggressively promote and
make sales of Authorized Products, make direct contact with all
Authorized Dealers in the Distributor's Area on a regular basis and
provide prompt and efficient core pickup and delivery service in a
satisfactory volume and manner, and according to standards and criteria
for each type of Authorized Product as set forth herein and by the
Company from time to time.
(ii) The Distributor shall sell to Authorized Dealers only
Authorized Products; except that Distributor may sell to Authorized
Dealers products other than Authorized Products if such other products
are for use in, or on non-Ford products and there is no Ford part number
that could be substituted for such use.
(iii) The Distributor shall sell parts and other products sold by
the Company under the "Ford" trademark only to Authorized Dealers; the
Distributor shall not sell parts and other products sold by the Company
under the "Ford" trademark to customers other than Authorized Dealers.
(iv) The Distributor shall not operate its business under this
Agreement or sell Authorized Products to its parent, division,
subsidiary, affiliate, partnership, joint venture or other entity or
individual related to the Distributor, its officers, directors,
managers, owners, employees or agents without prior written consent of
the Company.
(v) Neither the Distributor nor its officers, directors,
managers, owners, employees or agents may own, operate or invest to any
extent, either individually or in conjunction with others, in any
company, corporation, partnership, joint venture or other business
entity or enterprise that designs, manufactures, distributes or sells to
Authorized Dealers any products that compete with any Authorized
Products identified in Paragraph B of the Preamble irrespective of
whether the products are Authorized Products for this specific Distributor.
FCS 7390 Sales, August 1998 (Previous editions may not be used)
Page 2
(vi) The Distributor's Area is not exclusive to the Distributor, and
the Distributor may sell outside such area, but only if within the United
States. The Distributor's Area shall be deemed, however, the primary area
of the Distributor's sales responsibility for Authorized Products and the
Distributor's primary responsibility shall be to sell to and service
Authorized Dealers in that area. In those circumstances where an Authorized
Dealer is not within any Distributor's Area, Distributor must take orders
from and deliver Authorized Products to such an Authorized Dealer upon its
request.
(vii) The Distributor's performance of its sales responsibility shall
be measured by such criteria as the Company may establish from time to
time for each type of Authorized Product, which may include, but shall
not be limited to:
-- Authorized Dealer and Company evaluations of the Distributor's
performance versus "Ford Authorized Distributor-to-Dealer
Standards" for each type of Authorized Product; and
-- the Distributor's sales of Authorized Products to Authorized
Dealers in the Distributor's Area as a percentage of
objectives established by the Company from time to time.
b. ADMINISTRATIVE AND PROMOTIONAL ASSISTANCE. The Distributor, to the
satisfaction of the Company, shall provide all Authorized Dealers with such
administrative and promotional assistance requested or required for the
marketing of Authorized Products.
c. FACILITIES/LOCATIONS. At each Authorized Location, the Distributor
shall maintain such facilities of a size, layout, and appearance, including a
warehouse, sales and office space, computer information systems and other
equipment, as will meet the standards established by the Company from time to
time, and will enable the Distributor to fulfill all of the Distributor's
responsibilities under this Agreement. The Distributor shall not move or
directly or indirectly operate its business under this Agreement, in whole or
in part, at other than Authorized Locations or through a parent, division
subsidiary, affiliate, partnership, joint venture or other related entity or
individual without the prior written consent of the Company and a written
Amendment to this Agreement. At its sole discretion, the Company may consent
to or deny any request for such an Amendment taking into account such factors
as the Company deems relevant.
d. PERSONNEL. The Distributor shall employ such number of adequately
trained and competent personnel of good character, including but not limited
to managers, salespersons and warehouse personnel as will meet the standards
established by the Company from time to time, and will enable the Distributor
to fulfill all of the Distributor's responsibilities under this Agreement.
e. INVENTORY. The Distributor shall maintain an inventory of all
Authorized Products, in quantities sufficient to meet the Authorized Dealers'
current and reasonably anticipated needs. The Distributor may, but is not
required to, stock non-bulk lubricant products.
Page 3
f. ORDERS. The Distributor shall submit orders for its requirements of
Authorized Products, at such times and in the manner prescribed by the
Company from time to time. The Distributor shall not submit orders to the
Company for products other than Authorized Products.
g. COMMUNICATION. To assist the Company to meet customer expectations
and performance standards, the Distributor shall provide electronic data
interfaces as required by the Company from time to time.
h. DELIVERY AND AVAILABILITY. The Distributor will provide parts
delivery and core pickup service in a manner sufficient to satisfy Ford
Authorized Distributor-To-Dealer Standards with respect to each type of
Authorized Product.
i. CAPITALIZATION. The Distributor shall employ at all times, in
connection with its operations under this Agreement, such net working
capital, other capital, net worth and line(s) of credit or other funding as
may be required by the Company from time to time in order to ensure that the
Distributor is able to fulfill all its responsibilities under this Agreement.
j. CUSTOMER HANDLING, TRADE PRACTICES AND ADVERTISING. The Distributor
shall: (i) make all reasonable efforts to handle satisfactorily all matters
relating to the sale and use of Authorized Products; (ii) report to the
Company any complaint about any Authorized Product that the Distributor
cannot remedy; (iii) conduct business in a manner that will reflect favorably
at all times on the Distributor, Authorized Dealers, the Company, Authorized
Products, and the good name, goodwill and reputation thereof; and (iv) avoid
in every way any practice or advertising that is misleading, deceptive or
unethical or to which the Company may object as being detrimental to the
Distributor, Authorized Dealers, the Company, Authorized Products, other
Company products, persons dealing therein, the public or to the good name,
goodwill or reputation thereof. The Distributor shall make reasonable efforts
to ensure compliance of its customers with the foregoing. The Distributor
shall not, and shall take reasonable measures to assure that its customers
will not, represent a part to be an Authorized Product if it is not in fact
an Authorized Product, whether such representation is by name, logo, part
number or otherwise. All remanufactured Authorized Products and their
packaging, shall be identified as such with appropriate markings, labels or
other devices approved by the Company. The Distributor shall not represent
that any remanufactured Authorized Product has been remanufactured by the
Company.
k. REPORTS. The Distributor shall submit to the Company, at the times
and in the manner prescribed by the Company, accurate reports of the
Distributor's sales of Authorized Products, and such other reports and data
relating to the ownership or management of the Distributor, or its business
hereunder, as the Company may request from time to time. The Distributor will
furnish the Company with an annual balance sheet and operating statement, as
soon as practicable following the close of the Distributor's fiscal year, to
permit evaluation of the Distributor's operating and financial condition so
that the Company may give advice and counsel on matters pertaining thereto.
