ISUZU DEALER SALES
AND
SERVICE AGREEMENT
ADDITIONAL PROVISIONS
The following Additional Provisions have by reference been
incorporated in and made a part of the ISUZU DEALER SALES AND SERVICE AGREEMENT
which they accompany and which has been executed on behalf of Distribution and
Dealer.
ARTICLE I. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
A. "Authorized Isuzu Dealers" shall mean dealers located in the
United States that are authorized by Distributor to conduct dealership
operations in connection with the sale of Isuzu Products.
B. "Isuzu Cars" shall mean such new passenger cars manufactured
by or on behalf of Manufacturer as are from time to time offered for sale by
Distribution to Dealer for resale.
C. "Isuzu Trucks" shall mean such new light duty trucks and
chassis manufactured by or on behalf of Manufacturer as are from time to time
offered for sale by Distributor to Dealer for resale.
D. "Isuzu Vehicles" shall mean Isuzu Cars and Isuzu Trucks.
E. "Isuzu Parts and Accessories" shall mean such parts and
accessories manufactured by or on behalf of
Manufacturer or Distributor as are from time to time offered for sale by
Distributor to Dealer.
F. "Isuzu Products" shall mean Isuzu Vehicles and Isuzu Parts and
Accessories.
G. "Competitive Cars" shall mean those new cars which are
designated by Distributor as directly competitive with Isuzu Cars.
H. "Import Industry Cars" shall mean all new cars manufactured
other than within the United States which are imported into the United States
for sale to the extent data relating to registration thereof are reasonably
available.
I. "Industry Cars" shall mean all new cars of manufacturers which
are sold and distributed within the United States, to the extent data
relating to registration thereof are reasonably available.
J. "Competitive Trucks" shall mean those new light duty trucks
which are designated by Distributor as directly competitive with Isuzu Trucks.
K. "Import Industry Trucks" shall mean all new light duty trucks
manufactured other than within the United States which are imported into the
United States for sale, to the extent data relating to registration thereof
are reasonably available.
L. "Industry Trucks" shall mean light duty trucks of all
manufacturers which are sold and distributed within the United States, to the
extent data relating to registration thereof are reasonably available.
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M. "Dealership Location" shall mean the business location of
Dealer described in the initial paragraph of this Agreement.
N. "Dealership Facilities" shall mean the land areas at the
Dealership Location and the buildings and improvements erected thereon.
O. "Dealer's Market" shall mean the geographical area within
which potential purchasers and owners of Isuzu Products which Dealer can most
readily serve are located. Such area, or portions thereof, may at any time
be a part of the Market of other Authorized Isuzu Dealers as well as Dealer.
P. "Owner(s)" shall mean the person(s) named as Owner(s) in
Section 4 of this Agreement.
Q. "Executive Manager" shall mean the person named as Executive
Manager in Section 4 of this Agreement.
R. "Successor Addendum" shall mean the Successor Addendum, if
any, executed by Distributor and Dealer pursuant to the provisions of Article
VII of this Agreement.
S. "Dealership Standards" shall mean such reasonable standards as
may be established by Distributor for Authorized Isuzu Dealers from time to
time under its standard procedures with respect to such matters as dealership
facilities, tools, equipment, capitalization, inventories and personnel.
T. "Service Policies and Procedures Manual" shall mean the
publication or publications of Distributor, as the same may from time to time
be amended, revised or supplemented, which
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set forth Distributor's policies and procedures concerning and administration
of Distributor's warranties and related matters.
U. "Manufacturer" shall mean ISUZU MOTORS LIMITED.
ARTICLE II. SALES TO DEALER
A. DEALER'S ORDERS
At such times as Distributor may from time to time designate, Dealer
shall submit to Distributor orders for Isuzu Products in such quantities and
varieties as may be reasonably necessary for Dealer to fulfill its
obligations under this Agreement. All orders shall be on forms supplied by
Distributor, shall be subject to acceptance by Distributor, and may be
accepted in whole or in part. Orders may be accepted by written notice to
Dealer or by actual delivery of the products ordered to Dealer or to a
carrier for transportation to Dealer. Except as otherwise provided in this
Agreement, orders shall not be cancellable by Dealer after acceptance by
Distributor. Distributor will process and fill Dealer's orders in accordance
with procedures relating thereto established by Distributor. Because of the
number of factors that affect the distribution of products and the relevancy
thereof at any given time. Distributor necessarily reserves to itself
discretion in applying such factors and in processing orders for Isuzu
Products it receives from Dealer. The judgment and decisions of Distributor
shall be final in all matters relating to the distribution and delivery of
Isuzu Products to Dealer.
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B. SHIPMENT AND RISK OF LOSS
Distributor will ship Isuzu Products by whatever mode of
transportation, by whatever route, and from whatever point Distributor may
select. Distributor will, if requested by Dealer in such manner and within such
time as Distributor shall from time to time specify, prosecute claims for loss
of or damage to Isuzu Products during transportation from said point of shipment
against the responsible carrier for and on behalf of Dealer.
C. PASSAGE OF TITLE
Title to Isuzu Products shall pass from Distributor to Dealer, or, if
applicable, to the financial institution designated by Dealer, upon delivery of
said product to Dealer or to a carrier for transportation to Dealer, whichever
occurs first. Distributor shall retain a security interest in, and the right to
repossess, any such product until paid in full therefor.
D. FREIGHT
In addition to the prices and charges otherwise provided for herein,
Dealer will pay Distributor in connection with Isuzu Vehicles delivered to
Dealer the applicable destination charges that are in effect at the time of
shipment. Dealer shall pay such transportation charges for Isuzu Parts and
Accessories as may be in effect at the time of shipment.
E. DIVERSIONS
Dealer shall pay all charges accruing after delivery of Isuzu Products
to Dealer or to carrier for transportation to Dealer, including, but not limited
to, charges for demurrage and storage. If diversions of shipments are made upon
Dealer's
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request or because of Dealer's failure or refusal to accept delivery thereof,
Dealer shall be responsible for and pay any additional costs or expenses thereby
incurred.
ARTICLE III. DEALERSHIP OPERATIONS
A. DEALERSHIP LOCATION AND FACILITIES
1. DEALERSHIP FACILITIES
Dealer shall provide, at the Dealership Location, Dealership
Facilities that will enable Dealer to effectively perform its responsibilities
under this Agreement. The Dealership Facilities shall be satisfactory as to
appearance and layout, properly equipped and substantially in accordance with
the applicable Dealership Standards.
2. CHANGE IN DEALERSHIP LOCATION OR FACILITIES
Dealer shall not move, relocate, modify or change the Dealership
Location or any of the Dealership Facilities, nor shall Dealer or any Owner or
Manager directly or indirectly establish or operate any other locations or
facilities for the sale or servicing of Isuzu Products or for the conduct of any
other of the dealership operations contemplated by this Agreement without the
prior written consent of Distributor.
3. HOURS OF BUSINESS
In order to serve the needs of potential purchasers and the service
requirements of owners and users of Isuzu Products, Dealer shall keep its
Dealership Facilities open and operating for business during such days and hours
as automobile dealers' sales, parts and service facilities are customarily open
in the community wherein the Dealership Location is situated.
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4. IDENTIFICATION OF DEALERSHIP FACILITIES
Insofar as permitted by local laws and regulations, Dealer shall
display at its Dealership Location, in such number and at such locations as
Distributor may reasonably require, signs which are compatible with the design
standards established by Distributor from time to time. Dealer shall maintain
all such signs in good condition at all times.
5. EVALUATION OF DEALER'S PERFORMANCE WITH
RESPECT TO DEALERSHIP FACILITIES
Distributor shall periodically evaluate Dealer's performance of its
responsibilities with respect to Dealership Facilities and shall discuss its
evaluation with Dealer. Dealer shall promptly take such action as may be
required to correct any deficiencies in its performance of these
responsibilities.
