EXHIBIT 10.70
AUTHORIZED RETAILER AGREEMENT
This Authorized Retailer Agreement ("Agreement") is entered into this 22nd day
of August, 1997, by and between Volvo Cars of North America, Inc., a Delaware
corporation with its principal place of business at 0 Xxxxx Xxxxx, Xxxxxxxxx,
Xxx Xxxxxx, 00000 ("the Company") and First Choice Stuart 2, Inc., d/b/a Stuart
Volvo ("Retailer"), having its address at 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxxx,
Xxxxxxx, 00000. This Agreement delineates the rights and responsibilities of the
Company and Retailer, who each believe that the goals described in the Preamble
to this Agreement can be achieved while providing the Company and Retailer with
reasonable profits, and providing Volvo Customers with a superior ownership
experience.
NOW, THEREFORE, in consideration of the mutual promises and other good and
valuable consideration referenced herein, the sufficiency of which is hereby
acknowledged, it is mutually agreed by the parties as follows:
PREAMBLE
A. MISSION
The mission of Volvo Cars of North America, Inc., and its Retailer Partners is
to maximize the potential of Volvo products, by identifying and fulfilling
clearly defined customer needs and demands.
This will be achieved by:
Providing an ownership experience regarded as superior in the industry.
Developing and maintaining financially strong and professional Retailers
that are either exclusive, or have Volvo products as their primary
business.
Developing a superior organization where employees strive for excellence
based on individual motivation, and TQM oriented leadership; and
Exploiting Volvo virtues created by leadership in the areas of quality,
safety and environmental care.
VCNA MISSION STATEMENT
January, 1995
B. VISION
This Agreement is the very foundation of the partnership between Volvo Cars of
North America, Inc. and its Retailers. It has been carefully and diligently
constructed by a team of equals, representing both Partners in the spirit of
fairness and cooperation.
It is upon this foundation we will strive to build a preeminent organization
dedicated to fulfilling our joint vision: A seamless manufacturer/retailer
commercial entity created and maintained by:
Sharing in risks and rewards.
Building of financial strength.
Common "ownership" of the Volvo brand.
Maximizing the potential of Volvo products and delivering a superior
ownership experience.
Consistent with our vision, we mutually agree to conduct our respective
businesses with the highest level of integrity, thereby creating a strong
perception of seamlessness in the eyes of our customers.
C. PRINCIPLES OF OUR RELATIONSHIP
Both Partners have the right to expect from each other the mutual commitment to
and belief in the following Principles:
That the pursuit of the Mission Statement and the Vision is a joint
responsibility.
That the overall direction of the development of the name, trademarks and
reputation of "Volvo" is a joint responsibility.
That rewards be shared in relation to risks assumed. That the Volvo brand
be further protected and developed.
That people are important. That unique customer-value be provided.
That disputes be resolved in a fair and equitable manner. That information
be shared timely and accurately.
That honesty and integrity are fundamental to our conduct of business.
That the commitment to and fulfillment of these principles is the
foundation upon which the right to represent Volvo is awarded.
D. RETAILER PARTICIPATION
The strength of this Agreement is the mutuality principle. It has been
deliberately constructed to protect the interests of both Partners equally, for
it is our mutual interests which make us strong.
The Company and Retailer agree that their interests must be aligned to attain
these goals and achieve long term success in the automotive market. These
interests include, without limitation, the profitable marketing, promoting,
selling and servicing of Company Products while building superior levels of
customer loyalty and satisfaction with the Company and Retailer.
In consideration of Retailers' commitments, and to ensure a mutually
satisfactory relationship between Company and its Retailers, the Company has
established mechanisms for Retailer participation in the decision-making process
on matters significantly affecting Retailer's business. Retailer involvement is
provided through six principal mechanisms: the Executive Committee, Regional
Operating Teams, Retailer Action Teams, Performance Enhancement Teams, the
Market Representation Panel, and the Mediation Panel.
A. EXECUTIVE COMMITTEE
Guided by the Mission Statement, Vision, and the Principles, the Executive
Committee is a Volvo policy team whose primary focus is the future value of our
business.
Four Retailers participate along with Company executives from various
disciplines. Retailer participants must have previously served as members of a
Regional Operating Team, are selected by the Executive Committee, and serve for
staggered two-year terms.
B. REGIONAL OPERATING TEAMS
The Regional Operating Teams are comprised of an equal number of Retailers and
Company representatives. Regional Operating Teams deal with regional and local
business issues in areas such as advertising and market support.
C. RETAILER ACTION TEAMS
The Executive Committee may establish Retailer Action Teams as necessary, to
review certain specific business issues. The Executive Committee will determine
the membership of each Retailer Action Team and the scope of its assignment.
D. PERFORMANCE ENHANCEMENT TEAMS
Performance Enhancement Teams are comprised of 8-14 Retailers and two Company
representatives. These Retailer-managed teams focus on best practices sharing
and team problem solving.
E. MARKET REPRESENTATION PANEL
The Market Representation Panel, consisting of three Retailers (one of whom is
from the Executive Committee), and three Company representatives (of which one
is from the Executive Committee) review and revise the criteria used by the
Company for awarding the Retailer Agreement.
F. MEDIATION PANEL
The Mediation Panel is designed to help resolve certain disputes which may arise
between a Retailer and the Company, and is comprised of two Retailers, two
Company representatives, and one member chosen by the Mediation Panel.
Each of the above committees, teams, and panels represent each Partner's belief
in the mutuality principle and commitment to the future of the Volvo brand.
I. BUSINESS RELATIONSHIP
The Partners agree that a climate of mutual trust, respect, and shared
information is fundamental to the joint pursuit of a shared vision, which is the
foundation of this Agreement.
1. TERM OF AGREEMENT
This Agreement is for a five-year term, beginning on the date it is signed by a
Company Officer, unless the parties mutually terminate in writing, or it is
terminated as otherwise provided herein.
If Retailer is not in material breach of this Agreement when it expires, the
Company will, either offer Retailer the then current Authorized Retailer
Agreement, or renew or extend this Agreement. The Company agrees to notify
Retailer in writing, no later than one (1) year prior to the end of the term of
this Agreement, in the event that the Company does not intend to renew or extend
this Agreement, or offer Retailer the then current Authorized Retailer
Agreement.
The term of this Agreement may be extended only by written agreement between the
parties, signed by an Officer of the Company. If the parties continue their
business relationship after this Agreement expires, the relationship will be on
a month-to-month basis only, and all other terms of this Agreement will be
applicable.
2. OWNERSHIP
A. Principal Owners.
This Agreement is in the nature of a personal services contract between the
Company and Retailer. The Company enters into this Agreement in express reliance
on, and in consideration of, the expertise, reputation, character, integrity,
ability, representations and professional and personal qualifications of the
Principal Owner(s) listed below.
In addition, the Company relies upon the fact that at all times during this
Agreement's term, the individuals identified below will remain the Principal
Owner(s) of Retailer, and that each is committed to achieving the goals
described in the Preamble to this Agreement, and understands and agrees to abide
by the terms and conditions of this Agreement:
PERCENTAGE OF
NAME RESIDENTIAL ADDRESS OWNERSHIP INTEREST
1. Smart Choice Automotive 0000 X. Xxxxxxxxxx Xxxxxx 80%
Group, Inc. Xxxxxxxxxx, XX 00000
2. [intentionally left blank]
3. Xxxxxx Xxxxxxx 000 Xxxxxx Xxxxx 00%
Xxxxxxxxx, XX 00000
4.
Retailer represents and agrees that the person(s) named as Principal Owner(s)
above, and only those person(s), will exercise the ownership, control and/or
management of Retailer and that any change in ownership, control or management
shall be made only in accordance with, and subject to, the terms and conditions
of this Agreement.
B. Investors.
The following person(s), ( "Investor(s)"), also has an ownership interest in
Retailer:
PERCENTAGE OF
NAME RESIDENTIAL ADDRESS OWNERSHIP INTEREST
Same as Section 2A.
Retailer represents and agrees that the person(s) named as investors above will
not exercise control and/or management of Retailer's operations.
3. MANAGEMENT
The Company and Retailer agree that Retailer's success under this Agreement
depends upon dedicated, full time, professional, qualified, on-site management.