Financial information furnished by the Distributor shall be handled on a
confidential basis by the Company; however, this shall not preclude the
Company from providing such information to a wholly-owned or controlled
subsidiary of the Company and using such information at the Company's
discretion.
Page 4
Moreover, the Company shall not be prohibited from offering such information
in evidence in judicial or arbitration proceedings, or to other parties as
required by law. However, such information will not otherwise be released to
third parties without the written consent of the Distributor or as required
by law.
l. INSPECTIONS AND RECORD RETENTION. To assure the Company that the
Distributor is carrying out the provisions of this Agreement, the Distributor
shall permit persons designated by the Company, at reasonable times and
intervals during normal business hours, to examine the Distributor's records,
contracts, accounts and data related in any way to the Authorized Products.
The Distributor shall retain for at least two (2) years all records,
contracts, accounts and data upon which claims to the Company for refund,
credit, rebate, incentive, allowance, discount, reimbursement or other
payment of any kind have been made.
m. BUSINESS, INDUSTRY AND PROCESS CERTIFICATIONS. The Distributor
shall actively and periodically assess and improve its distribution and
overall business operations so as to cost-effectively increase sales,
delivery standards and overall service performance. The Distributor shall
have its employees attend training or courses offered or required by the
Company from time to time. The Distributor shall attain any standard, level
or certification requirements as may be established by the Company from time
to time (e.g. ISO certification).
n. COMPANY'S TRADEMARKS AND TRADENAMES. Neither the Distributor nor
its customers shall (i) use in any trade name any trademark or trade name
used or claimed by the Company; (ii) use the word "Ford" or "Motorcraft"
except in connection with advertising and dealings in such parts; (iii) use
any trademark or trade name used or claimed by the Company, including the use
of "Motorcraft" or "Ford" in advertising and dealings, except as first
approved in writing by the Company; or (iv) contest the right of the Company
to exclusive use of any trademark or trade name used or claimed by the
Company.
3. OTHER SALES AND PURCHASES. The Distributor reserves the right to make
purchases of products other than Authorized Products from others and to make
sales of Authorized Products to customers other than Authorized Dealers,
except as otherwise provided in this Agreement, and provided that the
Distributor in no circumstance shall be relieved of any responsibility
assumed by it under this Agreement. The Distributor further agrees that any
such sales to others shall not adversely affect the Distributor's sales
obligations with respect to Authorized Products under this Agreement. The
Company reserves the right to make sales to others (including, without
limitation, other distributors) without obligation or liability of any kind
to the Distributor.
4. PROMOTIONAL MATERIAL. The Company may, at its discretion, provide the
Distributor with materials for the promotion and sale of Authorized Products,
and if so, the Distributor shall provide its customers with such materials.
The Distributor shall also provide its customers with additional materials of
a quantity and quality proportionally equal to that which it provides for
other automotive replacement parts handled by the Distributor.
5. ACCEPTANCE OF ORDERS. An order for Authorized Products shall be deemed
accepted when the Company issues to the Distributor its FCSD order number.
The Company shall make reasonable efforts to fill each order accepted by it,
but shall not be liable in any way for the consequences of a
Page 5
failure to ship or any delays in shipment due, in whole or in part, to
fulfillment of the Company's own requirements, a shortage or curtailment of
material, labor, transportation, utility services, or any labor or production
difficulty in any plant of the Company, its suppliers, or any cause beyond
the Company's control, fault or negligence.
6. PRICES AND CHARGES. The Distributor shall pay the price established by
the Company for each Authorized Product purchased by the Distributor from the
Company, less any applicable discount and/or allowance allowed by the Company
on the invoice, plus any Company transportation charge and (if not included in
the established price) a charge equivalent to or in reimbursement for
all applicable taxes on the manufacture, distribution, ownership, use or sale
of such a part. The Company may change at any time and from time to time,
without prior notice, the price or charge for any Authorized Product or any
applicable discount or allowance. A description of any discounts or
allowances, the qualifications and methods of submitting and substantiating
claims therefor and the manner of payment by the Company will be contained
in the Ford Authorized Distributor Policy and Procedure Manual as amended by
the Company from time to time. Except as otherwise specified by the Company
in writing, such price, discounts, charges and allowances shall be those in
effect at time the Distributor's order is accepted by the Company. Delivery
to the Distributor shall be deemed made and the order filled, on the date the
Authorized Product is delivered to the carrier or the Distributor, whichever
is first. No price, holdback, discount, allowance or other charge is or
shall be considered or deemed to be a franchise fee; rather, all such items
are and shall be considered to be elements of a bona fide wholesale price.
7. POLICY AND PROCEDURE/STANDARDS. The Distributor will comply with all
provisions of the Ford Authorized Distributor Policy and Procedure Manual,
including the "Distributor-to-Dealer Standards", which are hereby incorporated
by reference. The provisions of the Manual and the Standards may be changed
by the Company at its discretion, upon written notice to the Distributor.
8. TERMS AND TITLE.
a. PAYMENT. The Distributor shall pay the Company for each purchase of
Authorized Products under this Agreement within the time specified in the
Fort Authorized Distributor Policy and Procedure Manual or pursuant to
special program terms as may be granted by the Company from time to time.
All credits shall be applied to the Distributor's monthly statement.
b. TITLE. Title to each Authorized Product purchased by the
Distributor from the Company shall pass to the Distributor upon delivery to
the carrier or to the Distributor, whichever is first.
c. DEMURRAGE AND DIVERSION LIABILITY. The Distributor shall pay for
and bear all demurrage, storage or other charges that accrue after arrival of
any shipment at its destination, except with respect to a shipment made in
error by the Company. If the Distributor shall fail or refuse for any reason
(other than a shipping error by the Company, natural disaster or catastrophe,
or act of God) to accept delivery of any Authorized Product ordered by the
Distributor, the Distributor shall also pay for and bear all expenses
incurred by the Company in shipping the same to the Distributor and in
reshipping the same to the original shipping point or another destination,
but such reshipping expenses shall not exceed the expenses of returning the
part to the original shipping point.
