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EXHIBIT 10.17
TOYOTA DEALER AGREEMENT
This is an Agreement between Gulf States Toyota, Inc. (DISTRIBUTOR), and
Southwest Toyota, Inc. (DEALER), a(n) [ ] individual, [ ] partnership, [x]
corporation. If a corporation, DEALER is duly incorporated in the State of
Texas and doing business as Xxxxxxxx XxXxxx Toyota.
PURPOSES AND OBJECTIVES OF THIS AGREEMENT
DISTRIBUTOR sells Toyota Products which are manufactured or approved
by Toyota Motor Corporation (FACTORY) and imported and/or sold to DISTRIBUTOR
by Toyota Motor Sales, U.S.A., Inc. (IMPORTER). It is of vital importance to
DISTRIBUTOR that Toyota Products are sold and serviced in a manner which
promotes consumer confidence and satisfaction and leads to increased product
acceptance. Accordingly, DISTRIBUTOR has established a network of authorized
Toyota dealers, operating at approved locations and pursuant to certain
standards, to sell and service Toyota Products. DEALER desires to become one
of DISTRIBUTOR's authorized dealers. Based upon the representations and
promises of DEALER, set forth herein, DISTRIBUTOR agrees to appoint DEALER as
an authorized Toyota dealer and welcomes DEALER to DISTRIBUTOR's network of
authorized dealers of Toyota Products.
This Agreement sets forth the rights and responsibilities of DISTRIBUTOR as
seller and DEALER as buyer of Toyota Products. DISTRIBUTOR enters into this
Agreement in reliance upon DEALER's integrity, ability, assurance of personal
services, expressed intention to deal fairly with the consuming public and with
DISTRIBUTOR, and promise to adhere to the terms and conditions herein.
Likewise, DEALER enters into this Agreement in reliance upon DISTRIBUTORS's
promise to adhere to the terms and conditions herein. DISTRIBUTOR and DEALER
shall refrain from conduct which may be detrimental to or adversely reflect
upon the reputation of the FACTORY, IMPORTER, DISTRIBUTOR, DEALER or Toyota
Products in general. The parties acknowledge that the success of the
relationship between DISTRIBUTOR and DEALER depends upon the mutual
understanding and cooperation of both DISTRIBUTOR and DEALER.
Dealer Code 42073
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I. RIGHTS GRANTED TO THE DEALER
Subject to the terms of this Agreement, DISTRIBUTOR hereby grants
DEALER the nonexclusive right:
A. To buy and resell the Toyota Products identified in the Toyota
Product Addendum hereto which may be periodically revised by
IMPORTER;
B. To identify itself as an authorized Toyota dealer utilizing
approved signage at the location(s) approved herein;
C. To use the name Toyota and the Toyota Marks in the
advertising, promotion, sale and servicing of Toyota Products
in the manner herein provided.
DISTRIBUTOR reserves the unrestricted right to sell Toyota Products
and to grant the privilege of using the name Toyota or the Toyota
Marks to other dealers or entities, wherever they may be located.
II. RESPONSIBILITIES ACCEPTED BY THE DEALER
DEALER accepts its appointment as an authorized Toyota dealer and
agrees to:
A. Sell and promote Toyota Products subject to the terms and
conditions of this Agreement;
B. Service Toyota Products subject to the terms and conditions of
this Agreement;
C. Establish and maintain satisfactory dealership facilities at
the location(s) set forth herein; and
D. Make all payments to DISTRIBUTOR when due.
III. TERM OF AGREEMENT
This Agreement is effective this 5th day of April, 1993, and shall
continue for a period of six (6) years, and shall expire on April 4,
1999 unless ended earlier by mutual agreement or terminated as
provided herein. This Agreement may not be continued beyond its
expiration date except by written consent of DISTRIBUTOR and IMPORTER.
IV. OWNERSHIP OF DEALERSHIP
This Agreement is a personal service Agreement and has been entered
into by DISTRIBUTOR in reliance upon and in consideration of DEALER's
representation that only the following named persons are the Owners of
DEALER, that such persons will serve in the capacities indicated, and
that such persons are committed to achieving the purposes, goals and
commitments of this Agreement:
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OWNERS' TITLE PERCENT OF
NAMES OWNERSHIP
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Xxxxxxxx XxXxxx President/General Manager 100%
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V. MANAGEMENT OF DEALERSHIP
DISTRIBUTOR and DEALER agree that the retention of qualified
management is of critical importance to satisfy the commitments made
by DEALER in this Agreement. DISTRIBUTOR, therefore, enters into this
Agreement in reliance upon DEALER's representation that Xxxxxxxx
XxXxxx, and no other person, will exercise the function of General
Manager, be in complete charge of DEALER's operations, and will have
authority to make all decisions on behalf of DEALER with respect to
DEALER's operations. DEALER further agrees that the General Manager
shall devote his or her full efforts to DEALER's operations.
VI. CHANGE IN MANAGEMENT OR OWNERSHIP
This is a personal service contract. DISTRIBUTOR has entered into
this Agreement because DEALER has represented to DISTRIBUTOR that the
Owners and General Manager of DEALER identified herein possess the
personal qualifications, skill and commitment necessary to ensure that
DEALER will promote, sell and service Toyota Products in the most
effective manner, enhance the Toyota image and increase market
acceptance of Toyota Products. Because DISTRIBUTOR has entered into
this Agreement in reliance upon these representations and DEALER's
assurances of the active involvement of such persons in DEALER
operations, any change in ownership, no matter what the share or
relationship between parties, or any changes in General Manager from
the person specified herein, requires the prior written consent of
DISTRIBUTOR, which DISTRIBUTOR shall not unreasonably withhold.
DEALER agrees that factors which would make DISTRIBUTOR's withholding
of consent reasonable would include, without limitation, the failure
of a new Owner or General Manager to meet DISTRIBUTOR'S standards with
regard to financial capability, experience and success in the
automobile dealership business.
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VII. APPROVED DEALER LOCATIONS
In order that DISTRIBUTOR may establish and maintain an effective
network of authorized Toyota dealers, DEALER agrees that it shall
conduct its Toyota operation only and exclusively in facilities and at
locations herein designated and approved by DISTRIBUTOR. DISTRIBUTOR
hereby designates and approves the following facilities as the
exclusive location(s) for the sale and servicing of Toyota Products
and the display of Toyota Marks:
New Vehicle Sales and Showroom Used Vehicle
Display and Sales
0000 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
Sales and General Office Body and Paint
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Parts Service
0000 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
Other Facilities
DEALER may not, either directly or indirectly, display Toyota Marks or
establish or conduct any dealership operations contemplated by this
Agreement, including the display, sale and servicing of Toyota
Products, at any location or facility other than those approved herein
without the prior written consent of DISTRIBUTOR. DEALER may not
modify or change the usage or function of any location or facility
approved herein or otherwise utilize such locations or facilities for
any functions other than the approved function(s) without the prior
written consent of DISTRIBUTOR.
VIII. PRIMARY MARKET AREA
DISTRIBUTOR will assign DEALER a geographic area called a Primary
Market Area ("PMA"). The PMA is used by DISTRIBUTOR to evaluate
DEALER's performance of its obligations, among other things. DEALER
agrees that it has no exclusive right to any such PMA. DISTRIBUTOR
may add new dealers, relocate dealers, or adjust DEALER's PMA as it
reasonably determines is necessary. DEALER's PMA is set forth on the
PMA Addendum hereto.
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Nothing contained in this Agreement, with the exception of Section
XIV(B), shall limit or be construed to limit the geographical area in
which, or the persons to whom, DEALER may sell or promote the sale of
Toyota products.
IX. STANDARD PROVISIONS
The "Toyota Dealer Agreement Standard Provisions" are incorporated
herein and made part of this Agreement as if fully set forth herein.
X. ADDITIONAL PROVISIONS
In consideration of DISTRIBUTOR's agreement to appoint DEALER as an
authorized Toyota dealer, DEALER further agrees:
Dealer Initials:________
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XI. EXECUTION OF AGREEMENT
Notwithstanding any other provision herein, the parties to this
Agreement, DISTRIBUTOR and DEALER, agree that this Agreement shall be
valid and binding only if it is signed:
A. On behalf of DEALER by a duly authorized person;
B. On behalf of DISTRIBUTOR by the President and/or an authorized
General Manager, if any, of DISTRIBUTOR; and
C. On behalf of IMPORTER, solely in connection with its limited
undertaking herein, by President of IMPORTER.
XII. CERTIFICATION
By their signatures hereto, the parties agree that they have read and
understand this Agreement, including the Standard Provisions
incorporated herein, are committed to its purposes and objectives and
agree to abide by all of its terms and conditions.
Southwest Toyota, Inc. d/b/a Xxxxxxxx XxXxxx Toyota DEALER
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(Dealer Entity Name)
Date: By: /s/ Xxxxxxxx X. XxXxxx, Xx.
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Signature Title
Date: By:
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Signature Title
Date: By:
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Signature Title
Gulf States Toyota, Inc. DISTRIBUTOR
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(Distributor Name)
Group Vice President
Date: 2/9/93 By: /s/ X.X. Xxxxxx Sales & Marketing
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Signature X.X. Xxxxxx Title
Date: By:
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Signature Title
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Undertaking by IMPORTER: In the event of termination of this
Agreement by virtue of termination or expiration of DISTRIBUTOR's
contract with IMPORTER, IMPORTER, through its designee, will offer
DEALER a new agreement of no less than one year's duration and
containing the terms of the Toyota Dealer Agreement then prescribed by
IMPORTER.
TOYOTA MOTOR SALES, U.S.A., INC.
Date: APR 5 1993 By: /s/ Xxxxxx Xxxxx President
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Title
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TOYOTA DEALER AGREEMENT
STANDARD PROVISIONS
The following Standard Provisions are expressly incorporated in and made a part
of the Toyota Dealer Agreement.