The Company and Retailer agree that if no Principal Owner identified in Section
2A, either: (i) maintains his or her principal place of business at the Retailer
Facility; or (ii) is involved in Retailer Operations on a full time, on-site,
day-to-day basis, except in those circumstances when Owner operates more than
one Retail Facility in the same Area of Responsibility or Market Area, that full
managerial authority shall be granted to the person named below (the "General
Manager"), and that this General Manager shall devote his or her personal
services on a full time, on-site, day-to-day basis to Retailer's management and
operation. The Company enters into this Agreement in reliance on, and in
consideration of, Retailer's representation that: (i) the General Manager will
possess the expertise, reputation, character, integrity, ability, and
professional and personal qualifications to achieve the goals and objectives of
this Agreement; (ii) he or she is committed to achieving the goals described in
the Preamble to this Agreement; and (iii) he or she understands and agrees to
abide by the terms and conditions of this Agreement.
Retailer agrees that the General Manager identified in this Section 3 shall have
an ownership interest in Retailer of at least twenty percent (20%).
PERCENTAGE OF
NAME RESIDENTIAL ADDRESS OWNERSHIP INTEREST
Xxxxxx Xxxxxxx 000 Xxxxxx Xxxxx, 20%
Xxxxxxxxx, XX 00000
4. CHANGES IN OWNERSHIP OR MANAGEMENT
Because this Agreement is in the nature of a personal services contract, and the
Company has entered into this Agreement in reliance on, and in consideration of,
the expertise, reputation, character, integrity, ability, representations and
professional and personal qualifications of the Principal Owners, Investors and
the General Manager identified in Sections 2 and 3 above, if Retailer desires to
make any change in: (i) Retailer's ownership, including, but not limited to, any
attempt to conduct a public offering of any of Retailer's shares, regardless of
the number or percentage of shares; or (ii) the relative shares among the
Principal Owners or other investors referenced in 2B, Retailer agrees to obtain
the Company's written approval, which shall not be unreasonably withheld. The
Company recognizes that Retailer may wish to make a public offering of
Retailer's shares, and that such a proposed offering of Retailer's shares shall
not constitute the sole grounds upon which Company may reasonably withhold
approval under this Section.
Retailer agrees that the Company's knowledge of any change in ownership interest
or management of Retailer will not be a waiver of the Company's rights and/or
Retailer's obligations under this Section unless the Company has approved the
change in writing.
5. LOCATION
In consideration of the Company entering into this Agreement, Retailer agrees to
at all times establish and maintain Retailer Facilities and Operations in
accordance with Company Policies, at only the following locations):
Location I Location 2 Location3
A. New Car Sales 0000 Xxxxx Xxxxxxx Xxxxxxx
& Xxxxxxxx Xxxxxx, Xxxxxxx 00000
B. Service, 0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx & Xxxxxx, Xxxxxxx 00000
Accessories
X.Xxxxx Select 0000 Xxxxx Xxxxxxx Xxxxxxx
Pre Owned Vehicles Xxxxxx, Xxxxxxx 00000
Display
D. Administrative 0000 Xxxxx Xxxxxxx Xxxxxxx
Support Activities Xxxxxx, Xxxxxxx 00000
6. FACILITIES
Retailer and the Company agree that appropriate Retailer Facilities are
necessary to achieve the goals described in the Preamble to this Agreement and
to provide Volvo Customers with a superior ownership experience. Retailer agrees
to operate its Retailer Facilities in accordance with this Agreement and the
then current Retailer Facilities Guide. If Retailer operates multiple sales
and/or service facilities, the terms of this Agreement will apply to all
Retailer Facilities.
A. Location.
Retailer will provide Retailer Facilities that: (i) will enable Retailer to
perform its responsibilities under this Agreement; (ii) are satisfactory in
space, appearance, layout, equipment, and signage; and (iii) are in accordance
with the then current Retailer Facilities Guide. Retailer will conduct its
Retailer Operations only from the location(s) identified in Section 5.
B. Changes and Additions.
Retailer will not move, relocate, or substantially change the usage of Retailer
Facilities, nor will Retailer, Principal Owner, Investor, or General Manager
directly or indirectly establish or operate any other locations or facilities
for any of the Retailer Operations (or similar operations) contemplated by this
Agreement without the Company's prior written consent, which will not be
unreasonably withheld. Retailer agrees that all new Retailer Facilities shall
conform to architecture, design and style described in the then current Retailer
Facilities Guide.
The Company and Retailer agree that any changes in Retailer Facilities will be
reflected in a written addendum to this Agreement. Retailer will promptly
correct any deficiencies in Retailer's performance of its responsibilities under
this Section 6.
Retailer acknowledges that the addition and maintenance of another line of
vehicles or another automobile dealership operating simultaneously with its
Retailer Operations at Retailer Facilities could adversely affect Retailer's
sales and service performance with respect to Company Products. Accordingly,
Retailer agrees to: (i) notify the Company in writing within ten (10) days of
its execution of an agreement or letter of intent to add a new line of vehicles
to be sold or serviced at Retailer Facilities; and (ii) obtain the Company's
written approval which will not be unreasonably withheld.
C. Development of Market Studies.
The Company may, from time to time, conduct studies of various geographic areas
to evaluate market conditions. These market studies may, where appropriate,
evaluate factors including geographical characteristics, consumer shopping
patterns, existence of competitive automobile dealerships, sales opportunities
and service requirements of the geographic area in which Retailer's Area of
Responsibility or Market Area is located, trends in marketing conditions,
current and prospective trends in population, income, occupation, and other
demographic characteristics which the Company may determine to be relevant.
Based upon such studies, the Company will make recommendations concerning the
market and Retailer Facilities. The Company will give Retailer prior notice of
its intention to conduct a study which includes the geographic area in which
Retailer's Area of Responsibility or Market Area is located. Within 30 days of
notice, Retailer should provide the Company with all information Retailer
believes relevant to the market study.
D. Evaluation of Retailer Facilities and Location.
The Company will periodically evaluate Retailer's performance of its
responsibilities under this Section 6. In making evaluations, the Company will
consider: (i) the land and building space Retailer actually dedicates to its
performance under this Agreement; (ii) the then current Retailer Facilities
Guide; (iii) the appearance, condition and layout of Retailer Facilities; (iv)
the ability of Retailer Facilities to satisfy the sales opportunities and
service requirements of the Area of Responsibility or Market Area; and (v) other
factors that may directly relate to Retailer's performance of its
responsibilities under this Agreement. Evaluations prepared pursuant to this
Section 6 will be discussed with and provided to Retailer, and Retailer may
comment in writing within thirty
(30) days of its receipt of an evaluation.
7. CAPITALIZATION OF RETAILER
Retailer agrees that its ability to market, promote, sell and service Company
Vehicles and provide Volvo customers with a superior ownership experience is
dependent in part upon Retailer maintaining adequate working capital to meet its
obligations under its Business Plan. The Company will provide Retailer with a
Working Capital Guide to assist Retailer in determining its working capital
requirements. Retailer agrees that the Company may, upon prior written notice,
reasonably modify the Working Capital Guide.
8. DISPOSITION OF BUSINESS BY RETAILER
Retailer and the Company agree that to achieve the goals described in the
Preamble to this Agreement, each Authorized Retailer shall be owned and operated
by parties committed to achieving these same goals.
Retailer agrees that this Agreement is in the nature of a personal services
contract. While the Company acknowledges that Retailer has the right to sell or
otherwise transfer the stock and/or assets of the dealership. Retailer
acknowledges and agrees that this right is subject to this Section 8.
A. General.
The Company recognizes Retailer's opportunity to sell or otherwise dispose of
all or substantially all of Retailer's assets (including goodwill) related to
Retailer's obligations or performance under this Agreement at any time and on
such terms and conditions as Retailer may decide to accept. Any transfer or sale
of any stock of Retailer, or a transfer and/or sale of a majority of the assets
of Retailer to any person or entity will be subject to the prior written
approval of the Company. Retailer agrees to provide the Company with all
documents reasonably necessary for the Company's evaluation of any transfer of
Retailer's stock or assets. Retailer also agrees that the time period for the
Company's review and evaluation of any transfer of stock or assets shall not
begin until all necessary documents have been submitted to the Company. Subject
to the Company's rights in Section 8B below, the Company will not unreasonably
withhold consent to enter into a new agreement with a buyer on terms
substantially the same as the provisions of this Agreement, or the then current
Authorized Retailer Agreement. Retailer agrees that if, in the Company's
business judgment, a sale may adversely affect the Company's ability to achieve
its goals described in the Preamble to this Agreement, or the ability of the
proposed retailer to meet the obligations under the then current Authorized
Retailer Agreement, the Company may reasonably withhold approval.
B. Right of First Refusal.
(i) Request to Transfer.
If Retailer submits a written request to transfer stock and/or assets in
Retailer as described in this Section 8, the Company shall have the right of
first refusal or option to purchase Retailer's stock and/or assets. The Company
must notify Retailer of its election to exercise such right within thirty (30)
days after receiving Retailer's complete written proposal. If the Company
exercises its right of first refusal, this shall supersede any other right that
Retailer may have to transfer or otherwise dispose of its stock or assets. The
Company may assign its right or option to a third party.
