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EXHIBIT 10.16
HUMMER(R) DEALER AGREEMENT Dealer # 825302
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This Agreement is between AM General Sales Corporation ("Company"), and
XXXXXXXXXXX HUMMER INC. ("Dealer"), a [Georgia corporation] [ partnership]
[sole proprietorship] and doing business as XXXXXXXXXXX HUMMER, and located at
0000 Xxxx Xxxxxxx, Xxxxxx, XX. 00000.
SECTION 1: PURPOSE AND OBJECTIVES OF THIS AGREEMENT.
Company sells HUMMER(R) Products to Dealers for resale to Customers in the
retail automotive and light truck marketplace. It is of vital importance to
Company that HUMMER(R) Products are sold and serviced in a manner which promotes
Customer satisfaction and confidence and leads to increased product acceptance.
Accordingly, Company has established a network of authorized HUMMER(R) Dealers,
operating at approved locations and in compliance with certain standards, to
sell and service HUMMER(R) Products. Based upon the representations and promises
of Dealer as set forth in this Dealer Agreement, Company agrees to appoint
Dealer as an authorized HUMMER(R) dealer.
This Dealer Agreement sets forth the rights and responsibilities of Company as
seller and Dealer as buyer of HUMMER(R) Products. Company enters into this
Dealer Agreement in reliance upon Dealer's integrity, ability, expressed
intention to deal fairly with the consuming public and with Company, and
Dealer's promise to adhere to the terms and provisions of this Dealer Agreement.
Likewise, Dealer enters into this Dealer Agreement in reliance upon the
Company's integrity, ability, expressed intention to deal fairly with Dealer and
the consuming public, and promise to adhere to the terms and provisions of this
Dealer Agreement. Company and Dealer will not engage in conduct which may be
detrimental to or adversely reflect upon the reputation of Company, Dealer, or
HUMMER(R) Products in general.
SECTION 2: RIGHTS GRANTED TO DEALER.
Subject to the terms of this Dealer Agreement, Company hereby grants Dealer the
non-exclusive right:
A. To buy from Company and resell to Customers HUMMER(R) Products;
B. To identify itself as an authorized HUMMER(R) Dealer utilizing approved
signs at the location(s) specified in this Dealer Agreement; and,
C. To use the name HUMMER(R) and the HUMMER(R) Marks in the advertising,
promotion, sale, and servicing of HUMMER(R) Products.
Company reserves the unrestricted right to sell HUMMER(R) Products and to grant
the privilege of using the HUMMER(R) name or the HUMMER(R) Marks to other
Dealers or entities, wherever they may be located.
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SECTION 3: RESPONSIBILITIES ACCEPTED BY DEALER.
Dealer accepts its appointment as an authorized HUMMER(R) Dealer and shall:
A. Vigorously and aggressively promote, solicit, and sell HUMMER(R) Products
in the Dealer's Marketing Area in volumes sufficient to comply with
Dealer's Business Plan;
B. Satisfactorily render prompt, workmanlike, courteous, and willing
warranty, policy and retail service on all HUMMER(R) Products, regardless
of where sold and by whom, pursuant to Company's then-current Service
Policies and Procedures Manual;
C. Establish and maintain satisfactory dealership facilities at the
location(s) specified in this Dealer Agreement, which shall contain
sufficient space for the storage, display, sales and service of HUMMER(R)
Products, used HUMMER(R) and non-HUMMER(R) vehicles, customer parking and
waiting, and office functions;
D. Maintain and employ in connection with Dealer's operations sufficient
investment, net working capital, net worth, lines of credit and retail
finance plans as may be required to enable Dealer to fulfill all of the
Dealer's responsibilities under this Dealer Agreement.
SECTION 4: TERM.
This Dealer Agreement is effective as of the date executed by the Company and
shall continue in force until 90 days following the death or incapacity of
Dealer Operator, unless earlier terminated. Upon request, Company may, in its
discretion, defer the effective date of termination for a limited period of
time to enable Dealer to conclude the winding up of the dealership business or
the transfer of its assets or ownership previously approved under Section 22 of
this Dealer Agreement. Any request for deferral must be made at least 30 days
prior to the effective date of termination and no deferral is effective unless
in writing and signed by an authorized Company representative.
SECTION 5: OWNERSHIP OF DEALER.
Company enters into this Dealer Agreement in reliance upon Dealer's
representation that the following person(s), and only the following person(s),
will be the Dealer Owner(s) and that they are committed to the achievement of
the purposes and objectives of this Dealer Agreement:
PERCENT
NAME ADDRESS OWNERSHIP
Xxxxxx X. Xxxxxxxxxxx, Xx. 0000 Xxxx Xxxxxxx 000%
Xxxxxx, XX 00000
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Any change in ownership must be approved by Company as provided in Section 22
of this Dealer Agreement. Any change in ownership not approved by Company is a
material breach of this Dealer Agreement.
SECTION 6: MANAGEMENT OF THE DEALERSHIP.
Company and Dealer agree that the retention of qualified management is
critically important to the successful operation of Dealer's HUMMER(R)
Dealership. Company, therefore, enters into this Dealer Agreement upon Dealer's
representation that XXXXXX X. XXXXXXXXXXX, XX., President, and no other person,
will exercise the function of HUMMER(R) Dealer Operator and is in complete
charge of the Dealer with respect to Dealer's HUMMER(R) Operations. Dealer
further agrees that the Dealer Operator shall devote his or her substantial
efforts to Dealer's HUMMER(R) Operations. Any change in Dealer Operator must be
approved by Company as provided in Section 22 of this Dealer Agreement. Any
change in Dealer Operator that is not approved by Company is a material breach
of this Dealer Agreement.
SECTION 7: APPROVED DEALER LOCATION(S).
Dealer may not sell to Customers outside the United States; otherwise, Dealer
has no restrictions as to the Customers to whom it can sell HUMMER(R) Products.
So that Company may establish and maintain an effective network of authorized
HUMMER(R) Dealers, Company has approved the following facilities as the
exclusive location(s) for Dealer's sale and servicing of HUMMER(R) Products and
display of HUMMER(R) Marks:
0000 XXXX XXXXXXX
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XXXXXX, XX 00000
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Dealer may not, either directly or indirectly, display HUMMER(R) Marks or
establish or conduct any dealership operations of the type contemplated in this
Dealer Agreement, including the display, sale, or servicing of HUMMER(R)
Products, at any location or facility other than those approved in this Dealer
Agreement, or any amendment to this Dealer Agreement. Dealer may not modify or
change the usage or function of nor add any additional franchises to any
facility approved in this Dealer Agreement without Company's prior written
consent, which will not be unreasonably withheld.
SECTION 8: STANDARD TERMS.
All of the terms and provisions of the "HUMMER(R) Dealer Agreement Standard
Terms" are hereby incorporated into this Dealer Agreement by reference.
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SECTION 9: ADDITIONAL PROVISIONS.
In consideration of Company's agreement to appoint Dealer as an authorized
HUMMER(R) Dealer, Dealer further agrees:
[ADDITIONAL PROVISIONS WILL BE SET FORTH ON ADDITIONAL PAGES]
SECTION 10: EXECUTION OF AGREEMENT.
Notwithstanding any other provision herein, this Dealer Agreement shall only be
valid and binding if it is signed:
A. On behalf of Dealer by a duly authorized person;
B. On behalf of Company, solely in connection with its limited
undertaking herein, by the President or a Vice-President of
Company.
