EXHIBIT 10.17
NISSAN
DEALER SALES & SERVICE AGREEMENT
THIS AGREEMENT is entered into effective the day last set forth below
by and between the Nissan Division of NISSAN NORTH AMERICA, INC., a California
corporation, hereinafter called Seller, and the natural person or entity
identified as "Dealer" 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 the interests of Seller, Dealer, other
Authorized Nissan Dealers and owners and purchasers of Nissan Products. 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.
This is a personal services Agreement. In entering into this Agreement
and appointing Dealer as provided below, Seller is relying upon the personal
qualifications, expertise, reputation, integrity, experience, ability and
representations of the individual(s) named herein as Principal Owner(s) and
Executive Manager.
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 Dealer's integrity and ability and expressed
intention to deal fairly with Seller and the consuming public.
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 Seller and Dealer will depend on how well they each
fulfill their respective responsibilities under this Agreement. It is recognized
that: Nissan North America, Inc. (hereinafter called "Manufacturer") will
endeavor to provide motor vehicles that offer outstanding value to the consuming
public; Seller will endeavor to establish a national network of Authorized
Nissan Dealers that can provide effective 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.
Seller and Dealer shall refrain from engaging in conduct or activities
which might be detrimental to or reflect adversely upon the reputation of
Seller, Manufacturer, 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 and Dealer 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 Locations 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;
(c) servicing Nissan Vehicles and for selling and servicing Genuine
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
upon, and in consideration of, the personal qualifications, expertise,
reputation, integrity, experience, ability and representations with respect
thereto of the Principal Owner(s) named in the Final Article of this Agreement
and in reliance upon Dealer's representations concerning the ownership of Dealer
as follows:
(i) Dealer represents and agrees that the person(s) named as
Principal Owner(s) in the Final Article of this Agreement, and only
those person(s), shall be the Principal Owner(s) of Dealer;
(ii) Dealer represents and agrees that the person(s) named as
Other Owner(s) in the Final Article of this Agreement, and on1y those
person(s), shall be the Other Owner(s) of Dealer.
(b) HOLDING COMPANY. Seller requires that a natural person be named as
the Principal Owner(s) of Dealer because Seller relies on the personal
qualifications, expertise, reputation, integrity, experience, ability and
representations of such individuals. If one or more of the owner(s) of Dealer is
a corporation, partnership or other entity and not a natural person (hereinafter
called "Holding Company"), Dealer and Seller agree that the natural persons
listed in the Holding Company Addendum of this Agreement as owners of the
Holding Company shall be deemed to be the Principal Owner(s) and Other Owner(s)
of Dealer, as the case may be and that the terms and conditions of this
Agreement, including without limitation the provisions of this Article Third and
Sections 12, 14 and 15 of the Standard Provisions, shall apply to the owner(s)
of the Holding Company as well as to Dealer. Dealer represents to Seller and
agrees that the Holding Company is owned as indicated in the Holding Company
Addendum to this Agreement.
(c) CHANGES IN OWNERSHIP. In view of the fact that this is a personal
services agreement 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 Dealer, and no property right or interest is or shall
be deemed to be sold, conveyed or transferred to Dealer under this Agreement.
Dealer agrees that any change in the ownership of Dealer specified herein
requires the prior written consent of Seller, excepting only changes in the
record or beneficial ownership interests of Other Owner(s) not effecting a
change in majority control or interest. 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 Principal Owner. 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. Seller shall have no obligation to
transact business with any person who is not named either as a Principal Owner
or Executive Manager of Dealer hereunder or otherwise to give effect to any
proposed sale or transfer of the ownership or management of Dealer prior to
having concluded the evaluation of such a proposal as provided in Section 15 of
the Standard Provisions.
ARTICLE FOURTH: Management
(a) EXECUTIVE MANAGER. Seller and Dealer agree that the retention by
Dealer of 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, the personal qualifications, expertise, reputation,
integrity, experience, ability and representations with respect thereto of the
person named as Executive Manager in the Final Article of this Agreement and on
Dealer's representation to Seller and agreement that the person identified as
Executive Manager shall be Dealer's executive manager, shall have full
managerial authority for the Dealership Operations, and shall continually
provide his or her personal services in operating the dealership and will be
physically present at the Dealership Facilities.