(ii) Bona Fide Agreement.
If Retailer enters into a bona fide written agreement for the sale of its stock
and/or assets, the Company's right under this Section 8 shall be a right of
first refusal, enabling the Company to assume the buyer's rights and obligations
under such agreement and cancel this Agreement and all rights granted Retailer.
Upon the Company's request, Retailer agrees to provide all documents relating to
the proposed transfer, including, without limitation, those reflecting any other
agreements or understandings between the parties to the transfer agreement.
(iii) Non Bona Fide Agreement.
If Retailer fails to provide documentation as required in Section 8B (ii), or
states in writing that the requested documents do not exist, the Company will
conclusively presume that the agreement is not bona fide. If the Company
determines that the agreement is not bona fide, the Company will have the option
to purchase Retailer's stock and/or assets utilized in Retailer's Operations.
The Company may also, but shall not be required to, purchase any of Retailer's
real property or leasehold interest related to Retailer's Facilities.
(iv) Purchase Price.
If Retailer enters into a bona fide written agreement, the Company and Retailer
agree that the purchase price and other terms of sale under the right of first
refusal will be those described in such agreement and any related documents,
unless Retailer and the Company agree to other terms. In the absence of a bona
fide written agreement, the purchase price of Retailer's stock and/or assets,
excluding new and undamaged parts and accessories, and other essential terms,
will be determined by good faith negotiation between the parties. If an
agreement cannot be reached, the purchase price and any other essential terms
not agreed upon will be determined through binding arbitration conducted by the
American Arbitration Association.
Each party agrees to pay its own attorneys' fees associated with this
arbitration. If the sale involves the sale of real property, Retailer agrees to
transfer the real property by warranty deed, in recordable form, conveying
marketable title free and clear to the Company. If the sale involves the sale,
transfer, or assignment of a leasehold interest, Retailer agrees to sell,
transfer, or assign such interest in a method typically undertaken in similar
commercial transactions.
(v) Assignments.
If the Company elects to exercise its rights under this Section 8, Retailer
shall transfer or assign to the Company all licenses, authorizations, permits,
and other documents typically required in similar commercial transactions, and
shall grant all other necessary approvals to conduct Retailer Operations in a
manner similar to that immediately prior to the sale.
(vi) Successors and Assigns.
The Company's rights under this Agreement shall be binding on and enforceable
against any assignee or successor in interest of Retailer or any purchaser of
Retailer's stock and/or assets, unless the Company has previously approved the
successor under Section 9A.
C. Outstanding Obligations.
Retailer agrees that all outstanding monetary obligations to the Company shall
be paid prior to, or at the time of, transfer.
9. SUCCESSION OF OWNERSHIP OR MANAGEMENT
A. Successor Addendum.
Retailer may apply for a successor addendum designating proposed principal
owners and/or owners of a successor retailer to be established if this Agreement
expires because of the Principal Owner(s) death or incapacity. The Company may
execute the successor addendum if the proposed successor completes, to the
Company's satisfaction, the then current selection process to become an
Authorized Retailer used by the Company.
B. Rights of Heirs.
If a Principal Owner(s) or General Manager (with an ownership interest) dies and
his or her interest in Retailer's Operations passes directly to any heir who
wishes to succeed to such party's interest, the Principal Owner's or General
Manager's legal representative must notify the Company within thirty (30) days
of the Principal Owner's or General Manager's death of such heir's or heirs'
intent to succeed the Principal Owner's or General Manager's interest. If a
Principal Owner(s) or General Manager becomes incapacitated, then the Principal
Owner's or General Manager's legal representative must notify the Company within
thirty (30) days of the determination of such incapacity and provide the Company
with plans, if any, for a successor. The effect of notice of death or incapacity
from either the Principal Owner's or General Manager's legal representative will
be to suspend any notice of termination provided for in Section IOA (iv).
C. Rights of Remaining Owners and Investors.
If this Agreement would otherwise terminate because of a Principal Owner Is
death or incapacity, and Retailer and the Company have not executed a successor
addendum, the remaining Principal Owners or Investors, if any, may propose a
successor to continue the operations identified in this Agreement. The proposal
must be made in writing to the Company at least thirty (30) days prior to the
termination of this Agreement,
The proposal will be accepted if: (i) it meets the requirements of Section 2
with regard to ownership; (ii) the proposed successor successfully completes the
Authorized Retailer selection process; (iii) any proposed owner(s) satisfies
applicable Authorized Retailer selection criteria; (iv) the proposed successor
retailer and/or the proposed general manager are ready, willing and able to
comply with the requirements of the then current Authorized Retailer Agreement,
and agree to implement the Business Plan; and (v) all of the former Retailer's
outstanding monetary obligations to the Company have been satisfied.
D. Limitation on Offers.
The Company will notify the individual or entity making a proposal under
Sections 9A, B, or C in writing of the decision on a proposal under this Section
9 within sixty (60) days after: (i) Retailer has submitted all applications and
information that the Company reasonably requested, and (ii) the proposed
retailer has successfully completed the selection process to become an
Authorized Retailer. The Company's offer to enter into the then current
authorized Retailer agreement under this Section 9 will automatically expire if
not accepted by the proposed successor retailer within sixty (60) days after it
receives the offer.
E. New Successor Addendum.
Retailer may cancel an executed successor addendum in writing at any time prior
to the death or incapacity of a Principal Owner. The Company may cancel an
executed successor addendum only if the proposed Principal Owner(s) no longer
meets the selection criteria to become an Authorized Retailer. The parties may
execute a superseding successor addendum by agreement.
10. TERMINATION.
A. Immediate Termination.
This Agreement will continue in force, and will govern all transactions between
the Company and Retailer until terminated in accordance with this Section 10.
Any termination of this Agreement shall apply to all Retailer Facilities. The
Company and Retailer may also ten-ninate this Agreement by mutual written
agreement at any time.
Retailer may terminate this Agreement at any time, with or without reason, by
giving the Company sixty (60) days prior written notice. The Company may
terminate this Agreement upon written notice to Retailer if the distribution
agreement between the Company and Manufacturer is terminated.
Retailer and the Company agree that certain conduct which is within Retailer's
control is so contrary to achieving the goals described in the Preamble to this
Agreement, and to the spirit, purpose and objectives of this Agreement, that any
of the following conduct will constitute a material breach of this Agreement and
justify its immediate termination, upon written notice:
(i) Change in the control, ownership or management of Retailer as described in
Section 4 of this Agreement including, without limitation, an attempted public
offering of ownership in Retailer, without the Company's prior written approval;
or
(ii) Sale, transfer, or assignment by Retailer of this Agreement, or any of the
rights granted to it under this Agreement, or any transfer, assignment or
delegation by Retailer of any of the responsibilities assigned to Retailer under
this Agreement, without the Company's prior written approval; or
(iii) Sale, transfer or assignment by Retailer of any of the stock or
substantially all of the assets used by Retailer in its Volvo operations,
without the Company's prior written approval; or
(iv) Subject to the provisions in Section 9, death or mental incapacity of
Retailer (if Retailer is an individual) or any person identified in Section 2 of
this Agreement; or
(v) Misrepresentation by Retailer concerning Retailer's ownership or management,
or any material misrepresentation in the application for this Agreement, or at
any time thereafter; or
(vi) Undertaking by Retailer or any of its owners to conduct either directly or
indirectly, any of Retailer's Operations at locations other than those
designated in this Agreement, without the Company's prior written approval; or
(vii) Willful misrepresentation by Retailer, or any of its agents or employees,
in any claim or application for reimbursement by, or payment from the Company,
including, without limitation, warranty claims, goodwill payments, incentives,
work performed pursuant to a recall, pre-delivery inspection, or for any other
refund, credit, incentive, allowance, discount, reimbursement or payment applied
for or received under any Company program; or
(viii) Knowing acceptance by Retailer of any payment for any work not performed
or contracted for by Retailer in accordance with this Agreement, or any
applicable warranty or other Company Policies, service bulletin, procedures or
programs the Company may issue; or
(ix) Filing by Retailer of a voluntary petition in bankruptcy, or the filing of
a petition to have Retailer declared bankrupt, providing the petition is not
vacated within thirty (30) days; or any adjudication of Retailer as bankrupt
pursuant to an involuntary petition; or any appointment by a court of a
temporary or permanent receiver, trustee, or custodian for Retailer, Retailer's
assets or Retailer's business who shall not be discharged within thirty (30)
days; or execution of any assignment for the benefit of creditors provided that
the assignment is not set aside within thirty (30) days; or any material levy
under attachment, or by any process of law by which a third party acquires
rights in or to the ownership or operation of any Retailer Facility provided
that the levy is not vacated within thirty (30) days; or if Retailer is unable
to meet maturing debts on terms agreeable to its creditors; or any dissolution
of Retailer; or
(x) Use by Retailer of any unfair, misleading, deceptive or fraudulent
advertising or business practice in the marketing, sale or servicing of any
Company Product or in any program offered by Company; or
(xi) Conviction of or entry of a judgment in a court of competent jurisdiction
against a Retailer or any person named in Sections 2 or 3, of a felony, or any
unfair, misleading, deceptive or fraudulent business practice; or
(xii) Failure of Retailer to conduct its sales, service and parts operations
during the customary business hours of the trade in Retailer's Area of
Responsibility or Market Area for five (5) consecutive business days, unless any
failure is caused by contingencies beyond Retailer's reasonable control,
including strikes, civil war, riots, fires, floods, earthquakes, or other acts
of God, provided that Retailer immediately resumes its customary operation after
the cause of the closure or cessation of operation is removed; or
(xiii) Refusal or inability by Retailer to pay any amount Retailer owes to the
Company within thirty (30) days after the Company demands payment from Retailer;
or
(xiv) Failure by Retailer to comply with Section 35 of this Agreement; or
(xv) Agreement, combination, understanding or contract by Retailer, whether oral
or written, with any
other corporation, person, firm or other legal entity for the purpose of
unlawfully fixing prices of Company Products, or otherwise violating any law; or
(xvi) Failure by Retailer to procure and maintain any license or other
governmental authorization necessary to operate as a Volvo Retailer; or
(xvii) Importation, distribution or sale of Company Products which are not
originally manufactured, designed or intended for use in the United States,
without the Company's prior written approval.