Dealer Company
XXXXXXXXXXX HUMMER AM GENERAL SALES CORPORATION
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By: /s/Xxxxxx X. Xxxxxxxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxx
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Its: President Its: Sr. Mgr. Contract Management
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Date: 7/22/92
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HUMMER(R) DEALER AGREEMENT
STANDARD TERMS
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TABLE OF CONTENTS
SECTION 11: DEFINITIONS............................................... 1
SECTION 12: THE SALE OF HUMMER(R) PRODUCTS TO DEALER ................. 2
A. ORDERS ................................................... 2
B. ORDER FULFILLMENT ........................................ 2
C. TRANSFER OF TITLE ........................................ 2
D. DELIVERY ................................................. 2
X. XXXXX OR FAILURE OF DELIVERY ............................. 2
F. DIVERSION CHARGES ........................................ 3
G. DAMAGE CLAIMS AGAINST CARRIERS ........................... 3
H. CHANGES IN SPECIFICATIONS, OPTIONS OR DESIGN ............. 3
I. DISCONTINUANCE OF MANUFACTURE ............................ 3
SECTION 13: SERVICE OF HUMMER(R) PRODUCTS ............................ 3
A. NEW MOTOR VEHICLE PRE-DELIVERY INSPECTION AND
ADJUSTMENTS .............................................. 3
B. WARRANTY REPAIRS AND SPECIAL POLICY ADJUSTMENTS .......... 3
C. CAMPAIGN INSPECTIONS AND CORRECTIONS ..................... 3
D. BODY WORK ................................................ 4
E. OTHER SERVICE ............................................ 4
F. USE OF GENUINE PARTS ..................................... 4
G. USE OF NON-GENUINE PARTS ................................. 4
H. PAYMENT FOR PRE-DELIVERY ADJUSTMENTS, WARRANTY
AND CAMPAIGN WORK ........................................ 4
SECTION 14: PRICES AND TERMS OF SALE ................................. 5
A. MOTOR VEHICLES ........................................... 5
B. PARTS AND ACCESSORIES .................................... 5
SECTION 15: WARRANTIES ON HUMMER(R) PRODUCTS ......................... 5
SECTION 16: SALES TO OTHERS AND PURCHASES FROM OTHERS ................ 6
SECTION 17: BUSINESS PLANNING ........................................ 6
A. BUSINESS PLAN ............................................ 6
B. ANNUAL PLAN REVIEW ....................................... 6
C. ANNUAL PERFORMANCE REVIEW ................................ 7
D. FACILITIES REVIEW ........................................ 7
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SECTION 18: BUSINESS OPERATIONS ....................................................................................7
A. TOOLS .......................................................................................................7
B. HOURS OF OPERATION ..........................................................................................7
C. SIGNS .......................................................................................................7
D. PERSONNEL....................................................................................................7
E. CUSTOMER EDUCATION ..........................................................................................7
F. REPORTS......................................................................................................7
G. DEALER'S STOCKS .............................................................................................8
H. DEMONSTRATORS ...............................................................................................8
I. CUSTOMER SATISFACTION .......................................................................................8
J. TRADE PRACTICES AND ADVERTISING .............................................................................8
K. COMPLIANCE WITH APPLICABLE LAWS .............................................................................8
L. CUSTOMER DEPOSITS ...........................................................................................8
M. SUGGESTED PRICE LABELS ......................................................................................8
SECTION 19: SYSTEMS ................................................................................................9
A. SALES AND SERVICE SYSTEMS....................................................................................9
B. DEALER COMMUNICATION SYSTEM .................................................................................9
C. ADDITIONAL SYSTEMS ..........................................................................................9
SECTION 20: RECORDKEEPING, AUDITS, INSPECTIONS AND TESTS............................................................9
A. RECORDS .....................................................................................................9
B. INSPECTIONS AND TESTS .......................................................................................9
C. AUDITS ......................................................................................................9
SECTION 21: INDEMNIFICATION........................................................................................10
A. BY COMPANY .................................................................................................10
B. CLAIMS .....................................................................................................10
C. COOPERATION AND CHOICE OF COUNSEL ..........................................................................11
SECTION 22: CHANGE IN MANAGEMENT OR OWNERSHIP......................................................................11
A. CHANGE IN MANAGEMENT .......................................................................................11
B. NOMINAL CHANGE IN OWNERSHIP ................................................................................11
C. MINORITY CHANGE IN OWNERSHIP................................................................................11
D. MAJORITY CHANGE IN OWNERSHIP OR CONTROL ....................................................................12
E. NON-ASSIGNABILITY OF DEALER AGREEMENT ......................................................................12
F. RIGHT OF FIRST REFUSAL OR OPTION TO PURCHASE ...............................................................12
G. EXERCISE OF RIGHT ..........................................................................................12
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SECTION 23: SUCCESSION RIGHTS UPON DEATH OR INCAPACITY.........................................13
A. SUCCESSOR ADDENDUM .....................................................................13
B. RIGHTS OF REMAINING OWNERS .............................................................13
C. LIMITATION ON OFFERS ...................................................................13
D. CANCELLATION OF SUCCESSOR ADDENDUM .....................................................13
SECTION 24: TERMINATION........................................................................13
A. BY DEALER ..............................................................................13
B. FAILURE TO BE LICENSED .................................................................13
C. MISREPRESENTATION.......................................................................14
D. FAILURE TO CONDUCT OPERATIONS ..........................................................14
E. DISQUALIFICATION OR CHANGE OF DEALER OPERATOR OR OWNER..................................14
F. CONVICTION OF CRIME ....................................................................14
G. FAILURE OF PERFORMANCE .................................................................14
H. RELIANCE ON ANY APPLICABLE TERMINATION PROVISION .......................................14
SECTION 25: TRANSACTIONS AFTER TERMINATION.....................................................15
A. ORDERS .................................................................................15
B. DELIVERIES..............................................................................15
C. EFFECT OF TRANSACTIONS AFTER TERMINATION ...............................................15
SECTION 26: TERMINATION ASSISTANCE.............................................................15
A. REACQUISITION OF HUMMER(R) PRODUCTS ....................................................15
1. MOTOR VEHICLES .................................................................15
2. PARTS AND ACCESSORIES ..........................................................15
3. TOOLS ..........................................................................15
B. REACQUISITION PRICES ...................................................................16
1. MOTOR VEHICLES .................................................................16
2. PARTS AND ACCESSORIES ..........................................................16
3. TOOLS ..........................................................................16
C. ELECTION OF BENEFITS AND GENERAL RELEASE ...............................................16
SECTION 27: DEALER APPEAL BOARD ...............................................................16
SECTION 28: TRADEMARKS AND SERVICE MARKS.......................................................17
A. OWNERSHIP...............................................................................17
B. USE ....................................................................................17
C. LITIGATION..............................................................................17
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SECTION 29: GENERAL PROVISIONS...........................................................................17
A. NO AGENT OR LEGAL REPRESENTATIVE STATUS ..........................................................17
B. DEALER'S RESPONSIBILITY FOR ITS OPERATIONS .......................................................17
C. TAXES ............................................................................................17
D. NO IMPLIED WAIVERS ...............................................................................17
E. ASSIGNMENT OF RIGHTS OR DELEGATION OF DUTIES .....................................................17
F. ACCOUNTS PAYABLE .................................................................................18
G. REVIEW AND MODIFICATIONS OF DEALER AGREEMENT TERMS ...............................................18
H. APPLICABLE LAW ...................................................................................18
I. NOTICES ..........................................................................................18
J. SEPARABILITY OR TERMINATION ......................................................................18
K. SOLE AGREEMENT OF PARTIES ........................................................................18
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SECTION 11: DEFINITIONS
As used in this Dealer Agreement, the following terms, when capitalized, shall
have the following meanings:
A. Business Plan - Dealer's detailed plan which describes how Dealer will
develop its Marketing Area and fulfill its sales and service
commitments pursuant to the Dealer Agreement.