XIII. ACQUISITION, DELIVERY AND INVENTORY OF TOYOTA PRODUCTS
A. ACQUISITION OF TOYOTA PRODUCTS
DEALER shall have the right to purchase Toyota Products from
DISTRIBUTOR in accordance with the provisions set forth herein
and such other requirements as may be established from time to
time by DISTRIBUTOR.
B. AVAILABILITY AND ALLOCATION OF PRODUCT
DISTRIBUTOR agrees to use its best efforts to provide Toyota
Products to DEALER in such quantities and types as may be
required by DEALER to fulfill its obligations with respect to
the sale and servicing of Toyota Products under this
Agreement, subject to available supply from IMPORTER,
DISTRIBUTOR's requirements, and any change or discontinuance
with respect to any Toyota Product. DISTRIBUTOR will endeavor
to allocate Toyota Products among its dealers in a fair and
equitable manner, which it shall determine in its sole
discretion. DISTRIBUTOR agrees to provide DEALER with an
explanation of the method used to distribute such products
and, upon written request, will advise DEALER of DISTRIBUTOR's
total wholesale sales of new motor vehicles, by series, in
DISTRIBUTOR's area and to DEALER individually, for a
reasonable time frame.
C. PRICES AND TERMS OF SALE
DISTRIBUTOR shall have the right to establish and revise
prices and other terms for the sale of Toyota Products to
DEALER. Ownership and title of Toyota Products sold by
DISTRIBUTOR to DEALER shall pass upon payment therefor by
DEALER to DISTRIBUTOR and DEALER shall have no ownership
interest in such Products until such payment is received.
Risk of loss for Toyota Products sold by DISTRIBUTOR to DEALER
shall pass upon delivery of such Products to DEALER. Revised
prices and terms shall apply to any Toyota Products not
invoiced to DEALER by DISTRIBUTOR at the time the notice of
such change is given to DEALER (in the case of Toyota Motor
Vehicles), or upon issuance of a new or modified Parts Price
List or through change notices, letters, bulletins, or
revision sheets (in the case of parts, options and
accessories), or at such other times as may be designated in
writing by DISTRIBUTOR.
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Payment for all Toyota Products shall be made when billed,
unless other terms are established by DISTRIBUTOR in writing.
D. MODE, PLACE AND CHARGES FOR DELIVERY OF PRODUCTS
DISTRIBUTOR shall designate the distribution points and the
mode of transportation and shall select carrier(s) for the
transportation of Toyota Products to DEALER. DEALER shall pay
DISTRIBUTOR such charges as DISTRIBUTOR in its sole discretion
establishes for such transportation services.
E. INVENTORY DAMAGE CLAIMS AND LIABILITY
DEALER shall promptly notify DISTRIBUTOR of any damage
occurring during transit and shall, if so directed by
DISTRIBUTOR, file claims on DISTRIBUTOR's behalf against
transportation carrier for damage. DEALER agrees to assist
DISTRIBUTOR in obtaining recovery against any transportation
carrier or insurer for loss or damage to Toyota Products
shipped hereunder.
To the extent required by law, DEALER shall notify the
purchaser of a vehicle of any damage sustained by such vehicle
prior to sale. DEALER shall indemnify and hold DISTRIBUTOR
harmless from any liability resulting from DEALER's failure to
so notify such purchasers.
X. XXXXX OR FAILURE OF DELIVERY
DISTRIBUTOR shall not be liable for delay or failure to
deliver Toyota Products which it has previously agreed to
deliver, where such delay or failure to deliver is the result
of any event beyond the control of DISTRIBUTOR, IMPORTER or
FACTORY, including but not limited to fire, floods, storms or
other acts of God, any law or regulation of any governmental
entity, foreign or civil wars, riots, interruptions of
navigation, shipwrecks, strikes, lockouts or other labor
troubles, embargoes, blockades, or delay or failure of FACTORY
to deliver Toyota Products.
G. DIVERSION CHARGES
If after delivery DEALER fails or refuses to accept Toyota
Products that it has agreed to purchase, DEALER shall pay all
charges incurred by DISTRIBUTOR as a result of such refusal.
Such charges shall not exceed the charge of returning any such
product to the point of original shipment by DISTRIBUTOR plus
all charges for demurrage, storage or other charges related to
such refusal.
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DEALER also agrees to assume responsibility for, and shall pay
any and all reasonable charges for, demurrage, storage or
other charges accruing after arrival of shipment at the point
of original shipment.
H. CHANGES OF DESIGN, OPTIONS OR SPECIFICATIONS
DISTRIBUTOR, IMPORTER or FACTORY may change the design or
specifications of any Toyota Product or the options in any
Toyota Product and shall be under no obligation to provide
notice of same or to make any similar change upon any product
previously purchased by or shipped to DEALER. No change shall
be considered a model year change unless so specified by
DISTRIBUTOR.
I. DISCONTINUANCE OF MANUFACTURE OR IMPORTATION
FACTORY, IMPORTER and/or DISTRIBUTOR may discontinue the
manufacture, importation or distribution of all or part of any
Toyota Product, whether motor vehicle, parts, options, or
accessories, including any model, series, or body style of any
Toyota Motor Vehicle at any time without any obligation or
liability to DEALER by reason thereof.
J. MINIMUM VEHICLE INVENTORIES
Subject to the ability of DISTRIBUTOR to supply Toyota Motor
Vehicles to DEALER, DEALER agrees that it shall, at all times,
maintain at least the minimum inventory of Toyota Motor
Vehicles as may be established by DISTRIBUTOR from time to
time. DEALER also agrees that it shall ha~e available at all
times, for purposes of display and demonstration, the number
of Toyota Motor Vehicles of the most current models as may be
established by DISTRIBUTOR from time to time, and shall, at
all times, maintain such Motor Vehicles in showroom ready
condition.
K. PRODUCT MODIFICATIONS
DEALER agrees that it will not make any modifications to
Toyota Products that may impair or adversely affect a
vehicle's safety, emissions or structural integrity.
XIV. DEALER MARKETING OF TOYOTA PRODUCTS
A. DEALER'S SALES RESPONSIBILITIES
DEALER recognizes that customer satisfaction and the
successful promotion and sale of Toyota Products are
significantly dependent on DEALER's advertising and sales
promotion activities. DEALER shall actively and effectively
promote, through DEALER's own advertising and sales promotion
activities, the purchase of Toyota Products by customers.
Therefore, DEALER at all times shall:
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1. Actively and effectively advertise, merchandise,
promote and sell Toyota Products;
2. Maintain an adequate, stable and trained sales
organization, and, to that end, make all reasonable
efforts to ensure that its sales personnel attend all
sales training courses prescribed by DISTRIBUTOR at
DEALER's expense;
3. Maintain high standards of ethics in advertising,
promoting and selling Toyota Products and avoid
engaging in any misrepresentation or unfair or
deceptive practices; and
4. Accurately represent to customers the total selling
price of Toyota Products. DEALER agrees to explain to
customers of Toyota Products the items that make up
the total selling price and to give the customers
itemized statements and all other information
required by law. DEALER understands and hereby
acknowledges that it may sell Toyota Products at
whatever price DEALER desires.
B. EXPORT PROHIBITION
DEALER is authorized to sell Toyota Motor Vehicles only to
customers located in the continental United States. DEALER
agrees that it will not sell Toyota Motor Vehicles for resale
or use outside the continental United States. DEALER agrees
to abide by any export policy established by DISTRIBUTOR.
C. USED VEHICLES
DEALER agrees to display, promote and sell used vehicles at
the Approved Location. DEALER shall maintain for resale an
inventory of used vehicles.
D. ASSISTANCE PROVIDED BY DISTRIBUTOR
1. SALES TRAINING ASSISTANCE
To assist DEALER in the fulfillment of its sales
responsibilities under this Agreement, DISTRIBUTOR
agrees to offer general and specialized sales
management and sales training programs for the
benefit and use of DEALER's sales organization. When
requested by DISTRIBUTOR, DEALER's personnel shall
participate in such programs at DEALER's expense.
2. SALES PROMOTION ASSISTANCE
In order that authorized Toyota dealers may be
assured of the benefits of comprehensive advertising
and promotion of Toyota Products, DISTRIBUTOR agrees
to establish and maintain general advertising and
promotion programs and will from time to time make
sales promotion and
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campaign materials available to DEALER to promote the
sales of such Toyota Products at a reasonable charge
where applicable.
3. FIELD SALES PERSONNEL ASSISTANCE
To assist DEALER in handling its sales
responsibilities under is Agreement, DISTRIBUTOR
agrees to provide trained field sales personnel to
advise and counsel DEALER on sales-related subjects,
including merchandising, training and sales
management.
XV. DEALER SERVICE OBLIGATIONS
A. CUSTOMER SERVICE STANDARDS
DEALER and DISTRIBUTOR agree that the success and future
growth of DISTRIBUTOR and DEALER are substantially dependent
upon the customer's ability to obtain high-quality vehicle
servicing. Therefore, DEALER agrees to:
1. Take all reasonable steps to provide service of the
highest quality for all Toyota Motor Vehicles,
regardless of where purchased and whether or not
under warranty;
2. Ensure that the customer is advised of the necessary
repairs and that his or her consent is obtained prior
to the initiation of any repairs;
3. Ensure that problems on Toyota Motor Vehicles are
accurately diagnosed and repairs are promptly and
professionally performed; and
4. Ensure that the customer is treated courteously and
fairly at all times.
B. NEW MOTOR VEHICLE PRE-DELIVERY SERVICE
DEALER agrees that prior to delivery of a new Toyota Motor
Vehicle to a customer it shall perform, as directed by
DISTRIBUTOR, pre-delivery service on each Toyota Motor Vehicle
in accordance with Toyota standards. DISTRIBUTOR shall pay
DEALER for such pre-delivery service according to such
directives and the applicable provisions of the Toyota
Warranty Policy and Procedures Manual.
