EXHIBIT 10.3.6
[LOGO OF NISSAN APPEARS HERE]
NISSAN MOTOR CORPORATION U.S.A.
MARIN NISSAN
NISSAN
DEALER TERM SALES AND SERVICE AGREEMENT
THIS AGREEMENT is entered into and effective the day last set forth below by and
between the Nissan Division of NISSAN MOTOR CORPORATION IN U.S.A., a California
corporation, hereinafter called "Seller," and the entities and natural persons
identified in the Final Article of this Agreement.
INTRODUCTION
The purpose of this Agreement is to establish Dealer as an authorized dealer of
Nissan Products and to provide for the sale and servicing of Nissan Products in
a manner that will best serve owners, potential owners and purchasers of Nissan
Products as well as the interests of Seller, Dealer and other Authorized Nissan
Dealers. This Agreement sets forth: the rights which Dealer will enjoy as an
Authorized Nissan Dealer; the responsibilities which Dealer assumes in
consideration of its receipt of these rights; and the respective conditions,
rights and obligations of Seller and Dealer that apply to Seller's grant to
Dealer of such rights and Dealer's assumption of such responsibilities. It is
understood that each term and undertaking hereinafter described is material, and
relied upon, as the quid pro quo and consideration for this Agreement.
This is a personal services Agreement. In entering into this Agreement and
appointing Dealer as provided below, Seller is relying, among other things, upon
the personal qualifications, expertise, reputation, integrity, experience,
ability and representations of the individual named in the Final Article of this
Agreement as Dealer Principal (the "Dealer Principal") the individual named in
the Final Article of this Agreement as Executive Manager and the representations
of FirstAmerica Automotive, Inc., ("FAA"), and Smart Nissan, Inc., ("Dealer"
or "Marin Nissan"). In addition to Dealer, Seller intends to look to FAA, the
Dealer Principal and the Executive Manager for the performance of Dealer's
obligations hereunder.
Nissan Products are intended for discriminate owners with the expectation that
such owners will be loyal and proud, but also demanding toward Seller and Dealer
with respect to Nissan Products and the manner in which they are sold and
serviced. Owners, potential owners and purchasers of Nissan Products are
expected to want, and are entitled to do business with, dealers who enjoy the
highest reputation in their communities and have well located, attractive and
efficient places of business, courteous personnel and outstanding service and
parts facilities. Nissan Products must be sold by enthusiastic dealers who are
not interested in short term results only but are willing to look toward long
term goals and who are devoted to creating and maintaining a positive total
ownership experience for owners of Nissan Products. Seller's standard of
excellence for Nissan Products must be matched by the dealers who sell them to
the public and who service them during their operative lives.
Achievement of the purposes of this Agreement is premised upon mutual
understanding and cooperation between Seller and Dealer. Dealer has entered into
this Agreement in reliance upon Seller's integrity and expressed intention to
deal fairly with Dealer and the consuming public. Seller has entered into this
Agreement in reliance upon the integrity and ability of the Dealer Principal and
Executive Manager and their expressed intention to deal fairly with the
consuming public and Seller.
It is the responsibility of Seller to market Nissan Products throughout the
Territory. It is the responsibility of Dealer to actively promote the retail
sale of Nissan Products and to provide courteous and efficient service of Nissan
Products. The success of both Seller and Dealer will depend on how well they
each fulfill their respective responsibilities under this Agreement. It is
recognized that: Seller will endeavor to provide motor vehicles of excellent
quality and workmanship and to establish a network of Authorized Nissan Dealers
that can provide an outstanding sales and service effort at the retail level;
and Dealer will endeavor to fulfill its responsibilities through aggressive,
sound, ethical selling practices and through conscientious regard for customer
service in all aspects of its Nissan Dealership Operations.
Seller and Dealer shall refrain from engaging in conduct or activities which
might be detrimental to or reflect adversely upon the reputation of Seller,
Dealer or Nissan Products and shall engage in no discourteous, deceptive,
misleading or unethical practices or activities.
For consistency and clarity, terms which are used frequently in this Agreement
have been defined in Section 1 of the Standard Provisions. All terms used herein
which are defined in the Standard Provisions shall have the meaning stated in
said Standard Provisions. These definitions should be read carefully for a
proper understanding of the provisions in which they appear.
To achieve the purposes referred to above, Seller, FAA, Dealer, the Dealer
Principal and the Executive Manager agree as follows:
ARTICLE FIRST: Appointment of Dealer
Subject to the conditions and provisions of this Agreement, Seller:
(a) appoints Dealer as an Authorized Nissan Dealer and grants Dealer the
non-exclusive right to buy from Seller those Nissan Products specified in
Dealer's current Product Addendum hereto, for resale, rental or lease at or from
the Dealership Locations established and described in accordance with Section 2
of the Standard Provisions; and
(b) grants Dealer a non-exclusive right, subject to and in accordance with
Section 6.K of the Standard Provisions, to identify itself as an Authorized
Nissan Dealer, to display the Nissan Marks in the conduct of its Dealership
Operations and to use the Nissan Marks in the advertising, promotion and sale of
Nissan Products in the manner provided in this Agreement.
ARTICLE SECOND: Assumption of Responsibilities by Dealer
Dealer hereby accepts from Seller its appointment as an Authorized Nissan Dealer
and, in consideration of its appointment and subject to the other conditions and
provisions of this Agreement, hereby assumes the responsibility for:
(a) establishing and maintaining at the Dealership Location the Dealership
Facilities in accordance with Section 2 of the Standard Provisions;
(b) actively and effectively promoting the sale at retail (and, if Dealer
elects, the leasing and rental) of Nissan Vehicles within Dealer's Primary
Market Area in accordance with Section 3 of the Standard Provisions;
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(c) servicing Nissan Vehicles and for selling and servicing Nissan Parts
and Accessories in accordance with Section 5 of the Standard Provisions;
(d) building and maintaining consumer confidence in Dealer and in Nissan
Products in accordance with Section 5 of the Standard Provisions; and
(e) performance of the additional responsibilities set forth in this
Agreement, including those specified in Section 6 of the Standard Provisions.