B. Sixty Day Cure Period Prior to Termination.
The Company may also terminate this Agreement upon no less than thirty (30) days
prior written notice if Retailer fails to cure within sixty (60) days, to the
Company's satisfaction, any other material default in its performance under this
Agreement. These material defaults include, without limitation, the following:
(i) Any dispute, disagreement, or controversy between or among persons
identified in Section 2 of this
Agreement which, in the Company's reasonable opinion, adversely affects the
ownership, operation, management, or business of Retailer or Company; or
(ii) Retention by Retailer of any General Manager, who in the Company's
reasonable opinion is not competent, or no longer possesses the requisite
qualifications for the position, or who has acted in a manner contrary to the
continued best interests of the Company or Retailer; or
(iii) Any material modification or change in the use of Retailer's Facilities,
including, without limitation, the addition or maintenance of another line of
vehicles at Retailer's Facilities without the Company's prior written approval;
or
(iv) Failure by Retailer to improve, alter, or modify its Retailer Facility to
meet the requirements in the Company Facilities Guide or other Company Policies,
or which Retailer had agreed or represented to the Company that Retailer would
make or do; or
(v) Failure by Retailer to maintain and employ in Retailer's business and
operations under this Agreement sufficient net working capital and net worth to
enable Retailer to satisfy Retailer's responsibility under this Agreement; or
(vi) Failure by Retailer to update its Business Plan in accordance with Section
13.
(vii) Failure by Retailer to maintain adequate flooring lines of credit for
Company Vehicles; or
(viii) Failure by Retailer to maintain an inventory of new Company Vehicles of
the latest model in accordance with the objectives agreed to by Retailer and the
Company; or
(ix) Failure by Retailer to keep available at all times, in excellent condition
for demonstration purposes, a representative number and mix of the latest models
equipped with the latest accessories offered by the Company; or
(x) Failure by Retailer to, at all times, keep in Retailer's Facility(ies), an
inventory of Genuine Volvo Parts and Accessories in quantities that the Company
reasonably determines are necessary to meet the current and reasonably
anticipated service requirements of Volvo Customers; or
(xi) Failure by Retailer to keep records of its business relating to Company
Products, or any failure, after reasonable notice to Retailer, to submit
Retailer's accounts and records relating to the sale and servicing of Company
Products, or allow the Company to inspect its accounts and records; or
(Xii) Failure by Retailer to furnish the Company, within reasonable time limits
specified by the Company, and on forms prescribed by or acceptable to the
Company, statements of Retailer's financial condition and operating results; or
(xiii) Failure by Retailer to furnish the Company on such forms and at such
times as the Company may reasonably require, reports of Retailer's sales and
inventory of Company Products and used automobiles; or
(xiv) Failure by Retailer to maintain warranty records in accordance with the
Company Policies; or
(xv) Negligent or willful conduct by Retailer that the Company determines, in a
reasonable exercise of its discretion, to be harmful to the reputation of the
Company, Company Products, or Marks/Trademarks.
C. Failure to Meet Improvement Plan Objectives.
If Retailer fails to cure deficiencies identified in the improvement plans
within the periods described in Section 14, the Company may terminate this
Agreement upon thirty (30) days prior written notice to Retailer.
If Retailer refuses to enter into the applicable improvement plan, the Company
may terminate this Agreement in accordance with Section I OA.
D. Applicable Notice Provision for Termination.
Retailer and the Company acknowledge that under certain state laws, the time
period required for notice of termination may vary from those described herein.
Retailer and the Company agree that statutory and regulatory time provisions,
when greater than those provided above, shall control as applicable.
E. Failure to Terminate Shall Not Constitute a Waiver.
The Company may terminate this Agreement under any applicable provision which it
elects, notwithstanding the existence of any other grounds for termination, or
the failure to refer to such other grounds for termination. The Company's
failure to specify additional ground(s) for termination in its notice shall not
preclude the Company from later establishing, upon notice, that termination is
also supported by such additional ground(s), without regard to when those
additional grounds were discovered.
F. Procedure on Termination.
Termination of this Agreement shall end Retailer's status as an Authorized
Retailer, but shall not affect any liability of either party to the other
accruing prior to the date of termination, or arising out of this Agreement.
Upon termination, Retailer agrees to immediately: (i) discontinue the use of any
trademarks or trade names made up in whole or in part of any trademark or
tradename belonging to the Company or Manufacturer; (ii) remove all signs
containing any such trademarks or trade names; and (iii) render unfit for the
use originally intended (or to certify to the Company that Retailer will not use
for the purpose originally intended) any stationery, printed matter, or
advertising containing any such trademarks or trade names. In addition, Retailer
will not represent or continue any practices which might make it appear that it
is still an authorized Volvo retailer and will permanently discontinue any use
of the word Volvo in Retailer's corporate title, firm name or tradename and will
immediately take such steps as may be necessary or appropriate in the opinion of
the Company to change such corporate title, firm name or tradename to eliminate
the word Volvo, all without cost or expense to the Company.
Upon termination under Section IOA, all unfilled orders for Company Products
will be deemed canceled. Upon termination under Section I OB, the Company will
have the option to complete or cancel all unfilled orders for Company Products
then pending and will have a similar right to complete or cancel any firm orders
given after notice and before termination.
Upon termination of this Agreement, Retailer shall transfer to the Company: (i)
all orders for sale by Retailer of Company Products then pending with Retailer
and all deposits obtained whether in cash or in kind; (ii) all of Retailer's
warranty files regarding warranty claims on Company Products; (iii) all lists,
files and service records of Volvo Customers; and (iv) all technical or service
literature, advertising and other printed material relating to Company Products,
including, without limitation, sales instruction manuals, service manuals, and
promotional materials. All warranty claims must be closed within thirty (30)
days of such termination.
After termination, the Company's acceptance of orders from Retailer, Retailer's
continuance of sale of Company Products, or the Company's referral of inquiries
to Retailer or any business relations either party has with the other will not
be construed either as a renewal of this Agreement or a waiver of the
termination. If the Company accepts any orders from Retailer after termination,
all such transactions will be governed by the terms of this Agreement applicable
to such transactions, unless otherwise agreed in writing.
11. DISPUTE RESOLUTION
Retailer and the Company recognize that certain disputes may arise between them
as to application and interpretation of this Agreement, the Company Policies,
and the other controlling documents referenced in this Agreement. While
understanding that certain federal and state courts and agencies may be
available to resolve any disputes, Retailer and the Company agree that it is in
their mutual best interests, consistent with achieving the goals described in
the Preamble to this Agreement, and in the spirit of this Agreement, to attempt
to resolve first through mediation, described below, all disputes arising from a
notice of termination as described in Section 10. Each party agrees to pay its
own attorneys' fees, costs and expenses associated with such mediation.