(b) CHANGES IN MANAGEMENT. In view of the fact that this is a personal
services Agreement and in view of its objectives and purposes, Dealer agrees
that any change in the Executive Manager from that specified in the Final
Article of this Agreement requires the prior written consent of Seller. Dealer
shall give Seller prior notice of any proposed change in Executive Manager and
immediate notice of the death or incapacity of any Executive Manager. No change
in Executive Manager shall be effective unless and until embodied in an
appropriate amendment to this Agreement duly executed and delivered by Seller
and by Dealer. Subject to the foregoing, Dealer shall make its own, independent
decisions concerning the hiring and firing of its employees including without
limitation, its Executive Manager.
To enable Seller to evaluate and respond to Dealer concerning any
proposed change in Executive Manager, Dealer 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 Executive Manager 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 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 an Executive Manager of
Dealer hereunder prior to having concluded its evaluation of such person.
(c) EVALUATION OF MANAGEMENT. Dealer and Seller understand and
acknowledge that the personal qualifications, expertise, reputation, ability,
integrity, experience and ability of the Executive Manager and his or her
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 Executive Manager and of Dealer's personnel
generally. Seller may, from time to time, evaluate the performance of the
Executive Manager and will advise Dealer and the Executive Manager of the
results of such evaluations, and Dealer shall promptly take such action as may
be required to correct any deficiencies in the Executive Manager's performance
to the reasonable satisfaction of Seller.
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 are hereby incorporated in and made a part of this Agreement. The
Notice of Primary Market Area, Dealership Facilities Addendum, Product Addendum,
Dealer Identification Addendum, Holding Company Addendum, if applicable, and all
Guides 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.
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 continuing until terminated by either party in accordance with
Section 12 of the Standard Provisions.
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: Execution of Agreement
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 and a duplicate original thereof is delivered personally or by mail to
the main Dealership Location. This Agreement shall bind Dealer only when it is
signed by: a duly authorized officer or executive of Dealer if a corporation;
one of the general partners of Dealer if a partnership; or Dealer if an
individual.
ARTICLE TENTH: Special Conditions
SEE ATTACHED PUBLIC OWNERSHIP AND HOLDING COMPANY ADDENDA, WHICH ARE
INCORPORATED BY THIS REFERENCE INTO THIS AGREEMENT FOR ALL PURPOSES.
Dealer PRECISION NISSAN, INC., is a(an) SELECT ONE) individual partnership [X]
corporation incorporated or formed under the laws of the State of Florida
doing business as D/B/A/ Courtesy Nissan of Tampa ("Dealer"). Dealer is
located in Tampa, FL.
The Principal Owner(s) of Dealer are as follows:
PERCENTAGE
NAME RESIDENCE INTEREST
---- --------- --------
Xxxxxxx X. Xxxxxx 1000 Lindelaan 0%
Xxxxx, XX 00000
The Other Owner(s) of Dealer are as follows:
PERCENTAGE
NAME RESIDENCE INTEREST
---- --------- --------
Xxxxxx Automotive Tampa, L.P. 0000 Xxxxx Xxxxx 000%
Xxxxx, XX 00000
The Executive Manager of Dealer is as follows:
PERCENTAGE
NAME RESIDENCE INTEREST
---- --------- --------
Xxxxx X. Xxxxxx 1783 Barn Own Way 0%
Xxxx Xxxxxx, XX 00000
IN WITNESS THEREOF, the parties hereto have executed this Agreement in
triplicate as of February 1st, 2000 at Carson, California.
DEALER:
PRECISION NISSAN, INC. D/B/A COURTESY NISSAN OF TAMPA
By /s/ Xxxxxxx X. Xxxxxx SELLER:
--------------------------------------
Xxxxxxx X. Xxxxxx NISSAN DIVISION
Title: Dealer Principal NISSAN NORTH AMERICA, INC.