B. Company - AM General Sales Corporation, distributor of HUMMER(R)
vehicles, parts and accessories.
C. Customers - Prospective or actual purchasers of HUMMER(R) Products,
other than Dealers.
D. Dealer - The corporation, partnership or proprietorship that signs the
Dealer Agreement.
E. Dealer Agreement - The Dealer Agreement that is executed including
other related Addenda, the Terms of Sales Bulletins and the Service
Policies and Procedures Manuals.
F. Dealer Operator - Principal manager of the Dealership upon whose
personal qualifications, skill, and commitment Company relies in
entering into this Dealer Agreement.
G. Dealer Owner - Owner of five percent or more equity ownership or
beneficial interest of Dealer.
H. Dealer Premises - Approved facilities provided by Dealer for
dealership operations.
I. Dealer Selection Criteria - The qualifications and standards which
prospective Dealer Operators and Dealer Owners must satisfy to be
approved by Company.
J. Dealer Selection Process - The process which an applicant must
successfully complete prior to becoming a Dealer or Dealer Operator.
This process includes: the application, questionnaires, assessment at
the applicant's place of business, an orientation and interview,
agreement upon a Business Plan and payment of a marketing/launch fee.
K. HUMMER(R) Products - Motor Vehicles, Parts and Accessories.
L. Marketing Area - The geographic area assigned to Dealer by Company and
identified in a Notice of Dealer's Marketing Area. The scope of the
Marketing Area will be reviewed and may be adjusted on a yearly basis
as part of the business planning process.
M. HUMMER(R) Marks - The various trademarks, service marks, names and
designs used by Company, and its affiliates, in connection with
HUMMER(R) Products.
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N. Motor Vehicles - All current model types or series of new HUMMER(R)
motor vehicles and all past HUMMER(R) motor vehicles marketed through
Dealers.
O. Parts and Accessories - New or remanufactured parts and accessories
marketed or approved by Company and listed in current Dealer Parts
Manuals and Bulletins.
SECTION 12: THE SALE OF HUMMER(R) PRODUCTS TO DEALER.
A. ORDERS - Dealer shall submit to Company on the dates and in the manner
specified by Company, (1) orders for the quantities and models of
HUMMER(R) Motor Vehicles that Dealer will purchase during such
succeeding month(s) as Company may designate from time to time, (2)
estimates of the Dealer's requirements of HUMMER(R) Motor Vehicles for
such further succeeding month(s) as Company may from time to time
request, and (3) orders for Dealer's requirements for HUMMER(R) Parts
and Accessories. All orders placed by Dealer are subject to acceptance
by Company, which acceptance may be in whole or in part. Company is
not obligated to accept any order from Dealer for any reason,
including, but not limited to the default of Dealer on any obligation
to Company.
B. ORDER FULFILLMENT - Company will provide HUMMER(R) Products to Dealer
in such quantities and types as may be ordered by Dealer, subject to
(1) available supply from the manufacturing facilities, (2) Company's
marketing requirements and (3) any change or discontinuance with
respect to any particular HUMMER(R) PRODUCT. If, at any time, Company
determines that the demand for certain HUMMER(R) Products exceeds the
supply, then Company has the right to allocate the supply in a fair
and equitable manner, which Company shall determine in its sole
discretion. Company will provide Dealer with an explanation of its
allocation system.
C. TRANSFER OF TITLE - Title to all HUMMER(R) Products sold by Company to
Dealer will pass to Dealer (or any other entity designated in writing
by Dealer), and payment shall be due, upon delivery to the carrier or
to Dealer, whichever occurs first, but Company shall retain a security
interest in and the right to repossess any HUMMER(R) Product for which
it has not received payment.
D. DELIVERY - Company shall select the distribution points and the mode
of transportation for delivery of HUMMER(R) Products to Dealer. Dealer
shall reimburse Company for Destination Freight Charges or some
functional equivalent as Company may in its discretion establish.
X. XXXXX OR FAILURE OF DELIVERY - Company shall not be liable for delay
or failure to deliver HUMMER(R) Products if the delay or failure to
deliver is the result of any event beyond Company's control, including
but not limited to any law or regulation of any governmental entity,
acts of God, foreign or civil wars, riots, interruptions of
transportation, fires, floods, storms, strikes, lockouts, or other
labor troubles, embargoes, blockades, or delay or failure of Company's
suppliers to deliver necessary components of HUMMER(R) Products.
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F. DIVERSION CHARGES - If Dealer requests diversion of any HUMMER(R)
Products shipped to Dealer, or if Company is required to divert any
HUMMER(R) Product which Dealer has ordered and not canceled prior to
shipment by Company, because of Dealer's failure or refusal to accept
such product, Dealer will reimburse Company for any charges incurred
as a result of the diversion. Dealer's liability for diversion charges
shall not exceed the charge of returning the product to Company's
original shipment point, plus all demurrage, storage or other charges
related to the diversion. Dealer also is liable for and shall pay all
charges accruing after arrival of the shipment at the distribution
point established by Company.
G. DAMAGE CLAIMS AGAINST CARRIERS - Upon Dealer's request, Company will
provide reasonable assistance to Dealer in its efforts to recover
against any carrier for loss or damage to HUMMER(R) Products.
H. CHANGES IN SPECIFICATIONS, OPTIONS OR DESIGN - Company may, in its
discretion and at any time, change the design or specifications of any
HUMMER(R) Product or the availability of any options on any Motor
Vehicle. Company need not provide change notices or make similar
changes to any product previously purchased by or shipped to Dealer.
No change shall be a model year change unless so specified by Company.
I. DISCONTINUANCE OF MANUFACTURE - Company may discontinue the
distribution of all or part of any HUMMER(R) Product, including any
model, series, or body style of any Motor Vehicle, at any time without
any obligation or liability to Dealer.
SECTION 13: SERVICE OF HUMMER(R) PRODUCTS.
A. NEW MOTOR VEHICLE PRE-DELIVERY INSPECTION AND ADJUSTMENTS - Dealer
will perform pre-delivery inspections and adjustments on each new
HUMMER(R) Motor Vehicle and verify completion according to the
procedures in the Service Policies and Procedures Manual.
B. WARRANTY REPAIRS AND SPECIAL POLICY ADJUSTMENTS - Dealer will perform
required warranty repairs on each qualified HUMMER(R) Motor Vehicle
at the time of pre-delivery service and when requested by an owner,
and specified policy adjustments approved by Company. When the vehicle
is returned to its owner, Dealer will provide the owner with an
explanation and copy of the repair document reflecting all services
performed.
C. CAMPAIGN INSPECTIONS AND CORRECTIONS - Dealer will find and correct
suspected unsatisfactory conditions on HUMMER(R) Products identified
by Company. Dealer will also determine that campaign inspections and
corrections have been made on new and used HUMMER(R) Motor Vehicles in
its inventory prior to sale and follow-up on HUMMER(R) Motor Vehicles
on which campaigns are outstanding.