ARTICLE THIRD: Ownership
(a) Owners. This Agreement has been entered into by Seller in reliance
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upon, and in consideration of, among other things, the personal qualifications,
expertise, reputation, integrity, experience, ability and representations with
respect thereto of the Dealer Principal and Executive Manager named in the Final
Article of this Agreement and in reliance upon the representations and
agreements of FAA and Dealer as follows:
(i) FAA will at all times own 100% of the capital stock of Dealer and
Dealer will at all times be maintained as a separate entity.
(ii) The Executive Committee of Dealer is set forth in attached Schedule
"A".
(iii) The officers of Dealer are as set forth in attached Schedule "A".
(iv) FirstAmerica Automotive, Inc., ("FAA") owns 100% of the outstanding
stock of Smart Nissan, Inc. (see Attachment "A" attached).
(b) Changes in Ownership. In view of the fact that this is a personal
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services agreement with the Dealer Principal and Executive Manager and in view
of its objectives and purposes, this Agreement and the rights and privileges
conferred on Dealer hereunder are not assignable, transferable or salable by FAA
and Dealer, and no property right or interest is or shall be deemed to be sold,
conveyed or transferred to FAA and Dealer under this Agreement. FAA, Dealer, the
Dealer Principal and the Executive Manager agree that any change in the
ownership of Dealer other than specified herein requires the prior written
consent of Seller IF DEALER DESIRES TO REMAIN AN AUTHORIZED NISSAN DEALER and
that without the prior written consent of Seller:
(i) no sale, pledge, hypothecation or other transfer of any of the
currently outstanding capital stock or partnership interest of Dealer will be
made and no additional shares of capital stock, partnership interest or
securities convertible into shares of capital stock, of Dealer will be issued or
sold.
(ii) no sale, pledge, hypothecation or other transfer of any of the
currently outstanding capital stock of Dealer will be made and no additional
shares of capital stock, partnership interest or securities convertible into
shares of capital stock, of Dealer will be issued or sold.
(iii) Dealer will not be merged with or into, or consolidate with, any
other entity and none of the principal assets necessary for the performance of
Dealer's obligations under this Agreement will be sold, transferred or assigned.
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(iv) Dealer will not enter into any transaction, including, without
limitation, any sale, pledge, hypothecation or other transfer of any of the
currently outstanding capital stock of Dealer, the issuance or sale of
additional shares of capital stock, partnership interest or securities
convertible into shares of capital stock of Dealer, or the merger of Dealer with
or into, or the consolidation of Smart Nissan, Inc., with any other entity, if
as a result of such transaction, that FAA will cease to own at least 100% of the
capital stock or interest of Dealer.
(v) If any person or entity, after the date of the initial public
offering, acquires more than 20% of FAA's common stock issued and outstanding at
any time and Nissan determines that such person or entity does not have
interests compatible with those of Nissan, or is otherwise not qualified to have
an ownership interest in a Nissan dealership (an "Adverse Person"), FAA, upon
written notification by Nissan, must cause any subsidiaries, owned, or
controlled entities to terminate its dealer agreements with Nissan or transfer
the Nissan dealerships to a third party acceptable to Nissan within 90 days
after such notification, unless, within 90 days after Nissan's determination,
the adverse Person's ownership interest is reduced to less than 20%.
Any transaction involving the capital stock of Marin Nissan, including a
public offering or trade of the shares of FAA, which does not violate
subparagraph (iv) above may be effected without obtaining the prior written
consent of Seller and without triggering a termination event under Section
12.A.(2) of the Standard Provisions.
Dealer shall give Seller prior notice of any proposed change in said
ownership requiring the consent of Seller and immediate notice of the death or
incapacity of any Dealer Principal or Executive Manager. No such change, and no
assignment of this Agreement or of any right or interest herein, shall be
effective against Seller unless and until embodied in an appropriate amendment
to or assignment of this Agreement, as the case may be, duly executed and
delivered by Seller and by Dealer. Seller shall not, however, unreasonably
withhold its consent to any such change, subject to Seller's Rights of First
Refusal set forth in Article Tenth of this Agreement. Seller shall have no
obligation to transact business with any person who is not named either as a
Dealer Principal or Executive Manager of Dealer hereunder, or in the event of
death or incapacity, those persons named as the successors to the Dealer
Principal and/or Executive Manager in the successorship plan hereafter (upon
mutual consent of the parties) or otherwise to give effect to any proposed sale
or transfer of the ownership, partnership interest or management of Dealer and
FAA (other than changes in the ownership of FAA and Dealer which are expressly
permitted by this Article Third) prior to having concluded the evaluation of
such a proposal as provided in Section 15 of the Standard Provisions. Nissan may
conduct routine, day to day business with the person named as the Location
Manager for the location so designated. Dealer acknowledges Seller's right to
require consent to any change in the ownership of Dealer, and agrees that any
change or transfer without such consent from Seller is void, and of no force and
effect, and grounds for termination. FAA and Dealer further agree that they
will not challenge, contest, dispute, or litigate, except as provided in Article
15(c) hereafter:
(i) any action taken by Seller (including, without limitation,
termination of this Agreement) in response to an attempt to transfer ownership
of Dealer (except as provided by this Agreement) without Seller's consent; or
(ii) any decisions by Seller to withhold consent to a proposed change in
ownership of Dealer.
