CHRYSLER CORPORATION
DODGE
SALES AND SERVICE AGREEMENT
Sonic Dodge, L.L.C. dba Lake Xxxxxx Xxxxx located at 00000 Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, a corporation, hereinafter called DEALER
and Chrysler Corporation, a Delaware corporation, hereinafter sometimes referred
to as "CC", have entered into this Chrysler Corporation Dodge Sales and Service
Agreement, hereinafter referred to as "Agreement", the terms of which are as
follows:
INTRODUCTION.
The purpose of the relationship established by this Agreement is to
provide a means for the sale and service of specified Dodge vehicles and the
sale of CC vehicle parts and accessories in a manner that will maximize customer
satisfaction and be of benefit to DEALER and CC.
While the following provisions, each of which is material, set forth
the undertakings of this relationship, the success of those undertakings rests
on a recognition of the mutuality of interests of DEALER and CC, and a spirit of
understanding and cooperation by both parties in the day to day performance of
their respective functions. As a result of such considerations, CC has entered
into this Agreement in reliance upon and has placed its trust in the personal
abilities, expertise, knowledge and integrity of DEALER's principal owners and
management personnel, which CC anticipates will enable DEALER to perform the
personal services contemplated by this Agreement.
It is the mutual goal of this relationship to promote the sale and
service of specified CC products by maintaining and advancing their excellence
and reputation by earning, holding and furthering the public regard for CC and
all CC dealers.
1. PRODUCTS COVERED.
DEALER has the right to order and purchase from CC and to sell at
retail only those specific models of CC vehicles, sometimes referred to as
"specified CC vehicles," listed on the Motor Vehicle Addendum, attached hereto
and incorporated herein by reference. CC may change the models of CC vehicles
listed on the Motor Vehicle Addendum by furnishing DEALER a superseding Motor
Vehicle Addendum. Such a superseding Motor Vehicle Addendum will not be deemed
or construed or to be an amendment to this Agreement.
2. DEALER'S MANAGEMENT.
CC has entered into this Agreement relying on the active, substantial
and continuing personal participation in the management of DEALER's organization
by:
NAME POSITION
Xxxx X. Xxxxx, III General Manager
Xxxxx Xxxxx Xxxxx C.E.O.
DEALER represents and warrants that at least one of the above-named
individuals will be physically present at the DEALER's facility (sometimes
referred to as "Dealership Facilities") during most of its operating hours and
will manage all of DEALER's business relating to the sale and service of CC
products. DEALER shall not change the personnel holding the above described
position(s) or the nature and extent of his/her/their management participation
without the prior written approval of CC.
3. DEALER'S CAPITAL STOCK OR PARTNERSHIP INTEREST.
If DEALER is a corporation or partnership, DEALER represents and agrees
that the persons named below own beneficially the capital stock or partnership
interest of DEALER in the percentages indicated below. DEALER warrants there
will be no change affecting more than 50% of the ownership interest of DEALER,
nor will there be any other change in the ownership interest of DEALER which may
affect the managerial control of DEALER without CC's prior written approval.
Voting Non-Voting Partnership Active
Name Stock Stock Interest Yes/No
Sonic Automotive, Inc. 100.00% % % No
------------------------- ----------- -------------- --------------- -------
------------------------- -----------% --------------% ---------------% -------
------------------------- -----------% --------------% ---------------% -------
------------------------- -----------% --------------% ---------------% -------
------------------------- -----------% --------------% ---------------% -------
Total 100.00% % %
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4. SALES LOCALITY.
DEALER shall have the non-exclusive right, subject to the provisions of
this Agreement, to purchase from CC those new specified CC vehicles, vehicle
parts, accessories and other CC products for resale at the DEALER's facilities
and location described in the Dealership Facilities and Location Addendum,
attached hereto and incorporated herein by reference. DEALER will actively and
effectively sell and promote the retail sale of CC vehicles, vehicle parts and
accessories in DEALER's Sales Locality. As used herein, "Sales Locality" shall
mean the area designated in writing to DEALER by CC from time to time as the
territory of DEALER's responsibility for the sale of CC vehicles, vehicle parts
and accessories, although DEALER is free to sell said products to customers
wherever they may be located. Said Sales Locality may be shared with other CC
dealers of the same line-make as CC determines to be appropriate.