B. VEHICLE SALES OPERATIONS
1. RESPONSIBILITY OF DEALER
Dealer shall actively and effectively promote the sale at retail (and,
if Dealer elects, the leasing and rental) of Isuzu Vehicles to potential
customers located in Dealer's Market. However, nothing contained in this
Agreement shall limit or be construed to limit the geographical area within
which or the persons to whom Dealer may sell or promote the sale of Isuzu
Vehicles.
2. SALES PERSONNEL
Dealer shall at all times employ the number of trained and competent
new vehicle managerial and sales personnel reasonably required to fulfill its
responsibilities with respect to the sales of Isuzu Vehicles.
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Dealer shall, without expense to Distributor, have its said employees
attend such vehicle sales training sessions as Distributor may from time to time
conduct.
3. INVENTORY
Subject to the ability of the Distributor to supply the same, Dealer
shall maintain at all times stocks of Isuzu Vehicles of an assortment and in
quantities adequate to meet its responsibilities with respect to sales of Isuzu
Vehicles. Dealer shall also have available at all times an adequate number and
variety of Isuzu Vehicles for purposes of display and demonstration and shall,
at all times, maintain the same in first class condition.
4. MODIFICATION OF ISUZU VEHICLES
If the laws of the state in which the Dealership Location is situated
or of the states in which customers of Dealer are located require the
installation on vehicles of equipment not installed or supplied as standard
equipment by Distributor, Dealer shall, prior to its sale of the Isuzu Vehicles
on which such installation is required, install at its own expense such
additional equipment. Dealer shall indemnify and hold Distributor harmless from
and against any and all liabilities arising from Dealer's failure to install
such additional equipment on said vehicles.
5. EVALUATION OF DEALER'S SALES PERFORMANCE
Distributor shall periodically evaluate Dealer's performance of its
responsibilities with respect to sales of Isuzu Cars and shall discuss its
evaluation with Dealer. Dealer
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shall promptly take such action as may be required to correct any deficiencies
in its performance of these responsibilities. Dealer's performance of these
responsibilities shall be evaluated by Distributor on the basis of such
reasonable factors as Distributor shall establish and furnish Dealer from time
to time. Such factors shall include:
(a) Reasonable sales objectives for Isuzu Cars which may be
established from time to time by Distributor for Dealer;
(b) Dealer's sales of Isuzu Cars as compared to:
(i) registrations of Isuzu Cars in Dealer's Market;
(ii) registrations of Competitive Cars in Dealer's
Market;
(iii) registrations of Import Industry Cars in Dealer's
Market;
(iv) registrations of Industry Cars in Dealer's Market;
and
(v) the average sale of Isuzu Cars by comparable
groupings of Authorized Isuzu Dealers.
6. EVALUATION OF SALES OF ISUZU TRUCKS
Distributor shall periodically evaluate Dealer's performance of its
responsibilities with respect to sales of Isuzu Trucks and shall discuss its
evaluation with Dealer. Dealer shall promptly take such action as may be
required to
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correct any deficiencies in its performance of these responsibilities. Dealer's
performance of these responsibilities shall be evaluated by Distributor on the
basis of such reasonable factors as Distributor shall establish and furnish
Dealer from time to time. Such factors shall include:
(a) Reasonable sales objectives for Isuzu Trucks which
may be established from time to time by Distributor for Dealer;
(b) Dealer's sales of Isuzu Trucks as compared to:
(i) registrations of Isuzu Trucks in
Dealer's Market;
(ii) registrations of Competitive Trucks in
Dealer's Market;
(iii) registrations of Import Industry Trucks in
Dealer's Market;
(iv) registrations of Industry Trucks in Dealer's
Market; and
(v) the average sales of Isuzu Trucks by
comparable groupings of Authorized Isuzu
Dealers.
C. USED VEHICLE SALES OPERATIONS
To enhance Dealer's opportunities to operate successfully, Dealer will
engage in such used vehicle operations as Dealer may deem appropriate. Dealer
shall be entitled to identify such used vehicle operations as a part of its
dealership operations and to apply the trademarks, tradenames and service
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marks of Distributor relating to used vehicle operations, but only as and to the
extent Dealer subscribes to and fulfills all requirements of programs relating
thereto offered Dealer by Distributor.
D. RENTAL AND LEASING OPERATIONS
Since the rental and leasing of Isuzu Vehicles will offer Dealer
additional opportunities to improve its effectiveness in fulfilling its
responsibilities with respect to sales of Isuzu Vehicles, Dealer will explore
such opportunities and will establish rental and leasing operations if such
additional opportunities are apparent. Dealer shall be entitled to identify
such rental and leasing operations as a part of its dealership operations and to
apply the trademarks, tradenames and service marks of Distributor relating to
rental and leasing operations, but only as and to the extent Dealer subscribes
to and fulfills all requirements of programs relating thereto offered Dealer by
Distributor.
E. PARTS AND ACCESSORIES SALES OPERATIONS
1. RESPONSIBILITY OF DEALER
Dealer shall actively and effectively promote the sale of Isuzu Parts
and Accessories to service, wholesale and other customers located in Dealer's
Market. However, nothing contained in this Agreement shall limit or be
construed to limit the geographical area within which or the person to whom
Dealer may sell Isuzu Parts and Accessories.
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2. SALES PERSONNEL
Dealer shall at all times employ the number of trained and competent
parts and accessories managerial and sales personnel reasonably required to
fulfill its responsibilities with respect to the sales of Isuzu Parts and
Accessories. Dealer shall, without expense to Distributor, have its said
employees attend such parts and accessories sales training sessions as
Distributor may from time to time conduct.
3. INVENTORY
Dealer shall maintain at all times stocks of parts and accessories
adequate to meet its responsibilities with respect to service of Isuzu
Products. Dealer shall also amintain, subject to the ability of Distributor
to supply the same, stocks of Isuzu Parts and Accessories of an assortment
and in quantities adequate to meet customer demands and for warranty repairs,
special policy service and campaign corrections. Dealer shall maintain a
proper and adequate system of parts and accessories inventory control.
4. REPRESENTATIONS CONCERNING PARTS AND ACCESSORIES
In connection with its ale or offering for sale or use in the repair
or service of Isuzu Products, Dealer shall not represent as an Isuzu Part or
Accessory any part or accessory that in fact is not an Isuzu Part or Accessory.
5. EVALUATION OF DEALER'S PARTS AND ACCESSORIES SALES
PERFORMANCE
Distributor shall periodically evaluate Dealer's performance of its
responsibilities with respect to the sale of Isuzu Parts and Accessories and
shall discuss its evaluation with
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Dealer. Dealer shall promptly take such action as may be required to correct
any deficiencies in its performance of these responsibilities.
F. SERVICE OPERATIONS
1. GENERAL SERVICE RESPONSIBILITIES OF DEALER
Dealers shall provide prompt efficient and courteous service to owners
and users of Isuzu Products regardless of the origin of purchase thereof,
including, without limitation, the specific obligations described below. All
service performed by Dealer pursuant to this Agreement shall be performed in a
good and workmanlike manner and in accordance with the requirements,
specifications and instructions relating thereto set forth in the Service
Policies and Procedures Manual and bulletins and instructions furnished Dealer
by Distributor from time to time.
2. SPECIFIC SERVICE OBLIGATIONS OF DEALER
(a) NEW VEHICLE PRE-DELIVERY INSPECTIONS AND ADJUSTMENTS.
Dealer shall perform pre-delivery inspections and adjustments on each
Isuzu Vehicle prior to sale and delivery thereof by Dealer. Such inspections
and adjustments shall be performed by Dealer without charge to the purchaser and
in accordance with the provisions relating thereto set forth in the Service
Policies and Procedures Manual and bulletins and instructions furnished Dealer
by Distributor from time to time.