C. WARRANTY AND POLICY SERVICE
DEALER acknowledges that the only warranties of DISTRIBUTOR or
FACTORY applicable to Toyota Products shall be the New Vehicle
Limited Warranty or such other written warranties that may be
expressly furnished or sold by DISTRIBUTOR or FACTORY. Except
for its limited liability under such written warranty or
warranties, DISTRIBUTOR and FACTORY do not assume any other
warranty obligation or liability. DEALER is not authorized to
assume any additional warranty
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obligations or liabilities on behalf of DISTRIBUTOR, IMPORTER
or FACTORY. Any such additional obligations assumed by DEALER
shall be the sole responsibility of DEALER. Any extended
service contract sold by IMPORTER, DISTRIBUTOR or
Toyota-affiliated entity shall be governed by its own terms.
DEALER shall perform warranty service specified by DISTRIBUTOR
in accordance with the Toyota Warranty Policy and Procedures
Manual. DISTRIBUTOR agrees to compensate DEALER for all
warranty work, including labor, diagnosis and Genuine Toyota
Parts and Accessories, in accordance with procedures and at
rates to be announced from time to time by DISTRIBUTOR.
Unless otherwise approved in writing in advance by
DISTRIBUTOR, DEALER shall use only Genuine Toyota Parts and
Accessories when performing Toyota warranty repairs. Warranty
service is provided for the benefit of customers and DEALER
agrees that the customer shall not be obligated to pay any
charges for warranty work or any other services for which
DEALER is reimbursed or paid by DISTRIBUTOR.
D. USE OF PARTS AND ACCESSORIES IN NON-WARRANTY SERVICING
Subject to the provisions set forth below, DEALER has the
right to sell, install or use, for making non-warranty
repairs, products that are not Genuine Toyota Parts or
Accessories.
DEALER acknowledges, however, that its customers expect that
any parts or accessories that DEALER sells, installs or uses
in the sale, repair or servicing of Toyota Motor Vehicles are,
or meet the high quality standards of, Genuine Toyota Parts or
Accessories. DEALER agrees that in sales, repairs or
servicing where DEALER does not use Genuine Toyota Parts or
Accessories, DEALER will only utilize such other parts or
accessories that will not adversely affect the mechanical
operation of the Toyota Motor Vehicle being sold, repaired or
serviced, and that are equivalent in quality and design to
Genuine Toyota Parts or Accessories.
E. WARRANTY DISCLOSURES AS TO NON-GENUINE PARTS AND ACCESSORIES
In order to avoid confusion and to minimize potential customer
dissatisfaction, in any instance where DEALER sells, installs
or uses other than Genuine Toyota Parts or Accessories, DEALER
shall disclose such fact to the customer and shall advise the
customer that these items are not included in warranties
furnished by DISTRIBUTOR. Such disclosure shall be written,
conspicuous and stated on the customer's copy of the service
or repair order or sale document. In addition, DEALER will
clearly explain to the customer the extent of any warranty
covering the parts or accessories involved and will deliver a
copy of the Warranty to the customer.
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F. SERVICE CAMPAIGN INSPECTIONS AND CORRECTIONS
DEALER agrees to perform service campaign inspections and/or
corrections for owners or users of all Toyota Products that
qualify for such inspections and/or corrections. DEALER
further agrees to comply with all DISTRIBUTOR's directives and
with the applicable procedures in the Toyota Warranty Policy
and Procedures Manual relating to those inspections and/or
corrections. DISTRIBUTOR agrees to reimburse DEALER for all
replacement parts and/or other materials required and used in
connection with such work and for labor according to such
directives and the applicable provisions of the Toyota
Warranty Policy and Procedures Manual.
G. COMPLIANCE WITH SAFETY AND EMISSION CONTROL REQUIREMENTS
DEALER agrees to comply and operate consistently with all
applicable provisions of the National Traffic and Motor
Vehicle Safety Act of 1966 and the Federal Clean Air Act, as
amended, including applicable rules and regulations issued
from time to time thereunder, and all other applicable
federal, state and local motor vehicle safety and emission
control statutes, rules and regulations.
In the event that the laws of the state in which DEALER is
located require motor vehicle dealers or distributors to
install in new or used motor vehicles, prior to their retail
sale, any safety devices or other equipment not installed or
supplied as standard equipment by FACTORY, then DEALER, prior
to the sale of any Toyota Motor Vehicle on which such
installations are required, shall properly install such
devices or equipment on such Toyota Motor Vehicles.
DISTRIBUTOR agrees to reimburse DEALER for all parts and/or
other materials required and used in connection with such work
and for labor according to the applicable provisions of the
Toyota Warranty Policy and Procedures Manual. DEALER shall
comply with state and local laws pertaining to the
installation and reporting of such equipment.
In the interest of motor vehicle safety and emission control,
DISTRIBUTOR and DEALER agree to provide to each other such
information and assistance as may reasonably be requested by
the other in connection with the performance of obligations
imposed on either party by the National Traffic and Motor
Vehicle Safety Act of 1966 and the Federal Clean Air Act, as
amended, and their rules and regulations, and all other
applicable federal, state and local motor vehicle safety and
emissions control statutes, rules and regulations.
H. COMPLIANCE WITH CONSUMER PROTECTION STATUTES, RULES AND
REGULATIONS
Because certain customer complaints may impose liability upon
DISTRIBUTOR under various repair or replace laws or other
consumer protection laws and regulations, DEALER agrees to
provide prompt notice to DISTRIBUTOR of such complaints and
take such other steps as DISTRIBUTOR may reasonably require.
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DEALER will do nothing to affect adversely DISTRIBUTOR's
rights under such laws and regulations. Subject to any law or
any regulation to the contrary, DEALER shall be liable to
DISTRIBUTOR for any refunds or vehicle replacements provided
to customer where DISTRIBUTOR reasonably establishes that
DEALER failed to carry out vehicle repairs in accordance with
DISTRIBUTOR's written published policies and procedures or its
express oral instructions subsequently confirmed in writing.
DEALER also agrees to provide applicable required customer
notifications and disclosures as prescribed by repair or
replacement laws or other consumer laws or regulations.
XVI. SERVICE AND PARTS OPERATIONS
A. ORGANIZATION AND STANDARDS
DEALER agrees to organize and maintain an adequate, stable and
trained service and parts organization of the highest quality,
including a qualified Service Manager and a qualified Parts
Manager, and a number of competent customer relations, service
and parts personnel sufficient to meet the needs of the
marketplace in the reasonable opinion of DISTRIBUTOR.
DEALER's personnel will meet the educational, management and
technical training standards established by DISTRIBUTOR.
B. SERVICE EQUIPMENT AND SPECIAL TOOLS
DEALER agrees to acquire and properly maintain adequate
service equipment and such special service tools and
instruments as are specified by DISTRIBUTOR.
C. PARTS INVENTORY
DEALER and DISTRIBUTOR recognize that the owners and users of
Toyota Motor Vehicles may reasonably expect that DEALER will
have Genuine Toyota Parts or Accessories immediately available
for purchase or installation. DEALER, therefore, agrees to
carry in stock at all times during the term of this Agreement
an adequate inventory of Genuine Toyota Parts or Accessories,
as listed in DISTRIBUTOR's current inventory guide, to enable
DEALER to meet its customers' needs and to fulfill its service
responsibilities under this Agreement.
D. ASSISTANCE PROVIDED BY DISTRIBUTOR
1. SERVICE TRAINING ASSISTANCE
To assist DEALER in fulfilling its service and parts
responsibilities under this Agreement, DISTRIBUTOR
agrees to offer general and specialized service and
parts training programs for the benefit and use of
DEALER's service and parts organizations. When
requested by DISTRIBUTOR, DEALER's personnel shall
participate in such programs at DEALER's expense.
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2. MANUALS AND MATERIALS
DISTRIBUTOR agrees to make available to DEALER, at
DEALER's expense, copies of such dealer manuals,
catalogs, bulletins, publications and technical data
as DISTRIBUTOR shall deem to be necessary for the
needs of DEALER's service and parts organization.
DEALER shall be responsible for keeping such manuals,
publications and data current and available for
consultation by its employees.
3. FIELD PERSONNEL ASSISTANCE
To assist DEALER in handling its parts and service
responsibilities under this Agreement, DISTRIBUTOR
agrees to make available qualified field parts and
service personnel who will, from time to time, advise
and counsel DEALER on parts and service-related
subjects, including parts and service policies,
product quality, technical adjustments, repair and
replacement of product components, customer
relations, warranty administration, service and parts
merchandising, and personnel/management training.
XVII. CUSTOMER SATISFACTION RESPONSIBILITIES
A goal of DISTRIBUTOR and DEALER is to be recognized as marketing the
finest products and providing the best service in the automobile
industry. The Toyota name should be synonymous with the highest level
of customer satisfaction. DEALER will take all reasonable steps to
ensure that each customer is completely satisfied with his or her
Toyota Products and the services and practices of DEALER.
Whenever requested by DISTRIBUTOR, DEALER shall:
A. Designate an employee responsible for customer satisfaction
commensurate with the needs of the marketplace; and
B. Provide a detailed written plan of DEALER's customer
satisfaction program to DISTRIBUTOR and implement such program
on a continuous basis. This plan shall include an ongoing
system for:
1. Emphasizing customer satisfaction to all DEALER's
employees;
2. Training DEALER's employees, including participation
in DISTRIBUTOR's customer satisfaction training at
DEALER's expense; and
3. Responding immediately to, and resolving promptly,
requests for customer assistance, and conveying to
customers that DEALER is committed to the highest
possible level of customer satisfaction.