A. Non-Binding Mediation.
Prior to initiating any judicial, agency or other administrative proceeding, the
Company and Retailer agree to mediate any dispute arising from a notice of
termination as described in Section 10. Mediation shall be held at the Company
regional office closest to Retailer, or at another mutually agreed upon
location, and shall begin within ten (IO) days after receipt of notice: (i)
invoking this Section II; and (ii) clearly specifying the nature of the dispute.
Mediation shall not be binding unless first agreed to in writing by Retailer and
the Company. Any mediation under this Section I I shall be conducted before a
Company/Retailer Mediation Panel (the "Mediation Panel") chosen by the Company
and Retailer at least five (5) days before such mediation is scheduled to begin,
and shall be governed by the Company's Mediation Guidelines.
B. Mediation Panel.
The Mediation Panel shall consist of: (i) two members of the Company management,
including one from Retailer's region; (ii) two Retailer Mediators, one of which
shall be from Retailer's Region, but not by an Authorized Retailer which has an
Area of Responsibility in a Market Area contiguous to or in competition with
Retailer; and (iii) one member chosen by the members identified in (i) and (ii).
Within twenty (20) days of hearing the dispute, the Mediation Panel shall
recommend, in writing, a solution to Retailer and the Company. The parties agree
that a majority vote of the Mediation Panel shall be deemed to be the final
decision of the Mediation Panel. Each party shall have five (5) days to accept
or reject the Mediation Panel's solution, in its entirety.
C. No Waiver of Rights During Mediation.
The Company and Retailer agree that neither party shall waive any rights it may
have under any federal or state law during the pendency of any mediation under
this Section II.
D. Tolling.
Each party agrees that mediation under this Section II will toll any applicable
statute of limitations during the mediation and solution review periods
referenced above. If Retailer is required under any applicable state law to file
a letter of protest before the completion of any mediation contemplated hereby,
nothing herein shall prohibit Retailer from filing such protest; however,
Retailer must continue with the mediation procedures described in this Section
II.
E. Cost of Enforcement.
If the parties are unable to resolve disputes under this Section I 1, and a
party elects to initiate administrative proceedings or civil litigation arising
from such disputes, the prevailing party shall, in addition to all other
available remedies, be entitled to recover all of its reasonable attorneys'
fees, court costs and expenses of litigation.
II. VOLVO CUSTOMER OWNERSHIP EXPERIENCE
The Partners agree that the highest priority for Retailer and Company is
providing a superior ownership experience for Volvo Customers. This will be
achieved by providing unique customer value, and by treating Volvo Customers and
prospective Volvo customers with honesty and integrity.
12. RETAILER BUSINESS PLAN
Before entering into this Agreement, Retailer has provided the Company with a
Business Plan, signed by all Principal Owners listed in Section 2A of this
Agreement, and the General Manager listed in Section 3 of this Agreement. The
Business Plan addresses all areas of Retailer's business, including, without
limitation:
Retailer's strategy for providing a superior ownership experience for Volvo
Customers;
Retailer's strategy for developing Retailer's Area of Responsibility or
Market Area;
A detailed description of Retailer's sales objectives and its method of
achieving its objectives;
A detailed description of Retailer's service objectives and its method of
achieving its objectives;
A detailed description of Retailer's Facilities;
A complete statement of Retailer's ownership and management structure;
A complete statement of Retailer's financial structure, including
capitalization and lines of credit;
Retailer's strategy for staffing and personnel development;
Retailer's strategy for advertising, merchandising, and community
relations; and
Retailer's strategy for other items as agreed to by Retailer and the
Company.
Retailer further agrees to develop its Area of Responsibility or Market Area
according to its Business Plan, and to fulfill its commitments as described in
the Business Plan.
13. REVIEW AND UPDATE OF BUSINESS PLAN
Retailer's performance under this Agreement is essential to the effective
representation of the Company in the marketing, promotion, sale and service of
Company Products and the reputation and goodwill of other Volvo retailers.
Retailer agrees to update and submit its written Business Plan to the Company at
least annually, or more often if the Company requests. All Business Plan updates
shall include Retailer's evaluation of its performance for the previous year,
and any proposed modifications to the Business Plan.
Retailer and the Company agree that Retailer's performance shall be evaluated
based on criteria agreed to in Retailer's Business Plan, or as updated. If
Retailer and the Company agree that the changes to the proposed Business Plan,
or update are necessary, Retailer will make all necessary modifications, and
resubmit the Business Plan, or update, for the Company's review and approval.
While Retailer's Business Plan is subject to update and review, the Company will
require Retailer to modify Retailer's Facilities only if the Company can show
that a material change in marketing conditions warrants modification in
Retailer's Facilities.
14. VEHICLE SALES OR SERVICE IMPROVEMENT PLAN
If the Company determines that Retailer has failed to meet any material
provision Of its Business Plan, or as updated, Retailer agrees to enter into a
written improvement plan to cure any performance deficiency. The Company agrees
that: (i) Retailer will have a minimum of six (6) months from execution of an
improvement plan to cure any performance deficiency; and (ii) the Company will
provide reasonable assistance as the Company and Retailer agree upon in advance
and in writing.
15. PRODUCT AVAILABILITY
The Company agrees to provide and allocate Company Products among its Retailers
on a fair and equitable basis.
Retailer agrees that, because Company Products may not be available in
sufficient quantities from time to time, the Company, in the exercise of its
reasonable business judgment, may determine the manner and method of allocation
among the Company's Retailers without any liability to the Company.
16. PURCHASE AND DELIVERY
A. Retailer Purchases.
(i) Company Vehicles.
From time to time the Company will advise Retailer of the number and model lines
of Company Vehicles which the Company has available for sale to Retailer and,
subject to Section 15, Retailer will have the right to purchase such Company
Vehicles. The Company will distribute Company Vehicles to Authorized Retailers
in accordance with the Company's written distribution policies and procedures in
effect from time to time, and in accordance with this Section 16.
(ii) Genuine Volvo Parts and Accessories.
Retailer will submit firm orders for Genuine Volvo Parts and Accessories to the
Company in such quantity and variety to fulfill Retailer's obligations under
this Agreement. Retailer will submit all orders in accordance with Company
Policies. The Company may accept orders in whole or in part, and all orders
shall be effective only upon acceptance by the Company (but without necessity of
any notice of acceptance by the Company to Retailer). Orders for Genuine Volvo
Parts and Accessories shall not be cancelable by Retailer after acceptance and
shipment by the Company, except as otherwise provided in this Agreement.
(iii) Other Products and Services.
Retailer may submit firm orders to the Company for other products and services
the Company may offer for sale to Retailer from time to time in such quantity
and variety to fulfill Retailer's obligations under this Agreement. Retailer
will submit all orders in accordance with Company procedures. The Company may
accept orders in whole or in part, and all orders shall be effective only upon
acceptance by the Company (but without necessity of any notice of acceptance by
the Company to Retailer). Orders for other products and services shall not be
cancelable by Retailer after acceptance and shipment by the Company, except as
otherwise set forth in this Agreement.
(iv) Changes in Company Products.
The Company may discontinue the supply, or change the design of component
materials, of Company Products at any time. The Company will be under no
liability to Retailer for any changes and will not be required, as a result of
any changes, to make any changes to Company Products previously purchased by
Retailer. No change shall be considered a model year change unless so specified
by the Company.
B. Delays in Delivery.
The Company will not be liable for failure or delay in delivery to Retailer of
Company Products if the failure or delay is beyond the control, or without the
fault or negligence of, the Company.
C. Passage of Title.
Title to each Company Product Retailer purchases under this Agreement shall pass
to Retailer, or to the finance institution designated by it, upon delivery to a
carrier for shipment to Retailer, but the Company shall retain a security
interest in, and right to repossess, any such Company Product described in
Section 16E below.
D. Shipment of Company Products.
(i) Company Vehicles.
The Company may select the mode of transportation, route and point of origin for
Company Vehicles shipped to Retailer. Retailer will pay to the Company the
applicable destination charges that the Company establishes for Retailer for
Company Vehicles delivered to Retailer that are in effect at the time of
shipment. The Company will bear the risk of loss and damage to Company Vehicles
until delivery to a transport carrier for shipment; however, the Company will,
if requested by Retailer in a manner and within the time as the Company shall
from time to time specify, prosecute for and on behalf of Retailer, at Retailers
expense, claims against the responsible transport carrier for loss of or damage
to Company Vehicles during transportation.
(ii) Genuine Volvo Parts and Accessories.
The Company will ship Genuine Volvo Parts and Accessories to Retailer by
whatever means of transportation, by whatever route, and from whatever point the
Company may select. The Company will bear the risk of loss and damage to Genuine
Volvo Parts and Accessories until delivery to a transport carrier for shipment;
however, the Company will, if requested by Retailer in a manner and within the
time as the Company shall from time to time specify, prosecute for and on behalf
of Retailer, at Retailer's expense, claims against the responsible transport
carrier for loss of or damage to Genuine Volvo Parts and Accessories during
transportation.