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ARTICLE FOURTH: Management
(a) This Agreement has been entered into by Seller in reliance upon, and
in consideration of, among other things, the personal qualifications, expertise,
reputation, integrity, experience, ability and representations with respect
thereto of the person named as Dealer Principal in the Final Article of this
Agreement and in reliance on the following representations and agreements of FAA
and Dealer that:
(i) The Executive Manager of Dealer, subject to the provisions of
Article 15(f), and ▇▇▇▇▇▇ ▇. Price ("Price") will, subject to any other
obligations set forth in this Agreement, devote their full time efforts to the
business and day-to-day operations of the entity for which they are responsible.
(ii) Location Manager will devote 100% of his time to the affairs of the
relevant Dealership location
(b) Dealer. Seller and Dealer agree that the retention by Dealer of
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qualified management is of critical importance to the successful operation of
Dealer and to the achievement of the purposes and objectives of this Agreement.
This Agreement has been entered into by Seller in reliance upon, and in
consideration of, among other things, the personal qualifications, expertise,
reputation, integrity, experience, ability and representations with respect
thereto of the persons named as Dealer Principal and Executive Manager in the
Final Article of this Agreement and in reliance on the following representations
and agreements of FAA and Dealer, that:
(i) There must be an approved Executive Manager, acceptable to Nissan.
There must be an approved Location Manager employed by Dealer to manage each
Dealership location. As long as ▇▇▇▇▇▇ ▇. Price and the Executive Manager
subject to the provisions of Article 15(f) are employed by FAA and the Location
Manager is employed by Dealer, they will have full and complete control over the
Dealership Operations, subject only to the powers of the Board of Directors of
Dealer to manage the business and affairs of Dealer, and they will at all times
be members of the Board of Directors of Dealer. In addition, any replacements
for Price and Executive Manager will, so long as such replacements are employed
by FAA and Dealer, have full and complete control over the Dealership
Operations, subject only to the powers of the Board of Directors of Dealer to
manage the business and affairs of Dealer, and such replacements will at all
times be members of the Board of Directors of Dealer.
(ii) the Board of Directors of Dealer shall delegate the management of
the Dealership Operations to the Executive Manager identified in Article 15(f),
and FAA will not amend its Certificate of Incorporation or By-laws to provide
that its Board of Directors is entitled to exercise any extraordinary powers or
interfere unduly in the Dealership Operations.
(iii) Location Manager, subject to any other obligations set forth in
this Agreement, shall continually provide his personal services in operating the
dealership and will be physically present at the Dealership Facilities on a
full-time basis.
(c) Changes in Management. In view of the fact that this is a personal
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services Agreement with the Dealer Principal and Executive Manager and in view
of its objectives and purposes, Dealer and FAA agree that any change in the
Dealer Principal from that specified in the Final Article of this Agreement
requires the prior written consent of Seller. Any change to the Executive
Manager requires notice to Seller and timely replacement with an Executive
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Manager acceptable to Seller. In addition, FAA and Dealer agree that no chief
executive officer, or person performing services and having responsibilities
similar to a chief executive officer, of FAA will be appointed, directly or
indirectly, without the prior written consent of Seller. Dealer shall give
Seller prior notice of any proposed change in Dealer Principal or Executive
Manager or the appointment of any chief executive or similar officer of FAA and
immediate notice of the death or incapacity of any Dealer Principal or Executive
Manager. No change in Dealer Principal or Executive Manager and no appointment
of a chief executive or similar officer of FAA shall be effective unless and
until embodied in an appropriate amendment to this Agreement duly executed and
delivered by all of the parties hereto. Subject to the foregoing, Dealer and FAA
shall make their own, independent decisions concerning the hiring and firing of
its employees, including, without limitation, the Dealer Principal and Executive
Manager.
Dealer shall give Seller prior written notice of any proposed change
in Dealer Principal, timely notice of any change to Executive Manger, and
immediate notice of the death or incapacity of Dealer Principal or Executive
Manager. No change in Dealer Principal or Executive Manager shall be effective
unless and until embodied in an appropriate amendment to this Agreement duly
executed and delivered by all of the parties hereto. Dealer acknowledges
Seller's right (as set forth herein and in the Standard Provisions) to require
consent to any change in the management of Dealer, and FAA and Dealer agree that
a change to the Dealer Principal or substitution of the Executive Manager,
without such consent from Seller is without effect upon Seller, of no force and
effect, and grounds for termination. FAA and Dealer further agree that they will
not challenge, contest, dispute, or litigate, except as provided by Article
Fifteenth (c):
(i) any action taken by Seller (including, without limitation,
termination of this Agreement) in response to an attempt to change the
management of Dealer without Seller's consent; or
(ii) any decision by Seller to withhold consent to a proposed change in
management of Dealer; or
(iii) any decision by Seller to withhold approval of a proposed management
candidate.
To enable Seller to evaluate and respond to Dealer concerning any
proposed change in Dealer Principal or Executive Manager or the appointment of
any chief executive or similar officer of FAA agrees to provide, in the form
requested by Seller and in a timely manner, all applications and information
customarily requested by Seller to evaluate the proposed change. While Seller
shall not unreasonably withhold its consent to any such change, it is agreed
that any successor Dealer Principal, Executive Manager or Location Manager or
similar officer of FAA must possess personal qualifications, expertise,
reputation, integrity, experience and ability which are, in the opinion of
Seller, satisfactory. Seller will determine whether, in its opinion, the
proposed change or appointment is likely to result in a successful dealership
operation with capable management that will satisfactorily perform Dealer's
obligations under this Agreement. Seller shall have no obligation to transact
business with any person who is not named as a Dealer Principal or Executive
Manager of Dealer hereunder prior to having concluded its evaluation of such
person. Upon FAA's request, Seller may, but has no obligation to, transact
business with an individual proposed by Dealer and acceptable to Seller during a
prolonged incapacity or unavailability of Dealer Principal and Executive
Manager.