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13. BODY WORK - Dealer will provide body repair service for HUMMER(R)
Motor Vehicles. Dealer can provide this service through its own body
shop, or if Company agrees that unusual circumstances make it
impractical for Dealer to own and operate its own body shop, by
arrangement with an independent repair establishment approved by
Company.
E. OTHER SERVICE - Dealer shall vigorously and aggressively develop and
solicit business for the repair and service of HUMMER(R) and
non-HUMMER(R) motor vehicles at Dealer's Premises.
F. USE OF GENUINE PARTS - Dealer will use only genuine HUMMER(R) or
Company approved parts in performing pre-delivery adjustments
(including transport damage), warranty repairs, special policy
adjustments, campaign corrections or any other service for which
Dealer expects reimbursement from Company and Dealer will purchase all
such parts from Company unless another source is approved by Company
in writing.
G. USE OF NON-GENUINE PARTS - Owners and users of HUMMER(R) Motor
Vehicles reasonably expect that the vehicles sold by Dealer and the
parts and accessories sold or used by Dealer in servicing Motor
Vehicles are marketed by Company. If in the performance of service
work other than work to be paid for by Company, Dealer sells or uses
parts and accessories not marketed by Company, it will give Customers
written notice, prior to the sale or service, that the parts and
accessories are not marketed or warranted by Company. Dealer also will
not represent that vehicle modifications not specifically authorized
by Company are warranted or approved by Company.
H. PAYMENT FOR PRE-DELIVERY ADJUSTMENTS, WARRANTY AND CAMPAIGN WORK -
Company will reimburse Dealer at a reasonable rate for parts and labor
used in the performance of services, pre-delivery adjustments
(including transport damage), warranty repairs, special policy
adjustments, and campaign inspections and corrections in accordance
with the policies set forth in the Service Policies and Procedures
Manual. Dealer will not seek to be reimbursed at a rate for labor or
parts that exceeds the rates generally charged by other automotive and
light duty truck dealers in Dealer's Marketing Area. Dealer will not
seek to be reimbursed for time spent in performing services,
pre-delivery adjustments (including transport damage), warranty
repairs, special policy adjustments and campaign inspections and
corrections in amounts that exceed those shown in Company's Service
Labor Time Standards Manual, except to the extent Dealer can establish
that the time shown in the Manual for which it seeks reimbursement is
unreasonable. Dealer will not charge Customers for pre-delivery
adjustments (including transport damage), warranty repairs, special
policy adjustments and campaign inspections and corrections except
where a deductible or pro-rata charge applies. Company reserves the
right to require Dealer to return to Company any or all parts for
which Dealer receives reimbursement from Company.
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SECTION 14: PRICES AND TERMS OF SALE.
A. MOTOR VEHICLES - From time to time Company will furnish to Dealer a
Dealer Price List and Vehicle Terms of Sale Bulletin setting forth the
then current prices, destination charges and other terms of sale
applicable to purchases of new HUMMER(R) Motor Vehicles. Company may
issue a revised Dealer Price List or Vehicle Terms of Sale Bulletin at
any time. Any increase in the price charged to Dealer for HUMMER(R)
Motor Vehicles or optional equipment during a model year will not
apply to bona fide sold orders submitted prior to the effective date
of the price increase except to the extent the orders submitted by
Dealer following notice of the price increase but prior to its
effective date exceed the number of orders submitted by Dealer in the
ninety (90) day period preceding notice of the price increase. Company
will provide Dealer with written notice of any price increase before
any Motor Vehicle to which the increase applies is shipped except for
initial prices for a new model year or for any new model or body type.
Any other change reflected in a revised Vehicle Terms of Sale Bulletin
will apply to Motor Vehicles not shipped at the time the changes
become effective.
B. PARTS AND ACCESSORIES - From time to time Company will furnish to
Dealer a Parts and Accessories Terms of Sale Bulletin setting forth
the then current prices and other terms of sale applicable to
HUMMER(R) Parts and Accessories. Company may issue a revised Parts and
Accessories Terms of Sale Bulletin at any time. Any changes reflected
in the revised Bulletin will apply to all Parts and Accessories not
shipped at the time the changes become effective.
SECTION 15: WARRANTIES ON HUMMER(R) PRODUCTS.
Company warrants the HUMMER(R) Products it produces as set forth in the
documents provided with the HUMMER(R) Products or as explained in the HUMMER(R)
Manuals. Except as otherwise provided by law, the written HUMMER(R) warranties
are the only warranties applicable to HUMMER(R) Products.
WITH RESPECT TO DEALERS, THE WRITTEN HUMMER(R) WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES OR LIABILITIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY LIABILITY
FOR COMMERCIAL LOSSES BASED UPON NEGLIGENCE OR MANUFACTURER'S STRICT LIABILITY.
Company neither assumes nor authorizes anyone to assume for it any other
obligation or liability in connection with HUMMER(R) Products, and Company's
maximum liability for breach of warranty is to repair or replace the affected
product. Company does not warrant any motor vehicle, option, part or accessory
acquired from any source other than Company. Dealer shall expressly incorporate
into all sales contracts for HUMMER(R) Products the applicable Company
warranties and provide a copy of all warranties to the purchaser.
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SECTION 16: SALES TO OTHERS AND PURCHASES FROM OTHERS.
Dealer may purchase products from third parties without liability of any kind to
Company except as provided in this Dealer Agreement. Company may sell HUMMER(R)
Products to third parties (including without limitation to other Dealers)
without liability of any kind to Dealer. Company may appoint other or additional
HUMMER(R) Dealers near Dealer's Marketing Area when Company has determined that
new or additional Dealer(s) are warranted based upon reasonable criteria
established by Company.
SECTION 17: BUSINESS PLANNING.
A. BUSINESS PLAN - Dealer and Company have discussed and agreed on
Dealer's Business Plan which describes how Dealer will develop its
Marketing Area and otherwise fulfill its sales and service commitments
pursuant to this Dealer Agreement. Dealer will develop its assigned
Marketing Area according to its Business Plan.
B. ANNUAL PLAN REVIEW - Dealer will update its Business Plan annually, or
more often if needed, and submit it to Company for joint review.
Updated Business Plans will include any proposed modifications to the
prior year's Business Plan and shall also include:
1. A statement of Dealer's legal and financial structure, including
capitalization, line of credit and equity ownership;
2. A detailed description of the location, type and size of
facilities utilized in the Dealer's operations;
3. A statement of performance standards;
4. A detailed organizational structure and staffing plan;
5. A plan for personnel development;
6. Specific plans for maximizing customer satisfaction, including
hours of operation and customer convenience systems;
7. Advertising, merchandising, and community relations plans; and
8. Other items as agreed to by Company and Dealer.
If Company believes that changes to the Business Plan are necessary, Dealer
will make the changes and resubmit its Business Plan. Failure to submit an
acceptable Business Plan is a breach of this Dealer Agreement and is
grounds for termination. Company will act in good faith in evaluating the
Business Plan.
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C. ANNUAL PERFORMANCE REVIEW - Upon submission of Dealer's updated
Business Plan, Dealer and Company shall jointly review Dealer's
performance. Factors considered in evaluating Dealer's
performance will include its attainment of the prior year's
Business Plan objectives, Dealer's performance trends, Dealer's
financial performance and the manner in which Dealer has
conducted its operations.