The completion of such inspections and adjustments on each such
Vehicle shall be verified by Dealer on forms supplied or approved by Distributor
for this purpose, a copy of which
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shall be retained in Dealer's files and a copy of which shall be furnished to
the purchaser.
(b) COMPLIMENTARY MAINTENANCE SERVICE
Dealer shall perform or be responsible for the performance of such
complimentary maintenance or other services following delivery of Isuzu Vehicles
(including labor for lubrication) as may be prescribed for such vehicle in
Distributor's applicable service bulletins, in accordance with the provisions
relating thereto set forth in the Service Policies and Procedures Manual or in
bulletins or instructions issued by Distributor to Dealer from time to time.
Dealer will perform such services as and when required and requested by the
owner or user of the vehicle, without regard to its origin of purchase.
(c) WARRANTY REPAIRS
Dealer shall perform (i) warranty repairs on each Isuzu Product which
qualifies for such repairs under the provisions of any warranty furnished
therewith by Distributor or by the manufacturer thereof and (ii) such other
inspections, repairs or adjustments as may be approved or authorized by
Distributor.
Dealer shall perform such repairs and adjustments on each such Isuzu
Product as and when required thereon and requested by the owner, without regard
to its origin of purchase, and in accordance with the provisions relating
thereto set forth in the Service Policies and Procedures Manual and in bulletins
and instructions furnished by Distributor to Dealer from time to time.
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Dealer shall provide each owner or user for whom Dealer performs such
repairs or adjustments with a copy of the repair order covering the same.
(d) CAMPAIGN INSPECTIONS AND CORRECTIONS
Dealer shall perform campaign inspections and/or corrections,
including those described in owner notifications and recall campaigns conducted
by Distributor in furtherance of Federal or state laws or regulations, on Isuzu
Products that qualify for such inspections and/or corrections and those on which
such campaign inspections and corrections are requested by Distributor,
regardless of their origin of purchase.
Dealer shall perform such campaign inspections and/or corrections and
shall advise Distributor as and when the same are performed, all in accordance
with the bulletins and instructions relating thereto furnished Dealer by
Distributor and as set forth in the Service Policies and Procedures Manual.
To enable Dealer to perform required corrections as promptly as
practical, and for the convenience of Dealer, parts and/or other materials
required for each such campaign may be pre-shipped to Dealer. Dealer will
accept and retain such parts and/or materials for use in such campaign. Upon
completion of the campaign, Dealer may return or dispose of any such parts
and/or materials that are in excess of Dealer's requirements for the campaign in
accordance with disposition instructions relating thereto furnished by
Distributor and Dealer shall receive credit therefor.
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(e) DISPOSITION OF REPLACED PARTS
Dealer shall comply with the instructions set forth in the Service
Policies and Procedures Manual with respect to retention and disposition of
parts replaced by Dealer in the performance of repairs, adjustments and services
pursuant to Article III F 2 (a), (b), (c) and (d) of this Agreement.
(f) MAINTENANCE AND REPAIR SERVICE
Dealer shall provide, at its Dealership Facilities, prompt maintenance
and repair service to owners and users of Isuzu Products. Such service shall
include only those services specifically requested by the owner or user that are
discussed in advance by the Dealer with the owner or user as being required.
Dealer shall provide all owners and users for whom Dealer provides
maintenance and repair service itemized invoices covering the details thereof.
(g) PAYMENTS BY DISTRIBUTOR TO DEALER
For Dealer's performance of pre-delivery inspections and adjustments,
complimentary maintenance service, warranty repairs, special policy adjustments,
and campaign inspections and corrections under and pursuant to the above
provisions, Distributor shall pay Dealer for the Parts and Accessories and/or
other materials or shall provide Dealer with the Parts and Accessories and/or
other materials required in connection therewith and shall pay for labor in
accordance with the provisions relating thereto set forth in the Service
Policies and Procedures Manual.
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3. OTHER SERVICE RESPONSIBILITIES OF DEALER
(a) COMPLIANCE WITH LAWS REGULATING VEHICLES
AND OTHER PRODUCTS
Dealer will comply with all applicable provisions of Federal, state
and local laws and governmental orders, rules and regulations, including but not
limited to laws, orders, rules and regulations relating to safety, emission,
noise control, damageability and customer service.
In furtherance of facilitating compliance with such laws, orders,
rules and regulations by Distributor and Dealer, Distributor will provide to
Dealer, and Dealer will provide to Distributor, as the case may be, such
information and assistance as may reasonably be requested by the other in
connection with the performance of their respective obligations under such laws,
orders, rules and regulations.
(b) SERVICE PERSONNEL
Dealer shall at all times employ the number of trained and competent
service managerial and technical personnel reasonably required to fulfill its
responsibilities with respect to the service of Isuzu Products. Dealer shall,
without expense to Distributor, have its said employees attend such service
training sessions as Distributor may from time to time conduct.
(c) SERVICE EQUIPMENT AND SPECIAL AND
ESSENTIAL TOOLS
Dealer shall provide adequate service equipment and such special and
essential tools as are required to fulfill its responsibilities for service of
Isuzu Products.
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4. EVALUATIONS OF DEALER'S SERVICE PERFORMANCE
Distributor shall periodically evaluate Dealer's performance of its
responsibilities with respect to the servicing of Isuzu Products and shall
discuss its evaluation with Dealer. Dealer shall promptly take such action as
may be required to correct any deficiencies in its performance of these
responsibilities.
G. ADVERTISING, PROMOTIONAL AND PUBLIC RELATIONS OPERATIONS
1. ADVERTISING STANDARDS
In order to secure and maintain the confidence and respect of the
public in Dealer, Distributor, Manufacturer and Isuzu Products, Dealer will at
all times maintain the highest standards of ethical advertising and will not
publish or cause or permit to be published any advertising relating to any of
its dealership operations or to any Isuzu Product which is not in compliance
with all applicable federal, state and local laws, rules, regulations and orders
or that is likely to mislead or deceive the public or impair the goodwill of
Dealer, Distributor or Manufacturer or the good reputation of Isuzu Products.
2. DEALER'S ADVERTISING PROGRAMS
Dealer shall develop and utilize advertising and promotion programs,
including, but not limited to effective displays of Isuzu Products and use of
demonstration Isuzu Vehicles.
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3. PARTICIPATION IN DISTRIBUTOR'S ADVERTISING PROGRAMS
Dealer shall participate in advertising and promotion programs
developed from time to time by Distributor, as and when requested by
Distributor.
4. CUSTOMER RELATIONS
(a) INFORMING CUSTOMERS AS TO DETAILS OF CHARGES
In effecting sales or service of Isuzu Products, Dealer will inform
the customers of details covering the items which make up the purchase price or
charges, will give them itemized invoices covering the details thereof and will
provide them with such other information and documents relating thereto as may
be required under any applicable laws, rules, regulations or orders.
Dealer will not make any false, misleading or deceptive
representations as to the items making up the purchase price or charges, nor
will Dealer make any statements intended to lead any purchaser to believe that a
greater portion of the selling price of a Vehicle represents destination,
factory delivery and handling, or other charges than the amounts thereof
actually charged to and paid for by Dealer.
(b) RIGHT OF RETAIL PURCHASER TO BUY VEHICLE WITHOUT
PURCHASING OPTIONAL EQUIPMENT OR ACCESSORIES
Dealer shall not include, in any retail order for an Isuzu Vehicle
taken by Dealer nor in any order covering an Isuzu Vehicle submitted by Dealer
to Distributor, any item of optional equipment or accessories, unless the retail
purchaser thereof has requested such item and has knowledge that such item will
be
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included in such order or unless such item is required on such vehicle under
applicable laws, rules, regulations or orders.