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XVIII. DEALERSHIP FACILITIES AND IDENTIFICATION
A. FACILITIES
1. In order for DISTRIBUTOR to establish an effective
network of authorized Toyota dealers, DEALER shall
provide, and at all times maintain, attractive
dealership facilities at the Approved Location(s)
that satisfy the image, size, layout, interior
design, color, equipment, identification and other
factors established by DISTRIBUTOR. DEALER shall
meet the minimum facility standards and policies
established by DISTRIBUTOR which can be amended from
time to time.
2. To assist DEALER in planning, building, or remodeling
dealership facilities, DISTRIBUTOR will provide
DEALER, upon request, a Toyota Dealer Facility
Planner and will assist in identifying sources from
which DEALER may purchase architectural materials and
furnishings that meet Toyota standards and
guidelines. In addition, representatives of
DISTRIBUTOR will be available to DEALER from time to
time to counsel and advise DEALER in connection with
DEALER's planning and equipping the dealership
premises.
B. DEALER'S OPERATING HOURS
DEALER agrees to keep all of its dealership operations open
for business during all days and hours that are customary and
lawful for such operations in the community or locality in
which DEALER is located and in accordance with industry
standards. The dealership shall not be considered open unless
all sales, service and parts operations are open to the public
and dealership personnel are present to assist customers.
C. SIGNS
Subject to applicable governmental ordinances, regulations,
and statutes, DEALER agrees to comply with IMPORTER's signage
program and to display only standard authorized signage which
conforms to the approved corporate identification program.
D. USE OF TOYOTA MARKS
1. USE BY DEALER
DISTRIBUTOR grants to DEALER the non-exclusive
privilege of displaying or otherwise using authorized
Toyota Marks as specified in the Toyota Brand Graphic
Standards Manual at the Approved Location(s) in
connection with the selling or servicing of Toyota
Products.
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DEALER further agrees that it promptly shall
discontinue the display and use of any Toyota Marks,
or shall change the manner in which any Toyota Marks
are displayed and used, when for any reason it is
requested to do so by DISTRIBUTOR. DEALER may use
the Toyota Marks as specified in the Toyota Brand
Graphic Standards Manual only at Approved Location(s)
and for such purposes as are specified in this
Agreement. DEALER agrees that such Toyota Marks may
be used as part of the name under which DEALER's
business is conducted only with the prior written
approval of DISTRIBUTOR.
DEALER shall discontinue any advertising that
DISTRIBUTOR may find to be injurious to DISTRIBUTOR's
business or reputation or the Toyota Marks.
2. DISCONTINUANCE OF USE
Upon termination, non-renewal, or expiration of this
Agreement, DEALER agrees that it shall immediately:
a. Discontinue the use of Toyota Marks, or any
semblance of same, including without
limitation, the use of all stationery,
telephone directory listing, and other
printed material referring in any way to
Toyota or bearing any Toyota Xxxx,
b. Discontinue the use of the Toyota Marks, or
any semblance of same, as part of its
business or corporate name, and file a change
or discontinuance of such name with
appropriate authorities;
c. Remove all product signs bearing Toyota
Marks. Product signs owned by DEALER shall
be removed and disposed of at DEALER's sole
cost and expense. Product signs leased to
DEALER by or through IMPORTER or its
representative shall be removed from DEALER's
premises at IMPORTER's sole cost and expense.
DEALER hereby grants permission for
DISTRIBUTOR to enter upon DEALER's premises
to remove signs leased to DEALER by IMPORTER;
d. Cease representing itself as an authorized
Toyota Dealer; and
e. Refrain from any action, including without
limitation, any advertisement, statement or
implication that it is authorized to sell or
distribute Toyota Products.
In the event DEALER fails to comply promptly with the
terms and conditions of this Section, DISTRIBUTOR
shall have the right to enter upon DEALER's premises
and remove, without notice or liability, all such
product signs and identification bearing the Toyota
Marks. DEALER agrees that it shall
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reimburse DISTRIBUTOR for any costs and expenses
incurred in the removal of signs owned by DEALER
bearing the Toyota Marks, including reasonable
attorney fees.
XIX. EVALUATION OF DEALER'S PERFORMANCE
DEALER acknowledges the importance of its overall performance in
relation to the purposes and objectives of this Agreement.
DISTRIBUTOR will periodically evaluate DEALER's performance of its
responsibilities in the areas of sales, service and parts, facilities
and customer satisfaction, based upon such reasonable criteria as
DISTRIBUTOR my establish from time to time, DISTRIBUTOR agrees to
review all such evaluations with DEALER and will provide DEALER a copy
thereof. Where performance is below acceptable standards of
DISTRIBUTOR, DEALER agrees to take prompt action to improve its
performance and, if requested by DISTRIBUTOR, to notify DISTRIBUTOR in
writing of its detailed plans and timetables for accomplishing those
improvements.
A. SALES PERFORMANCE EVALUATION
Pursuant to Section XIV herein, DISTRIBUTOR will evaluate
DEALER's sales performance under criteria established by
DISTRIBUTOR, which may include, but is not limited to, the
achievement of reasonable sales objectives as DISTRIBUTOR may
establish; comparisons of DEALER's sales and/or registrations
to those of comparable Toyota dealers and other line makes
within DEALER's Primary Market Area or such area(s) which
DISTRIBUTOR believes is a reasonable basis for comparison;
sales performance trends over a reasonable period of time; and
the manner in which DEALER has conducted its sales and
marketing operations.
B. SERVICE PERFORMANCE EVALUATION
Pursuant to Sections XV and XVI herein, DISTRIBUTOR will
evaluate DEALER's service performance in such areas as,
without limitation, warranty management, compliance with the
Toyota Warranty Policy and Procedures Manual, service
management, service operating procedures, service staffing and
training, administration, service facilities and equipment,
new vehicle pre-delivery service, customer handling and
customer retention.
C. PARTS PERFORMANCE EVALUATION
Pursuant to Section XVI herein, DISTRIBUTOR will evaluate
DEALER's parts performance in such areas as, without
limitation, general parts management, parts operating
procedures, parts staffing and training, parts facilities,
parts inventory management, parts sales, accessory sales,
parts merchandising and parts availability to customers.
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D. CUSTOMER SATISFACTION PERFORMANCE EVALUATION
Pursuant to Section XVII, herein, DISTRIBUTOR will evaluate
DEALER's performance of its responsibilities in the area of
customer satisfaction based on the following considerations:
1. DISTRIBUTOR will provide DEALER with customer
satisfaction reports or such other equivalent data as
will permit DEALER to assess its performance and
maintain the highest level of customer satisfaction.
DEALER agrees to review with its employees on a
regular basis the results of the customer
satisfaction reports or other data it receives.
2. DEALER agrees to develop, implement and review with
DISTRIBUTOR specific action plans for improving
results in the event that DEALER is below the average
customer satisfaction levels for other Toyota dealers
in such areas that DISTRIBUTOR believes are a
reasonable basis for comparison. DEALER shall
respond on a timely basis to requests from
DISTRIBUTOR to take action on unsatisfactory customer
satisfaction matters and to commit necessary
resources to remedy deficiencies reasonably specified
by DISTRIBUTOR, and DEALER shall remedy those
deficiencies. DISTRIBUTOR reserves the right to
establish reasonable, uniform criteria to be used to
evaluate DEALER.
E. DEALERSHIP FACILITIES EVALUATION
Pursuant to Section XVIII, herein, DISTRIBUTOR will evaluate
DEALER's performance of its responsibilities in the area of
dealership facilities.
XX. CAPITAL, CREDIT, RECORDS AND UNIFORM SYSTEMS
A. NET WORKING CAPITAL
The amount and structure of the net working capital required
to properly conduct the business of DEALER depends upon many
factors, including the nature, size and volume of DEALER's
vehicle sales, service and parts operations. Therefore,
DEALER agrees to establish and maintain actual net working
capital in an amount not less than the minimum net working
capital specified in a separate Minimum Net Working Capital
Agreement executed by DEALER and DISTRIBUTOR concurrently with
this Agreement. If, either because of changed conditions or
because DISTRIBUTOR adopts a new net working capital formula,
DISTRIBUTOR shall have the right to revise DEALER's minimum
net working capital requirement to be used in DEALER's
operation. If so revised, DEALER agrees to enter into the
revised Minimum Net Working Capital Agreement and to meet the
new standard within a reasonable period of time as established
by DISTRIBUTOR.
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B. FLOORING LINE
DEALER recognizes that its ability to fulfill its obligations
under this Agreement is dependent upon its maintenance of
flooring which is sufficient to sustain its ongoing
operations. DEALER agrees to obtain and maintain at all times
a confirmed and adequate flooring line with a bank or
financial institution or other method of financing acceptable
to DISTRIBUTOR to enable DEALER to perform its obligations
pursuant to this Agreement. Subject to the foregoing
obligations, DEALER is free to do its financing business,
wholesale, retail or both, with whomever it chooses and to the
extent it desires.
C. PAYMENT TERMS AND SETTLEMENT OF ACCOUNTS
All monies or accounts due DEALER from DISTRIBUTOR will be
considered net of DEALER's obligations to DISTRIBUTOR on
DEALER's parts/open account. DISTRIBUTOR may deduct or offset
any amounts due or to become due from DEALER to DISTRIBUTOR,
or any amounts held by DISTRIBUTOR, from or against any sums
or accounts due or to become due from DISTRIBUTOR to DEALER.
Payments by DEALER to DISTRIBUTOR shall be made by electronic
bank draft or in any other manner prescribed by DISTRIBUTOR
and shall be applied against DEALER's indebtedness in
accordance with DISTRIBUTOR's policies and practices.
DISTRIBUTOR shall have the right to apply payments received
from DEALER to any amount owed to DISTRIBUTOR, in
DISTRIBUTOR's sole discretion. All obligations owed by DEALER
to DISTRIBUTOR shall be due and payable when billed, unless
other terms are established by DISTRIBUTOR in writing.