-----------------------------
EFFECTIVE DATE: 2-1-2000 By /s/ X.X. Xxxxxxxx
-------------------------
EXPIRATION DATE: 1-31-2005 X.X. Xxxxxxxx
Title: Vice President and
General Manager
Working Capital Guide Requirement: As per executed By /s/ Xxxxxxx X. Xxxxxx
-------------------------
Net Worth Guide Requirement: Business Plan. Xxxxxxx X. Xxxxxx
New Vehicle Floor Plan: Title: Regional Vice
Form # NDA-4P/9-88 President, Southeast Region
NISSAN PUBLIC OWNERSHIP ADDENDUM
This Nissan Public Ownership Addendum (the "Addendum") is entered into
effective the date last set forth below by Nissan North America, Inc. ("Nissan"
or "Seller") and Precision Nissan, Inc. ("Dealer"). In consideration of the
agreements and mutual covenants set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. THE PUBLIC OWNERSHIP ADDENDUM
The Public Ownership Addendum is an addendum to, supplements and modifies the
Nissan Dealer Sales and Service Agreement between Nissan and Dealer (the "Dealer
Agreement"), including the Standard Provisions thereto (the "Standard
Provisions"). To the extent that this Addendum conflicts with the Dealer
Agreement, the Addendum controls and shall govern the relationship between the
parties. The Dealer Agreement, to the extent not modified or amended, remains in
full force and effect.
2. DEFINITIONS
The parties agree that the following terms, as used in the Addendum and the
Dealer Agreement shall be defined exclusively as set forth below.
"NISSAN PRODUCTS" shall mean Nissan Vehicles, Genuine Parts and Accessories,
Nissan Security+Plus and such other products and services offered by Nissan to
Dealer and designated in writing by Nissan as a Nissan Product.
"DEALER PRINCIPAL" shall mean the person named in the Final Article of the
Dealer Agreement as "Principal Owner" upon whose personal qualifications,
expertise, integrity, experience, ability and representations Nissan has relied
in entering into this Addendum, and any successor approved in writing by Nissan.
For purposes of this Addendum, the terms "Dealer Principal" and "Principal
Owner" are used interchangeably.
"BUSINESS PLAN" shall mean the written plan meeting Nissan's approval that is
prepared and executed by the Dealer and that contains Dealer's plan and
commitment to develop its business throughout the PMA, including but not limited
to, its plan and commitment with respect to organizational, operational,
financial, succession and other issues, as well as certain standards on which
its performance hereunder will be evaluated.
3. OWNERSHIP
This Agreement has been entered into by Nissan in reliance upon the commitment,
representation, and agreement of Dealer to provide the personal services of
Dealer Principal and Executive Manager; and in reliance upon the representations
and agreements of Dealer as follows: i) Dealer represents that Xxxxxx Automotive
Group, L.L.C. owns 51% of Xxxxxx Automotive Tampa, L.P., and Xxxxxx Automotive
Group, L.L.C. will, at all times during the term of this Addendum, exercise full
management and control of Xxxxxx Automotive Tampa, L.P.; ii) Dealer represents
that Xxxxxx Automotive Tampa, L.P. owns 100% of Dealer and will, at all times
during the term of this Addendum, exercise full management and control of
Dealer.
In view of the fact that the Dealer Agreement and this Addendum is a personal
services agreement, and in view of its objectives and purposes, this Addendum
and the rights and privileges conferred on Dealer hereunder are not assignable,
transferable or salable; and no property right or interest herein is or shall be
deemed to be sold, conveyed or transferred. Dealer agrees, on behalf of itself,
Xxxxxx Automotive Group, L.L.C., and Xxxxxx Automotive Tampa, L.P., that any
change in the ownership of Dealer other than specified herein requires the prior
written consent of Nissan, if Dealer desires to remain an Authorized Nissan
Dealer. Dealer agrees that, without the prior written consent of Nissan, which
consent shall not be unreasonably withheld: i) No sale, pledge, hypothecation or
other transfer of any of the capital stock or ownership interest of Dealer or
Xxxxxx Automotive Tampa, L.P. will be made. ii) Dealer or Xxxxxx Automotive
Tampa, L.P. will not be merged with or into, or consolidated with, any other
entity without Nissan's prior written consent, nor will the principal assets
necessary for the performance of Dealer's obligations under this Addendum or the
Dealer Agreement be sold, transferred or assigned without Nissan's prior,
written consent. Dealer and Xxxxxx Automotive Tampa, L.P. represent that no
ownership interest in Dealer or Xxxxxx Automotive Tampa, L.P. will be
transferred by Dealer or Xxxxxx Automotive Tampa, L.P. directly or indirectly to
any automobile manufacturer, automobile distributor, or potential competitor of
Seller, or any affiliate of any of the foregoing.
If any person or entity acquires more than 20% of Xxxxxx Automotive Group,
L.L.C.'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"), Dealer must terminate the Dealer Agreement or
transfer Dealer's principal assets or 100% of the outstanding stock of Dealer to
a third party acceptable to Nissan unless, within 90 days after notification of
Nissan's determination, the Adverse Person's ownership interest is reduced to
less than 20%.