E. Security Interest.
As security for full payment of all sums Retailer owes to the Company under this
Agreement, whether such sums are now, or subsequently become due and owing,
Retailer grants to the Company, subject to any prior perfected secured
creditor's security interest, a security interest in all inventory, including,
without limitation, Company Products and proceeds from sales or insurance, and
all liens. Upon any non-payment or default in payment, the Company may
accelerate any then existing debt and shall have all applicable rights,
including, without limitation, those specified in the Uniform Commercial Code.
If the Company requests, Retailer agrees to perfect the Company's security
interests.
F. Charges for Storage and Diversions.
Retailer is responsible for, and will pay all charges, for demurrage, storage
and other expenses accruing after shipment to Retailer or to a carrier for
transportation to Retailer. If diversions of shipments are made upon Retailer's
request, or are made by the Company because of Retailer's failure or refusal to
accept shipments of Retailer's orders, Retailer will pay all additional charges
and expenses incident to such diversion.
17. PAYMENTS BY RETAILER
Payment for Company Products purchased by Retailer shall be made in cash in
advance or by other payment methods the Company approves in writing. The
Company's receipt of any commercial paper will not constitute payment until
collected in full. Retailer will pay all collection costs, including but not
limited to, reasonable attorneys' fees, costs and expense of litigation.
18. INVENTORY OF COMPANY VEHICLES
Retailer will maintain, and the Company shall supply, a representative inventory
of new Company Vehicles of the latest model in accordance with Retailer's
Business Plan. Retailer shall store and maintain such new Company Vehicles in
accordance with Company Policies.
19. DEMONSTRATORS
Retailer will keep available at all times, in excellent condition for
demonstration purposes, a representative number and mix of the Company Vehicles
of each of the latest models equipped with the latest accessories.
20. BUSINESS HOURS
Retailer will conduct its Retailer Operations during hours which are reasonable
and convenient for customers. All aspects of Retailer Facilities will be open
for business during days and hours reasonably necessary to provide a superior
customer experience, and consistent with local practice in Retailer's Area of
Responsibility or Market Area-
21. PARTS AND ACCESSORIES
A. Inventory.
Retailer agrees to purchase and maintain at Retailer's Facility, in accordance
with Company Policies, a sufficient inventory of Genuine Volvo Parts and
Accessories necessary to meet the current and reasonably anticipated
requirements of Volvo Customers.
B. Warranty Repairs.
When performing warranty repairs, or other repairs paid for, or reimbursed, in
whole or in part by the Company, Retailer shall only use Genuine Volvo Parts and
Accessories.
C. Non-Genuine Volvo Parts and Accessories.
When performing repairs on any Company Vehicle, other than warranty repairs or
repairs paid for, or reimbursed in whole or in part by, the Company, Retailer
may sell and install non-Genuine Volvo Parts and Accessories.
D. Quality of Parts.
If Retailer sells, and/or installs non-Genuine Volvo Parts and Accessories
during repairs or service of Company Products under Section 2 IC, Retailer will
not use parts or accessories that do not meet Company standards or that could
adversely affect the mechanical operation, safety, integrity or reputation of
Company Products.
E. Disclosure.
If Retailer sells and/or installs non-Genuine Parts and Accessories during
repairs or service as described in Section 21C above, Retailer will, prior to
repair or installation, conspicuously disclose to the customer in writing on all
copies of the customer's repair order and invoice the following:
(i) Those parts and accessories which are non-Genuine Volvo Parts and
Accessories; and
(ii) That non-Genuine Volvo Parts and Accessories are not covered by the Company
or Manufacturer warranty
22. WARRANTIES ON COMPANY PRODUCTS
The Company provides a written warranty for the Company Products it markets. The
Company and Retailer shall each fulfill promptly their respective obligations
under such warranties.
Retailer agrees to furnish each retail purchaser or end user of a Company
Vehicle purchased from, or delivered by Retailer, excepting used vehicles not
covered under the Volvo Select Pre Owned Program, with such form of warranty and
maintenance record, owner's manual, and/or other documentation then currently
provided by the Company.
EXCEPT AS OTHERWISE PROVIDED BY LAW, THE WRITTEN COMPANY WARRANTIES ARE THE ONLY
WARRANTIES APPLICABLE TO COMPANY PRODUCTS. EXCEPT FOR ITS LIMITED LIABILITY
UNDER SUCH WRITTEN WARRANTIES, THE COMPANY AND MANUFACTURER DO NOT ASSUME ANY
OTHER WARRANTY, OBLIGATION OR LIABILITY RETAILER IS NOT AUTHORIZED TO CREATE OR
ASSUME ANY ADDITIONAL WARRANTY OBLIGATION OR LIABILITY ON BEHALF OF THE COMPANY
OR MANUFACTURER. ANY SUCH UNAUTHORIZED ASSUMPTION OR CREATION OF OBLIGATIONS
WITHOUT THE PRIOR WRITTEN AUTHORIZATION OF THE COMPANY SHALL BE THE SOLE
RESPONSIBILITY OF RETAILER. AS TO RETAILER, THE WRITTEN WARRANTIES ARE IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE
COMPANY DISCLAIMS ANY LIABILITY TO RETAILER FOR COMMERCIAL LOSSES BASED ON
NEGLIGENCE OR MANUFACTURER'S STRICT LIABILITY, OR ANY OTHER THEORY OF RECOVERY.
23. PRE-DELIVERY SERVICE
Retailer agrees to inspect, service, condition and prepare each new Company
Vehicle before delivery to a customer in accordance with applicable pre-delivery
inspection, service and conditioning standards and schedules the Company
furnishes from time to time to Retailer, and to perform such other normal
service and conditioning work as may be prescribed in the Company Policies.
Retailer will maintain adequate pre-delivery service and inspection records, and
upon request, Retailer will provide to the Company evidence that it has
performed pre-delivery services.
24. REPAIR AND MAINTENANCE SERVICE
Retailer agrees to perform: (i) warranty service and repairs; (ii) services
included in On XxxxX (or other roadside assistance plan the Company may offer
from time to time); (iii) extended contract service repairs; (iv) recall and
service campaign repairs; (v) inventory maintenance; and (vi) other maintenance
required on Company Products in accordance with the Company's then current
recommendations and specifications, regardless of where customer purchased
Company Products. Warranty, recall, service campaign and On Call services are
provided for the customer's benefit, and Retailer agrees that the customer shall
not be obligated to pay for any charges for these services for which Retailer is
reimbursed by the Company or a third party designated by the Company.
25. TRAINING
Retailer and the Company agree that ongoing training and development of Retailer
employees is necessary to provide Volvo Customers with a superior ownership
experience, and achieve the goals described in the Preamble to this Agreement.
To help accomplish this, the Company agrees to provide or make training programs
available to Retailer, and Retailer will require all appropriate employees, as
the Company may determine, to participate in such training programs the Company
offers. Retailer shall be responsible for reasonable charges and expenses
related to such training, unless otherwise advised by the Company.
III. OPERATING PROVISIONS
The Partners agree that the success of Volvo, its name, trademarks and
reputation is their joint responsibility.
26. USE OF VOLVO TRADEMARK
Retailer agrees that the Company has been authorized by AB Volvo, Gothenburg,
Sweden, to permit Retailer to use the name "Volvo" under the following terms and
conditions:
A. Ownership of Xxxx.
AB Volvo is the owner of numerous trademarks and trade names: (i) the name
"Volvo" is a valid and existing trademark presently owned by AB Volvo and is
registered by AB Volvo in the United States Patent and Trademark Office; (ii) AB
Volvo presently has the sole right to use such trademarks (except to the extent
that it has previously expressly authorized others to do so) and to authorize
others to use such trademarks; and (iii) valuable goodwill has accrued to, and
is attached to, such trademarks.
B. Company Rights.
The Company has been granted the right to enforce rights associated with the
trademark "Volvo" in the United States. In addition, the Company's rights
hereunder shall inure to the benefit of, and are assignable to, any successor to
its business.
C. Right to Use.
During the term of this Agreement, Retailer has been granted the limited,
non-assignable, non-exclusive right to use the name "Volvo" in the tradename
used in connection with the sale and service of Company Products described in
this Agreement. Retailer will not claim or make any attempt to register any
corporate or other name or trademark which includes the name "Volvo" in any
place or office, but Retailer may, in connection with Retailer's operations
under this Agreement and upon prior approval of the Company, register a
tradename containing the name "Volvo" where registration of businesses under
fictitious names are conducted as required by law. The rights conferred herein
will ten-ninate upon termination of this Agreement.