Under no circumstances will DISTRIBUTOR enter into a new
Agreement with a proposed transferee unless DEALER first makes
arrangements acceptable to DISTRIBUTOR to satisfy any
outstanding obligations to DISTRIBUTOR on DEALER's parts/open
account.
D. UNIFORM ACCOUNTING SYSTEM
DEALER agrees to maintain its financial books and records in
accordance with the Toyota Dealer Accounting Manual, as
amended from time to time by DISTRIBUTOR. In addition, DEALER
shall furnish to DISTRIBUTOR, who may also furnish it to
IMPORTER and FACTORY, complete and accurate financial and
operating information by the tenth (l0th) of each month in a
format prescribed by DISTRIBUTOR. This information shall
include, without limitation, a complete and accurate financial
and operating statement covering the preceding month and
calendar year-to-date operations, including any adjusted
year-end statements, showing the true condition of DEALER's
business. All such information shall be furnished by DEALER
to DISTRIBUTOR via DISTRIBUTOR's electronic communications
network and/or in hard copy and/or in any other manner
designated by DISTRIBUTOR.
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E. RECORDS MAINTENANCE
DEALER agrees to keep complete, accurate and current records
regarding its sale, lease and servicing of Toyota Products for
a minimum of five (5) years, regardless of any retention
period required by any governmental entity. DEALER shall
prepare, keep current and retain records in support of
requests for reimbursement for warranty and policy work
performed by DEALER in accordance with the IMPORTER's Toyota
Warranty Policy and Procedures Manual.
F. EXAMINATION OF DEALERSHIP ACCOUNTS AND RECORDS
DISTRIBUTOR, in its sole discretion, without notice and for
any reason whatsoever, shall have the right during regular
business hours to inspect DEALER's facilities and to examine,
audit and to reproduce all records, accounts and supporting
data relating to the operations of DEALER, including without
limitation, sales, sales reporting, service and repair of
Toyota Products by DEALER. If requested by DEALER,
DISTRIBUTOR agrees to review any report with DEALER and to
provide a copy of any report of the examination or audit of
DEALER.
G. TAXES
DEALER shall be responsible for and duly pay all taxes of any
kind, including, but not limited to, sales taxes, use taxes,
excise taxes and other governmental municipal charges imposed,
levied or based upon the sale of Toyota Products by DEALER,
and shall maintain accurate records of the same.
H. CONFIDENTIALITY
Except as provided in Sections XX(D) above and XXI(A), below,
DISTRIBUTOR agrees that it shall not provide any financial
information, documents or other information submitted to it by
DEALER to any third party, other than subsidiary and parent
corporations of DISTRIBUTOR, unless authorized by DEALER,
required by law, required to effectuate the terms and
conditions of this Agreement, or required to generate
composite or comparative data for analytical purposes.
DEALER agrees to keep confidential and not to disclose,
directly or indirectly, any information that DISTRIBUTOR
designates as confidential.
I. INFORMATION COMMUNICATION SYSTEMS
To facilitate the accurate and prompt reporting of such
relevant dealership operational and financial information as
DISTRIBUTOR may require, DEALER agrees to install and maintain
electronic communication processing facilities which are
compatible with and which will facilitate the transmission and
reception of such information on the electronic communications
network utilized by DISTRIBUTOR.
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J. SALES REPORTING
DEALER agrees to report accurately to DISTRIBUTOR, together
with such information as DISTRIBUTOR may reasonably require,
the delivery of each new motor vehicle to a purchaser by the
end of the day in which the vehicle is delivered to the
purchaser thereof; and to furnish DISTRIBUTOR with such other
reports in such form as DISTRIBUTOR may reasonably require
from time to time.
XXI. RIGHT OF FIRST REFUSAL OR OPTION TO PURCHASE
A. RIGHTS GRANTED
If a proposal to sell the dealership's assets or transfer its
ownership is submitted by DEALER to DISTRIBUTOR, or in the
event of the death of the majority Owner of DEALER,
DISTRIBUTOR has a right of first refusal or option to purchase
the dealership assets or stock, including any leasehold
interests or realty. DISTRIBUTOR's exercise of its right or
option under this Section supersedes any right or attempt by
DEALER to transfer its interest in, or ownership of, the
dealership. DISTRIBUTOR's right or option may be assigned by
it to any third party and DISTRIBUTOR hereby guarantees the
full payment to DEALER of the purchase price by such assignee.
DISTRIBUTOR may disclose the terms of any pending buy/sell
agreement and any other relevant dealership performance
information to any potential assignee. DISTRIBUTOR's rights
under this Section will be binding on and enforceable against
any successor in interest of DEALER or purchaser of DEALER's
assets or stock.
B. EXERCISE OF DISTRIBUTOR'S RIGHTS
DISTRIBUTOR shall have thirty (30) days from the following
events within which to exercise its right of first refusal or
option to purchase: (i) DISTRIBUTOR's receipt of all data
and documentation customarily required by it to evaluate a
proposed transfer of ownership; (ii) DISTRIBUTOR's receipt of
written notice from DEALER of the death of the majority Owner
of DEALER; or (iii) DISTRIBUTOR's disapproval of any
application submitted by an Owner's heirs pursuant to Section
XXII. DISTRIBUTOR's exercise of its right of first refusal
under this Section shall neither be dependent upon nor require
its prior consideration of or refusal to approve the proposed
buyer or transferee.
C. RIGHT OF FIRST REFUSAL
If DEALER has entered into a bona fide written agreement to
sell its dealership stock or assets, DISTRIBUTOR's right under
this Section is a right of first refusal, enabling DISTRIBUTOR
to assume the buyer's rights and obligations under such
agreement, and to terminate this Agreement and all rights
granted DEALER. Upon DISTRIBUTOR's request, DEALER agrees to
provide other documents relating to the proposed transfer and
any other information which DISTRIBUTOR deems
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appropriate, including, but not limited to, those reflecting
other agreements or understandings between the parties to the
buy/sell agreement. Refusal to provide such documentation or
to state in writing that no such documents exist shall create
the presumption that the buy/sell agreement is not a bona fide
agreement.
D. OPTION TO PURCHASE
In the event of the death of the majority Owner of DEALER or
if DEALER submits a proposal which DISTRIBUTOR reasonably
believes is not bona fide, DISTRIBUTOR has the option to
purchase the principal assets of DEALER utilized in the
dealership business, including real estate and leasehold
interests, and to cancel this Agreement and the rights granted
DEALER. The terms and conditions of the purchase of the
dealership assets will be determined by good faith
negotiations between the parties. If an agreement cannot be
reached, those terms will be exclusively determined by
arbitration in accordance with the commercial arbitration
rules of the American Arbitration Association. The site of
the arbitration shall be the office of the American
Arbitration Association in the locality of DISTRIBUTOR's
principal place of business.
E. DEALER'S OBLIGATIONS
Upon DISTRIBUTOR's exercise of its right or option and tender
of performance hereunder, DEALER shall forthwith transfer the
affected real property by warranty deed or its equivalent,
conveying marketable title free and clear of all liens,
claims, mortgages, encumbrances, interests and occupancies.
The warranty deed or its equivalent shall be in proper form
for recording, and DEALER shall deliver complete possession of
the property and deed at the time of closing. DEALER shall
also furnish to DISTRIBUTOR all copies of any easements,
licenses or other documents affecting the property or
dealership operations and shall assign any permits or licenses
that are necessary or desirable for the use of or appurtenant
to the property or the conduct of such dealership operations.
DEALER shall also forthwith execute and deliver to DISTRIBUTOR
instruments satisfactory to DISTRIBUTOR conveying title to all
affected personal property and leasehold interests involved in
the transfer or sale to DISTRIBUTOR. If any personal property
is subject to any lien or charge of any kind, DEALER agrees to
procure the discharge and satisfaction thereof prior to the
closing of sale of such property to DISTRIBUTOR.
F. NO APPLICABILITY TO NOMINATED SUCCESSOR
Section XXI shall not apply to any DEALER whose proposed
transfer of assets or ownership is to a candidate who is
currently approved by DISTRIBUTOR to be DEALER's nominated
successor pursuant to Section XXII(C).
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XXII. SUCCESSION RIGHTS UPON DEATH OR INCAPACITY
A. SUCCESSION TO OWNERSHIP AFTER DEATH OF OWNER
In the event that Owner dies and his or her interest in
Dealership passes directly to any person or persons ("Heirs")
who wish to succeed to Owner's interest, then Owner's legal
representative must notify DISTRIBUTOR within sixty (60) days
of the death of the Owner of such Heir's or Heirs' intent to
succeed Owner. The legal representative also must then
designate a proposed General Manager for DISTRIBUTOR approval.
The effect of such notice from Owner's legal representative
will be to suspend any notice of termination provided for in
Section XXIII(B)(4) issued hereunder.
Upon delivery of such notice, Owner's legal representative
shall immediately request any person(s) identified by it as
intending to succeed Owner and the designated candidate for
General Manager to submit an application and to provide all
personal and financial information that DISTRIBUTOR may
reasonably and customarily require in connection with its
review of such applications. All requested information must
be provided promptly to DISTRIBUTOR and in no case later than
thirty (30) days after receipt of such request from Owner's
legal representative. Upon the submission of all requested
information, DISTRIBUTOR agrees to review such application(s)
pursuant to the then current criteria generally applied by
DISTRIBUTOR in qualifying dealer Owners and/or General
Managers. DISTRIBUTOR shall either approve or disapprove the
application(s) within ninety (90) days of full compliance with
all DISTRIBUTOR's requests for information. If DISTRIBUTOR
approves the application(s), it shall offer to enter into a
new Toyota Dealer Agreement with Owner's Heir(s) in the form
then currently in use, subject to such additional conditions
and for such a term as DISTRIBUTOR deems appropriate.