(c) INFORMING RETAIL PURCHASERS AS TO OPTIONAL EQUIPMENT OR
ACCESSORIES INSTALLED BY DEALER
In order to avoid disparagement of any trademark that is applied by
Distributor to items of optional equipment and accessories manufactured by or
for Distributor and in order to avoid misleading any retail purchasers who may
assume that all items of optional equipment and accessories included in Isuzu
Vehicles have been manufactured by or for Distributor, Dealer shall, if it
installs on any Isuzu Vehicle any item of optional equipment or accessory that
has not been manufactured by or for Distributor, disclose to the retail
purchaser thereof that such item of optional equipment or accessory has not been
manufactured by or for Distributor and that it is not included in any warranty
furnished by Distributor. Such disclosure by Dealer shall be included in
writing by Dealer on the retail purchaser's order for any such Isuzu Vehicle, if
one is signed by the retail purchaser thereof, but in any event in the itemized
invoice covering the details of such purchase furnished the retail purchaser by
Dealer.
H. CAPITAL
Dealer shall at all times maintain and employ in the operations of its
dealership at least that amount and allocation of net working capital needed for
Dealer to effectively fulfill its responsibilities under this Agreement, as
agreed upon in writing by Distributor and Dealer from time to time.
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I. ACCOUNTING SYSTEM
Dealer will install and maintain an accounting system of a type
designated by Distributor. Dealer will maintain said system in accordance with
instructions to be issued by Distributor from time to time.
J. RECORDS AND REPORTS
1. FINANCIAL STATEMENTS
Dealer shall furnish to Distributor, on or before the tenth day of
each month, on such forms as Distributor may designate, complete and accurate
financial and operating statements reflecting Dealer's true and financial
condition as of the end of the preceding month and the results of Dealer's
operations during the preceding month and for that portion of Dealer's fiscal
year then ended, with supporting data, and shall, within two (2) months after
the closing date of Dealer's fiscal year, furnish to Distributor complete and
accurate financial and operating statements for said fiscal year. Distributor
shall not furnish to any third party any financial statements or data submitted
to it hereunder, except as an unidentified part of a composite or coded report,
unless authorized by Dealer or required to do so by law or unless they are
pertinent to judicial or governmental administrative proceedings.
2. OWNERSHIP AND MANAGEMENT RECORDS
Dealer shall keep and maintain complete and up-to-date records
covering (a) the names of all persons who are Owner(s) of Dealer and the dates
and manner in which any such ownership interests of such persons are transferred
or changed in any
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manner whatsoever; (b) the election, appointment or selection of each person
having a management position with Dealer, including the duly elected officers
and directors of Dealer if Dealer is a corporation; and (c) the persons or
parties who have either directly or indirectly supplied funds, on either a
secured or unsecured basis, to those having any ownership interests in Dealer in
connection with their acquisition of such ownership interests.
3. SALES AND SERVICE RECORDS AND REPORTS
Dealer shall prepare and maintain complete and up-to-date records
covering its sales of and service performed by it on Isuzu Products. Promptly
upon the sale of each Isuzu Vehicle, Dealer shall accurately and fully complete
and send to Distributor the vehicle retail delivery report supplied by
Distributor with respect to said vehicle. Dealer will furnish Distributor with
such other and further reports covering sales and service of Isuzu Products by
Dealer in such form or forms and within such times as is specified in notices or
bulletins relating thereto furnished Dealer by Distributor.
4. RECORDS CONCERNING APPLICATIONS AND CLAIMS FOR PAYMENTS
Dealer shall prepare and retain, for a minimum period of two (2)
years, in accordance with the procedures set forth in the Service Policies and
Procedures Manual, records in support of applications for payment for pre-
delivery inspections and adjustment, warranty repairs and policy adjustments and
campaign inspections and corrections performed by Dealer, claims for parts
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compensation and applications for discounts, allowances, refunds or credits.
K. INSPECTION OF ACCOUNTS AND RECORDS
Distributor shall have the right at any reasonable time during
Dealer's regular business hours to inspect the Dealership Facilities and to
examine, audit and make copies of all accounts and records relating to the sale
and service of Isuzu Products.
L. TRADEMARKS AND SERVICE MARKS
Distributor grants Dealer the non-exclusive privilege to identify
itself as an Authorized Isuzu Dealer and to display and otherwise use in
connection with the sale and service of Isuzu Products, the various trademarks,
tradenames, service marks and other word and design marks which Manufacturer or
Distributor may use in connection with or apply to Isuzu Products during the
term of this Agreement. Except as provided herein, Dealer shall make no use of
any such trademark, tradename, service ▇▇▇▇, or other word and design ▇▇▇▇.
Dealer shall not use any ▇▇▇▇, word or name which is similar to any of the
various trademarks, tradenames, service marks and other word and design marks
which Manufacturer or Distributor may use in connection with or apply to Isuzu
Products. Dealer shall neither have nor claim to have any rights in or to any
such trademark, tradename, service ▇▇▇▇ or other word and design ▇▇▇▇. Upon
Distributor's request and, in any case, upon termination of this Agreement,
Dealer shall promptly discontinue, or cause to be discontinued, the display and
use of all such trademarks, tradenames, service marks and other word and design
marks. Dealer shall promptly change the
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manner in which such trademarks, tradenames, service marks and other word and
design marks are displayed and used when requested to do so by Distributor. No
such trademark, tradename, service ▇▇▇▇ or other word and design ▇▇▇▇ ▇▇▇ be
used as part of the name under which Dealer's business is conducted, except with
Distributor's prior written consent.
ARTICLE IV. INDEMNIFICATION
A. INDEMNIFICATION OF DISTRIBUTOR
Dealer shall:
1. Upon Distributor's written request defend Distributor against
claims that during the term of this Agreement may arise, commence or be asserted
against Distributor in an action concerning:
(a) Dealer's failure or alleged failure to comply, in whole or in
part, with any obligation of Dealer under this Agreement;
(b) Any actual or alleged negligence, error, omission or act or
Dealer in connection with the preparation, repair or service (including warranty
service) by Dealer of Isuzu Products;
(c) Any modification made by or on behalf of Dealer to Isuzu
Products, except those made pursuant to the express instruction or with the
express approval of Distributor;
(d) Dealer's breach or alleged breach of any agreement between Dealer
and Dealer's customer or other third party; or
(e) Misleading statements, misrepresentations or deceptive or unfair
practices or allegations of misleading statements, misrepresentations or
deceptive or unfair practices
-24-
by Dealer, directly or indirectly, to Distributor, a customer or other third
party.
2. Indemnify and hold Distributor harmless from any and all
settlements made and final judgments rendered with respect to any of the claims
described in Section A.1 of this Article IV.
B. INDEMNIFICATION OF DEALER
Distributor shall, upon Dealer's written request:
1. Defend Dealer against claims that during the term of this
Agreement may arise, commence or be asserted against Dealer in an action
concerning bodily injury or property damage arising out of an occurrence caused
solely by a defect or alleged defect existing or claimed to have existed in an
Isuzu Product at the time title to said product passed to Dealer, provided:
(i) that the defect could not have reasonably been discovered by
Dealer during the pre-delivery inspection of the product
required by this Agreement; and
(ii) Distributor did not notify Dealer in writing of such defect
prior to delivery of the product to the first retail
customer.
2. Indemnify and hold Dealer harmless from any and all settlements
made which are approved by Distributor and final judgments rendered with respect
to any of the claims described in Section B.1 of this Article IV; provided,
however, Dealer promptly notifies Distributor in writing of the assertion of
such claim and the commencement of such action against Dealer and
-25-
cooperates fully in the defense of such action in such manner and to such extent
as Distributor may require.
C. EXCEPTION TO INDEMNIFICATION
If the allegations asserted in any action or if any facts established
during or with respect to any action would require Dealer to defend and
indemnify Distributor under Section A, above, and Distributor to defend and
indemnify Dealer under Section B, above, Distributor and Dealer shall each be
responsible for its own defense in such an action and there shall be no
obligation or responsibility in connection with any defense, judgment,
settlement or expenses of such action as between Distributor and Dealer, except
to the extent that such an obligation or responsibility may be imposed by
applicable law.