The parties to this Addendum expressly agree that, while changes in the
ownership of Xxxxxx Automotive Group, L.L.C. and Xxxxxx Automotive Tampa, L.P.
may not be entirely within the control of Dealer, in light of the personal
services nature of the Dealer Agreement and Nissan's substantial interest in the
owners of its dealers and distribution network, and in consideration of Nissan's
willingness to enter into this Public Ownership Addendum with Dealer, any
transaction involving the ownership and stock of Xxxxxx Automotive Group, L.L.C.
and Xxxxxx Automotive Tampa, L.P. which violates the provisions of this Section
3 of this Addendum shall constitute a substantial and material breach of the
Dealer Agreement and this Addendum and grounds for termination of the Dealer
Agreement and this Addendum. Subject to the other provisions of this addendum, a
change in the direct or indirect ownership of Xxxxxx Automotive Tampa, L.P. that
does not violate the Agreement or this Addendum does not constitute grounds for
termination of the Dealer Agreement under Section 12.A.2. of the Standard
provisions to the Agreement.
4. MANAGEMENT
The Dealer Agreement and this Addendum have been entered into in reliance on the
following representations and agreements of Dealer that: i) The Dealer Principal
of Dealer will, subject to any other obligations set forth in the Dealer
Agreement and this Addendum, devote his/her professional efforts to the business
operations of Dealer and the entity for which he/she is
responsible; ii) Executive Manager will devote his full time and professional
efforts to the affairs of Dealer; iii) The Officers and Directors of Dealer are
set forth in Schedule "A".
Nissan and Dealer agree that the retention by Dealer of qualified management is
of critical importance to the successful operation of Dealer and to the
achievement of their mutual purposes and objectives. The Dealer Agreement and
Addendum have been entered into by Nissan in reliance upon, and in consideration
of, among other things, the following representations and agreements of Xxxxxx
Automotive Group, L.L.C., Xxxxxx Automotive Tampa, L.P. and Dealer, that: i) The
Dealer Principal and the Executive Manager shall have full and complete control
over the Dealership Operations, subject to the powers of the Board of Directors
of Dealer, to manage the business and affairs of Dealer, and at all times the
Dealer Principal shall be a member of the Board of Directors of Dealer and the
Executive Manager shall be an officer of Dealer; ii) The Board of Directors of
Dealer shall delegate the day to day management of the Dealership Operations to
the Executive Manager. The Board of Directors of Dealer will not exercise any
extraordinary powers or interfere unduly in the day-to-day Dealership
Operations; iii) Executive Manager, subject to any other obligations set forth
in the Dealer Agreement, shall be physically present at the Dealership
Facilities on a full-time basis; iv) Nissan may from time to time develop
standards and/or procedures for evaluating the performance of Dealer. Nissan
may, from time to time, evaluate the performance of the Dealer and will advise
Dealer, the Dealer Principal and the Executive Manager of the results of such
evaluations.
5. TERM
This Addendum and the Dealer Agreement shall have a term commencing on its
effective date and continuing for a term of five years unless sooner terminated
in accordance with the provisions of the Dealer Agreement and this Addendum.
Should Dealer be in full compliance with its obligations under the Dealer
Agreement and this Addendum at the end of this term, Dealer will be offered a
new Dealer Agreement and Public Ownership Addendum, in the form then in use by
Nissan.
6. BUSINESS PLAN
Dealer and Nissan shall periodically execute Business Planning Worksheets in the
form currently in use by Nissan that describes how Dealer will fulfill its
sales, service, customer relations, marketing and other commitments hereunder.
The Business Plan is subject to Nissan's approval, is an essential part of the
Public Ownership Addendum [or CMO Addendum] and is hereby incorporated in and
made a part of this Addendum.
The Business Plan shall include the following required components: i) a New
Vehicle Sales Plan; ii) Sales & Profit Forecast; iii) Dealer's Investment
Worksheet; iv) Succession Plans, including the identity of the proposed
successors to dealer, dealer principal (principal owner) and/or executive
manager; and v) any other standards or plans as agreed upon between Nissan and
Dealer. The standards on which Dealer's sales performance will be evaluated will
include (i) market share objectives for Nissan products set by the parties, and
(ii) sales penetration achieved by Dealer in each of the various segments in
which Nissan vehicles compete.