D. FACILITIES REVIEW - Company shall conduct periodic facility
evaluations, including an evaluation of Dealer's compliance with
Dealer's Business Plan. Modifications to facility plans will
occur only if Company believes that a material change in
marketing conditions warrants a modification.
SECTION 18: BUSINESS OPERATIONS.
A. TOOLS - Dealer shall acquire from Company the tools, diagnostic
and other equipment necessary to meet the facility, tool and
equipment standards as Company may establish from time to time
for all HUMMER(R) Dealers.
B. HOURS OF OPERATION - Dealer shall be open for business for not
less than the business hours customary in the trade in its
Marketing Area.
C. SIGNS - Dealer shall identify the Dealer Premises as an
authorized sales and service establishment for HUMMER(R) Products
with signs leased from Company pursuant to Company's standard
sign lease program. The lease program may include multiple signs,
but Dealer will obtain the largest single sign allowed by local
ordinance.
D. PERSONNEL - Dealer shall employ and train a sufficient number of
competent personnel of good character, including a Product
Manager and other managers, sales persons, parts personnel and
service technicians, to fulfill all of Dealer's responsibilities
under this Dealer Agreement, and shall cause the personnel to
attend training schools as Company may establish for them from
time to time.
E. CUSTOMER EDUCATION - Dealer shall, in accordance with Company's
instructions, provide to purchasers of HUMMER(R) Products the
appropriate forms, documents, owner's manuals and educational
materials developed by Company to educate and familiarize
Customers and other users of HUMMER(R) Products with the various
features and capabilities of the HUMMER(R) Products.
F. REPORTS - Dealer shall furnish to the Company, at the times, on
the forms and in the manner prescribed by the Company, complete,
accurate and true statements of the financial condition and
operating results of the Dealer's business in HUMMER(R) Products,
and such sales and other reports as the Company from time to time
may require. Company shall treat financial information furnished
by Dealer in a confidential manner and, unless authorized by
Dealer or required by law, or offered in evidence in judicial or
arbitration proceedings, the information shall not be furnished,
except as an unidentified part of a composite or coded report, to
any third party.
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G. DEALER'S STOCKS - Subject to availability, Dealer shall maintain
stocks of HUMMER(R) Products of an assortment and quantity
sufficient to meet Dealer's share of current demand therefore in
the Dealer's Marketing Area and to enable Dealer to meet its
sales and service responsibilities pursuant to this Dealer
Agreement.
H. DEMONSTRATORS - Dealer shall keep available at all times in good
appearance and running order at least one current model year
demonstrator from Dealer inventory.
I. CUSTOMER SATISFACTION - Dealer shall cooperate with Company
programs and develop and maintain its own programs designed to
develop good relationships among Dealer, Company, and the
consuming public. Dealer shall make every effort to handle
satisfactorily all matters brought to its attention relating to
the sale and servicing of HUMMER(R) Products, and shall make
regular contact with owners and users of HUMMER(R) Products in
Dealer's Marketing Area, and shall report promptly to Company the
details of each inquiry or complaint received by Dealer relating
to any HUMMER(R) Product which the Dealer cannot handle
satisfactorily.
J. TRADE PRACTICES AND ADVERTISING - Dealer shall at all times
conduct business in a manner that will reflect favorably on the
good name of Company, HUMMER(R) Products, other HUMMER(R)
Dealers, and Dealer. Dealer shall not engage in any "bait and
switch," deceptive, misleading, confusing, or illegal advertising
or business practices. Dealer shall not display, offer for sale,
or promote as a HUMMER(R) Product any product which is not a
HUMMER(R) Product. Dealer shall not make any false or misleading
statement or representation to a Customer as to any HUMMER(R)
Product or any other item of purchase, or the source, condition,
warranty capabilities thereof, prices or charges therefore, or
the charges made by Company for distribution, delivery, taxes or
other items.
K. COMPLIANCE WITH APPLICABLE LAWS - Dealer shall comply with all
applicable federal, state and local laws, rules and regulations,
including without limitation those related to motor vehicle
safety, environmental concerns and customer service. Company
shall provide Dealer and Dealer shall provide Company with any
reasonably requested information or assistance necessary to
enable the other to comply with any federal, state or local laws,
rules or regulations.
L. CUSTOMER DEPOSITS - Dealer shall use all reasonable efforts to
safeguard each deposit of cash or property (and any proceeds
therefrom) received from a Customer in anticipation of a future
delivery of any HUMMER(R) Product.
M. SUGGESTED PRICE LABELS - If any HUMMER(R) Motor Vehicle required
to bear a label pursuant to the Federal Automobile Information
Disclosure Act is ever delivered by Company to Dealer with an
incorrect label, or without a completed label, as required by the
Act, Dealer shall promptly complete and affix to such vehicle a
label on the form and per directions furnished by the Company.
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SECTION 19: SYSTEMS.
A. SALES AND SERVICE SYSTEMS - Dealer will purchase, implement and
maintain the Company designated materials and programs to promote
the proper, consistent and competitive display, sales and service
of HUMMER(R) Products. Dealer can obtain the foregoing materials
from Company or a Company approved third-party supplier.
Periodically, Company may determine that new or updated
materials, information or programs are necessary. Dealer will
purchase, implement and maintain any new or updated materials as
they become available.
B. DEALER COMMUNICATION SYSTEM - Dealer will acquire from Company a
communications system which permits direct communication between
Dealer, other HUMMER(R) Dealers and Company, and which gives
Company ready access to Dealer's accounts and records. To
maintain the necessary integration among Company and its Dealers,
Dealer will update its communications system as required by
Company from time to time. Dealer will pay to Company a monthly
maintenance fee for the communications system and will provide
and pay the cost for one local phone line for the system's use.
C. ADDITIONAL SYSTEMS - Dealer can use additional systems that are
compatible with Company's systems, but will discontinue use of
systems that Company deems incompatible.
SECTION 20: RECORDKEEPING, AUDITS, INSPECTIONS AND TESTS.
A. RECORDS - Dealer shall maintain accurate and complete records of
its HUMMER(R) business operations in conformance with prudent
business practices.
B. INSPECTIONS AND TESTS - At reasonable times and intervals, Dealer
shall allow Company designated persons to examine Dealer's
facilities, stocks of HUMMER(R) Products, used vehicles and
vehicles in for service, to test Dealer's equipment and to
examine, copy and audit any or all of Dealer's records and
documents relating in any way to Dealer's HUMMER(R) business
operations. Dealer shall maintain all HUMMER(R) business records
and documents for two years from the date of creation or, for
documents relating to any claims made upon or paid by Company,
for two years from the date of payment, or for such longer period
as may be required by law.
C. AUDITS - Company may, upon reasonable notice and at reasonable
times, audit Dealer's records, including all records relating to
claims made upon or paid by Company. Company may audit records
relating to claims made upon or paid by Company at any time
within two years of the date the claim is paid. Company has the
right to charge back to Dealer any claim found to have been paid
in error by Company or any other claim paid on the basis of
false, fraudulent or incomplete information.
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SECTION 21: INDEMNIFICATION.
A. BY COMPANY - Company shall defend, indemnify, hold harmless and
protect Dealer from any losses, damages or expense, including costs
and attorney's fees, resulting from or related to lawsuits, complaints
or claims commenced against Dealer by third parties concerning:
1. Property damage to a HUMMER(R) Product or bodily injury or
property damage arising out of an occurrence caused solely by a
"production defect" in that product (i.e., due to defective
materials or workmanship utilized or performed at the factory),
except for any "production defect" in tires not manufactured by
Company or AM General Corporation; provided that the production
defect could not have been discovered by the Dealer in the
reasonable pre-delivery inspection of the HUMMER(R) Product as
recommended by Company.