Any successor Dealer Principal or Executive Manager or similar
officer of FAA must meet the following minimum requirements in order to be
submitted to Seller for approval:
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(i) At least three years of experience as a general manager of an
automobile dealer in a major metropolitan area or similar position involving all
aspects of the day-to-day operations of such an automobile dealership
(including, without limitation, new and used vehicle sales, service, parts and
administration); and
(ii) A demonstrated track record of success in his/her prior automobile
dealership activities as measured by the dealerships' performance under his/her
management. The dealership(s) shall have consistently demonstrated at least the
following:
1. An above average level of sales performance when measured
against regional or zone averages and as measured against sales performance
objectives established by the manufacturer; and
2. An above average level of customer satisfaction when
measured against regional or zone averages for the make; and
3. A history of cooperation and good relations with
manufacturer(s) and/or distributor(s).
(d) Evaluation of Management. Dealer and Seller understand and
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acknowledge that the personal qualifications, expertise, reputation, integrity,
experience and ability of the Dealer Principal and Executive Manager and their
ability to effectively manage Dealer's day-to-day Dealership Operations is
critical to the success of Dealer in performing its obligations under this
Agreement. Seller may from time to time develop standards and/or procedures for
evaluating the performance of the Dealer Principal and Executive Manager and of
Dealer's personnel generally. Seller may, from time to time, evaluate the
performance of the Dealer Principal and Executive Manager and will advise
Dealer, the Dealer Principal and the Executive Manager of the results of such
evaluations and the way in which any deficiencies affect Dealer's performance of
its obligations under this Agreement.
(e) Compensation of Executive Manager. Executive Manager will have his
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compensation tied to Dealer's overall performance with respect to objectives for
sales, market penetration and customer service.
ARTICLE FIFTH: Additional Provisions
The additional provisions set forth in the attached "Nissan Dealer Sales
and Service Agreement Standard Provisions," bearing form number NDA-4S/9-88, as
amended in Article Thirteenth of this Agreement, and excepting only the
provisions contained in Sections 4, 14 and 16, are hereby incorporated in and
made a part of this Agreement. The Notice of Primary Market Area, Dealership
Facilities Addendum, Product Addendum, Dealership Identification Addendum,
Holding Company Addendum, if applicable, and all Guides and Standards referred
to in this Agreement (including references contained in the Standard Provisions
referred to above) are hereby incorporated in and made a part of this Agreement.
Dealer further agrees to be bound by and comply with: the Warranty Manual;
Seller's Manuals or Instructions heretofore or hereafter issued by Seller to
Dealer; any amendment, revision or supplement to any of the foregoing; and any
other manuals heretofore or hereafter issued by Seller to Dealer.
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ARTICLE SIXTH: Termination of Prior Agreements
This Agreement cancels, supersedes and annuls all prior contracts,
agreements and understandings except as stated herein, all negotiations,
representations and understandings being merged herein. No waiver, modification
or change of any of the terms of this Agreement or change or erasure of any
printed part of this Agreement or addition to it (except filling of blank spaces
and lines) will be valid or binding on Seller unless approved in writing by the
President or an authorized Vice President of Seller.
ARTICLE SEVENTH: Term
This Agreement shall have a term commencing on the effective date hereof
and, subject to its earlier termination in accordance with the provisions of
this Agreement, expiring on the expiration date indicated in the Final Article
of this Agreement. Subject to other applicable provisions hereof, this Agreement
shall automatically terminate at the end of such stipulated term without any
action by Dealer, Seller or any of the other parties hereto. If this Agreement
is not terminated prior to the expiration date set forth in the Final Article,
and if dealer is in substantial compliance with all provisions of this
Agreement, Seller will offer to enter into a new Agreement with Dealer in
substantially the same form as this Agreement.
ARTICLE EIGHTH: License of Dealer
If Dealer is required to secure or maintain a license for the conduct of
its business as contemplated by this Agreement in any state or jurisdiction
where any of its Dealership Operations are to be conducted or any of its
Dealership Facilities are located, this Agreement shall not be valid until and
unless Dealer shall have furnished Seller with written notice specifying the
date and number, if any, of such license or licenses issued to Dealer, Dealer
shall notify Seller immediately in writing if Dealer shall fail to secure or
maintain any and all such licenses or renewal thereof or, if such license or
licenses are suspended or revoked, specifying the effective date of any such
suspension or revocation.
ARTICLE NINTH: Additional Representations and Warranties
(a) All of the representations and covenants made to Seller by the other
parties to this Agreement have been made jointly and severally by each of the
parties hereto which has made any such representation or covenant.
(b) In addition to the representations set forth elsewhere in this
Agreement, FAA and Dealer jointly and severally, represent to Seller that:
(i) All of the documents and correspondence provided to Seller by FAA
and Dealer, or any of their agents in connection with the solicitation of
Seller's consent to this Agreement, are true and correct copies of such
documents.
(c) In addition to the covenants set forth elsewhere in this Agreement,
FAA and Dealer, jointly and severally, agree with Seller that:
(i) Dealer will at all times be involved in the operation of the Nissan
dealership currently operated by it and Dealer will not conduct any other type
of business.
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(ii) No distributions will be made to the stockholders or partners of
Dealer and FAA if such distributions would cause Dealer to fail to meet any of
the Guides and Standards relating to the capitalization of Dealer. In
particular, FAA will not be permitted to voluntarily redeem any of its preferred
stock, if prior to and after giving effect to such redemption Dealer fails to
meet any of the Guides and Standards relating to capitalization of Dealer.