In addition to the above required components, Nissan may request that additional
components be included in the Business Plan such as organization and management
structure and staffing, market area plan, goals, objectives, sources of capital,
and/or any other information deemed necessary by Nissan dependent upon the
circumstances of the Dealer.
Dealer shall review and update its Business Plan annually, or more often if
needed, and submit it to Nissan for review and approval. If Nissan determines
that changes to the proposed Business Plan are necessary, Dealer will make such
changes and resubmit the proposed Business Plan to Nissan. The updated business
plan shall (i) analyze Dealer's performance relative to the objectives,
standards, and plans set forth in the Business Plan for the preceding year or
other period, (ii) identify any deficiencies in Dealer's performance, and (iii)
specify the steps that Dealer will take to remedy such deficiencies.
If, based on the evaluation thereof made by Nissan, Dealer shall fail to
substantially fulfill its responsibilities with respect to: i) the
implementation of the plans set forth in the Business Plan, including but not
limited to any deviation therefrom; ii) the performance of its sales or other
obligations based on the standards established therefor in the Business Plan; or
iii) any other material responsibilities assumed by Dealer, Nissan will notify
Dealer of such failure and will review with Dealer the nature and extent of such
failure and the reasons which, in Nissan's opinion, account for such failure.
Thereafter, Nissan will provide Dealer with a reasonable opportunity to correct
the failure. If Dealer fails to make substantial progress towards remedying such
failure before the expiration of such period, Nissan may terminate the Dealer
Agreement, such termination to be effective at least sixty (60) days after
notice is given.
7. OTHER DEALER RESPONSIBILITIES
A. BRANDING AND BUSINESS NAME: Dealer shall actively and effectively
promote the "Nissan" name. Under no circumstances shall the name "Nissan" be
subordinated to or promoted less aggressively than any other name (e.g.
"Xxxxxx") by Dealer.
B. FINANCIAL AND OPERATIONAL REPORTING: Dealer shall furnish to Nissan
annual reviewed financial statements and, upon demand, shall furnish annual
certified financial statements, and otherwise disclose to Nissan in a format
satisfactory to Nissan the financial and operational results of Dealer's Nissan
business.
C. EXAMINATION AND AUDIT: Nissan shall be entitled, 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 Dealer,
XXXXXX AUTOMOTIVE TAMPA, L.P. AND XXXXXX AUTOMOTIVE GROUP, L.L.C. relating to
the business, ownership or operations of Dealer.
D. DISCLOSURE OF FINANCIAL INFORMATION TO AFFILIATED COMPANIES: Nissan
shall be entitled to disclose to and receive from affiliated companies,
including but not limited to Nissan Motor Acceptance Corporation, all financial
statements and reports provided by Dealer, XXXXXX AUTOMOTIVE TAMPA, L.P. and/or
XXXXXX AUTOMOTIVE GROUP, L.L.C.
8. DISPUTE RESOLUTION PROCESS
The parties acknowledge that, at the state and federal level, various
courts and agencies would, in the absence of this Paragraph 8, 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
MEDIATION AND 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
before an independent mediator. The parties will participate and present their
positions to each other and the mediator in an effort to resolve their
disagreement, pursuant to JAMS/Endispute program developed for use by Nissan and
Nissan authorized dealers.
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 NISSAN
DEALER/DISTRIBUTOR RULES AND PROCEDURES OF JAMS/ENDISPUTE, WITH THE PREVAILING
PARTY TO RECOVER ITS COSTS AND ATTORNEY'S FEES FROM THE OTHER PARTY. ALL
ARBITRATION AWARDS ARE BINDING AND NONAPPEALABLE, 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.
9. RELEASE
Dealer hereby releases Nissan from any and all claims and causes of action that
they or any of them may have against Nissan for money damages or other relief
relating to or arising out of any event occurring prior to the execution of the
Addendum, except for any accounts payable by Nissan to Dealer in connection with
the provision of any services under the Dealer Agreement and any claim described
in Section 11.A.1 of the Standard Provisions. In connection with this release,
Dealer expressly acknowledges and waives their respective rights under
California Civil Code, Section 1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
10. EXCLUSIVITY AND RIGHT OF FIRST REFUSAL
A. EXCLUSIVITY: The additional provisions set forth in Attachment "A" -
"Exclusivity Provisions" - are hereby incorporated in and made a part of this
Addendum and Dealer Agreement.