Page 6
d. SECURITY AGREEMENT. The Distributor shall execute a Security
Agreement, pursuant to which the Distributor will grant the Company a
security interest in all Authorized Products purchased by the Distributor
from the Company (and any Authorized Products produced by the Distributor,
pursuant to this Agreement, if applicable) and any proceeds therefrom. The
Company may, at its discretion, require a Personal Guarantee from either the
principal of the Distributor or the principal of an Authorized Location of
the Distributor and supported by the grant of a security interest in
collateral owned by such a principal. If so required by the Company, the
Distributor, the Distributor principal, or the principal of an Authorized
Location shall execute all appropriate documents, including a form UCC-1, to
perfect and evidence security interests in the relevant collateral.
e. STATE AND LOCAL TAXES. The Distributor represents and warrants that
all Authorized Products shall be purchased or produced for resale in the
ordinary course of the Distributor's business, and that the Distributor shall
comply with pertinent state and local laws prerequisite to the collection
and/or payment by the Distributor of sales, use and any other taxes
applicable to all such resale transactions and furnish evidence thereof to
the Company. Those representations and warranties shall be deemed a part of
each order given by the Distributor to the Company. If any Authorized Product
is put to a taxable use by the Distributor, produced or purchased by the
Distributor other than for resale, the Distributor shall make timely return
and payment to the proper taxing authority of all sales, use and the like
taxes applicable thereto, and shall indemnify the Company against such taxes,
and penalties and interest thereon.
9. COMPLIANCE WITH LAWS AND REGULATIONS. The Distributor shall comply with
all federal, state and local laws, rules, regulations or ordinances
applicable to the Distributor's business operation. The Distributor agrees to
indemnify, defend and hold harmless the Company from any claims losses,
damages or expense, including costs and reasonable attorney's fees, arising
out of or related to the Distributor's failure to comply with any applicable
laws, rules, regulations or ordinances. Without limiting the foregoing, the
Distributor agrees to indemnify, defend and hold harmless the Company from
any claims, losses, damages or expenses, including costs and reasonable
attorney's fees, arising under any federal, state or local laws, rules,
regulations or ordinances related to environmental or hazardous materials or
substances and resulting from or related to any activity associated with the
Distributor's business operations, including, without limitation, the
storage, handling, transportation, release or disposal of Authorized Products.
10. WARRANTY. The Company warrants to the Distributor that each Authorized
Product sold by the Company to the Distributor will be free under normal use
and service from defects in workmanship and material for the period of time
from the date of delivery of such part to the original retail customer, or
for the amount of use, whichever is first, specified for such part in the
Ford Authorized Distributor Policy and Procedure Manual in effect at the time
such part is sold to the retail customer or at the time such defect is
discovered, whichever is more liberal. This warranty shall be fulfilled by
the Company replacing such item, or giving credit therefor, in accordance
with the terms and conditions of such Ford Authorized Distributor Policy and
Procedure Manual. This limited warranty is the exclusive remedy, recourse or
damage for any defect in workmanship and material. The Distributor may not
submit warranty claims on Authorized Products that the Company sold directly
to Authorized Dealers.
Page 7
The Distributor, acting only on its own behalf shall extend to each of its
customers, and shall require each such customer to extend this warranty to
each of its accounts and customers. The Company and the Distributor each
shall perform and fulfill promptly all the terms and conditions of their
respective warranties for the ultimate benefit of the final purchaser at
retail and Distributor shall require each level of distribution to do
likewise.
The Distributor, acting on its own behalf only, shall extent to each of its
customers, in a form satisfactory to the Company, a written warranty for each
Authorized Product covered by paragraph B5 of the Preamble. Such warranty
shall be at least as favorable to the customer, in the Company's opinion, as
the warranty extended to the Distributor on each such Authorized Product by
another Distributor, or the Company's Service Parts Warranty, specified in
the Ford Authorized Distributor Policy and Procedure Manual, whichever is
greater. The Distributor shall perform and fulfill promptly, and shall
require each level of distribution to perform and fulfill promptly, all the
terms and conditions of the warranty for the ultimate benefit of the final
purchaser at retail.
11. INDEMNIFICATION. The Company shall defend, indemnify, hold harmless and
protect the Distributor from all losses, damages or expenses, including costs
and reasonable attorney's fees, resulting from lawsuits commenced against the
Distributor on or after the date of this Agreement by third parties alleging
bodily injury or property damage arising out of an occurrence caused solely
by a "product defect". "Product defect" means a defect in material,
workmanship or design in an Authorized Product sold to a Distributor by the
Company. The above stated obligation arises only if the "product defect"
could not have been discovered by the Distributor through reasonable and
prudent inspection methods.
The Company's obligation set forth above arises only upon receipt of
written notice of the lawsuit, including a copy of the most recently filed
complaint. Until the Company has agreed to accept the Distributor's tender of
defense and the Company's attorneys have been substituted as attorneys of
record for it, the Distributor shall take all necessary steps to preserve its
rights and defend the suit and shall be responsible for all costs and fees
incurred. If the Company agrees to indemnify and defend the Distributor, the
Company shall have sole control, discretion, and authority in the defense of
the suit and in any decisions regarding its settlement or resolution. The
Distributor shall fully cooperate in the defense of allegations against
either the Distributor or the Company, including but not limited to,
maintaining, preserving, and providing the Company and its attorneys access
to any documents and other tangible evidence relevant to the lawsuit and
providing the Company and its attorneys access to any of Distributor's
premises and employees that the Company may deem relevant to or necessary for
the lawsuit. The Company maintains the sole authority and discretion to
determine what, if any, Distributor employees to call as witnesses for
deposition or at time of trial. The Company maintains the right to continue
the litigation in the name of the Distributor at its sole discretion.
Distributor shall defend, indemnify and hold the Company harmless from
and against all losses, claims, damage or other costs of any nature or other
costs of any nature or kind whatsoever arising directly or indirectly out of
or related to (i) the breach of any warranty, representation or agreement
made by Distributor to Company in this Agreement; (ii) the negligence or
intentional misconduct of Distributor, its officers, employees, agents or
contractors, or (iii) an Authorized Product covered by paragraph B5 of the
Preamble. Such indemnity shall include, but not be limited to, reasonable
expenses, attorneys' fees, court costs and other expenses of investigation,
litigation and settlement of any such claim.
Page 8
12. NO AGENCY. This Agreement does not in any way create the relationship of
principal and agent between the Company and the Distributor, under no
circumstances shall the Distributor or any of the Distributor's employees,
directors or customers be considered agents of the Company. The Distributor
shall make clear to others that it is not an agent of the Company and shall
not act or attempt to act, or represent itself directly or by implication, as
an agent of the Company or in any manner assume or create, or attempt to
assume or create, any obligation on behalf of or in the name of the Company.