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5. ADDITIONAL TERMS AND PROVISIONS.
The additional terms and provisions set forth in the document entitled
"Chrysler Corporation Sales and Service Agreement Additional Terms and
Provisions" marked "Form 91 (C-P-D)," as may hereafter be amended from time to
time, constitute a part of this Agreement with the same force and effect as if
set forth at length herein, and the term "this Agreement" includes said
additional terms and provisions.
6. FORMER AGREEMENTS, REPRESENTATIONS OR STATEMENTS.
This Chrysler Corporation Dodge Sales and Service Agreement and other
documents (or their successors as specifically provided for herein) which are
specifically incorporated herein by reference constitute the entire agreement
between the parties relating to the purchase by DEALER of those new specified CC
vehicles, parts and accessories from CC for resale; and it cancels and
supersedes all earlier agreements, written or oral, between CC and DEALER
relating to the purchase by DEALER of Dodge vehicles, parts and accessories,
except for (a) amounts owing by CC to DEALER, such as payments for warranty
service performed and incentive programs, or (b) amounts owing or which may be
determined to be owed, as a result of an audit or investigation, by DEALER to CC
due to DEALER's purchase from CC of vehicles, parts, accessories and other goods
or services, or (c) amounts DEALER owes to CC, as a result of other extensions
of credit by CC to DEALER. No representations or statements, other than those
expressly set forth herein or those set forth in the applications for this
Agreement submitted to CC by DEALER or DEALER's representatives, are made or
relied upon by any party hereto in entering into this Agreement.
7. WAIVER AND MODIFICATION.
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 the filling in of blank spaces and lines) will be valid or binding on CC
unless approved in writing by the President or a Vice President or the National
Dealer Placement Manager of Chrysler Corporation.
8. AMENDMENT.
DEALER and CC recognize that this Agreement does not have an expiration
date and will continue in effect unless terminated under the limited
circumstances set forth in Paragraph 28. DEALER and CC further recognize that
the passage of time, changes in the industry, ways of doing business and other
unforeseen circumstances may cause CC to determine that it should amend all
Chrysler Corporation Dodge Sales and Service Agreements. Therefore, CC will have
the right to amend this Agreement to the extent that CC deems advisable,
provided that CC makes the same amendment in Chrysler Corporation Dodge Sales
and Service Agreements generally. Each such amendment will be issued in a notice
sent by certified mail or delivered in person to DEALER and signed by the
President or a Vice President or the National Dealer Placement Manager of
Chrysler Corporation. Thirty-five (35) days after mailing or delivery of
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such notice to DEALER, this Agreement will be deemed amended in the manner and
to the extent set forth in the notice.
9. ARBITRATION.
Any and all disputes arising out of or in connection with the
interpretation, performance or non-performance of this Agreement or any and all
disputes arising out of or in connection with transactions in any way related to
this Agreement (including, but not limited to, the validity, scope and
enforceability of this arbitration provision, or disputes under rights granted
pursuant to the statutes of the state in which DEALER is licensed) shall be
finally and completely resolved by arbitration pursuant to the arbitration laws
of the United States of America as codified in Title 9 of the United States
Code, ss.ss.1-14, under the Rules of Commercial Arbitration of the American
Arbitration Association (hereinafter referred to as the "Rules") by a majority
vote of a panel of three arbitrators. One arbitrator will be selected by DEALER
(DEALER's arbitrator). One arbitrator will be selected by CC (CC's arbitrator).
These arbitrators must be selected by the respective parties within ten (10)
business days after receipt by either DEALER or CC of a written notification
from the other party of a decision to arbitrate a dispute pursuant to this
Agreement. Should either CC or DEALER fail to select an arbitrator within said
ten-day period, the party who so fails to select an arbitrator will have its
arbitrator selected by the American Arbitration Association upon the application
of the other party. The third arbitrator must be an individual who is familiar
with business transactions and be a licensed attorney admitted to the practice
of law within the United States of America, or a judge. The third arbitrator
will be selected by DEALER's and CC's arbitrators. If said arbitrators cannot
agree on a third arbitrator within thirty (30) days from the date of the
appointment of the last selected arbitrator, then either DEALER's or CC's
arbitrator may apply to the American Arbitration Association to appoint said
third arbitrator pursuant to the criteria set forth above. The arbitration panel
shall conduct the proceedings pursuant to the then existing Rules.