In the event that DISTRIBUTOR does not approve the designated
Heir(s) or designated candidate for General Manager, or if the
Owner's legal representative withdraws his or her notice of
the Heir(s) intent to succeed as Owner(s), or if the legal
representative or any proposed owners or General Manager fails
to timely provide the required information, DISTRIBUTOR may
reinstate or issue a notice of termination. Nothing in this
Section shall constitute a waiver of DISTRIBUTOR's right under
Section XXI to exercise its right of first refusal or option
to purchase.
B. INCAPACITY OF OWNER
The parties agree that, as used herein, incapacity shall refer
to any physical or mental ailment that, in DISTRIBUTOR's
opinion, adversely affects Owner's ability to meet his other
obligations under this Agreement. DISTRIBUTOR may terminate
this Agreement when an incapacitated Owner also is the General
Manager identified herein.
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Prior to the effective date of any notice of termination, an
incapacitated Owner who is also the General Manager, or his or
her legal representative, may propose a new candidate for the
position of General Manager. Such proposal shall be in
writing and shall suspend any pending notice of termination
until DISTRIBUTOR advises DEALER of its approval or
disapproval of the new candidate. Upon receipt of such
notice, DISTRIBUTOR and DEALER shall follow the qualification
procedures set forth in subsection (A) above.
C. NOMINATION OF SUCCESSOR PRIOR TO DEATH OR INCAPACITY OF OWNER
An Owner owning a majority of DEALER's stock may nominate a
candidate to assume ownership and/or the position of General
Manager of the dealership upon his or her death or incapacity.
As soon as practicable after such nomination, DISTRIBUTOR will
request such personal and financial information from the
nominated Owner and/or General Manager candidate as it
reasonably and customarily may require in evaluating such
candidates. DISTRIBUTOR shall apply criteria then currently
used by DISTRIBUTOR in qualifying Owners and/or General
Managers of authorized dealers. Upon receipt of all requested
information, DISTRIBUTOR shall either approve or disapprove
such candidate. Approval by DISTRIBUTOR will not be
unreasonably withheld. In the event of the death or
incapacity of the nominating Owner, DISTRIBUTOR will enter
into a new Toyota Dealer Agreement with the approved nominee
of a length to be determined by DISTRIBUTOR. DISTRIBUTOR
agrees that DEALER may renominate the candidate after the
expiration of this Agreement, and DISTRIBUTOR will approve
such nomination provided: (1) DISTRIBUTOR and DEALER have
entered into a new Toyota Dealer Agreement; and (2) the
proposed candidate continues to comply with the then current
criteria used by DISTRIBUTOR in qualifying such candidates.
If DISTRIBUTOR does not initially qualify the candidate,
DISTRIBUTOR agrees to review the reason(s) for its decision
with Owner. Owner is free at any time to renew its
nomination. However, in such instances, the candidate must
again qualify pursuant to the then current criteria. Owner
may, by written notice, withdraw a nomination at any time,
even if DISTRIBUTOR has previously qualified said candidate.
XXIII. TERMINATION
A. VOLUNTARY TERMINATION BY DEALER
DEALER may voluntarily terminate this Agreement at any time by
written notice to DISTRIBUTOR. Termination shall be effective
thirty (30) days after receipt of the notice by DISTRIBUTOR,
unless otherwise mutually agreed in writing.
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B. TERMINATION FOR CAUSE
1. IMMEDIATE TERMINATION
DEALER and DISTRIBUTOR agree that the following
conduct is within DEALER's control and is so contrary
to the goals, purposes and objectives of this
Agreement as to warrant its immediate termination.
Accordingly, DEALER agrees that if it engages in any
of the following types of conduct, DISTRIBUTOR shall
have the right to terminate this Agreement
immediately:
a. If DEALER fails to conduct any customary
dealership operations for seven consecutive
business days during DEALER's customary
business hours, except in the event such
closure or cessation of operation is caused
by some physical event beyond the control of
DEALER, such as fires, floods, earthquakes,
or other acts of God;
b. If DEALER becomes insolvent, or files any
petition under bankruptcy law, or executes an
assignment for the benefit of creditors, or
appoints a receiver or trustee or another
officer having similar powers is appointed
for DEALER and is not removed within thirty
(30) days from his appointment thereto or
there is any levy under attachment or
execution or similar process which is not
vacated or removed by payment or bonding
within ten (10) days;
c. If DEALER, or any Owner or officer or parent
company of DEALER, is convicted of any
felony;
d. If DEALER or any Owner, officer or General
Manager of DEALER makes any material
misrepresentation to DISTRIBUTOR, including,
but not limited to, any misrepresentations
made by DEALER to DISTRIBUTOR in applying for
this Agreement or for approval as Owner or
General Manager of DEALER;
e. If DEALER fails to obtain or maintain any
license, permit or authorization necessary
for the conduct by DEALER of his or her
business pursuant to this Agreement, or such
license, permit or authorization is suspended
or revoked; or
f. If DEALER makes any attempted or actual sale,
transfer or assignment by DEALER of this
Agreement or any of the rights granted DEALER
hereunder, or upon any attempted or actual
transfer, assignment or delegation by DEALER
of any of the responsibilities assumed by it
under this Agreement without the prior
written approval of DISTRIBUTOR.
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2. TERMINATION UPON SIXTY DAYS NOTICE
The following conduct violates the terms and
conditions of this Agreement and, if DEALER engages
in such conduct, DISTRIBUTOR shall have the right to
terminate this Agreement upon sixty (60) days notice:
a. Appointment of a new General Manager without
the prior written approval of DISTRIBUTOR;
b. Conducting, directly or indirectly, any
Toyota dealership operation at any location
other than at the Approved Location(s);
c. Failure of DEALER to make any payments to
DISTRIBUTOR when due;
d. Failure of DEALER to establish or maintain
during the existence of this Agreement the
required net working capital or adequate
flooring line;
e. Any dispute, disagreement or controversy
among Owners, partners, managers, officers or
stockholders of DEALER that, in the
reasonable opinion of DISTRIBUTOR, adversely
affects the ownership, operation, management,
business, reputation or interests of DEALER
or DISTRIBUTOR;
f. Impairment of the reputation or financial
standing of DEALER, Owner, officer or parent
company subsequent to the execution of this
Agreement;
g. Refusal to permit DISTRIBUTOR to examine or
audit DEALER's accounting records as provided
herein upon receipt by DEALER from
DISTRIBUTOR of written notice requesting such
permission or information;
h. Failure of DEALER to furnish all required
sales or financial information and related
supporting information in a timely manner;
i. Any civil, criminal or administrative
liability found against DEALER or any Owner,
officer or parent company of DEALER for any
automotive-related matter which adversely
affects the ownership, operation, management,
reputation, business or interests of DEALER,
or impairs the goodwill associated with the
Toyota Marks; or
j. Breach or violation by DEALER of any other
term or provision of this Agreement.
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3. TERMINATION FOR FAILURE OF PERFORMANCE
If, upon evaluation of DEALER's performance pursuant
to Section XIX, herein, DISTRIBUTOR concludes that
DEALER has failed to perform adequately its sales,
service, parts or customer satisfaction
responsibilities or to provide adequate dealership
facilities, DISTRIBUTOR shall notify DEALER in
writing of such failure(s) and will endeavor to
review promptly with DEALER the nature and extent of
such failure(s), and will grant DEALER 180 days or
such other period as may be required by law to
correct such failure(s). If DEALER fails or refuses
to correct such failure(s) or has not made
substantial progress towards remedying such
failure(s) at the expiration of such period,
DISTRIBUTOR may terminate this Agreement upon sixty
(60) days notice or such other notice as may be
required by law. Section XXIII(B)(3) shall not be
applicable where DEALER has relocated without
DISTRIBUTOR's approval.
4. TERMINATION UPON DEATH OR INCAPACITY
DISTRIBUTOR may terminate this Agreement in the event
of the death of an Owner or upon the incapacity of
any Owner who is also the General Manager identified
herein, upon written notice to DEALER and/or such
Owner's legal representative. Termination upon
either of these events shall be effective ninety (90)
days from the date of such notice.
C. NOTICE OF TERMINATION
Any notice of termination under this Agreement shall be in
writing and shall be mailed to DEALER or its General Manager
at DEALER's Approved Location by certified mail, return
receipt requested, or shall be delivered in person to the
dealership. Such notice shall be effective upon the date of
receipt. DISTRIBUTOR need not state all grounds on which it
relies in its termination of DEALER, and shall have the right
to amend such notice as appropriate. DISTRIBUTOR's failure to
refer to any additional grounds for termination shall not
constitute a waiver of its right later to rely upon such
grounds.
D. CONTINUANCE OF BUSINESS RELATIONS
Upon receipt of any notice of termination or non-renewal,
DEALER agrees to conduct itself and its operation until the
effective date of termination or non-renewal in a manner that
will not injure the reputation or goodwill of the Toyota Marks
or DISTRIBUTOR.
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X. XXXXXXXXXX PROVISIONS
1. DISTRIBUTOR'S OBLIGATIONS
Upon the expiration or termination of this Agreement
(other than pursuant to an approved agreement to sell
the dealership business or assets or to otherwise
transfer the ownership of DEALER), DISTRIBUTOR shall
repurchase from DEALER the following:
a. New, unused, never titled, unmodified,
undamaged, current model year Toyota Motor
Vehicles with less than 100 miles, then
unsold in DEALER's inventory. The prices of
such Motor Vehicles shall be the same as
those at which they were originally purchased
by DEALER, less all prior refunds or other
allowances made by DISTRIBUTOR to DEALER with
respect thereto.
b. New, unused and undamaged Toyota parts and
accessories, contained in the original
packaging, then unsold in DEALER's inventory
that are in good and saleable condition. The
prices for such parts and accessories shall
be the prices last established by DISTRIBUTOR
for the sale of identical parts or
accessories to dealers in the area in which
DEALER is located.
c. Special service tools recommended by
DISTRIBUTOR and then owned by DEALER and that
are especially designed for servicing Toyota
Motor Vehicles. The prices for such special
service tools will be the price paid by
DEALER less appropriate depreciation, or such
other price as the parties may negotiate.
d. Signs that DISTRIBUTOR has recommended for
identification of DEALER and are owned by
DEALER. The price of such signs shall be the
price paid by DEALER less appropriate
depreciation or such other price as the
parties may negotiate.