13. RELATIONSHIP BETWEEN COMPANY AND DISTRIBUTOR. The requirements of this
Agreement as to the facilities to be supplied by the Distributor, as to the
conduct of the business of dealing in Authorized Products and as to relations
between the Distributor and others are intended to protect the good name,
good will and reputation of Company and to assure the Company that Authorized
Products will be made available to Authorized Dealers and that the
Distributor's financial and operating condition is adequate. Except as herein
specified, nothing herein contained shall impose any liability on Company in
connection with the Distributor's operations under this Agreement or
otherwise or for any expenditure made or incurred by the Distributor in
preparation or performance of the Distributor's responsibilities under this
Agreement.
14. TERMINATION.
a. This Agreement may be terminated, in whole or in part, by either
party at any time, with or without cause, upon thirty (30) days prior written
notice to the other party.
b. The Company may terminate this Agreement upon five (5) days prior
written notice to the Distributor in any of the following events: (i) any
assignment or attempted assignment by the Distributor of any interest in this
Agreement without the prior written consent of the Company; (ii) any sale,
transfer or relinquishment, voluntary or involuntary, by operation of law or
otherwise, of any interest in the direct or indirect ownership in the
Distributor or any change in the operating management of the Distributor
without the prior written consent of the Company; (iii) if Distributor
operates its business under this Agreement or sells Authorized Products to a
parent, division subsidiary, affiliate, partnership, joint venture or other
related entity or individual without the prior written consent of the Company
and a written Amendment to this Agreement; (iv) failure of the Distributor
for any reason to function in the ordinary course of business or failure for
a period of ten (10) consecutive business days to keep its facilities open
during, and for not less than, the hours customary in the trade in the
Distributor's principal location; (v) a disagreement between or among owners,
managers, officers or principals of the Distributor which, in the opinion of
the Company, may adversely affect the operation, management, business or
interest of the Distributor or the Company; (vi) conviction in a court of
competent jurisdiction of the Distributor, or an owner, manager or officer of
the Distributor for any violation of law, or any conduct of such person
unbecoming a reputable business person; or, (vii) submission by the
Distributor to the Company, of false or fraudulent reports, statements or
claims or refusal of the Distributor to permit the Company to examine the
Distributor's records in accordance with paragraph 2(l) of this Agreement.
The Distributor shall advise the Company immediately in writing of the
happening of any of the events specified in clauses (i) through (vi) above.
Page 9
c. Either party may terminate this Agreement upon five (5) days prior
written notice to the other in any of the following events: (i) dissolution
of the Distributor if the Distributor is a partnership or corporation;
(ii) insolvency of the Distributor, filing by the Distributor of a voluntary
petition under any law relating to bankruptcy or insolvency, filing against
the Distributor of an involuntary petition that is not dismissed within 30
days, court appointment of a temporary or permanent receiver, trustee or
custodian for the Distributor or the Distributor's business or an assignment
of the Distributor for the benefit of creditors; (iii) failure by either
party to obtain or maintain any license required to permit such party to
carry out its obligations under this Agreement; (iv) death or physical or
mental incapacity of the Distributor or any principal, officer or manager of
the Distributor, provided, however, that in order to facilitate orderly
termination and liquidation of the Distributor, the Company may defer the
effective date of any termination pursuant to clause (iv) for a period of from
three (3) months to one (1) year, as the Company may determine.
d. The Company may terminate this Agreement anytime upon thirty (30)
days written notice to the Distributor in the event the Company offers the
Distributor a new or amended sales agreement.
e. The Company may terminate this Agreement if the Distributor fails
to fulfill or breaches any of its obligations and duties under this
Agreement, including but not limited to its responsibilities under paragraph 2
of this Agreement.
f. Acts in Good Faith.
1. The Distributor acknowledges that each of its responsibilities
under this Agreement is reasonable, proper and fundamental to the purpose of
this Agreement and that (i) its failure to fulfill any of them would
constitute a material breach of this Agreement, (ii) the occurrence of any of
the events set forth in subparagraphs 14(b), (c) and (e) would seriously
impair fundamental considerations upon which this Agreement is based, and
(iii) the rights of termination reserved in the events specified in
subparagraph 14(b), (c) and (e) are necessary to permit the Company to remain
competitive at all times. The Distributor acknowledges that any such failure,
occurrence or event constitutes a reasonable, fair, good, due and just cause
and provocation for non-renewal or termination of this Agreement by the
Company.
2. The Distributor agrees that if the Company or any of its
representatives (i) requests the Distributor to fulfill any of such
responsibilities, (ii) believes that any such failure, occurrence or event
is occurring or has occurred and advises the Distributor that, unless
remedied, such failure, occurrence or event may result in Company termination
or non-renewal of this Agreement, (iii) gives the Distributor notice of
termination or non-renewal, or terminates or fails to renew this Agreement,
because of any such failure, occurrence or event, then such request, advice,
notice, termination or non-renewal shall not be considered to constitute or
be evidence of coercion or intimidation, or threat thereof or to be
unreasonable, unfair, undue or unjust, or to be not in good faith.
15. DISTRIBUTOR'S OBLIGATIONS UPON TERMINATION. Upon termination of this
Agreement by either party under Paragraph 14 above as to any Authorized
Products, the Distributor shall cease to be a Ford Authorized Distributor and
shall:
Page 10
a. Pay to the Company all sums owing to the Company with respect to
Authorized Products less estimated authorized returns within normal credit
terms pursuant to the Ford Authorized Distributor Policy and Procedure
Manual. Any balance remaining thereafter shall be paid within thirty (30) days
of the date of notice to the Distributor of the final determined amount.
b. At the Distributor's expense (i) remove any signs erected or used
by the Distributor, or any business affiliated with the Distributor that bear
the trademark or trade name used or claimed by the Company in connection with
such Authorized Products; (ii) obliterate all such trademarks, trade names
and words associated with such Authorized Products from all forms, stationery
and other papers used by the Distributor, or by any business affiliated with
the Distributor, (iii) permanently discontinue all advertising of the
Distributor as an authorized distributor of Authorized Products; and (iv)
refrain from doing anything whether or not specified above that would
indicate the Distributor is or was a Ford Authorized Distributor of any
Authorized Products.
If the Distributor does not comply with any of the requirements of this
paragraph 15, the Distributor shall reimburse the Company for all costs and
expenses, including reasonable attorney's fees, incurred by the Company in
effecting and enforcing compliance.