(iii) FAA and Dealer hereby, jointly and severally, indemnify and hold
harmless, Seller, its officers, directors, affiliates and agents, and each
person who controls Seller within the meaning of the Securities Act of 1933, as
amended (the "Act"), from and against any and all losses, claims, damages or
liabilities, to which they or any of them may become subject under the Act, the
Securities Exchange Act of 1934, as amended, or any other federal or state
securities law, rule or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities arise out of the sale by FAA or Dealer of
any securities. The indemnification provided for in this paragraph shall be
exclusive of, and in addition to, any indemnification pursuant to Section 10 of
the Standard Provisions.
(iv) One of the conditions to the effectiveness of this Agreement by
Seller is the delivery of an opinion of counsel to all of the parties hereto
(other than Seller) to the effect that this Agreement has been duly executed and
delivered by each of the parties thereto (other than Seller) and is the legal,
valid and binding obligation of each of such parties enforceable in accordance
with its terms.
ARTICLE TENTH: Right of First Refusal, Option to Purchase, Exclusivity
A. Seller's Right of First Refusal and Option to Purchase
In addition to its rights under this Agreement, in the event that FAA or
Dealer should desire to enter into a transaction which requires Seller's
consent, and without such consent would result in a breach of the covenants set
forth in Article Third, Sections (a)(i); (a)(ii); (a)(iii); (a)(iv); or (b) of
this Agreement or in the event that any of the covenants set forth in Article
Third, Section (b); Article Fourth, Section (a)(vii); or Article Ninth, Section
(c)(ii) of this Agreement are breached, Seller shall have the additional right
and option to purchase the dealership assets or ownership interests under this
Right of First Refusal or Option to Purchase pursuant to this Article Tenth.
(a) If Seller chooses to exercise its Right of First Refusal or Option
to Purchase, it must do so in its written refusal to consent to the proposed
sale or transfer pursuant to Section 15 of the Standard Provisions or, if
Section 15 of the Standard Provisions does not apply, within sixty (60) days of
receipt of notification that a event triggering Seller's right of first refusal
hereunder has occurred. FAA and Dealer agree not to complete any proposed change
or sale prior to the expiration of the period for exercise of Seller's right of
first refusal and without Seller's prior written consent. Such exercise shall be
null and void if FAA and/or Dealer withdraws its proposal within thirty (30)
days following Dealer's receipt of Seller's notice exercising its rights of
first refusal. If Seller elects to exercise its Option to Purchase, it must so
notify FAA and Dealer in writing, specifying the nature of the breach upon which
it is relying, and, if practicable, providing FAA and Dealer with a reasonable
opportunity to cure the breach. If FAA or Dealer is not able to cure the breach
relied upon in the notice, or does not cure that breach, then FAA and Dealer may
attempt to sell or otherwise transfer the relevant Dealer Assets to an entity
acceptable to Seller within 60 days. If Seller reasonably does not approve such
a
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transfer, or if Dealer and FAA are unable to complete such a transaction, Seller
may request an additional 30 days for this purpose. If, at the end of this
period Seller reasonably does not approve a transfer, or, if Seller reasonably
does not approve the extension, then Seller may execute this Option to Purchase.
(b) After being exercised, Seller's right to purchase may be assigned to
any party, and Seller hereby agrees to guarantee the full payment of the
purchase price by such assignee. Seller's rights under this Article Tenth shall
be binding on and enforceable against any assignee or successor in interest of
Dealer or purchaser of Dealer's assets. Seller shall have no obligation to
exercise its rights hereunder.
(c) If Dealer has entered into a bona fide written buy/sell agreement
respecting its Nissan dealership, Seller's right under this Article Tenth shall
be a right of first refusal, enabling Seller to assume the prospective
purchaser's purchase rights and obligations under such buy/sell agreement. The
purchase price and other terms of sale shall be those set forth in such
agreement and any related documents. Seller may request and Dealer agrees to
provide all other documents relating to Dealer and the proposed transfer,
including, but not limited to, those reflecting any other agreements or
understandings between the parties to the buy/sell agreement. If Dealer refuses
either to provide such documentation or to state in writing that no such
document exists, it shall be presumed that the agreement is not bona fide.
(d) If Seller determines pursuant to paragraph (c) above that the
buy/sell agreement is not bona fide, Seller will so notify Dealer. Dealer shall
have twenty (20) days from its receipt of such notice within which to withdraw
its proposal. Seller's exercise of its rights hereunder shall be null and void
if Dealer withdraws its proposal within such time period. If the proposal is not
withdrawn, Seller shall have the option, but no obligation, under this Article
Tenth to purchase the principal assets of Dealer utilized in the Dealership
Operations, including real estate and leasehold interest or to purchase the
ownership interests of Dealer, and to terminate this Agreement and all rights
granted Dealer hereunder. If the Dealership Facilities are leased by Dealer from
an affiliated company, the right to purchase the principal assets, or the
ownership interests, of Dealer, shall include the right to lease the Dealership
Facilities. The purchase price shall be at the then fair market value as
determined by an independent appraiser selected by Seller and reasonably
acceptable to FAA and Dealer, and the other terms of sale shall be those agreed
by Seller, Dealer and FAA.
(e) Dealer shall transfer the affected property free and clear of liens,
claims, mortgages, and encumbrances.
(f) In addition to any other rights Seller may have at law, in equity or
hereunder, any conveyance of the dealership in violation of this right of first
refusal shall be voidable by Seller.
(g) In the event that Seller elects not to exercise its right of first
refusal to purchase the dealership assets or the ownership interests of the
Dealer; FAA and Smart Nissan, Inc., agree that they will offer to sell such
assets or interests to an entity or persons acceptable to Seller. If such
individuals are not interested in such a transaction and no other entity or
individuals acceptable to Seller can be found, then, at Seller's option, Seller
may approve a buyer proposed by FAA, may waive the linkage requirements between
dealerships, if any, or may propose a buyer to assume a bona fide offer procured
by Dealer.