ARTICLE V. TERMINATION
A. TERMINATION AGREEMENT
1. VOLUNTARY TERMINATION BY DEALER
Dealer may terminate this Agreement at any time upon 30 days' written
notice to Distributor.
2. TERMINATION DUE TO ACTS OR EVENTS CONTROLLED
BY DEALER, ITS OWNER(S) OR MANAGERS
Each of the following represents an act or event that is within the
control of or originates from action taken by Dealer or its Owner(s) or
Manager(s) and over which Distributor has no control, but which, when contrary
to the spirit, nature, purpose or objectives of this Agreement, warrant its
termination:
(a) Any misrepresentation to Distributor by Dealer or by its Owner(s)
or Executive Manager in applying for this Agreement or any misrepresentation to
Distributor by Dealer or
-26-
any such person as to the persons who are or will be Owner(s) or Manager(s) of
Dealer.
(b) Any attempted sale, transfer or assignment by Dealer of this
Agreement or any of the rights or privileges granted Dealer by this Agreement;
or any attempted transfer, assignment or delegation by Dealer under this
Agreement, without in either case the prior written consent of Distributor,
which consent shall not be unreasonably withheld.
(c) Any sale, transfer, relinquishment, voluntary or involuntary, by
operation of law or otherwise, of any ownership interest in Dealer without the
prior written consent of Distributor, which consents shall not be unreasonably
withheld.
(d) Any change of the Dealer's Executive Manager without the prior
written consent of Distributor, which consent shall not be unreasonably
withheld.
(e) Any attempt by Dealer to conduct either directly or indirectly,
any of the dealership operations contemplated by this Agreement at any
facilities other than the Dealership Facilities.
(f) Any sale or other transfer, by operation of law or otherwise, to
any third party or parties, or any relinquishment or discontinuance of use by
Dealer, of any of the Dealership Facilities or other principal assets that are
employed and required by Dealer in the conduct of the dealership operations
without the prior written consent of Distributor, which consent shall not be
unreasonably withheld.
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(g) Any dispute, disagreement, or controversy between or among the
Owner(s) or Executive Manager (or, if Dealer is a corporation, its directors or
officers) of Dealer relating to the ownership or management of Dealer or to its
dealership operations which, in the opinion of Distributor, may adversely affect
the dealership operations or the interest of Dealer or Distributor.
(h) Insolvency of Dealer; filing of a voluntary petition in
bankruptcy by Dealer; filing of a petition to have Dealer declared bankrupt,
provided that it is not vacated within one (1) month after filing; appointment
of a receiver or trustee for Dealer, provided such appointment is not vacated
within one (1) month after such appointment; or execution by Dealer of an
assignment for the benefit of creditors.
(i) Failure of Dealer to maintain the Dealership Facilities open for
business as required under the provisions of this Agreement, for seven (7)
consecutive business days.
(j) Conviction of Dealer or any Owner(s) Executive Manager or, if
Dealer is a corporation, any of its directors or officers, of any crime which,
in the opinion of Distributor, may adversely affect the reputation of interests
of Dealer or Distributor.
(k) Any submission by Dealer to Distributor of a false or fraudulent
application, or any claim or statement in support thereof, for payment related
to predelivery inspection or adjustment, or warranty repairs, special policy or
campaign adjustments performed by Dealer, or for parts compensation or for any
other discount, allowance, refund or credit whether or not
-28-
Dealer offers or makes to Distributor or Distributor seeks or obtains from
Dealer restitution of any payments made to Dealer on the basis of any such false
or fraudulent applications, claims or statements.
(l) Failure to Dealer to furnish Distributor with the financial and
operating statements or reports required to be furnished under this Agreement or
refusal by Dealer to permit Distributor to make any inspection or audit of
Dealer's facilities, accounts and records as provided in this Agreement, if such
failure or refusal shall continue for a period of one (1) month after receipt by
Dealer from Distributor of a written request for such statements or reports or
permission to make any such inspection or audit.
(m) Willful failure of Dealer to comply with the provisions of any
laws, rules, regulations or orders of a government body relating to Isuzu
Products or the advertising, promoting, sale or service thereof.
When Distributor has established to its satisfaction that any such act
or event has occurred, Distributor may terminate this Agreement by giving Dealer
written notice of termination, such termination to be effective upon receipt by
Dealer of such notice.
3. TERMINATION BY DISTRIBUTOR FOR FAILURE OF
PERFORMANCE BY DEALER
If, based on the evaluations thereof made by Distributor, Distributor
determines that Dealer has failed to fulfill any one or more of the
responsibilities assumed by Dealer under Article III of this Agreement by
failing to fulfill the
-29-
responsibilities and obligations of Dealer relating thereto set forth in said
Article, Distributor will endeavor to review with Dealer the nature and extent
of such failure(s) and the reasons which, in Distributor's opinion, account for
such failure(s). Thereafter, based upon such plan or plans of action as may be
proposed by Dealer to remedy such failure or failures and upon such other
factors as Distributor deems relevant in the circumstances. Distributor will
determine whether it can be reasonably expected that Dealer can and will remedy
such failure or failures and the period of time that Dealer may reasonably
require to effect such remedy or remedies.
As soon as practicable thereafter, Distributor will notify Dealer in
writing of the nature and extent of Dealer's failure or failures of performance
and of the period of time, if any, during which Dealer will be expected to
remedy such failure or failures of performance.
If, at the expiration of the period, if any, specified in such notice,
such failure or failures of performance have not been substantially remedied by
Dealer, Distributor may terminate this Agreement by giving Dealer written notice
of termination, with such termination to be effective three (3) months after
receipt by Dealer of such notice.
In the interest of providing continuing service to owners of Vehicles,
Distributor may, if it elects, process during such three (3) month period
applications for an Isuzu Dealer Sales and Service Agreement to replace Dealer;
provided, however, that such Isuzu Dealer Sales and Service Agreement shall not
-30-
become effective until after the effective date of termination of this
Agreement.
During such three (3) month period, Distributor and Dealer will
commence such actions such actions as may be necessary or desirable so that the
termination obligations of Distributor and Dealer set forth in this Agreement
may be fulfilled as promptly as practicable.
4. TERMINATION BECAUSE OF DEATH OR INCAPACITY OF OWNER AND/OR
EXECUTIVE MANAGER
Since this Agreement is in the nature of a personal service agreement
and its continuation is conditioned upon Dealer being owned and managed as
provided in Section 4 hereof, Distributor (subject to the provisions of Article
VII of this Agreement) may terminate this Agreement by written notice to Dealer
in the event of the death of an Owner or the Executive Manager or in the event
Distributor determines that the Executive Manager is physically or mentally
incapacitated so as to be unable to actively exercise full managerial authority
for the operating management of Dealer. The effective date of any such
termination shall be the date set forth in such written notice, which shall be
not less than three (3) months after receipt by Dealer of such notice.
In the interest of providing continuing service to owners of Vehicles,
Distributor may, if it elects, process, during the period from the receipt by
Dealer of such notice to the effective date of such termination applications for
an Isuzu Dealer Sales and Service Agreement to replace Dealer; provided,
however, that such Isuzu Dealer Sales and Service Agreement shall
-31-
not become effective until after the effective date of termination of this
Agreement.
During the period from Dealer's receipt of such notice to the
effective date of such termination, Distributor and Dealer will commence such
actions as may be necessary or desirable so that the termination obligations of
Distributor and Dealer set forth in this Agreement may be fulfilled as promptly
as practicable.
5. TERMINATION FOR FAILURE OF DEALER OR DISTRIBUTOR TO BE
LICENSED
If Distributor or Dealer requires a license for the performance of any
obligation under or in connection with this Agreement in any state or
jurisdiction where this Agreement is to be performed and if either of the
parties shall fail to secure or maintain such license or a renewal thereof or if
such license shall be suspended or revoked, irrespective of the cause or reason
therefor, either party may immediately terminate this Agreement by giving to the
other party written notice of such termination.