2. RESPONSIBILITIES OF DEALER
DISTRIBUTOR's obligations to repurchase the items set
forth in this Section are contingent upon DEALER
fulfilling the following obligations:
a. Within thirty (30) days after the date of
expiration or the effective date of
termination of this Agreement, DEALER shall
deliver or mail to DISTRIBUTOR a detailed
inventory of all items referred to in this
Section which it requests DISTRIBUTOR to
repurchase and shall certify that such list
is true and accurate.
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b. DEALER shall be entitled to request
repurchase of only those items which it
purchased from DISTRIBUTOR, unless
DISTRIBUTOR agrees otherwise.
c. Products and special service tools to be
repurchased by DISTRIBUTOR from DEALER shall
be delivered by DEALER to DISTRIBUTOR's place
of business at DEALER's expense.
d. DEALER will execute and deliver to
DISTRIBUTOR instruments satisfactory to
DISTRIBUTOR conveying good and marketable
title to the aforesaid items to DISTRIBUTOR.
If such items are subject to any lien or
charge of any kind, DEALER will procure the
discharge in satisfaction thereof prior to
their repurchase by DISTRIBUTOR.
e. DEALER will remove, at its own expense, all
signage bearing Toyota marks which it owns
from DEALER's Approved Location(s) before it
is eligible for payment for any repurchased
items pursuant to Section XXIII(E).
3. PAYMENT BY DISTRIBUTOR
DISTRIBUTOR will pay DEALER for such items as DEALER
may request be repurchased and that qualify hereunder
as soon as practicable upon DEALER's compliance with
the obligations set forth herein and upon computation
of any outstanding indebtedness of DEALER to
DISTRIBUTOR. DISTRIBUTOR shall have the right to
offset from any amounts due to DEALER hereunder the
total sum of DEALER's outstanding indebtedness to
DISTRIBUTOR.
If DEALER disagrees with DISTRIBUTOR's valuation of
any item herein, and DEALER and DISTRIBUTOR have not
resolved their disagreement within sixty (60) days of
the effective date of termination or expiration of
this Agreement, DISTRIBUTOR shall pay to DEALER the
amount to which it reasonably believes DEALER is
entitled. DEALER's exclusive remedy to recover any
additional sums that it believes is due under this
Section shall be by resort to any existing
Alternative Dispute Resolution program established by
DISTRIBUTOR that is binding on DISTRIBUTOR. If no
Alternative Dispute Resolution program is then
existing, DEALER's exclusive remedy shall be by
resort to arbitration in accordance with the
commercial arbitration rules of the American
Arbitration Association (AAA). The site of the
arbitration shall be the office of the AAA in the
locality of DISTRIBUTOR's principal place of
business.
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XXIV. MANAGEMENT OF DISPUTES
A. ALTERNATIVE DISPUTE RESOLUTION PROGRAMS
DISTRIBUTOR and DEALER acknowledge that disputes involving the
performance of this Agreement may from time to time arise that
cannot be resolved at the DISTRIBUTOR level. In order to
minimize the effects of such disputes on their business
relationship, the parties agree to participate in such
Alternative Dispute Resolution programs, including mediation,
as may be established by DISTRIBUTOR in its sole discretion.
It is expressly understood that, unless otherwise specified in
this Agreement, the results of any Alternative Dispute
Resolution program will not be binding upon DEALER, but shall
be binding upon DISTRIBUTOR. The parties' commitment to
support and participate in Alternative Dispute Resolution
programs specifically is not a waiver of DEALER's right to
later resort to litigation before any judicial or
administrative forum.
B. APPLICABLE LAW
This Agreement shall be governed by and construed according to
the laws of the state in which DEALER is located.
C. MUTUAL RELEASE
Each party hereby releases the other from any and all claims
and causes of action that it may have against the other for
money damages arising from any event occurring prior to the
date of execution of this Agreement, except for any accounts
payable by one party to the other as a result of the purchase
of any Toyota Products, audit adjustments or reimbursement for
any services. This release does not extend to claims which
either party does not know or reasonably suspect to exist in
its favor at the time of the execution of this Agreement.
XXV. DEFENSE AND INDEMNIFICATION
A. DEFENSE AND INDEMNIFICATION BY DISTRIBUTOR
DISTRIBUTOR agrees to assume the defense of DEALER and to
indemnify and hold harmless DEALER, expressly conditioned and
subject to all provisions of Section XXV(C), against loss in
any lawsuit or claim naming DEALER for bodily injury, property
damage or breach of warranty caused solely by an alleged
defect in design, manufacture or assembly of a Toyota Product
(except for tires not manufactured by FACTORY) sold by
DISTRIBUTOR to DEALER for resale that has not been altered,
converted or modified by or for DEALER, provided that the
alleged defect could not reasonably have been discovered by
DEALER during pre-delivery inspection or service or
installation of Toyota Products, less any offset.
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DISTRIBUTOR agrees to defend, to indemnify and hold harmless
DEALER for alleged misrepresentations, misleading statements,
unfair or deceptive trade practices of DISTRIBUTOR, IMPORTER or
FACTORY or any substantial damage to a Toyota Product purchased
by DEALER from DISTRIBUTOR which was improperly repaired by
DISTRIBUTOR unless DEALER has been notified of such damage in
writing prior to retail delivery of the affected Toyota
Product. Notwithstanding any provision of this Agreement,
DISTRIBUTOR shall not be required to defend, to indemnify or
hold harmless DEALER against loss resulting from any claim,
complaint, or action alleging DEALER misconduct, including but
not limited to, improper or unsatisfactory service or repair,
or misrepresentations, or any claim of DEALER's unfair or
deceptive trade practices or any claim of improper
environmental or work place practices or conditions.
B. DEFENSE AND INDEMNIFICATION BY DEALER
DEALER agrees to assume the defense of DISTRIBUTOR, IMPORTER
or FACTORY and to indemnify and hold them harmless, expressly
conditioned and subject to all provisions of Section XXV(C),
against loss in any lawsuit or claim naming DISTRIBUTOR,
IMPORTER or FACTORY, or their subsidiaries or affiliates, when
the claim or lawsuit directly or indirectly involves any
allegations of: (1) DEALER's alleged failure to comply, in
whole or in part, with any obligation assumed by DEALER
pursuant to this Agreement; or (2) DEALER's alleged negligent
or improper repairing or servicing or installation of a new or
used Toyota Motor Vehicle or Toyota Product, or any loss
related to other motor vehicles or equipment, other than
Toyota Motor Vehicles or Products, as may be sold, serviced,
repaired or installed by DEALER; or (3) DEALER's alleged
breach of any contract or warranty other than that provided by
DISTRIBUTOR, IMPORTER or FACTORY; or (4) DEALER's alleged
misleading statements, misrepresentations, or deceptive or
unfair trade practices; or (5) any modification, conversion or
alteration made by or for DEALER to a Toyota Product, except
those made pursuant to the express written approval and
instruction of DISTRIBUTOR, IMPORTER or FACTORY; or (6) any
and all claims arising out of or in any way connected to the
hiring, retention or termination of any person by DEALER,
including but not limited to, claims of employment
discrimination, age, race or sex discrimination or harassment,
wrongful discharge or termination, breach of the covenant of
good faith and fair dealing, breach of contract, interference
with contractual relations, intentional and/or negligent
infliction of emotional distress, defamation, negligent
hiring, violations of or non-compliance with the Occupational
Safety and Health Act, the Fair Labor Standards Act, or the
Employment Retirement Income and Security Act ("ERISA") or any
similar state or local laws.
C. CONDITIONAL DEFENSE AND/OR INDEMNIFICATION
The obligations of the DEALER, DISTRIBUTOR, IMPORTER or
FACTORY to defend, to indemnify and hold harmless are
expressly conditioned and subject to all of the following
terms:
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1. The party initially requesting defense and/or
indemnification shall make such request in writing
and deliver to the other party within twenty (20)
days of service of any legal process or within twenty
(20) days of discovery of facts giving rise to
indemnification, whichever is sooner.
2. The party requesting defense and/or indemnification
covenants, represents and warrants that it, its
agents or employees have not permitted a default
judgment to be entered and have not made any direct
or indirect admissions of liability, and are not
aware of any credible evidence to support any
independent claim of liability or lack of unity of
interest. Said party further agrees to cooperate
fully in the defense of such action as may be
reasonably required.
3. The party requested to defend and/or indemnify shall
have sixty (60) days from receipt of a request in
writing to conduct an investigation or otherwise
determine whether or not, or under what conditions,
it will agree to defend and/or indemnify.
4. During the pendency of a request for defense and/or
indemnification, and thereafter, the requesting party
shall have a continuing duty to avoid undue prejudice
to the other party and to mitigate damages. The
party requesting indemnification shall protect its
own interests until a decision has been made to
assume the defense and/or provide indemnification.
5. The party accepting the request for defense and/or
indemnification shall have the right to engage and
direct counsel of its own choosing and shall have the
obligation to reimburse the requesting party for all
reasonable costs and expenses, including reasonable
attorneys' fees, incurred prior to such assumption
except where the request is made under the
circumstances described in XXV(C)(6), and subject to
the provisions of XXV(C)(9).
6. If subsequent developments in a case, supported by
credible evidence, cause a party to reasonably
conclude that the allegations which initially
preclude a request or acceptance of a request for
defense and/or indemnification are meritless or no
longer at issue, then the request may be retendered.