2. Property damage to a HUMMER(R) Product or bodily injury or
property damage arising out of an occurrence caused solely by a
defect in design of that product, except for a defect in the
design of tires not manufactured by Company or AM General
Corporation.
3. Any damage occurring to a new HUMMER(R) Motor Vehicle and
repaired by Company or AM General Corporation (excluding removal
and replacement of an entire component with a like component
where no welding, riveting or painting is involved) from the time
the HUMMER(R) Motor Vehicle leaves the assembly plant or
warehouse to the time it is delivered to the designated location,
provided Company failed to notify Dealer in writing of the damage
and repair in transit prior to delivery of the HUMMER(R) Motor
Vehicle to the first retail customer.
4. Personal injury or property damage arising out of a negligent or
improper act by a Company employee.
5. Claims that Dealer's use of the HUMMER(R) Marks is an
infringement of the third-party's intellectual property rights.
B. CLAIMS - Any claim for indemnification must by submitted to Company
within five business days after service of the complaint. Dealer shall
promptly provide Company with copies of all pleadings along with all
information then available regarding the circumstances giving rise to
the underlying claim. All indemnification claims shall be submitted to
Company's general counsel at 000 X. Xxxxx Xxxxxx, Post Office Xxx
0000, Xxxxx Xxxx, Xxxxxxx, 00000-0000, or such other address as
Company may designate.
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C. COOPERATION CHOICE OF COUNSEL - If Dealer requests indemnification
from Company, Company shall have the option, upon notice to Dealer, to
retain counsel and assume full control over the defense of the
lawsuit. Dealer shall cooperate fully in the defense of the lawsuit.
If Dealer does not cooperate in the defense of the lawsuit or
otherwise interferes in Company's control over the defense of the
lawsuit, Company's obligation to indemnify Dealer shall cease.
SECTION 22: CHANGE IN MANAGEMENT OR OWNERSHIP.
A. CHANGE IN MANAGEMENT - Any change in the Dealer Operator identified in
Section 6 of this Dealer Agreement must have Company's prior written
approval. Company will approve a change in Dealer Operator if (1)
Dealer submits copies of all agreements between or among it, the
proposed Dealer Operator and all Dealer Owners, (2) the proposed
Dealer Operator successfully completes the Dealer Selection Process
then used by Company to evaluate proposed new dealer operators, (3)
the proposed Dealer Operator is ready, willing and able to comply with
the requirements of this Dealer Agreement, (4) the proposed Dealer
Operator demonstrates an ability to and agrees to adhere to and
implement the Dealer's Business Plan, (5) the proposed Dealer Operator
satisfies Company's capital requirements, and (6) all outstanding
monetary obligations of Dealer to Company have been paid. At the time
Dealer applies for a change in Dealer Operator, Dealer will pay
Company a non-refundable fee to defray costs associated with review of
the proposal. Company has no obligation to consider the proposal until
it has received this non-refundable payment.
B. NOMINAL CHANGE IN OWNERSHIP - Company hereby consents to any change in
ownership of Dealer in which an existing Dealer Owner transfers to
another Dealer Owner or a third party any equity ownership or
beneficial interest in Dealer provided that the transfer does not
cause the transferee to own or control fifteen percent (15%) or more
of the equity ownership, beneficial interest or voting control of
Dealer and provided that Dealer gives Company notice of the change
within 30 days of the transfer.
C. MINORITY CHANGE IN OWNERSHIP - Any change in the ownership of Dealer
that first results in the transferee owning or controlling fifteen
percent (15%) or more of the equity ownership, beneficial interest or
voting control of Dealer, but less than a majority interest or voting
control must have prior written approval by Company. Company will
approve a minority change in Dealer ownership if (1) Dealer submits
copies of all agreements between or among it, and all Dealer Owners,
(2) any new Dealer Owner satisfies the applicable Dealer Selection
Criteria, (3) the change does not adversely affect Dealer's capital
structure, (4) the change does not adversely affect Dealer's ability
and commitment to adhere to and implement the Dealer's Business Plan,
(5) the proposed Dealer Operator satisfies Company's capital
requirements, and (6) all outstanding monetary obligations of Dealer
to Company have been paid. At the time Dealer applies for a change in
ownership, Dealer will pay Company a non-refundable fee to defray
costs associated with review of the proposal. Company has no
obligation to consider the proposal until it has received this
non-refundable payment.
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D. MAJORITY CHANGE IN OWNERSHIP OR CONTROL - Any change in the majority
ownership or control of Dealer must have Company's prior written
approval which Company will not unreasonably withhold. At the time
Dealer applies for a change in majority ownership, Dealer will pay
Company a non-refundable fee to defray costs associated with review of
the proposal and submit copies of all agreements between or among it,
the proposed new Dealer, the proposed new Dealer Operator, the
proposed Dealer Owners and all Dealer Owners. Company has no
obligation to consider the proposal until it has received the
non-refundable payment and all relevant agreements. Any request for
approval of a change in the majority ownership or control is
considered a request by Dealer to terminate this Dealer Agreement and
a request by the prospective majority owner for the issuance of a new
dealer agreement.
E. NON-ASSIGNABILITY OF DEALER AGREEMENT - Dealer may not transfer or
assign this Dealer Agreement to any third party.
F. RIGHT OF FIRST REFUSAL OR OPTION TO PURCHASE - Dealer hereby grants to
Company the right to acquire all or substantially all of Dealer's
assets used in the operation of its HUMMER(R) dealership. This right
will become effective upon (1) Dealer submitting to Company a proposal
for a change in Dealer Operator or (2) an unauthorized change in
Dealer Operator or (3) Dealer submitting to Company a proposal for
change in majority ownership or control or (4) an unauthorized change
in ownership or (5) any attempt by Dealer to transfer or assign this
Dealer Agreement or (6) Dealer's agreement to transfer all or
substantially all of the assets used in its HUMMER(R) operations or
(7) the issuance of either party to this Dealer Agreement of a
termination notice pursuant to Section 24. Company may transfer or
assign its rights pursuant to this Section 22.F to any party, provided
that Company guarantees the full payment of the purchase price by the
assignee.
G. EXERCISE OF RIGHT - By written notice to Dealer, Company may, in its
discretion, exercise its right pursuant to Section 22.F at any time
within 60 days after first being given notice by Dealer of an event
listed in Section 22.F. Any change in the terms of a proposal to
change the Dealer Operator or ownership or a proposal to transfer the
dealership assets shall extend the period in which Company may
exercise its right pursuant to Section 22.F until 60 days following
notice to Company of the change. If Dealer has entered into an
agreement to sell all or substantially all of its assets used in
connection with its HUMMER(R) operations, then Company, upon exercise
of its right pursuant to Section 22.F, will acquire the assets that
are the subject of the agreement for substantially the same price and
on substantially the same terms. If Dealer has submitted a proposal
for a change in Dealer Operator, or a majority change in ownership, or
if Dealer has attempted to transfer or assign this Dealer Agreement,
or if an unauthorized change in Dealer Operator or ownership has
occurred, or if a notice of termination has been issued, then Company,
upon exercise of its right pursuant to Section 22.F, will acquire the
principal assets used by Dealer in its HUMMER(R) operations, as
determined by Company, at their fair market value, as determined by an
independent appraiser selected and paid for by Company.