6. TERMINATION BY MUTUAL AGREEMENT
This Agreement may be terminated at any time by written mutual
agreement between Distributor and Dealer in the event (1) any person named as an
Owner or Executive Manager wishes to retire, (2) Distributor and Dealer desire
to effect either a discontinuance or a relocation of Dealer's Dealership
facilities or (3) Distributor and Dealer deem it desirable for any other cause
or reason.
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The Provisions of Section B of this Article V shall be deemed
applicable to a termination under this Section A.6. only to the extent and in
the manner set forth in such written mutual agreement of termination.
7. RIGHT TO RELY ON ANY APPLICABLE TERMINATION PROVISION
Because the notice periods may be different with respect to, and the
rights and obligations of the parties may vary depending upon, the particular
provisions under which this Agreement is terminated, the terminating party shall
have the right to select the provision of this Section A under which it elects
to terminate this Agreement without reference in its notice of termination to
any other provision of this Section A that may also be applicable in the
circumstances. The exercise of such right shall not preclude the terminating
party from at any time asserting or establishing that the termination of this
Agreement is also supportable under another provision of this Section A.
B. TRANSACTIONS AFTER TERMINATION
1. EFFECT OF TERMINATION ON ORDERS
In the event that this Agreement is terminated in accordance with any
provision of Section A of this Article V (other than Section A.6.), Distributor
may cancel all unshipped orders received from Dealer for Isuzu Products.
Termination of this Agreement shall not release Dealer, however, from
the obligation to pay any sum which may then be owing Distributor.
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2. EFFECT OF TRANSACTIONS AFTER TERMINATION
Neither the processing by Distributor or orders from Dealer nor the
continuation of sales of Isuzu Products or any other products to Dealer nor any
other act of Distributor after termination of this Agreement shall be construed
as a waiver of the termination, or as a renewal, extension or continuation of
this Agreement.
3. PURCHASES OF ELIGIBLE ITEMS
Distributor shall purchase, subject to and upon compliance with the
provisions hereinafter set forth in subsections 4 and 5 of this Section B, all
or any of the following Eligible Items from Dealer:
(i) Vehicles
All new, unused, unlicensed, undamaged Isuzu Vehicles of the then
current model year purchased by Dealer from Distributor then unsold which are
the unencumbered property and in the possession of Dealer or of Dealer's
financing institution at Dealer's net cost or the price last established by
Distributor for the sale of identical vehicles by Distributor to Authorized
Isuzu Dealers, whichever is lower, plus destination charges paid by Dealer
thereon, less all refunds or allowances paid thereon by Distributor, any amount
paid by Distributor for pre-delivery inspection and service thereon and any
costs required to place said vehicles in new condition.
(ii) Parts
All new, unused, undamaged, resalable Isuzu Parts (except Publications
and parts listed in Distributor's Parts List
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as "non-returnable"), which are still in the original and undamaged package, are
for the then current and three (3) immediately preceding vehicle model years and
are the unencumbered property of and in the possession of Dealer at the dealer
prices set forth in Distributor's then-current price list.
(iii) Accessories
All new, unused, undamaged, resalable Isuzu Accessories which are
still in the original and undamaged package, are for the then current vehicle
model year and are the unencumbered property of and in the possession of Dealer
at the dealer prices set forth in Distributor's then current price list.
(iv) Signs
Any signs owned by Dealer of a type recommended in writing by
Distributor at a price established in accordance with Distributor's pricing
formula then in effect.
(v) Special Tools
Any special tools of a type recommended by Distributor and designed
specifically for service of any Isuzu Vehicles that were offered for sale by
Distributor to Isuzu Dealers during the three (3) year period immediately
preceding termination and were purchased by Dealer from Distributor, at prices
therefor established in accordance with the pricing formula set forth in the
then current Service Policies and Procedures Manual.
4. RESPONSIBILITIES OF DEALER
Immediately following the effective date of a termination of this
Agreement, Dealer shall furnish Distributor with a list of the identification
numbers of and such other
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information as Distributor may require concerning eligible vehicles to be
purchased by Distributor in accordance with subsection 3 of this Section B.
Dealer will deliver all such vehicles in accordance with Distributor's
instructions. Within one (1) month following the effective date of a
termination of this Agreement, Dealer shall mail or deliver to Distributor a
list of eligible special tools and eligible signs. Within two (2) months
following effective date of a termination of this Agreement, Dealer shall mail
or deliver to Distributor a complete list of eligible parts and accessories.
Dealer shall retain possession of all such eligible items until receipt of
written shipping instructions from Distributor. Within one (1) month after
receipt of such instructions, Dealer shall tag, pack and ship such eligible
items, transportation charges prepaid, to the destinations) specified in such
instructions. Dealer shall take such action and shall execute and deliver such
instruments as may be necessary (a) to convey to Distributor good marketable
title to all eligible items to be purchased hereunder, (b) to comply with the
requirements of any applicable state law relating to bulk sales or transfers and
(c) to satisfy and discharge any liens or encumbrances on such eligible items
prior to delivery thereof to Distributor.
5. PAYMENT BY DISTRIBUTOR
Subject to its right to offset any amounts owing Distributor from
Dealer, Distributor shall pay Dealer for the eligible items purchased by it
under the provisions of this Section B as soon as practicable following delivery
thereof to
-36-
Distributor; provided, however, that any payment for such eligible items may be
made by Distributor, at its option, directly to any financing institution or
other person or concern which shall have a security or ownership interest
therein.
ARTICLE VI. SUCCEEDING AND NEW AND SUPERSEDING
SALES AND SERVICE AGREEMENTS
A. SUCCEEDING AGREEMENTS
So that the dealer sales and service agreements offered to Authorized
Isuzu Dealers will reflect changes in conditions applicable to the sales and
service of Isuzu Products as well as changes in applicable laws or regulations,
or in the interpretations thereof, Distributor will review the provisions of its
current forms of Isuzu Dealer Sales and Service Agreement on a periodic basis
and will prepare new forms of Isuzu Dealer Sales and Service Agreements that
will be offered to those Authorized Isuzu Dealers who receive an offer from
Distributor of a succeeding Isuzu Dealer Sales and Service Agreement. Dealer
acknowledges, therefore, that any new form of Isuzu Dealer Sales and Service
Agreement that may be offered Dealer may reflect therein any changes and
modifications that are deemed necessary or desirable by Distributor.
B. NEW AND SUPERSEDING DEALER AGREEMENTS
In the event a new and superseding form of Isuzu Dealer Sales and
Service Agreement is offered by Distributor to Authorized Isuzu Dealers
generally at any time, Distributor may terminate this Agreement upon prior
written notice to Dealer, provided that, at the same time, Distributor offers
Dealer such
-37-
new and superseding form of Isuzu Dealer Sales and Service Agreement.
C. EFFECT OF NEW OR SUPERSEDING AGREEMENT ON RESPONSIBILITIES AND
OBLIGATIONS UNDER THIS AGREEMENT
Although the execution by Distributor and Dealer of any new or
superseding Dealer Sales and Service Agreement, whether it is executed in
accordance with the provisions of Section A and B of this Article VI or for any
other reason, will, by the terms thereof, cancel and supersede this Agreement,
such succeeding or new and superseding Isuzu Dealer Sales and Service Agreement
generally contemplates continuation of the business relations contemplated by
this Agreement. Accordingly, unless otherwise expressly agreed in writing by
Distributor and Dealer, the rights and obligations of Dealer that may otherwise
become applicable upon any termination of this Agreement shall not be applicable
in the event of the execution by Distributor and Dealer of any such new or
superseding Isuzu Dealer Sales and Service Agreement. Any evaluation of the
effectiveness of Dealer's performance of any of its responsibilities under this
Agreement may be reflected and considered together with any evaluation made of
the effectiveness of Dealer's performance of similar responsibilities under any
such succeeding or new and superseding form of Isuzu Dealer Sales and Service
Agreement. Except insofar as they may be inconsistent with the provisions of
such succeeding or new and superseding form of Isuzu Dealer Sales and Service
Agreement, any outstanding rights and obligations of Distributor and Dealer that
arose under this Agreement, or under any separate agreements
-38-
executed by Distributor and Dealer under this Agreement, shall be deemed
continued under such succeeding or new and superseding form of Isuzu Dealer
Sales and Service Agreement.
