EXHIBIT 10.26
[INFINITI LOGO] INFINITI
DEALER SALES AND SERVICE AGREEMENT
THIS AGREEMENT is entered into effective the day last set forth below by
and between the INFINITI 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 Infiniti Products and to provide for the sale and servicing of
Infiniti Products in a manner that will best serve owners, potential owners and
purchasers of Infiniti Products as well as the interests of Seller, Dealer and
other Authorized Infiniti Dealers. This Agreement sets forth: the rights which
Dealer will enjoy as an Authorized Infiniti 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.
Infiniti 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 Infiniti Products and the manner in which they are sold
and serviced. Owners, potential owners and purchasers of Infiniti 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. Infiniti 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 Infiniti Products. Seller's standard of
excellence for Infiniti 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 Dealer's integrity and ability and expressed
intention to deal fairly with the consuming public and Seller.
It is the responsibility of Seller to market Infiniti Products throughout
the Territory. It is the responsibility of Dealer to actively promote the retail
sale of Infiniti Products and to provide courteous and efficient service of
Infiniti 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 Infiniti
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 Infiniti 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 Infiniti 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 Infiniti Dealer and grants Deafer the
non-exclusive right to buy from Seller those Infiniti 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 51 of the Standard Provisions, to identify itself as an Authorized
Infiniti Dealer, to display the Infiniti Marks in the conduct of its Dealership
Operations and to use the Infiniti Marks in the advertising, promotion and sale
of Infiniti 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 Infiniti
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;
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(b) actively and effectively promoting the sale at retail (and, if Dealer
elects, the leasing and rental) of Infiniti Vehicles within Dealer's Primary
Market Area in accordance with Section 3 of the Standard Provisions;
(c) servicing Infiniti Vehicles and for selling and servicing Genuine Parts
and Accessories in accordance with Section 4 of the Standard Provisions;
(d) building and maintaining consumer confidence in Dealer and in Infiniti
Products in accordance with Sections 3, 4, and 5 of the Standard Provisions; and
(e) performance of the additional responsibilities set forth in this
Agreement, including those specified in Section 5 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 only 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 Principal Owners 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/or 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 11, 13 and 14 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 Owners 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 14 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 on a full-time basis.
(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
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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, 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 the way
in which any deficiencies affect Dealer's performance of its obligations under
this Agreement.
ARTICLE FIFTH: Additional Provisions
The additional provisions set forth in the attached "Infiniti Dealer Sales
and Service Agreement Standard Provisions," bearing form number IA-4S-D-7/89,
are hereby incorporated in and made a part of this Agreement. The Notice of
Primary Market Area, Dealership Facilities Addendum, Product Addendum, Dealer
Operating Requirements 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.
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 11 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 at the Director level and a duplicate original thereof is delivered
personally or by mail to the 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
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FINAL ARTICLE
Dealer is_______________________________________________________________, a (an)
(Select One) [ ] individual [ ] partnership [ ] corporation [ ] limited
liability company, incorporated or formed under the laws of the State of
________________________________________________________________________ doing
business as_____________________________________________________________________
("Dealer"). Dealer is located in_______________________________________________,
__________________________________
The Principal Owner(s) of Dealer are as follows:
PERCENTAGE
NAME RESIDENCE INTEREST
---- --------- --------
The Other Owner(s) of Dealer are as follows:
PERCENTAGE
NAME RESIDENCE INTEREST
---- --------- --------
The Executive Manager of Dealer is as follows:
PERCENTAGE
NAME RESIDENCE INTEREST
---- --------- --------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
triplicate effective as of the____________________day of ______________________,
_________at Carson, California.
(YEAR)
DEALER: SELLER:
INRNITI DIVISION
NISSAN NORTH AMERICA, INC.
___________________________________ By____________________________________
Name Signature
By__________________________________ ______________________________________
Signature Type Name & Title
____________________________________ By____________________________________
Type Name & Title Signature
______________________________________
Type Name & Title
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