B. RIGHT OF FIRST REFUSAL: The additional provisions set forth in
Attachment "B" - "Right of First Refusal" - are hereby incorporated in and made
a part of this Addendum and Dealer Agreement.
11. SPECIAL CONDITIONS
IN WITNESS WHEREOF, the parties have executed this Nissan Addendum in triplicate
as of 2-1-2000, at Carson, California.
DEALER: NISSAN DIVISION
Precision Nissan, Inc. NISSAN NORTH AMERICA, INC.
D/B/A/ Courtesy Nissan of Tampa
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ X.X. Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxxx Name: X.X. Xxxxxxxx
Title: Dealer Principal Title: Vice President
General Manager,
Nissan Division
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Southeast Region
Regional Vice President
HOLDING COMPANY ADDENDUM TO NISSAN DEALER
SALES AND SERVICE AGREEMENT
Pursuant to Article Third (b) of the Nissan Dealer Sales & Service Agreement
(the "Agreement") in effect between the Authorized Nissan Dealer named below and
Nissan North America, Inc. ("Seller"), Dealer represents and agrees the
following Principal Owner(s) of Dealer named in the Final Article of the
Agreement which is(are) a corporation, partnership, or other entity and not a
natural person, is(are) owned as follows:
--------------------------------------------------------------------------------
NAME OF OWNER: PRECISION NISSAN, INC. a Corporation, formed under the laws of
the State of Florida.
PRINCIPAL OWNER(S)/SETTLOR(S):
------------------------------
NAME ADDRESS PERCENTAGE INTEREST
---- ------- -------------------
Precision Enterprises Tampa, Inc. Three Landmark Square, 100%
Xxxxx 000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NAME OF OWNER: Precision Enterprises Tampa, Inc. a Corporation, formed under the
laws of the State of Florida.
PRINCIPAL OWNER(S)/SETTLOR(S):
------------------------------
NAME ADDRESS PERCENTAGE INTEREST
---- ------- -------------------
Xxxxxx Automotive Tampa, LP, Inc. Three Landmark Square, 100%
Xxxxx 000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NAME OF OWNER: Xxxxxx Automotive Tampa LP a Limited Partnership, formed under
the laws of the State of Delaware.
PRINCIPAL OWNER(S)/SETTLOR(S):
------------------------------
NAME ADDRESS PERCENTAGE INTEREST
---- ------- -------------------
Xxxxxx Villanova II Three Landmark Square, 99%
Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx Automotive Tampa GP, LLC Three Landmark Square, 1%
Xxxxx 000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NAME OF OWNER: Xxxxxx Automotive Tampa GP, LLC a Limited Liability Company,
formed under the laws of the State of Delaware.
PRINCIPAL OWNER(S)/SETTLOR(S):
------------------------------
NAME ADDRESS PERCENTAGE INTEREST
---- ------- -------------------
Xxxxxx Villanova II Three Landmark Square, 100%
Xxxxx 000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NAME OF OWNER: Xxxxxx Villanova II a Limited Liability Company, formed under the
laws of the State of Delaware.
PRINCIPAL OWNER(S)/SETTLOR(S):
------------------------------
NAME ADDRESS PERCENTAGE INTEREST
---- ------- -------------------
Xxxxxx Automotive Group LLC Three Landmark Square, 100%
Xxxxx 000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
This Holding Company Addendum cancels and supersedes any previous Holding
Company Addendum between Dealer and Seller. This Holding Company Addendum is
effective as of August 31, 2000.
DEALER: SELLER:
NISSAN DIVISION
PRECISION NISSAN, INC. NISSAN NORTH AMERICA, INC.
-------------------------------------------
Name
Doing Business as Courtesy Nissan of Tampa
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ X. X. Xxxxxxx
-------------------------------------- -----------------------------
Xxxxxxx X. Xxxxxx X.X. Xxxxxxx
Dealer Principal Vice President and
General Manager
South Tampa FL By: /s/ Xxxx Xxxxxxxx
------------------------------------------- -----------------------------
City State Xxxx Xxxxxxxx
Regional Vice President,
Southeast Region
2445
-------------------------------------------
Dealer Code
(FILE THIS ADDENDUM WITH CURRENT SALE & SERVICE AGREEMENT)