16. REACQUISITIONS ON TERMINATION.
a. Upon termination of this Agreement, the Company shall have at its
sole option, discretion and judgment the right, but not the obligation, to
request and accept from the Distributor each new, unused and undamaged
Authorized Product (excluding batteries, oil and lubricant, and refrigerant
products, or any items classified as hazardous materials) which is in the
Distributor's inventory and unsold on the effective date of termination,
provided such product is in first class saleable condition, in the original
unopened package, offered for sale by the Company in the Company's
then-current price list and was purchased by the Distributor from the Company
during the ninety (90) day period immediately preceding the effective date of
termination.
b. Within ninety (90) days after the effective date of termination,
the Distributor shall carefully pack and box, at its own expense, all
Authorized Products repurchased by the Company under this paragraph, and
ship, freight prepaid, to the Company's parts distribution center from which
the Distributor normally purchased Authorized Products, or to such other
destination as the Company may designate. The price for each such part shall
be the price to distributors established by the Company in effect on the
effective date of termination, less all prior refunds, credits, rebates,
incentives, allowances, discounts, reimbursements and other payments with
respect thereto either made by the Company or to which the Distributor would
have been entitled had the Distributor applied therefor but for which the
Distributor did not apply.
c. Upon repurchase by the Company of Authorized Products eligible for
repurchase hereunder, the Company shall be released from any and all
liability to the Distributor with respect to all relationships and actions
between the Distributor and the Company, however claimed to arise, except for
the performance of any obligation of the Company under this Paragraph 16, and
except for such amounts as the Company may have agreed in writing to pay the
Distributor. Payment by the Company to the Distributor for any Authorized
Products repurchased hereunder shall be made only upon receipt of good clear
title and a clear title and a general release executed by the Distributor and
delivered to the Company. The Company may offset any obligations then owing
by the Distributor to the Company.
Page 11
17. NEW AGREEMENT. The termination of this Agreement by the Company in
connection with the offer by the Company of a new or amended form of sales
agreement to the Distributor or to the Distributor's successor in interest
shall not give rise to the rights and obligations provided in Paragraphs 15
and 16, unless otherwise specified by the Company in writing.
18. ACKNOWLEDGEMENTS. Each party acknowledges that, except as set forth in
a written instrument signed by both parties, no representation, statement,
understanding or agreement has been made or exists relating to the subject
matter hereof other than this Agreement, and that in entering into this
Agreement, it has not relied upon anything done or said or any presumption in
law or fact (i) with respect to this Agreement, or the duration, termination
or renewal of this Agreement, or the relationship between the parties, other
than as expressly set forth in this Agreement; or (ii) that in any way tends
to change or modify the terms, or any of them, of this Agreement or to
prevent this Agreement from becoming effective, or (iii) that in any way
affects or relates to the subject matter of this Agreement.
19. ASSIGNMENT. Neither this Agreement nor any right hereunder may be
assigned by the Distributor without the prior written consent of the Company.
The Distributor agrees that the Company shall have the right to select its
distributors and may decline to appoint as a distributor of the Company any
purchaser or prospective purchaser of any of the assets or capital stock of
the Distributor upon termination or non-renewal of this Agreement or
otherwise.
20. CONFIDENTIALITY.
a. All business information and all materials containing business
information provided by Company to Distributor, including but not limited to
methods of operation, plans or strategies, policies, reports, details of
contracts and other business affairs of Company and any of its affiliates
learned by Distributor, which are not a matter of public knowledge, are and
shall be treated as confidential. Distributor agrees for itself and on behalf
of its directors, officers, employees and agents to whom such information and
materials are disclosed, that it and they shall keep such information and
materials confidential and retain them in strictest confidence both during
and after the term of this Agreement. Such information shall not be disclosed
by Distributor to any person except to officers and employees of Distributor
requiring such information or materials to perform pursuant to this
Agreement, and shall not be used for the benefit of Distributor or any third
party except in connection with services rendered pursuant to this Agreement.
Distributor acknowledges and agrees that such unauthorized disclosure or
other breach of this provision will cause irreparable injury to Company and
that money damages alone will not provide an adequate remedy to Company.
Accordingly, in addition to any other rights or remedies which may be
available to Company, Company shall be entitled to recover from Distributor
its costs, expenses and attorneys' fees incurred in enforcing its rights
under this paragraph. Distributor shall return to Company all such
information and materials and all embodiments thereof immediately upon
termination of this Agreement.
b. These obligations of confidentiality shall not apply to any
information which (i) was known to the receiving party at the time of
receipt; (ii) was in the public domain at the time of receipt; (iii) becomes
public through no fault of the party obligated to keep it confidential; (iv)
such party legitimately learns from third parties who are under no obligation
of confidentiality with respect to the information; or (v) is required by
applicable law to be divulged.
Page 12
21. WAIVER. The waiver by either party, or the failure by either party to
claim a breach, of any provision of this Agreement, shall not be or be held
to be a waiver of any subsequent breach or as affecting in any way the
effectiveness of such provision.
22. TRANSACTIONS AFTER TERMINATION. In the event either party has any
business relation with the other after termination of this Agreement, any
such relation shall not be construed as a renewal of this Agreement or a
waiver of such termination, but all transactions shall be governed by terms
identical with the terms of this Agreement relating thereto unless the
parties otherwise agree in writing.
23. NOTICES. Any notice required or permitted by this Agreement, or given in
connection with this Agreement, shall be in writing and shall be given by
personal delivery or postpaid registered or certified U.S. mail. Notices to
the Company shall be delivered to or addressed to the Ford Authorized
Distributor Manager of the Ford Customer Service Division or his/her designee.
Notices to the Distributor shall be directed to the Distributor at the
Distributor's address as indicated on the Sales Agreement.
24. SUPERSEDURE. This Agreement cancels and supersedes all other agreements,
written or oral, between the parties relating to Authorized Products and
constitutes the entire agreement between the parties with respect to the
subject matter hereof.
25. MICHIGAN AGREEMENT - SEVERABILITY OR TERMINATION. This Agreement has
been signed by the Distributor and sent to the Company in Michigan for final
approval and execution and then delivery to the Distributor. The parties
intend this Agreement to be executed as a Michigan agreement. This Agreement
and the rights and obligations of the parties shall be governed and construed
in accordance with the laws of the State of Michigan. If any provision of
this Agreement is invalid or unenforceable under the law, the Company may
elect either to terminate this Agreement in its entirety, or to consider this
Agreement divisible as to such provision and treat such provision as
inoperative, and to continue the remainder of this Agreement in full force
and effect as if such provision had not been included herein.