ARTICLE VII. ESTABLISHMENT OF SUCCESSOR DEALER
A. BECAUSE OF DEATH OF OWNER
In the event of termination of this Agreement by Distributor pursuant
to Section A.4 of Article V because of the death of an Owner, the following
provisions shall apply:
1. Subject to the other provisions of this Article, Distributor
shall offer a provisional Sales and Service Agreement the term of which shall
not exceed two (2) years to a successor dealer ("Successor Dealer") comprised of
the person nominated by such deceased Owner as his or her successor, together
with the surviving Owner(s), provided that:
(a) the nomination was submitted to Distributor on a
Successor Addendum, was consented to by the remaining Owner(s) and was approved
by Distributor prior to the death of the deceased Owner;
(b) Either (i) there has been no change in the Executive
Manager of Dealer or (ii) the provisions of Section B, below, have been complied
with; and
(c) The successor Dealer has capital and facilities
substantially in accordance with Distributor's Standards therefor at the time
the provisional Sales and Service Agreement is offered.
2. If the deceased Owner has not nominated a successor in
accordance with the provisions of Section A.1.(a),
-39-
above, but all of the beneficial interest of the deceased owner has passed by
will or the laws of interstate succession directly to the deceased Owner's
spouse and/or children or to one or more surviving Owners who each held not less
than a twenty-five percent (25) beneficial ownership interest in the dealership
prior to the death of the deceased Owner (collectively "Proposed New Owners"),
subject to the other provisions of this Article, Distributor shall offer a
provisional Sales and Service Agreement the term of which shall not exceed two
(2) years to Successor Dealer ("Successor Dealer") composed of the Proposed New
Owners, together with the surviving Owners provided that:
(a) Either (i) there has been no change in the Executive
Manager of Dealer or (ii) the provisions of Section B, below, have been complied
with; and
(b) The Successor Dealer has capital and facilities
substantially in accordance with Distributor's Standards therefor at the time
the provisional Sales and Service Agreement is offered.
B. BECAUSE OF DEATH OR INCAPACITY OF EXECUTIVE MANAGER
In the event of the termination of this Agreement by Distributor
pursuant to Section A.4. of Article V because of the death, physical or mental
incapacity ("Disability Event") of the Executive Manager ("Disabled Executive
Manager"), subject to the other provisions of this Article, Distributor shall
offer a provisional Sales and Service Agreement the term of which shall not
exceed two (20 years to a Successor Dealer composed of the Owner(s), provided
that:
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1. Either (i) the Owner(s) had nominated, in a Successor Addendum,
which was approved by Distributor prior to such Disability Event, a person to
succeed the Disabled Executive manager or (ii) not later than two (2) months
after the occurrence of such Disability Event a new Executive Manager is
proposed to Distributor Event a new Executive Manager is proposed to Distributor
by all of the Owner(s) and such a person is approved by Distributor;
2. The new Executive Manager owns in the aggregate beneficial
interests in the Successor Dealer of not less than twenty-five percent (25%) or
is given the right to acquire and does acquire and does acquire within twelve
(12) months beneficial interests in the Successor Dealer of not less than
twenty-five percent (25%); and
3. The Successor Dealer has capital and facilities substantially in
accordance with Distributor's Standards therefor at the time the provisional
Sales and Service Agreement is offered.
C. EVALUATION OF SUCCESSOR DEALER
During the term of the provisional Sales and Service Agreement,
Distributor will evaluate the performance of the Successor Dealer and
periodically review with the Successor Dealer this evaluation. If the Successor
Dealer's performance is deemed to be satisfactory to Distributor continuously
during the last three (3) months of the provisional Sales and Service Agreement,
Distributor will give first consideration to such
-41-
Successor Dealer with respect to a new Sales and Service Agreement.
D. TERMINATION OF MARKET REPRESENTATION
Notwithstanding anything stated or implied to the contrary in this
Article, Distributor shall not be obligated to offer a provisional or new Sales
and Service Agreement to any Successor Dealer if Distributor notified Dealer in
writing prior to the event causing the termination of this Agreement that
Distributor's market representation plans do not provide for continuation of
representation in Dealer's Market.
E. TERMINATION OF OFFER
If the person or persons comprising a proposed Successor Dealer to
which any offer of a provisional or new Sales and Service Agreement shall have
been made pursuant to this Article shall not accept same within thirty (30) days
after notification to them of such offer, such offer shall automatically expire.
ARTICLE VIII. GENERAL PROVISIONS
A. DEALER NOT MADE AGENT OR LEGAL REPRESENTATIVE
An Agreement does not constitute Dealer the Agent or legal
representative of Distributor or Manufacturer for any purpose whatsoever.
Dealer is not granted any express or implied right or authority to assume or to
create any obligation in behalf of or in the name of Distributor or Manufacturer
or to bind Distributor or Manufacturer in any manner or thing whatsoever.
-42-
B. DEALER'S RESPONSIBILITY FOR ITS OPERATIONS, EXPENDITURES,
LIABILITIES AND OBLIGATIONS
Dealer acknowledges that, as an independently owned and operated
enterprise, its success will be determined substantially by how effectively its
management manages and conducts its operations and affairs. This Agreement,
therefore, contemplates that all investments made by or in Dealer shall be made,
and Dealer shall fulfill its responsibilities and obligations under this
Agreement, in conformity with the provisions hereof, but otherwise at the
discretion of Dealer, its management and Owner(s). Nothing herein contained
shall impose any liability on Distributor or Manufacturer in connection with the
establishment or conduct of Dealer's facilities or operations, and Dealer shall
be solely responsible for any and all expenditures, liabilities and obligations
made, incurred or assumed by Dealer in preparation for performance or in the
performance of Dealer's responsibilities and obligations under this Agreement.
C. NOTICES
All notices required or permitted to be given by either party to the
other under or in connection with this Agreement shall be in writing and
delivered personally or by mail to Dealer at its Dealership Location and to
Distributor at its national headquarters, or to such other address as the party
to receive the notice may have previously designated by written notice to the
other party. Notices shall be effective upon receipt. If mailed, such notices
shall be postage prepaid and sent by registered or certified mail, return
receipt requested.
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D. OFFSETS AND SET OFFS
In addition to any other specific rights of offset or set off provided
for otherwise in any documents affecting Dealer and Distributor, Distributor
shall have the right to offset or set off any sums or accounts due or to become
due from Dealer to Distributor against any sums or accounts due or to become due
from Distributor to Dealer.
E. CHANGES REQUIRED BY LAW
Should Distributor at any time determine that Federal or state laws,
or regulations adopted thereunder, or any new interpretation thereof, as any
thereof may be validly applied, require changes in any of the provisions of this
Agreement, Distributor may offer Dealer a new and superseding Isuzu Dealer Sales
and Service Agreement that has been appropriately modified to reflect changes
that are required by such new laws, regulations or interpretations, or, in lieu
thereof. Distributor may offer Dealer an amendatory agreement to this Agreement
reflecting such changes.
If Dealer shall fail to execute such new and superseding Isuzu Dealer
Sales and Service Agreement or such amendatory agreement and return it to
Distributor within thirty (30) days after it is offered Dealer, this Agreement
may be terminated by Distributor upon written notice thereof to Dealer, with
such termination to be effective upon receipt by Dealer of such notice.