D. Alterations.
Retailer will not alter any Company Product furnished under this Agreement or
change or substitute any of its equipment, nor do anything that will in any way
infringe, impeach or lessen the value or validity of the trademarks associated
with any Company Product.
E. Non-assignability.
Retailer's interest in this trademark license is personal and non-assignable.
F. Assignability.
All rights exercisable by AB Volvo as the owner of the "Volvo" trademark and
tradenames shall, in the event of any assignment of such trademarks and
tradenames, be fully exercisable by, and inure to the benefit of, the assignee.
27. DISCONTINUANCE OF RIGHT TO USE TRADEMARK
A. Immediate Termination.
The permission to use the Trademarks granted in Section 26 will terminate
automatically if, at any time:
(i) Retailer ceases to act as an Authorized Retailer in Company Products;
(ii) Retailer sensor attempts to sell non-Company Vehicles or non-Genuine Volvo
Parts and Accessories as Company Products; (iii) Retailer assigns or attempts to
assign any interest in this Agreement without the written consent of the
Company; or (iv) This Agreement expires or is terminated pursuant to Sections I
or 10.
B. Delayed Termination.
The Company or AB Volvo, upon thirty (30) days prior written notice to Retailer,
may terminate the permission given by Section 26 at any time.
C. Discontinue Use.
Upon termination of the rights granted by Section 26, Retailer will immediately
discontinue the use of the name "Volvo" in Retailer's tradename, and will also
immediately discontinue the use of any signs, structures, and forms of
advertising based upon Retailer's tradename which include the name "Volvo."
Immediately after termination, Retailer will take all necessary and appropriate
action to change Retailer's tradename to eliminate the name "Volvo" or any
combination, variation, or similar name. Immediately after termination, Retailer
shall, at its expense, remove any signage containing or referring to the name
"Volvo."
28. LINES OF CREDIT
During the term of this Agreement, Retailer will maintain a line of credit with
a responsible financing institution at a level permitting Retailer to inventory
Company Products commensurate with the Business Plan.
29. ACCOUNTING AND RECORD KEEPING
A. Accounting.
Retailer will keep accurate records of its business relating to the marketing,
promoting, selling or servicing of Company Products. Retailer agrees to maintain
a uniform accounting system in accordance with Company Policies.
B. Inspection.
During regular business hours, the Company will have the right to inspect
Retailer Facilities and to examine, audit and make and take copies of all
records, accounts and supporting data relating to Retailer Operations. Whenever
reasonably possible, the Company will provide Retailer with advance notice of an
audit or inspection of Retailer Facilities. Retailer may be present at any such
audit or inspection.
C. Financial Statements.
On or before the tenth (10th) day of each month, Retailer will deliver to the
Company, in a form prescribed by or acceptable to the Company, accurate
statements of the financial condition and operating results of Retailer's
Operations with regard to Company Products through the last day of the previous
month. Within ninety (90) days after the end of Retailer's fiscal year, Retailer
shall provide the Company with financial statements that have been reviewed by
an independent Certified Public Accountant, as well as a copy of such
accountant's review report.
D. Sales and Inventory Reports.
Retailer shall furnish to the Company, on forms prescribed by or acceptable to
the Company, accurate reports of Retailer's sales and inventory of Company
Products and Select Pre Owned Vehicles.
30. RETAILER INFORMATION SYSTEMS
Retailer agrees to install and maintain, at its expense, electronic data
processing equipment and software applications that are compatible with, and
supported by, the Company's computer network and business operational
strategies, as the Company may determine from time to time.
31. CHANGE IN PRICES
Upon ten (10) days prior written notice to Retailer, the Company may change the
Retailer Price and the Company's charge for distribution and delivery of any
Company Vehicle. Except with regard to any discounts authorized in writing by
the Company, the changed price and charge shall be the price and charge in
effect, and delivery to Retailer shall be deemed to have been made and the order
deemed to have been filled, upon Company's delivery to a transport carrier for
delivery to Retailer or its designee. The Company will provide Retailer with
price protection for Company Vehicles in accordance with the Company Policies.
32. EXPORT OF COMPANY VEHICLES
Retailer is authorized to sell Company Products only to customers located in the
United States and agrees to abide by any export policy established by the
Company.
33. FACTORY SUGGESTED PRICE LABELS
If Retailer finds that any new Vehicle has been delivered to Retailer with an
incorrect label, or without a completed label affixed thereto pursuant to the
Federal Automobile Information Disclosure Act, 15 U.S.C. Section 1232, as
amended (the "Act"), Retailer will immediately notify the Company. If the
Company gives written instructions to Retailer with respect to replacing or
affixing a label in a manner that conforms with the Act, Retailer agrees to
comply with such written instructions.
34. INDEMNIFICATION
A. Indemnification by the Company.
The Company will indemnify and hold Retailer harmless from any and all
liability, loss, cost or expense, including, without limitation, reasonable
attorneys' fees, resulting from or relating to any legal action against Retailer
by third parties concerning bodily injury or property damage arising out of an
occurrence caused solely by a defect in the design or manufacture of a Company
Product; provided, however, Retailer could not have discovered that defect in
the reasonable pre-delivery inspection or servicing of the Company Product.
If any legal action identified in this Section 34 is brought against Retailer,
and if Retailer promptly notifies the Company in writing of the commencement of
the action and cooperates fully in the defense of the action as the Company may
reasonably require, the Company agrees to undertake, at its sole expense, the
defense of said action on behalf of Retailer when so requested by Retailer, and
to indemnify and hold Retailer harmless in the event of an adverse judgment. The
Company shall have the right to continue the suit in the name of Retailer if the
Company deems such action to be necessary. Should the Company refuse to
undertake the defense on behalf of Retailer, Retailer may conduct its own
defense and, if the Company is determined to be solely liable, the Company shall
be liable for the cost of the defense, including, without limitation, reasonable
attorneys' fees, court costs and expenses of litigation, together with any
verdict, judgment or settlement paid by Retailer.
B. Indemnification by Retailer
Retailer shall indemnify the Company and/or Manufacturer (for purposes of this
Section 34, individually and collectively referred to as "Indemnified
Party(ies)") and hold each of them harmless from any and all liability, loss,
cost or expense, including, without limitation reasonable attorneys' fees, court
costs and costs of litigation, resulting from or relating to any legal action
against Volvo by third parties alleging or concerning:
(i) Retailer's failure to comply, in whole or in part, with any obligations
assumed by Retailer pursuant to this Agreement; or
(ii) Retailer's negligent or improper inspection, repairing or servicing of new
or used Company Products; or
(iii)Retailer's breach of any contract between Retailer and Retailer's customer
or supplier; or
(iv) Retailer's unfair, misleading, deceptive or fraudulent trade practices.
If any legal action arising out of the causes specified above is brought against
any Indemnified Party, and provided that the Indemnified Party promptly notifies
Retailer in writing of the commencement of any such action, Retailer agrees to
undertake, at its sole expense, the defense of said action on behalf of the
Indemnified Party when so requested, and to indemnify and hold the Indemnified
Party harmless in the event of an adverse judgment. Should Retailer refuse to
undertake the defense on behalf of the Indemnified Party, such party may conduct
its own defense and Retailer shall be liable for the cost of such defense,
including, without limitation, reasonable attorneys' fees, court costs and costs
of litigation, together with any verdict, -judgment or settlement paid by the
Indemnified Party.
C. Joint Defense.
Whenever a legal action claims liability on the part of both the Company, as
described in Section 34A, and Retailer, as described in Section 34B, each party
shall be responsible for its own defense. Any Indemnified Party's or Retailer's
responsibility for its own defense pursuant to this Section 34 shall in no way
affect their respective obligations to indemnify and hold harmless.
35. COMPLIANCE WITH LEGAL REQUIREMENTS
Retailer agrees to pay all taxes and to take all actions required by law,
including, without limitation, those actions required to comply with the
National Traffic and Motor Vehicle Safety Act of 1966, the Clean Air Act, the
Consumer Product Safety Act, the Xxxxxxxx-Xxxx Warranty Act (all as amended from
time to time), and any other federal, state or local legislation or regulation
pertaining to safety, air pollution, noise control, water pollution, handling,
transportation, storage and disposal of hazardous and non-hazardous waste and
materials, warranties to consumers, the sale of Company Vehicles, or other
actions which may be required of automobile retailers or which the Company may
reasonably request.