26. DISPUTE RESOLUTION.
a. If a dispute arises between the parties relating to this Agreement,
before either party may pursue other available remedies (except injunctive
relief from a court where appropriate to maintain the status quo), the
parties shall hold a meeting promptly, attended by persons with
decision-making authority regarding the dispute, to attempt in good faith to
negotiate a resolution of the dispute, provided, however that no such meeting
shall be deemed to violate or reduce the obligations and liabilities of the
parties or be deemed a waiver by a party hereto of any remedies to which such
party would otherwise be entitled.
b. If the parties do not succeed in negotiating a resolution of the
dispute and either party initiates litigation, the other party shall have the
right to initiate mediation and binding arbitration in accordance with the
Model Procedure for Mediation of Business Disputes of the Center for Public
Resources, and in the case of arbitration, the CPR Rules for Non-Administered
Arbitration of Business Disputes ("CPR"). Each party will bear equally the
costs of the mediation and arbitration.
Page 13
1. The parties will jointly appoint a mutually acceptable mediator
or arbitrator, seeking assistance in such regard from CPR, as appropriate, if
they have been unable to agree upon such appointment within 20 days.
2. The parties agree to participate in good faith in the mediation
and negotiations related thereto for a period of 30 days. If the parties are
not successful in resolving the dispute through the mediation, then the
parties agree to submit the matter to binding arbitration by a solo
arbitrator in accordance with CPR Rules for Non-Administered Arbitration of
Business Dispute.
3. Unless otherwise agreed by the parties in writing, mediation or
arbitration involving Ford Motor Company and/or any U.S. subsidiary, joint
venture or other operation located in the U.S. shall take place in the City
of Dearborn, Michigan and this clause is subject to the Federal Arbitration
Act. 9 U.S.C.A. sec. 1 et seq. and judgment upon the award rendered by the
Arbitrator, if any, may be entered by an U.S. court having jurisdiction
thereof.
IN WITNESS HEREOF, the parties herein have duly executed this Agreement in
duplicate as of the day and year first above written.
FORD MOTOR COMPANY Universal Mfg. Co.
-----------------------------------
(Distributor's Trade Name)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
/s/ ▇▇▇▇▇▇ ▇.___________ Title: President
Vice President - General Manager By:
Ford Customer Service Division -----------------------------------
Title:
-----------------------------------
By:
-----------------------------------
Title:
-----------------------------------
Countersigned by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
G. L. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ Authorized Distribution Manager
[LOGO]
FORD CUSTOMER SERVICE DIVISION
DOCUMENT RECEIPT
The following Ford Customer Service Division documents have been received,
read and are understood:
[X] Ford Authorized Distributor Sales [ ] Ford Authorized Distributor Warranty and
Agreement (FCS 7391) Policy Procedures Manual
[ ] Bulk Lubricant Addendum to [ ] Revisions to Ford Authorized Distributor
Ford Authorized Distributor Sales Warranty and Policy Manual
Agreement (FCS 7391D) [X] Ford Authorized Remanufactured Distributor
[X] Battery Distributor Addendum Warranty Acknowledgment
to Ford Authorized Distributor
Sales Agreement (FCS 7391E) [ ] Ford Authorized Distributor Policy and
[ ] Motorcraft Battery Deferment Procedure Manual
Assistance Plan Agreement (FCS 8151) [ ] Revisions to Ford Authorized Distributor
[ ] Amendment to Ford Authorized Distributor Policy and Procedure Manual
Sales Agreement (FCS 7391B)
[ ] Addendum to Ford Authorized Distributor [ ] Special Market Account Policy and
Sales Agreement (FCS 7391A) Procedure Manual
[ ] Special Market Account Sales [ ] Revisions to Special Market Account
Agreement (FCS 8323) Policy and Procedure Manual
[ ] Change of Name and/or Address
Letter
FORD MOTOR COMPANY Account Information:
Universal Manufacturing Co.
------------------------------ -------------------------------------
(Region) (Account Trade Name)
/s/ ▇▇▇▇ ▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------ -------------------------------------
(By) (Street Address)
FAR Account Manager ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------ -------------------------------------
(Title) (City, State, Zip Code)
10-2-98
------------------------------
(Date)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
(By)
President
-------------------------------------
(Title)
10-12-98
-------------------------------------
(Date)
Instructions:
Document Receipt is to be SIGNED by:
1. Ford Motor Company, Ford Customer Service Division Representative, and
2. Account Principal.
One copy is to be RETAINED by:
1. Ford Motor Company, Ford Customer Service Division Parts Distribution
Center Office
2. Account Principal.
[LOGO]
ADDENDUM TO FORD AUTHORIZED DISTRIBUTOR SALES AGREEMENT - BATTERY DISTRIBUTOR
FORD CUSTOMER SERVICE DIVISION
FORD MOTOR COMPANY
SUPPLEMENTAL AGREEMENT, made at Dearborn, Michigan as of this 1st day of
-------
October , 1998 between Universal Mfg. Co.
------------ ---- ----------------------------------------------------
(Give Name(s) of Individual, Partners or Corporation)
[ ] an individual, [ ] a partnership, [X] a(n) Nebraska Corporation doing
-------------
(State of
Incorporation)
business as Universal Mfg. Co. with a principal place of business at
---------------------------
(Distributor's Trade Name)
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------- -----------------------------------
(Street and Number) (City, State and Zip Code)
(hereinafter called "Distributor") and Ford Motor Company, a Delaware
corporation with its principal place of business at Dearborn, Michigan
(hereinafter called "Company").
The parties hereto extend this to be an Addendum to the Ford Authorized
Distributor Sales Agreement dated October 1, 1998 and are to be made a
-------------------
part thereof.
This Addendum will serve to appoint the undersigned Ford Authorized
Distributor as a Motorcraft Battery Distributor under the terms of the Ford
Authorized Distributor Sales Agreement dated October 1, 1998 between
--------------------
Ford Authorized Distributor (hereinafter called "Distributor") and Ford Motor
Company (hereinafter called "Company"). Further, this Addendum, along with
the Ford Authorized Sales Agreement, sets forth the requirements and
operating procedures for the Motorcraft Battery Distributor and the Company.
In the event the Distributor fails to comply with any part of this Addendum,
the Company may, at its option, terminate this Addendum and/or the Ford
Authorized Distributor Sales Agreement in accordance with the terms of the
Ford Authorized Distributor Sales Agreement.