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DEALER
SALES AND SERVICE
AGREEMENT
ISUZU DEALER SALES
AND
SERVICE AGREEMENT
ADDITIONAL PROVISIONS
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II. SALES TO DEALER . . . . . . . . . . . . . . . . . . . . . . . . .4
A. Dealer's Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
B. Shipment and Risk of Loss . . . . . . . . . . . . . . . . . . . . . . .5
C. Passage of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
D. Freight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
E. Diversions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
ARTICLE III. DEALERSHIP OPERATIONS. . . . . . . . . . . . . . . . . . . . . .6
A. Dealership Location and Facilities. . . . . . . . . . . . . . . . . . .6
1. Dealership Facilities. . . . . . . . . . . . . . . . . . . . . . .6
2. Change in Dealership Location or Facilities. . . . . . . . . . . .6
3. Hours of Business. . . . . . . . . . . . . . . . . . . . . . . . .6
4. Identification of Dealership Facilities. . . . . . . . . . . . . .7
5. Evaluation of Dealer's Performance with Respect to
Dealership Facilities. . . . . . . . . . . . . . . . . . . . . . .7
B. Vehicle Sales Operations. . . . . . . . . . . . . . . . . . . . . . . .7
1. Responsibility of Dealer . . . . . . . . . . . . . . . . . . . . .7
2. Sales Personnel. . . . . . . . . . . . . . . . . . . . . . . . . .8
3. Inventory. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
4. Modification of Isuzu Vehicles . . . . . . . . . . . . . . . . . .8
(i)
5. Evaluation of Dealer's Sales Performance . . . . . . . . . . . . .9
6. Evaluation of Sales of Isuzu Trucks. . . . . . . . . . . . . . . 10
C. Used Vehicle Sales Operations . . . . . . . . . . . . . . . . . . . . 11
D. Rental and Leasing Operations . . . . . . . . . . . . . . . . . . . . 11
E. Parts and Accessories Sales Operations. . . . . . . . . . . . . . . . 12
1. Responsibility of Dealer . . . . . . . . . . . . . . . . . . . . 12
2. Sales Personnel. . . . . . . . . . . . . . . . . . . . . . . . . 12
3. Inventory. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4. Representations Concerning Parts and Accessories . . . . . . . . 12
5. Evaluation of Dealer's Parts and Accessories Sales Performance . 13
F. Service Operations. . . . . . . . . . . . . . . . . . . . . . . . . . 13
1. General Service Responsibilities of Dealer . . . . . . . . . . . 13
2. Specific Service Obligations of Dealer . . . . . . . . . . . . . 14
(a) New Vehicle Pre-Delivery Inspections and Adjustments . . . 14
(b) Complimentary Maintenance Service. . . . . . . . . . . . . 14
(c) Warranty Repairs . . . . . . . . . . . . . . . . . . . . . 15
(d) Campaign Inspections and Corrections . . . . . . . . . . . 15
(e) Disposition of Replaced Parts. . . . . . . . . . . . . . . 16
(f) Maintenance and Repair Service . . . . . . . . . . . . . . 16
(g) Payments by Distributor to Dealer. . . . . . . . . . . . . 17
3. Other Service Responsibilities of Dealer . . . . . . . . . . . . 17
(ii)
(a) Compliance with Laws Regulating
Vehicles and Other Products. . . . . . . . . . . . . . . . 17
(b) Service Personnel. . . . . . . . . . . . . . . . . . . . . 18
(c) Service Equipment and Special and Essential Tools. . . . . 18
4. Evaluations of Dealer's Service Performance. . . . . . . . . . . 18
G. Advertising, Promotional and Public Relations Operations. . . . . . . 19
1. Advertising Standards. . . . . . . . . . . . . . . . . . . . . . 19
2. Dealer's Advertising Programs. . . . . . . . . . . . . . . . . . 19
3. Participation in Distributor's Advertising Programs. . . . . . . 19
4. Customer Relations . . . . . . . . . . . . . . . . . . . . . . . 20
(a) Informing Customers as to Details of Charges . . . . . . . 20
(b) Right of Retail Purchaser to Buy Vehicle Without
Purchasing Optional Equipment or Accessories . . . . . . . 20
(c) Informing Retail Purchasers as to Optional Equipment or
Accessories Installed by Dealer. . . . . . . . . . . . . . 21
H. Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
I. Accounting System . . . . . . . . . . . . . . . . . . . . . . . . . . 22
J. Records and Reports . . . . . . . . . . . . . . . . . . . . . . . . . 22
1. Financial Statements . . . . . . . . . . . . . . . . . . . . . . 22
2. Ownership and Management Records . . . . . . . . . . . . . . . . 22
3. Sales and Service Records and Reports. . . . . . . . . . . . . . 23
4. Records Concerning Applications and Claims for Payments. . . . . 23
K. Inspection of Accounts and Records. . . . . . . . . . . . . . . . . . 24
(iii)
L. Trademarks and Service Marks. . . . . . . . . . . . . . . . . . . . . 24
ARTICLE IV. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 25
A. Indemnification of Distributor. . . . . . . . . . . . . . . . . . . . 25
B. Indemnification of Dealer . . . . . . . . . . . . . . . . . . . . . . 26
C. Exception to Indemnification. . . . . . . . . . . . . . . . . . . . . 27
ARTICLE V. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. Termination Agreement . . . . . . . . . . . . . . . . . . . . . . . . 27
1. Voluntary Termination by Dealer. . . . . . . . . . . . . . . . . 27
2. Termination Due to Acts or Events Controlled by Dealer, its
Owner(s) or Managers . . . . . . . . . . . . . . . . . . . . . . 27
3. Termination by Distributor for Failure of Performance by Dealer. 31
4. Termination Because of Death or Incapacity of Owner and/or
Executive Manager. . . . . . . . . . . . . . . . . . . . . . . . 32
5. Termination for Failure of Dealer or Distributor to be Licensed. 33
6. Termination by Mutual Agreement. . . . . . . . . . . . . . . . . 34
7. Right to Rely on Any Applicable Termination Provision. . . . . . 34
B. Transactions After Termination. . . . . . . . . . . . . . . . . . . . 35
1. Effect of Termination on Orders. . . . . . . . . . . . . . . . . 35
2. Effect of Transactions After Termination . . . . . . . . . . . . 35
3. Purchases of Eligible Items. . . . . . . . . . . . . . . . . . . 35
4. Responsibilities of Dealer . . . . . . . . . . . . . . . . . . . 37
5. Payment by Distributor . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VI. SUCCEEDING AND NEW AND SUPERSEDING SALES AND
SERVICE AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
A. Succeeding Agreements . . . . . . . . . . . . . . . . . . . . . . . . 38
(iv)
B. New and Superseding Dealer Agreements . . . . . . . . . . . . . . . . 39
C. Effect of New or Superseding Agreement on Responsibilities and
Obligations under this Agreement. . . . . . . . . . . . . . . . . . . 39
ARTICLE VII. ESTABLISHMENT OF SUCCESSOR DEALER. . . . . . . . . . . . . . . 40
A. Because of Death of Owner . . . . . . . . . . . . . . . . . . . . . . 40
B. Because of Death or Incapacity of Executive Manager . . . . . . . . . 42
C. Evaluation of Successor Dealer. . . . . . . . . . . . . . . . . . . . 43
D. Termination of Market Representation. . . . . . . . . . . . . . . . . 43
E. Termination of Offer. . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 44
A. Dealer Not Made Agent or Legal Representative . . . . . . . . . . . . 44
B. Dealer's Responsibility for Its Operations, Expenditures,
Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . 44
C. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
D. Offsets and Set Offs. . . . . . . . . . . . . . . . . . . . . . . . . 45
E. Changes Required by Law . . . . . . . . . . . . . . . . . . . . . . . 45
(v)