B. Right of First Refusal on Sale or Lease of Property to a Third Party.
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a) In addition to its rights under Articles Third and Fourth and
Section 15 of the Standard Provisions, Dealer agrees that should Dealer seek to
sell or lease all or substantially all of the Approved Site to a third party for
use as a Nissan New Motor Vehicle Dealership, Seller shall have the additional
right and option, but not the obligation, to purchase or lease the Approved Site
pursuant to this Article Thirteenth. A sale or lease for use other than a Nissan
New Motor Vehicle Dealership, without Seller's consent, is void.
b) If Seller chooses to exercise its right of first refusal, it must
do so by written notice delivered to Dealer within 60 days of Seller's receipt
of notice of the proposed sale or lease by Dealer. Dealer agrees not to
complete any proposed sale or lease prior to the expiration of the period for
exercise of Seller's right of first refusal and without Seller's prior written
consent, and agrees to allow Seller to perform an environmental study of the
property. Such exercise shall be null and void if Dealer withdraws its sale or
lease proposal within thirty (30) days following Dealer's receipt of Seller's
notice exercising its right of first refusal.
c) After being exercised, Seller's right to purchase or lease may be
assigned to any party, and Seller hereby agrees to guarantee the full payment of
the purchase price or the rental payment by such assignee. Seller's rights under
this Article Thirteenth shall be binding on and enforceable against any assignee
or successor in interest of Dealer or purchaser of Dealer's assets. Seller shall
have no obligation to exercise its rights hereunder, and Seller may rescind its
offer if the property is determined to be contaminated pursuant to an
environmental study. Such contamination shall be deemed a breach of this
agreement by dealer.
d) Should Seller actually purchase or lease the facility, Dealer
shall also furnish to Seller copies of any easements, licenses, environmental
studies or other documents affecting the property.
e) Dealer shall transfer the affected property by deed conveying
marketable title free and clear of liens, claims, mortgages, encumbrances,
tenancies and occupancies, or, if applicable, by an assignment of any existing
lease. The Warranty Deed shall be in proper form for recording. Dealer shall
deliver complete possession of the property at the time of delivery of the Deed
or lease assignment. Dealer shall also furnish to Seller copies of any
easements, licenses, or other documents affecting the property and shall assign
any permits or licenses which are necessary for the conduct of the Dealership
Operations.
f) In addition to any other rights Seller may have at law, in equity
or hereunder, any sale or lease of the Approved Site in violation of this right
of first refusal shall be voidable by Seller.
11
C. Exclusivity Provisions.
In order for Dealer to maintain competitive Dealership Facilities to
effectively market Nissan Products, Dealer hereby agrees to abide by and never
challenge, except as provided in Article Fifteenth (c), the following provisions
(hereinafter "Exclusivity Provisions"). These Exclusivity Provisions shall be
effective on or before the execution of the Agreement, and continue in effect
thereafter so long as Dealer (or its principals) are authorized Nissan dealers
and these provisions shall be binding on any successors-in-interest, assignors
or purchasers of Dealer:
a) The only line-make of new, unused motor vehicles which Dealer
shall display and sell at the Dealership Facilities shall be the Nissan line and
make of motor vehicles. Dealer shall not conduct any dealership operations for
any other make or line of new, unused vehicles from the Dealership Facilities
throughout the term of this Agreement.
b) Dealer shall sell and maintain a full line of Genuine Nissan
Parts and Accessories at the Dealership Facilities and shall provide a full
range of automotive servicing for Nissan vehicles at the Dealership Facilities
pursuant to Section 5 of the Standard Provisions to the Agreement. Nothing
contained herein, however, shall preclude Dealer from offering parts,
accessories or servicing for vehicles of other lines or makes so long as such
products or services are incidental to Dealer's Nissan Dealership Operations;
c) Dealer shall not advertise or promote any make or line of new,
unused vehicles from the Dealership Facilities other than the Nissan line; and
d) Dealer shall not install or maintain any sign at or near the
Dealership Facilities which would tend to lead the public into believing that
any line or make of vehicles other than the Nissan line is sold at the
Dealership Facilities.
ARTICLE ELEVENTH: Breach By Dealer
In the event (i) that any of the material representations and warranties of
Dealer, FAA, ▇▇▇▇▇▇ ▇. Price or Executive Manager, contained in this Agreement
shall prove not to have been true and correct when made or (ii) of any breach or
violation of any of the covenants made by Dealer and FAA, ▇▇▇▇▇▇ ▇. Price or
Executive Manager, in Articles Third, Fourth and Ninth of this Agreement or
(iii) of the occurrence of any of the events warranting termination of this
Agreement as set forth in Section 12.A of the Standard Provisions, Seller may
terminate this Agreement, prior to the expiration date hereof by giving Dealer
written notice thereof, specifying the nature of the breach; Dealer shall have
an opportunity to cure the breach within 45 days; at the expiration of this 45
day cure period, if the breach has not been satisfactorily cured, Seller may
terminate this Agreement by giving written notice to Dealer, such termination to
be effective upon the date specified in such notice, or such latter date as may
be required by any applicable statute with the effect set forth in Section 13 of
the Standard Provisions.
ARTICLE TWELFTH: Execution of Agreement
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This Agreement, and any Addendum or amendment or notice with respect
thereto, shall be valid and binding on Seller only when it bears the signature
of either the President or an authorized Vice President of Seller and, when such
signature is a facsimile, the manual countersignature of an authorized employee
of Seller at the Director level and a duplicate original thereof is delivered
personally or by mail to the Dealership Location. This Agreement shall bind
Dealer and the other parties hereto only when it is signed by: a duly authorized
officer or executive of Dealer or such party if a corporation; one of the
general partners of Dealer or such party if a partnership; or Dealer or such
party if an individual.