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SECTION 23: SUCCESSION RIGHTS UPON DEATH OR INCAPACITY.
A. SUCCESSOR ADDENDUM - Dealer can apply for a Successor Addendum
designating a proposed Dealer Operator or Owners of a successor Dealer
to be established if this Dealer Agreement terminates because of death
or incapacity. Company will execute the Successor Addendum if (1) the
proposed Dealer Operator successfully completes the Dealer Selection
Process then used by Company to evaluate proposed new dealer
operators, (2) any proposed Dealer Owners satisfy applicable Dealer
Selection Criteria, (3) the proposed successor Dealer and the proposed
Dealer Operator are ready, willing and able to comply with the
requirements of a new Dealer Agreement and agree to adhere to and
implement the Dealer's Business Plan and (5) all outstanding monetary
obligations of Dealer to Company have been paid. The proposed Dealer
Operator or owners will not be required to meet the usual capital
requirements nor demonstrate an ability to implement Dealer's Business
Plan until the Successor Addendum is implemented. At the time of
application, Dealer will pay Company a non-refundable fee to defray
costs associated with review of the proposal.
B. RIGHTS OF REMAINING OWNERS - If this Dealer Agreement terminates
because of the Dealer Operator's death or incapacity, and Dealer and
Company have not executed a Successor Addendum, the remaining Dealer
OWNERS may propose a successor Dealer to obtain a new Dealer
Agreement. The proposal must be made in writing to Company at least 30
days prior to the termination of this Dealer Agreement. At the time of
application, Dealer will pay Company a non-refundable fee to defray
costs associated with review of the proposal.
C. LIMITATION ON OFFERS - Company's offer of a Dealer Agreement to a
successor Dealer, Dealer Operator or Owner will automatically expire
if not accepted within 60 days after the offer is made.
D. CANCELLATION OF SUCCESSOR ADDENDUM - Dealer may cancel an executed
Successor Addendum at any time prior to the death or incapacity of the
Dealer Operator. Company may cancel an executed Successor Addendum
only if the proposed Dealer Operator or proposed Owner(s) no longer
meets the Dealer Selection Criteria applicable to each.
SECTION 24: TERMINATION.
A. BY DEALER - Dealer may terminate this Dealer Agreement by written
notice to Company. Termination will be effective 60 days after
Company's receipt of the notice, unless otherwise agreed in writing.
B. FAILURE TO BE LICENSED - If Company or Dealer fails to secure or
maintain any license required for the performance of obligations under
this Dealer Agreement or the license is suspended or revoked, either
party may immediately terminate this Dealer Agreement by written
notice to the other party.
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C. MISREPRESENTATION - Company may terminate this Dealer Agreement upon
seven days notice if Dealer, any Dealer Owner or Dealer Operator
submits any false information to or makes any misrepresentations to
Company, including, without limitation, the submission of any false
information in connection with a claim made to or upon Company,
whether or not Dealer offers or makes or Company seeks or obtains
restitution of any payments made to Dealer on the basis of the false
information.
D. FAILURE TO CONDUCT OPERATIONS - Company may terminate this Dealer
Agreement upon 15 days notice if Dealer fails to conduct customary
business operations for seven consecutive days and fails to reopen for
continuous operations during the notice period or if Dealer files a
voluntary petition under any bankruptcy or receivership law, is
declared bankrupt, insolvent or otherwise demonstrates an inability to
meet its financial obligations as they mature or if a court appoints a
temporary or permanent receiver, trustee or custodian for the Dealer
or its assets.
E. DISQUALIFICATION OR CHANGE OF DEALER OPERATOR OR OWNER - Company may
terminate this Dealer Agreement upon 30 days notice if Dealer Operator
or any Dealer Owner fails to continue to meet the Dealer Selection
Criteria applicable to each; or Dealer Operator is changed or
withdraws without Company's prior written approval; or if a minority
or majority change in ownership or control occurs without Company's
prior written approval; or if Dealer otherwise breaches this Dealer
Agreement, and the basis for termination is not eliminated during the
notice period.
F. CONVICTION OF CRIME - Company may terminate this Dealer Agreement upon
15 days notice if Dealer, Dealer Operator or any Dealer Owner is
convicted of any crime. Dealer must report to Company if Dealer or any
Dealer Owner is convicted of a crime within seven days following the
conviction.
G. FAILURE OF PERFORMANCE - If Dealer fails to perform its obligations
pursuant to its Business Plan, Company will review that failure with
Dealer. If Company determines that corrective action by Dealer is not
forthcoming, it will notify Dealer of the failure in writing and of
the period of time during which Dealer is expected to remedy the
failure. If the failure is not remedied within that period, Company
may terminate this Agreement by giving Dealer 90 days advance written
notice.
H. RELIANCE ON ANY APPLICABLE TERMINATION PROVISION - The terminating
party may select the termination provision under which it elects to
terminate without reference in its termination notice to any other
provision that may also be applicable. The terminating party also may
subsequently assert other grounds for termination.
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SECTION 25: TRANSACTIONS AFTER TERMINATION.
A. ORDERS - If Dealer and Company do not enter into a new Dealer
Agreement when this Dealer Agreement terminates, all unfilled orders
for HUMMER(R) Products will be canceled as of the date of termination,
except as provided in this Section. Termination of this Dealer
Agreement will not release Dealer or Company from the obligation to
pay any amounts owing the other when due.
B. DELIVERIES - If Dealer voluntarily terminates this Dealer Agreement,
or if it terminates because of the Dealer Operator's death or
incapacity, Company will use its best efforts, consistent with
distribution procedures, to furnish Dealer with HUMMER(R) Motor
Vehicles sufficient to fill Dealer's bona fide retail orders on hand
on the effective date of termination, not to exceed, however, the
total number of HUMMER(R) Motor Vehicles invoiced to Dealer for retail
sale during 90 days preceding the effective date of termination.
C. EFFECT OF TRANSACTIONS AFTER TERMINATION - Neither the sale of
HUMMER(R) Products to Dealer nor any other act by Company or Dealer
after termination of this Dealer Agreement will be a waiver of the
termination.
SECTION 26: TERMINATION ASSISTANCE.
A. REACQUISITION OF HUMMER(R) PRODUCTS - Upon termination of this Dealer
Agreement, Dealer may elect to return to Company for credit the
following HUMMER(R) Products:
1. MOTOR VEHICLES - Each unused, undamaged, unsold and salable
current model year Motor Vehicle in stock on the effective date
of termination with less than 50 miles on the odometer, provided
that the vehicle has not been altered outside the factory and
provided further that the vehicle was purchased from Company or
another HUMMER(R) Dealer prior to Dealer receiving its
termination notice.
2. PARTS AND ACCESSORIES - All unused, undamaged, unsold and salable
Parts and Accessories in stock on the effective date of
termination, provided that the Parts and Accessories were
purchased from Company or another HUMMER(R) Dealer within the
twelve month period preceding the effective date of termination.
3. TOOLS - All special tools acquired by Dealer to perform its
obligations pursuant to this Dealer Agreement and which cannot
reasonably be used in connection with the operation of any other
business.