7. No party shall be required to agree to such a
subsequent request or retender of defense and/or
indemnification where that party would be unduly
prejudiced by such delay. Initial acceptance by any
party of defense and/or indemnification is not a
waiver of the right to retender timely.
8. A party agreeing to defend and/or indemnify may make
its written agreement conditioned upon the continued
existence of the state of facts as then known as well
as such other reasonable conditions as may be
dictated by the particular allegations or claims.
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9. Any party withdrawing from its agreement to defend
and/or indemnify, shall give timely written notice
which shall be effective upon receipt. The
withdrawing party shall be responsible for all costs
and expenses of defense prior to receipt of notice of
withdrawal, except for those reasonable costs and
expenses, including reasonable attorneys' fees,
incurred solely for the benefit of the other party.
10. The defense, indemnification and hold harmless
obligations of this Agreement shall survive the
termination of this Agreement.
XXVI. GENERAL PROVISIONS
A. NOTICES
Except as otherwise specifically provided herein, any notice
required to be given by either party to the other shall be in
writing and delivered personally to the dealership or by
certified mail, return receipt requested, and shall be
effective on the date of receipt. Notices to DEALER shall be
directed to DEALER or its General Manager at DEALER's Approved
Location. Notices to DISTRIBUTOR shall be directed to the
General Manager of DISTRIBUTOR.
B. NO IMPLIED WAIVERS
The failure of either party at any time to require performance
by the other party of any provision herein shall in no way
affect the right of such party to require such performance at
any time thereafter, nor shall any waiver by any party of a
breach of any provision herein constitute a waiver of any
succeeding breach of the same or any other provision, nor
constitute a waiver of the provision itself.
Any continuation of business relations between the parties
following expiration of this Agreement shall not be deemed a
waiver of the expiration nor shall it imply that either party
has committed to continue to do business with the other at any
time in the future. Should this Agreement be renewed or any
other form of agreement be offered to DEALER, DISTRIBUTOR
reserves the right to offer an agreement of a length and upon
such additional terms and conditions as it deems reasonable.
C. SOLE AGREEMENT OF THE PARTIES
There are no prior agreements or understandings, either oral
or written, between the parties affecting this Agreement or
relating to the sale or service of Toyota Products, except as
otherwise specifically provided for or referred to in this
Agreement. DEALER acknowledges that no representations or
statements other than those expressly set forth herein were
made by DISTRIBUTOR or any officer, employee, agent or
representative thereof, or were relied upon by DEALER in
entering into this Agreement. This Agreement cancels and
supersedes all previous agreements between the parties
relating to the subject matters covered herein. No change or
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addition to, or deletion of, any portion of this Agreement
(except as provided in Section III) shall be valid or binding
upon the parties hereto unless the same is approved in writing
by an officer of each of the parties hereto.
D. DEALER NOT AN AGENT OR REPRESENTATIVE
DEALER is an independent business. This Agreement is not a
property right and does not constitute DEALER, Owners or
employees of DEALER as the agent or legal representatives of
DISTRIBUTOR for any purpose whatsoever. DEALER, Owners and
employees of DEALER or any other persons acting on behalf of
DEALER are not granted any express or implied right or
authority to assume or create any obligation on behalf of or
in the name of DISTRIBUTOR or to bind DISTRIBUTOR in any
manner whatsoever.
E. ASSIGNMENT OF RIGHTS OR DELEGATION OF DUTIES
This is a personal service agreement and may not be assigned
or sold in whole or in part, directly or indirectly,
voluntarily or by operation of law, without the prior written
approval of DISTRIBUTOR. Any attempted transfer, assignment
or sale without DISTRIBUTOR's prior written approval will be
void and not binding upon DISTRIBUTOR.
F. NO FRANCHISE FEE
DEALER warrants that it has paid no fee, nor has it provided
any goods or services in lieu of same, to DISTRIBUTOR or any
other party in consideration of entering into this Agreement.
The sole consideration for DISTRIBUTOR's entering into this
Agreement is DEALER's ability, integrity, assurance of
personal services and expressed intention to deal fairly and
equitably with DISTRIBUTOR and the public.
G. SEVERABILITY
If any provision of this Agreement should be held invalid or
unenforceable for any reason whatsoever, or conflicts with any
applicable law, this Agreement will be considered divisible as
to such provisions, and such provisions will be deemed amended
to comply with such law, or if it cannot be so amended without
materially affecting the tenor of the Agreement, then it will
be deemed deleted from this Agreement in such jurisdiction,
and in either case, the remainder of the Agreement will be
valid and binding.
H. NEW AND SUPERSEDING DEALER AGREEMENTS
In the event any new and superseding form of dealer Agreement
is offered by DISTRIBUTOR to authorized Toyota dealers
generally at any time prior to the expiration of the term of
this Agreement, DISTRIBUTOR may, by written notice to
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DEALER, replace this Agreement with a new agreement in a new
and superseding form for a term not less than the then
unexpired term of this Agreement.
I. BENEFIT
This Agreement is entered into by and between DISTRIBUTOR and
DEALER for their sole and mutual benefit. Neither this
Agreement nor any specific provision contained in it is
intended or shall be construed to be for the benefit of any
third party.
J. NO FIDUCIARY RELATIONSHIP
This Agreement shall not be construed to create a fiduciary
relationship between DEALER and DISTRIBUTOR.
K. NO JOINT EMPLOYMENT
DEALER acknowledges that it has assumed obligations under this
Agreement to use its best efforts to sell and service Toyota
Products, to increase the future growth in Toyota Product
sales through increased customer satisfaction and other
obligations related to the operation of the dealership and
recognizes the necessity to employ and train qualified
personnel to satisfy these commitments. To this end, DEALER
agrees to employ only qualified persons who will fulfill the
commitments made by DEALER to DISTRIBUTOR in this Agreement.
Notwithstanding the foregoing, DEALER retains the sole and
exclusive right to determine whom to hire and their
qualifications, to direct, control and supervise DEALER's
employees, and to establish all terms and conditions of
employment of DEALER's employees. All supervision, control
and direction of DEALER's employees shall be the sole and
exclusive responsibility of DEALER. DEALER shall at all times
remain the sole employer of persons employed by DEALER and, to
this end, DEALER and DISTRIBUTOR agree that no act or omission
of DEALER or DISTRIBUTOR shall be construed to make or render
them joint employer, co-employer or alter ego of each other.
L. CONSENT OF DISTRIBUTOR
Any time that this Agreement provides that DEALER must obtain
DISTRIBUTOR's consent to any proposed conduct or change,
DEALER must provide all information requested by DISTRIBUTOR
concerning the proposal, and DISTRIBUTOR shall have a
reasonable amount of time in which to evaluate the proposal.
M. DISTRIBUTOR'S POLICIES
This Agreement, from time to time, refers to certain policies
and standards. DEALER acknowledges that these policies and
standards are prepared by DISTRIBUTOR in its sole discretion
based upon DISTRIBUTOR's evaluation of the
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marketplace. DISTRIBUTOR may reasonably amend its policies
and standards as the marketplace changes from time to time.
XXVII. DEFINITIONS
As used in this Agreement, the parties agree that the following terms
shall be defined as exclusively set forth below.
A. OWNER: The persons identified in Section IV hereof.
B. GENERAL MANAGER: The person identified in Section V hereof.
C. DEALER FACILITIES: The buildings, improvements, fixtures, and
equipment situated at the Approved Location(s).
D. APPROVED LOCATION(S): The location(s) and any facilities
thereon, designated in Section VII that DISTRIBUTOR has
approved for the dealership operation(s) specified therein.
E. TOYOTA MARKS: The various Toyota trademarks, service marks,
names, logos and designs that DEALER is authorized by
DISTRIBUTOR to use in the sale and servicing of Toyota
Products as specified in the current Toyota Brand Graphic
Standards Manual.
F. TOYOTA PRODUCTS: All Toyota Motor Vehicles, parts,
accessories and equipment which IMPORTER, in its sole
discretion, sells to DISTRIBUTOR for resale to authorized
Toyota dealers.
G. TOYOTA MOTOR VEHICLES: All motor vehicles identified in the
current Toyota Product Addendum that DISTRIBUTOR sells to
DEALER for resale.
H. GENUINE TOYOTA PARTS AND ACCESSORIES: All Toyota brand Parts
and Accessories manufactured by or on behalf of DISTRIBUTOR or
FACTORY, or other parts and accessories specifically approved
by FACTORY for use in servicing Toyota Motor Vehicles and sold
by DISTRIBUTOR to DEALER for resale.
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TOYOTA PRODUCT ADDENDUM TO
TOYOTA DEALER AGREEMENT
Pursuant to Paragraph I(A) of the Toyota Dealer Agreement, DISTRIBUTOR hereby
grants DEALER the non-exclusive right to buy and resell the Toyota Products as
defined in the Toyota Dealer Agreement and identified below:
(Internal combustion models only)
Avalon Land Cruiser
Camry Previa
Celica RAV4
Corolla 4Runner
Paseo Tacoma Truck
Supra T100 Truck
Tercel
and all parts, accessories and equipment for such vehicles.
This Toyota Product Addendum shall remain in effect unless and until superseded
by a new Toyota Product Addendum furnished DEALER by IMPORTER.
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PRIMARY MARKET AREA DEFINITION
ADDENDUM TO TOYOTA DEALER AGREEMENT
Pursuant to Section VIII of the Toyota Dealer Agreement, the following
documents provide a detailed definition of the Primary Market Area (PMA) that
is currently assigned to Southwest Toyota, Inc., dba Xxxxxxxx XxXxxx Toyota,
(DEALER).
If DEALER's PMA is modified by DISTRIBUTOR, DISTRIBUTOR will provide DEALER
with a revised Addendum which defines the structure of the modified PMA.