ARTICLE THIRTEENTH: Amendments to Standard Provisions
(a) Section 1.0 of the Standard Provisions is hereby amended to read as
follows:
"O. Principal Owners(s)' shall mean the persons named as Dealer Principal
in the Final Article of this Agreement upon whose personal qualifications,
expertise, integrity, experience, ability and representations Seller has relied
in entering into this Agreement."
(b) Section 6.I of the Standard Provisions is hereby amended to read as
follows:
"Seller shall have the right, at all reasonable times during regular
business hours, to inspect the Dealership Facilities and to examine, audit and
make and take copies of all records, accounts and supporting data relating to
the sale, sales reporting, service and repair of Nissan Products by Dealer.
Whenever possible, Seller shall attempt to provide Dealer with advance notice of
an audit or examination of Dealer's operations. Seller shall also have the
right, at all reasonable times during regular business hours and upon advance
notice, to examine, audit and make and take copies of all records, accounts and
supporting data of FAA and Dealer relating to the business, ownership or
operations of Dealer."
(c) Section 12.A.(l) of the Standard Provisions is hereby amended to read
as follows:
"(1) Any actual or attempted sale, transfer, assignment or delegation,
whether by operation of law or otherwise, by Dealer or FAA of any interest in or
right, privilege or obligation under this Agreement, or of the principal assets
necessary for the performance of Dealer's responsibilities under this Agreement,
without, in either case, the prior written consent of Seller having been
obtained, which consent shall not be unreasonably withheld;"
(d) Section 12.A.(3) of the Standard Provisions is hereby amended to read
as follows:
"(3) Removal, resignation, withdrawal or elimination from Dealer for any
reason of the Executive Manager, or removal, resignation, withdrawal or
elimination from Dealer of ▇▇▇▇▇▇ ▇. Price as President, or removal,
resignation, withdrawal or elimination from Dealer of ▇▇▇▇▇ ▇▇▇▇▇▇▇ as Proposed
Executive Manager; provided, however, in each case, Seller shall give Dealer a
reasonable period of time within which to replace such person with a individual
satisfactory to Dealer as the case may be, and Seller in accordance with Article
Fourth of this Agreement; or the failure of Dealer to retain an Executive
Manager who, in accordance with Article Fourth of this Agreement, in Seller's
reasonable opinion, is competent, possesses the requisite qualifications for the
position, and who will act in a manner consistent with the continued interests
of both Seller and Dealer."
(e) Section 12.B.(2)(i) of the Standard Provisions is hereby amended to
read as follows:
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"(i) any dispute, disagreement or controversy between or among Dealer and
any third party or between the owners and management personnel of Dealer
relating to the management or ownership of Dealer develops or exists which, in
the reasonable judgment of Seller, tends to adversely affect the conduct of the
Dealership Operations or the interests of Dealer or Seller; or"
(f) Section 12.B.(2)(ii) of the Standard Provisions is hereby amended to
read as follows:
"(ii) any other act or activity of Dealer and/or FAA, or any of their
principal owners (ownership in excess of 20%) or senior management occurs, which
substantially impairs the reputation or financial standing of Dealer or its
executive management subsequent to the execution of this Agreement:"
(g) Exhibits A and B are hereby incorporated by reference.
ARTICLE FOURTEENTH: Branding / Business Name
The parties acknowledge and agree that Dealer shall do business as Marin
Nissan. Dealer agrees to include in its promotional, marketing and advertising
efforts the approved name of the Dealership or another name approved by Nissan
that includes the Nissan name. In all television, radio, print and other
advertising and marketing conducted by dealer, Dealer shall refer to itself as
"Marin Nissan" or such other approved name. Dealer shall actively and
effectively promote primarily the "Nissan" name. Under no circumstances shall
the name "Nissan" be subordinated to or promoted less aggressively than any
other name (eg. "FAA") by Dealer.
ARTICLE FIFTEENTH: Special Conditions
(a) Adequate Representation of Entire Line of Nissan Vehicles
Dealer shall actively and effectively promote the sale of Nissan's entire line
of vehicles and products to customers located throughout the Primary Market
Area. In evaluating Dealer's sales performance, in addition to those factors
established in the Standard Provisions, Nissan will evaluate Dealer's
performance by vehicle segment Dealer is obligated to adequately represent
Nissan in each and every model line. Adequate representation is the higher of
national, regional, state or DMA average, adjusted for segment popularity, as
set forth in the Business plan.
(b) Nissan Products
The definition of "Nissan Products" in the Standard Provisions is amended to
mean Nissan Vehicles (defined as Nissan Cars and Nissan Tucks as well as "near-
new" Nissan Vehicles of the current and three prior model years), Genuine Parts
and Accessories, Nissan Security+Plus and such other products and services
offered by Nissan to Dealer and designated by Nissan as a Nissan Product. Dealer
shall actively and effectively promote the sale of Nissan Products.
Effectiveness with respect to Nissan Security+Plus sales is measured by the
ratio of Security+Plus sales to new vehicles sales, compared to the higher of
national, regional, state or DMA average as set forth in the Business plan or as
otherwise set forth in the Business Plan.
(c) Dispute Resolution Process
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The parties acknowledge that, at the state and federal level, various
courts and agencies would, in the absence of this Article Fifteenth (d), be
available to them to resolve claims or controversies which might arise between
them. The parties agree that it is inconsistent with their relationship for
either to use courts or governmental agencies to resolve such claims or
controversies.