1. MOTORCRAFT BATTERY PRODUCT TERMS AND AVAILABILITY. Motorcraft
batteries will be available to the Distributor for purchase from Ford in bulk
quantities (on pallets which must be saved for reuse) for sale only to
primary end users, predominately Ford and Lincoln-Mercury dealers. The terms
and trademarks associated with Motorcraft batteries ("Motorcraft," "Heat
Tough," "Tested Tough," "Marinecraft," "Farm Tough," "Truckin' Tough," "Gel
Cell," "BXT-USA" and Motorcraft trademarks created in the future) apply only
to lead-acid batteries manufactured for and marketed by the Company.
2. DISTRIBUTOR DUTIES AND REQUIREMENTS.
A. Distributor personnel shall be trained in proper battery
handling, charging, testing, and warranty claim processing.
B. The Distributor must rotate the dealer's battery inventory
on a regular basis.
C. The Distributor must pick up discharged batteries for
recharging and restocking.
D. The Distributor must pick up spent lead-acid batteries from
all customers in accordance with municipal and/or state and
federal guidelines outlined by the U. S. Department of
Transportation, Environmental Protection Agency, and the
Battery Council International, or a minimum of per once
a week.
E. The Distributor must meet the Ford Authorized Distributor to
Dealer Standards, as referred to in Paragraph A of the
Preamble in the Ford Authorized Distributor Sales Agreement
and Paragraph 7 of the Standard Provisions.
F. The Distributor must stock, maintain, review, and supply to
customers all point-of-purchase signage promoting
Motorcraft, its products, programs, recycling requirements
and efforts. Also, the Distributor will support all future
programs and promotional efforts made available by the
Company. The undersigned also understands that the Company
can, at any time, require the Distributor to stock
newly-created products and implement promotions in the
interest of maintaining the national profile, strategy and
integrity of the Motorcraft battery program.
3. DISTRIBUTOR TRANSPORT REQUIREMENTS.
FCS7391B Sales, August 1998 (Previous editions may not be used)
Page 2
A. The Distributor must comply with municipal and/or state and
federal guidelines Hazardous Material Regulations now and
hereafter in effect.
B. All vehicles used for battery transport must be equipped
with safety equipment (e.g., rubber gloves and aprons, eye
protection, fire extinguisher, 10 mil poly bags for leaking
batteries), emergency response telephone number, and any
other materials as required by the Distributor's insurance
carrier, or federal, state and local laws and regulations.
C. The Distributor must carry battery testing equipment in good
operating condition, as specified in the Ford Authorized
Distributor Policy and Procedure Manual.
4. BUSINESS OPERATION.
A. The Distributor must actively and aggressively provide
prompt and efficient delivery service to Ford and
Lincoln-Mercury dealers according to standards and criteria
as set forth by the Company from time to time.
B. The Distributor will be subject to periodic audits,
performed by Ford personnel and/or its designated agents or
representatives, designed to check operational procedures.
C. The Distributor must have available scrap battery handling
area signage for distribution to dealers.
5. SPENT LEAD-ACID BATTERY HANDLING AND STATUTORY/REGULATORY
REQUIREMENTS. Without in any way limiting the Distributor's obligation to
comply with all applicable laws, regulations or ordinances (as setforth in
Paragraph 9 of the Ford Authorized Distributor Sales Agreement), the
Distributor must:
1) Pick up all lead-acid batteries from all accounts
serviced by the Distributor during the course of his
business day.
2) Handle, store and process all batteries (new and
spent) in accordance with current federal, state and
local laws and regulations including, but not limited
to U. S. Environmental Protection Agency and
Department of Transportation regulations such as
"40CFR261.6(a)(2)(v) and 40CFR266.80.subpart G - Spent
Lead-Acid Batteries Being Reclaimed."
3) Ensure that all of the spent lead-acid batteries
processed and stored at the Distributor's facilities
are ultimately returned to an Environmental Protection
Agency-approved agent/smelter for disposal.
4) Maintain records of all transactions pertaining to
spent lead-acid battery transport and delivery to an
Environmental Protection Agency-approved recycling
center. These records must be kept current and be made
available to all Ford personnel and, in the case of an
Environmental Protection Agency audit, to appropriate
municipal, state and federal authorities.
6. PACKAGING, LABELING AND DISTRIBUTION.
A. The Distributor may NOT:
1) Repackage or alter Motorcraft battery shipments into
any containers other than the packaging provided by the
Company.
2) Alter the Motorcraft product name or individual
trademarks (see above) as used by the Company.
3) Alter the Cold Cranking Amps (CCA), Cranking Amps
(CA), Reserve Capacity (RC), etc. designations or
product specifications provided by the Company in
association with the Battery Council International
(BCI).
4) Alter internationally-recognized BCI performance
categories used by the Company.
5) Substitute other branded battery products in place of
Motorcraft or Ford to Ford, and Lincoln-Mercury Dealers
and any of their outlets (i.e. AutoCare, Quick Lube,
and Fast Lube).
Page 3
B. The Company reserves the right to inspect the Distributor's
facilities, battery storage areas, equipment, and to
document/photograph work areas/processes during normal
business hours to ensure that the requirements/integrity of
the program and its products are not adulterated, misapplied
or misidentified. In the event such an inspection reveals
that Motorcraft products/programs/requirements have been
adulterated, misapplied or misidentified, or if the
Distributor is conducting his business in such a manner
likely to result, in the opinion of Ford personnel, in a
misrepresentation of the Company, the Company, at its
option, may terminate this Addendum and/or the Ford
Authorized Distributor Sales Agreement in its entirety.
C. The Distributor will be fully responsible for misapplication
and misidentification of all Motorcraft battery products
occurring after receipt from the Company and prior to custody
transfer to dealerships, retailers, auto parts stores,
marinas and any/all end users of Motorcraft battery products.
D. Under any circumstances Motorcraft batteries must be loaded,
transported, unloaded, and stored in accordance with
Segregation Requirements outlined in U.S. Federal Hazardous
Material Regulations now and hereafter in effect.
E. This Addendum gives the Distributor the right to use the
Motorcraft name only on lead-acid battery products and only
in association with this program. The Motorcraft name CANNOT
be used for Distributor products, programs and retail sales
separate from the lead-acid batteries or other products
authorized by the Company.
F. The Distributor shall maintain and retain all records of
Motorcraft battery purchases, shipments, warranty claims,
damaged merchandise, etc. Furthermore, the Distributor shall
agree to allow the Company, at reasonable times, to audit
said books, records and accounts to determine the quantities
and qualities of the Motorcraft lead-acid battery shipments
produced during the previous twelve (12) months.