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B. REACQUISITION PRICES - Company shall pay Dealer for all HUMMER(R)
Products reacquired following termination by first applying any
amounts due Dealer as an offset to any amounts owed by Dealer to
Company. Following the settlement of all accounts between the parties,
and upon tender by Dealer to Company of a general release, Company
will remit to Dealer the balance, if any, of any amounts due Dealer
within ninety (90) days. The prices to be paid by Company for the
reacquisition of HUMMER(R) Products following termination are as
follows:
1. MOTOR VEHICLES - The price paid by Dealer, less all rebates,
discounts, allowances and transportation costs from Dealer
Premises to Company's place of manufacture.
2. PARTS AND ACCESSORIES - The current price for the Parts and
Accessories as shown on Company's price list, less a ten percent
(10%) restocking charge.
3. TOOLS - Acquisition price less ten percent (10%) for each year or
partial year of use since the date of acquisition.
C. ELECTION OF BENEFITS AND GENERAL RELEASE - Prior to the effective date
of termination, Company shall provide Dealer with a form pursuant to
which Dealer will elect to accept or reject the termination benefits
offered in this Section. If Dealer fails to return the form within 30
days of receipt, Dealer shall be deemed to have elected to accept the
benefits. Upon Dealer's election to accept the termination benefits
offered in this Section, Company shall be released from any and all
other liability to Dealer with respect to all relationships and
actions between Company and Dealer, however claimed to arise, except
for any liabilities Company has agreed to assume in a separate
writing.
SECTION 27: DEALER APPEAL BOARD.
In an effort to avoid unnecessary confrontations and adversarial relationships,
Company has established a Dealer Appeal Board. The Board will be comprised of
three members selected by the Company, two of whom will be Company
representatives and the third may be a dealer representative selected by
Company. Any protest, controversy or claim by Dealer with respect to any action
by Company in connection with the parties' obligations under this Dealer
Agreement shall first be submitted to the Dealer Appeal Board for evaluation,
mediation and, to the extent possible, resolution to the satisfaction of both
parties. With respect to a claim arising out of a termination notice, Dealer
must submit any appeal to the Dealer Appeal Board within fifteen (15) days of
receiving the termination notice. With respect to all other claims, Dealer must
submit any appeal to the Dealer Appeal Board within one year of the conduct
which gave rise to the claim. Any Dealer Appeal Board decision shall be binding
on Company, but shall not be binding on Dealer. Appeal to the Dealer Appeal
Board is a condition precedent to Dealer's right to pursue any other remedy
available under this Dealer Agreement, or otherwise available at law or in
equity, including any claim arising under any state or federal statute. All of
Dealer's causes of action at law or in equity and all rights and remedies before
federal, state, or local administrative agencies, departments or boards shall be
forever barred unless commenced or instituted within one year after the date of
the Dealer Appeal Board's decision.
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SECTION 28: TRADEMARKS AND SERVICE MARKS.
A. OWNERSHIP - Dealer acknowledges that Company, or one of its
affiliates, is the exclusive owner of the HUMMER(R) Marks. Dealer will
not contest Company's ownership or right to exclusive use of any
HUMMER(R) Xxxx. Dealer acknowledges that its use of any HUMMER(R)
Marks, either alone or in connection with some other trademark,
service xxxx or trade name, gives it no rights or ownership interest
in the HUMMER(R) Marks.
B. USE - Dealer shall use HUMMER(R) in its trade name only as approved by
Company. Dealer shall discontinue use of HUMMER(R) in its trade name
or any other use of HUMMER(R) Marks as and when requested by Company.
C. LITIGATION - Dealer will report to Company any suspected infringements
of Company's rights with respect to the HUMMER(R) Marks and will
cooperate in any litigation brought by Company to enforce its rights.
Company will reimburse Dealer for all costs, including reasonable
legal fees, incurred by Dealer as the result of such cooperation.
SECTION 29: GENERAL PROVISIONS.
A. NO AGENT OR LEGAL REPRESENTATIVE STATUS - This Dealer Agreement does
not make either party the agent or legal representative of the other
for any purpose, nor does it grant either party authority to assume or
create any obligation on behalf of or in the name of the other. No
fiduciary obligations are created by this Dealer Agreement.
B. DEALER'S RESPONSIBILITY FOR ITS OPERATIONS - Except as provided in
this Dealer Agreement, Dealer is solely responsible for all
expenditures, liabilities and obligations incurred or assumed by
Dealer for the establishment and conduct of its operations.
C. TAXES - Dealer is responsible for all local, state, federal, or other
applicable taxes and tax returns related to its business and will hold
Company harmless from any related claims or demands made by any taxing
authority.
D. NO IMPLIED WAIVERS - The delay or failure of Company or Dealer to
require performance by the other party or the waiver by Company or
Dealer of a breach of any provision of this Dealer Agreement will not
affect the right to subsequently require performance.
E. ASSIGNMENT OF RIGHTS OR DELEGATION OF DUTIES - Company may assign this
Dealer Agreement and any rights or delegate any obligations to any
affiliated or successor company, and will provide Dealer written
notice of the assignment or delegation. Any assignment or delegation
by Company will not relieve Company of liability for the performance
of its obligations.
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F. ACCOUNTS PAYABLE - All monies or accounts due Dealer will be
considered net of Dealer's indebtedness to Company. Company may deduct
any amounts due or to become due from Dealer to Company, or any
amounts held by Company from any sums or accounts due or to become due
from Company to Dealer.
G. REVIEW AND MODIFICATIONS OF DEALER AGREEMENT TERMS - In the event
Company decides to uniformly modify the provisions of all Dealer
Agreements to which it is a party, Dealer will accept termination of
this Dealer Agreement and execute the new Dealer Agreement. The rights
and obligations of Dealer that may otherwise become applicable upon
termination of this Dealer Agreement will not be applicable.
H. APPLICABLE LAW - This Dealer Agreement is governed by and shall be
construed and interpreted according to the laws of the State of
Indiana.
I. NOTICES - Any notices required or permitted to be given by either
Company or Dealer to the other shall be in writing and delivered in
person or by use of First Class Mail, postage prepaid. Notices to
Company shall be addressed to the President or a Vice President of
Company, at 000 X. Xxxxx Xxxxxx, Post Office Xxx 0000, Xxxxx Xxxx,
Xxxxxxx, 00000-0000. Notices to Dealer shall be delivered or mailed to
Dealer at Dealer's principal place of business as identified in the
Dealer Agreement. Notices shall be effective the date of mailing.
J. SEPARABILITY OR TERMINATION - If any provision of this Dealer
Agreement is declared invalid or unenforceable under the law of any
place where it is to be performed, Company may either terminate this
Dealer Agreement in its entirety or continue with the remainder of
this Dealer Agreement in full force and effect as if the invalid or
unenforceable provision had not been included in this Dealer
Agreement.
K. SOLE AGREEMENT OF PARTIES - Except as provided in this Dealer
Agreement, Company has made no promises to Dealer, Dealer Operator or
Dealer Owner and there are no other agreements or understandings,
either oral or written, between the parties affecting this Dealer
Agreement or relating to any of the subject matters covered by this
Dealer Agreement. Except as otherwise provided herein, this Dealer
Agreement cancels and supersedes all previous agreements between the
parties that relate to any matters covered by this Dealer Agreement.
No agreement between Company and Dealer which relates to matters
covered herein, and no change in, addition to (except the filling in
of blank lines), or erasure of any printed portion of this Dealer
Agreement, will be binding unless it is approved in a written
agreement.
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