Notwithstanding the foregoing, to the extent any provision of the Rules
conflict with any provision of this Paragraph 9, the provisions of this
Paragraph 9 will be controlling.
CC and DEALER agree to facilitate the arbitration by: (a) each party
paying to the American Arbitration Association one-half (1/2) of the required
deposit before the proceedings commence; (b) making available to one another and
to the arbitration panel, for inspection and photocopying all documents, books
and records, if determined by the arbitrator to be relevant to the dispute; (c)
making available to one another and to the arbitration panel personnel directly
or indirectly under their control, for testimony during hearings and prehearing
proceedings if determined by the arbitration panel to be relevant to the
dispute; (d) conducting arbitration hearings to the greatest extent possible on
consecutive business days; and (e) strictly observing the time periods
established by the Rules or by the arbitration panel for the submission of
evidence and of briefs.
Unless otherwise agreed to by CC and DEALER, a stenographic record of
the arbitration shall be made and a transcript thereof shall be ordered for each
party, with each party paying
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one-half (1/2) of the total cost of such recording and transcription. The
stenographer shall be state-certified, if certification is made by the state,
and the party to whom it is most convenient shall be responsible for securing
and notifying such stenographer of the time and place of the arbitration
hearing(s).
If the arbitration provision is invoked when the dispute between the
parties is either the legality of terminating this Agreement or of adding a new
CC dealer of the same line-make or relocating an existing CC dealer of the same
line-make, CC will stay the implementation of the decision to terminate this
Agreement or add such new CC dealer or approve the relocation of an existing CC
dealer of the same line-make until the decision of the arbitrator has been
announced, providing DEALER does not in any way attempt to avoid the obligations
of this Paragraph 9, in which case the decision at issue will be immediately
implemented.
Except as limited hereby, the arbitration panel shall have all powers
of law and equity, which it can lawfully assume, necessary to resolve the issues
in dispute including, without limiting the generality of the foregoing, making
awards of compensatory damages, issuing both prohibitory and mandatory orders in
the nature of injunctions and compelling the production of documents and
witnesses for pre-arbitration discovery and/or presentation at the arbitration
hearing on the merits of the case. The arbitration panel shall not have legal or
equitable authority to issue a mandatory or prohibitory order which: (a) extends
or has effect beyond the subject matter of this Agreement, or (b) will govern
the activities of either party for a period of more than two years; nor shall
the arbitration panel have authority to award punitive, consequential or any
damages whatsoever beyond or in addition to the compensatory damages allowed to
be awarded under this Agreement.
The decision of the arbitration panel shall be in written form and
shall include findings of fact and conclusions of law.
It is the intent and desire of DEALER and CC to hereby and forever
renounce and reject any and all recourse to litigation before any judicial or
administrative forum and to accept the award of the arbitration panel as final
and binding, subject to no judicial or administrative review, except on those
grounds set forth in 9 USC ss.10 and ss.11. Judgment on the award and/or orders
may be entered in any court having jurisdiction over the parties or their
assets. In the final award and/or order, the arbitration panel shall divide all
costs (other than attorney fees, which shall be borne by the party incurring
such fees and other costs specifically provided for herein) incurred in
conducting the arbitration in accordance with what the arbitration panel deems
just and equitable under the circumstances. The fees of DEALER's arbitrator
shall be paid by DEALER. The fees of CC's arbitrator shall be paid by CC.
10. SIGNATURE.
This Agreement becomes valid only when signed by the President or a
Vice President or the National Dealer Placement Manager of Chrysler Corporation
and by a duly authorized
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officer or executive of DEALER if a corporation; or by one of the general
partners of DEALER if a partnership; or by DEALER if an individual.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement which
is finally executed at Auburn Hills, Michigan, in triplicate, on September 29,
1997.
SONIC DODGE, L.L.C.
dba Lake Xxxxxx Xxxxx
By: /s/ O. Xxxxxx Xxxxx
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(Individual Duly Authorized to Sign)
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(Title)
CHRYSLER CORPORATION
By: /s/ V. W. Xxxx
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National Dealer Placement Manager
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(Title)
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