7. OTHER OPERATING PROVISIONS. Other operating provisions are set
forth in "Ford Authorized Distributor Standards." The current version of
these Standards is contained in the "Ford Authorized Distributor Policy and
Procedure Manual". These Standards may be changed from time to time by the
Company at its discretion.
IN WITNESS WHEREOF the parties hereto have executed this Addendum as of the
day and year first above written and the Company is authorized to deliver the
same to the Distributor by placing the Distributor's copy thereof in the
United States mail duly stamped and addressed to the Distributor at his
principal place of business, or by delivery to such place of business or the
Distributor in person.
FORD MOTOR COMPANY Universal Mfg. Co.
-----------------------------------
(Distributor's Trade Name)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
/s/ ▇▇▇▇▇▇ ▇.__________ Title: President
Vice President - General Manager By
Ford Customer Service Division -----------------------------------
Title:
-----------------------------------
Countersigned by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
G. L. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ Authorized Distributor Manager
[LOGO]
FORD CUSTOMER SERVICE DIVISION
DOCUMENT RECEIPT
The following Ford Customer Service Division documents have been received,
read and are understood:
[ ] Ford Authorized Distributor Sales [ ] Ford Authorized Distributor Warranty
Agreement (FCS 7391) and Policy Procedures Manual
[ ] Bulk Lubricant Addendum to [ ] Revisions to Ford Authorized
Ford Authorized Distributor Sales Distributor Warranty and Policy Manual
Agreement (FCS 7391D) [ ] Ford Authorized Remanufactured
[ ] Battery Distributor Addendum Distributor Warranty Acknowledgement
to Ford Authorized Distributor
Sales Agreement (FCS 7391E) [ ] Ford Authorized Distributor Policy and
[ ] Motorcraft Battery Deferment Procedure Manual
Assistance Plan Agreement (FCS 8151) [ ] Revisions to Ford Authorized
[ ] Amendment to Ford Authorized Distributor Distributor Policy and Procedure Manual
Sales Agreement (FCS 7391B)
[ ] Addendum to Ford Authorized Distributor [ ] Special Market Account Policy and
Sales Agreement (FCS 7391A) Procedure Manual
[ ] Special Market Account Sales [ ] Revisions to Special Market Account
Agreement (FPS 8323) Policy and Procedure Manual
[X] Ford Authorized Distributor Sales
Agreement (FCS 7391G)
FORD MOTOR COMPANY Account Information
Universal Mfg., Inc.
---------------------------------- ----------------------------------
(Region) (Account Trade Name)
/s/ ▇▇▇▇ ▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ----------------------------------
(By) (Street Address)
FAR ACCT MGR. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------- ----------------------------------
(Title) (City, State, Zip Code)
12/10/98
---------------------------------- /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(Date) ----------------------------------
(By)
President
----------------------------------
(Title)
12-7-98
----------------------------------
(Date)
Instructions:
Document Receipt is to be SIGNED by:
1. Ford Motor Company, Ford Customer Service Division Representative, and
2. Account Principal.
One copy is to be RETAINED by:
1. Ford Motor Company, Ford Customer Service Division Parts Distribution
Center Office
2. Account Principal.
[LOGO]
AMENDMENT TO FORD AUTHORIZED DISTRIBUTOR SALES AGREEMENT
FORD CUSTOMER SERVICE DIVISION
FORD MOTOR COMPANY
SUPPLEMENTAL AGREEMENT, made at Dearborn, Michigan as of this _______ day of
___________, 1998 between Universal Mfg. Inc.
----------------------------------------------------
(the Name(s) of Individual, Partners or Corporation)
[ ] an individual, [ ] a partnership, [X] a(n) Nebraska Corporation doing
--------------
(State of Incorporation)
business as Universal Mfg., Inc. with a principal place of business at
--------------------------
(Distributor's Trade Name)
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------, -------------------------------,
(Street and Number) (City, State and Zip Code)
(hereinafter called "Distributor") and Ford Motor Company, a Delaware
corporation with its principal place of business at Dearborn, Michigan
(hereinafter called "Company").
The parties hereto have previously entered into a Ford Authorized Distributor
Sales Agreement dated October 1, 1998 and now desire to make certain changes
therein. ---------------
(Date of Agreement)
NOW THEREFORE, in consideration of these premises the parties hereto mutually
agree that said Ford Authorized Distributor Sales Agreement be amended by
changing Paragraph F to read as follows:
"F. In addition to the location identified above as the Distributor's
principal place of business, Distributor shall maintain facilities and
operate its distribution business from the following locations (hereinafter
called "Authorized Locations"):
DISTRIBUTOR/REMANUFACTURER TRADE NAME AND MAILING ADDRESS
Universal Mfg., Inc. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Universal Mfg., Inc. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Universal Mfg., Inc. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
The Distributor shall not move or directly or indirectly operate its
distribution business pursuant to this Agreement, in whole or in part, in
facilities other than an Authorized Location without the prior written
consent of the Company and a written Amendment to this Agreement.
This Supplemental Agreement is subject to all the terms and conditions
contained in the Ford Authorized Distributor Sales Agreement, except insofar
as such terms and conditions may be inconsistent with the express terms
hereof.
FCS7391B Sales, August 1998 (Previous editions may not be used)
Page 2
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the
day and year first above written and the Company is authorized to deliver the
same to the Distributor by placing the Distributor's copy thereof in the
United States mail duly stamped and addressed to the Distributor at his
principal place of business, or by delivery to such place of business or the
Distributor in person.
FORD MOTOR COMPANY UNIVERSAL MFG., INC.
--------------------------------------
(Distributor's Trade Name)
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- ------------------------------------
G. L. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ Authorized Distributor Manager President
Title
--------------------------------
By
-----------------------------------
Title
--------------------------------
ACKNOWLEDGEMENT OF CONTINUED WARRANTY RESPONSIBILITY
UNIVERSAL MFG. CO. , being or having been a Ford Authorized Remanufactured
Distributor, acknowledges that it retains all warranty responsibility and
liability for any remanufactured products it produced and/or distributed
under its Ford Authorized Remanufactured Distribution Agreement(s) with Ford
Motor Company (paragraph "10. Warranty" of FAR Agreement), notwithstanding
the fact that such Agreement(s) may be terminated.
DISTRIBUTOR'S NAME
UNIVERSAL MFG. CO.
---------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: President
---------------------------