THEREFORE, CONSISTENT WITH THE PROVISIONS OF THE UNITED STATES
ARBITRATION ACT (9 U.S.C. SEC. 1 ET SEQ.), THE PARTIES TO THIS AGREEMENT AGREE
THAT THE DISPUTE RESOLUTION PROCESS OUTLINED IN THIS SECTION, WHICH INCLUDES
BINDING ARBITRATION, SHALL BE THE EXCLUSIVE MECHANISM FOR RESOLVING ANY DISPUTE,
CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR
TO THE RELATIONSHIP BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO CLAIMS
UNDER ANY STATE OR FEDERAL STATUTES (HEREINAFTER "DISPUTES"). Section 16 of the
Standard Provisions is deleted in its entirety.
There are two steps in the Dispute Resolution Process: Mediation and Binding
Arbitration. All Disputes must first be submitted to Mediation, unless that step
is waived by written agreement of the parties. Mediation is conducted by a panel
consisting of an equal number of representatives of the parties designated by
Nissan and selected by Dealer. The Mediation Panel will evaluate each position
and recommend a solution. This recommended solution is not binding.
If a dispute has not been resolved after Mediation, or if Dealer and Nissan have
agreed in writing to waive Mediation, the Dispute will be settled by Binding
Arbitration. SPECIFICALLY, THE PARTIES AGREE TO RESOLVE ALL SUCH DISPUTES BY
BINDING ARBITRATION CONDUCTED IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION
PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION, WITH THE PREVAILING PARTY TO
RECOVER ITS COSTS AND ATTORNEY'S FEES FROM THE OTHER PARTY. ALL ARBITRATION
AWARDS ARE BINDING AND NON-APPEALABLE, EXCEPT AS OTHERWISE PROVIDED IN THE
UNITED STATES ARBITRATION ACT. JUDGMENT UPON ANY SUCH AWARD MAY BE ENTERED AND
ENFORCED IN ANY COURT HAVING JURISDICTION.
(d) Business Plan
Dealer and Nissan shall execute a Business Plan in the form specified in
the Business Planning Process Workbook that describes how Dealer will fulfill it
sales, service, customer relations and other commitments hereunder, including
heightened performance standards that Dealer commits to meet;
(e) Option to Purchase
If the Dealer Agreement is to expire or be terminated: i) Voluntarily by
Dealer; ii) By Nissan upon the occurrence of any of the events specified in
Section 12A. of the Standard Provisions to the Agreement (as modified herein);
or iii) As a result of the death or physical or mental incapacity of Principal
Owners, without a qualified successor under the successorship plan required in
the Business Plan under Section 6 of the Contiguous Market Ownership Addendum,
without a timely replacement, reasonably acceptable to Seller, Nissan has the
option to Purchase the principal assets of Dealer utilized in the dealership
business, including such real property as Nissan may elect to purchase, and
cancel the Agreement and all rights granted Dealer thereunder. The purchase
price of the dealership assets and real property and other terms will be
15
determined by agreement between the parties or, if the parties are unable to
reach agreement in a reasonable time, by arbitration pursuant to the Dispute
Resolution Process established in Paragraph 12 hereof. Nissan must advise Dealer
of its intent to exercise this option within 30 days after one party notifies
the other of its intent to terminate the Agreement. Nissan may assign its right
to exercise its option to purchase under this paragraph to any third party.
(f) Executive Manager Evaluation
Dealer shall retain a qualified Executive Manager meeting Seller's approval
to be named under the Final Article of this Agreement.
Dealer has proposed ▇▇▇▇▇ ▇▇▇▇▇▇▇ as Executive Manager. ▇▇▇▇▇ ▇▇▇▇▇▇▇ is
currently enrolled in the Evaluation Program effective January 1, 1997. Although
▇▇▇▇▇▇▇ has yet to be approved as Executive Manager by Nissan, Nissan is willing
to continue to evaluate him under its executive management evaluation program.
Accordingly, the qualifications and performance of ▇▇▇▇▇ ▇▇▇▇▇▇▇, the individual
proposed to be named as the Executive Manager of Dealer, shall be evaluated by
Seller for the remaining time period ending with the Region's receipt and review
of the June 1997 ▇.▇. ▇▇▇▇ Retail Sales Registration Information. Region will
complete a full review of ▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ qualifications within 30 days of
receipt of said Information.
If at the time of such evaluation ▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ and Dealer's performance in
all departments of the dealership (including sales, service, parts and customer
satisfaction) is not satisfactory to Seller under the evaluation program
guidelines, Dealer shall be obligated to retain another individual who is a
qualified Executive Manager to be named under the Final Article of this
Agreement within sixty (60) days of the date that Seller notifies Dealer that
▇▇▇▇▇ ▇▇▇▇▇▇▇ has not met the executive management requirements of Seller as
described above. If ▇▇▇▇▇ ▇▇▇▇▇▇▇ and Dealer perform satisfactorily during this
evaluation period, then Nissan will approve him as Executive Manager.
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FINAL ARTICLE
-------------
The Dealer is Smart Nissan, Inc., a corporation formed under the laws of the
California. Dealer is located in San Rafael, CA.
Other parties relevant to this Agreement are FirstAmerica Automotive, Inc., a
corporation incorporated under the laws of the Nevada, and ▇▇▇▇▇▇ ▇. Price.
The Dealer Principal is ▇▇▇▇▇▇ ▇. Price.
The Proposed Executive Manager is ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Expiration Date: 6/30/2002
---------
Working Capital Guide Requirement: $ 139,250
Net Worth Guide Requirement: $ 874,000
Flooring Line: $2,443,665
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
triplicate effective as of the 30th day of June, 1997 at Carson, California.
---- -----
SELLER:
NISSAN DIVISION
NISSAN MOTOR DIVISION CORPORATION IN USA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Vice President, Nissan Division Regional Vice President
Smart Nissan, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. Price
----------------------------------
▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Its: President
ACKNOWLEDGED.
FIRSTAMERICA AUTOMOTIVE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. Price
-----------------------------
▇▇▇▇▇▇ ▇. Price
Its: President and CEO
17