36. COMPLIANCE WITH CONSUMER PROTECTION LAWS AND REGULATIONS
Because certain Volvo Customer complaints may have legal significance for, or
impose liability upon, Retailer and/or the Company under various "Repair or
Replace" or other consumer protection laws and regulations, Retailer agrees to
provide the Company with prompt notice of all such complaints. Retailer agrees
to take other steps as the Company may reasonably require, including, without
limitation, providing notice to Retailer's regional office when a vehicle is
brought into Retailer which may become subject to such law or regulation prior
to a presumption of liability arising under such law or regulation from the
inability to repair or correct a nonconformity or condition of a Vehicle.
Retailer hereby agrees to do nothing to affect adversely the Company's rights
under such laws and regulations, and recognizes that failure to comply with this
Section 36 may result in a chargeback from the Company for monies expended in
remedying such complaints which in the reasonable opinion of the Company were
caused wholly or predominantly by Retailer.
37. TRADE PRACTICES
The Company and Retailer each recognize the importance of dealing with each
other in an open and honest manner. In addition, each party understands the
importance of treating Volvo Customers and prospective Volvo customers with the
utmost respect and honesty. Retailer agrees to conduct its business in a manner
which will develop and maintain superior levels of customer loyalty and
satisfaction, continually striving to improve Retailer's reputation, the
Company, Company Products and the Volvo name, trademarks and service marks.
Retailer will not engage in any unfair, deceptive, misleading, unethical,
fraudulent or otherwise prohibited practice. Retailer will immediately
discontinue any such advertising or practice upon written notice of objection
from the Company. Any notice by the Company and discontinuance by Retailer will
not prejudice any other rights the Company may have under this Agreement.
38. REPURCHASE OF COMPANY PRODUCTS BY THE COMPANY Within sixty (60) days after
termination of this Agreement under Section 10, the Company will repurchase the
following:
All new, unused, undamaged, standard, current model year Company Vehicles with
less than 200 miles which Retailer may own or have an interest in on the date of
termination, at a price paid by Retailer to the Company for such Company
Vehicles less: (i) any price reduction allowance credited or paid to Retailer
(net discounts, allowances or adjustments); and (ii) transportation charges paid
by Retailer;
All current model year demonstrator vehicles (as defined by the Company) and
registered Volvo service loaners which are no more than one year old;
All new, unused, standard, current model year Company Vehicles which Retailer
may own or has an interest in on the date of termination, which were received by
Retailer from the Company in a damaged condition and were not repaired by
Retailer to standard condition, at the price specified in this Section 38, but
provided that Retailer shall subrogate all claims for the repair of such Company
Vehicles to the benefit of the Company;
All new, undamaged Genuine Volvo Parts and Accessories offered for sale by the
Company to its retailers on the date of termination which Retailer may own or
have an interest in on the date of termination, at the then current wholesale
price for such Genuine Volvo Parts and Accessories on the date of termination,
less: (i) a handling charge of fifteen (I 5 %) percent; and (ii) any charges
actually paid by the Company for transportation to the Company; and
All special tools, signs, and other special equipment and information which are,
because of design, applicable only to Company Products, which Retailer may own
or have an interest in on the date of termination and which are in useable and
good condition (except for reasonable wear and tear), at the price paid by
Retailer less: (i) an amount equal to the accrued straight line depreciation on
such equipment during Retailer's (assumed) ownership, if such equipment has a
useful life of at least five (5) years; and (ii) any charges actually paid by
the Company for the transportation of such equipment from Retailer's place of
business to the Company's place of business. Retailer will furnish to the
Company satisfactory evidence of the date on which Retailer acquired an interest
in such equipment, and of the price paid by Retailer.
For purposes of this Section 38, Company Vehicles, Genuine Volvo Parts and
Accessories, special tools and equipment specified in the four preceding
paragraphs are referred to collectively in this Section 38 as "Repurchase
Products."
As a condition precedent to the Company's obligations under this Section 38 to
purchase the Repurchase Products, Retailer shall permit the Company and
Company's designee or designees, to enter the Retailer Facility at such time as
the Company may reasonably determine, for the purpose of inspecting and/or
taking an inventory of all or any part of Retailer's stock of Company Products.
In connection with the Company's purchase of the Repurchase Products pursuant to
this Section 38:
(i) Retailer shall promptly deliver such Repurchase Products to the Company;
(ii) Retailer shall comply with any and all applicable laws and requirements
which may be necessary or proper to transfer good title to Repurchase Products
to the Company, free and clear of any charge, lien, or encumbrance; and
(iii) Promptly following Retailer's fulfillment of its obligations under this
Section 38, the Company shall pay Retailer for the Repurchase Products acquired
by it pursuant to this Section 38 (subject to all rights of set-off for any
outstanding debt of Retailer to the Company).
IV. MISCELLANEOUS PROVISIONS
39. LICENSING REQUIREMENTS
Retailer will procure and maintain any license(s) or other applicable
governmental authorizations) necessary to operate as a new motor vehicle
retailer for Company Products.
40. INSURANCE
Retailer will acquire and maintain insurance as follows: (i) Worker's
Compensation insurance prescribed by law in the state in which Retailer is
located, and Employers Liability Insurance, each with a limit of at least
$500,000 per occurrence; (ii) Comprehensive general liability insurance in a
form approved by the Company with a combined single limit of $ 1,000,000; (iii)
automobile liability insurance in the amount of at least $ 1,000,000; (iv) an
umbrella policy to cover comprehensive general liability and auto insurance in
the amount of at least $5,000,000; (v) Casualty insurance insuring Retailer
Facilities in an amount, as determined by the Company, necessary to repair any
casualty in an expedited manner thus enabling Retailer to continue the sales and
service of Company Products; and (vi) any other type of insurance as may be
deemed reasonably necessary by the Company. From time to time, the Company
reserves the right to modify these insurance requirements and limits in
accordance with reasonably accepted industry custom and practice.
41. TAXES
Retailer will comply with all applicable laws concerning collection or payment
by Retailer of taxes applicable to all transactions by Retailer concerning
Company Products, and Retailer shall furnish evidence of compliance to the
Company within thirty (30) days after delivery of a written request.
42. WAIVER
Failure by either party at any time to require performance by the other party,
or to claim a breach of any provision of this Agreement, will not be construed
as a waiver of any subsequent breach, nor affect the enforceability of any part
of this Agreement, nor prejudice either party as regards to any subsequent
action.
43. AGENCY
Retailer is an independently operated business entity in which the Company has
no ownership interest. This Agreement does not make Retailer the legal
representative of the Company, or in any way create the relationship of
principal and agent between the Company and Retailer, nor does this Agreement
create any fiduciary or employment relationship between Retailer and the
Company. Retailer hereby agrees that it will not act or attempt to act, or
represent itself directly or by implication, as agent of the Company or in any
manner create or attempt to create any obligation on behalf of, or in the name
of, the Company.
44. SUBRETAILERS
Retailer has no authority to establish an associate retailer or subretailer for
Company Products.
45. ASSIGNMENT OF RIGHTS OR DELEGATION OF DUTIES
This Agreement is in the nature of a personal services agreement and Retailer
has no authority to assign the whole or any part of this Agreement, or any right
or interest hereunder, without the prior written consent of an Officer, which
shall not be unreasonably withheld.
46. NOTICE AND SERVICE OF NOTICE
Notice from Retailer to the Company will be effective only if: (i) signed by the
Principal Owner or General Manager; and (ii) directed to the Company President
or his authorized designee. Notice from the Company shall be effective only if:
(i) signed by an Officer; and (ii) directed to a Principal Owner or General
Manager at the Retailer's address given on page I of this Agreement. Any such
notice shall be sent by Certified Mail, Return Receipt Requested or by overnight
mail or carrier service. In the case of Certified Mail, notice shall be deemed
given upon the earlier of actual receipt or seven (7) days after such notice is
sent. In the case of overnight mail or carrier service, notice shall be deemed
given upon the next business day after such notice is sent. Notice may be given
by facsimile, but only with the written consent of the other party.
47. APPLICABLE LAW AND SEVERABILITY
This Agreement will be construed in accordance with New Jersey law with respect
to its interpretation and construction, but in all other respects governed by
the laws of the state of Retailer's Facilities identified in Section 5.
If any provision of this Agreement is declared invalid, unenforceable, or
prohibited by the laws of the applicable state, such provision shall be
severable from the balance of this Agreement, which will remain in full force
and effect. Should the Company determine that any federal or state law or
regulation, or any condition referred to in Section 34 or 35 requires a change
or changes in any of the provisions of this Agreement, the Company may offer to
Retailer an amendment or an amended Agreement embodying such change or changes.
If Retailer fails to execute such amendment or amended Agreement and return it
to the Company within thirty (30) days after it is delivered to Retailer, the
Company may terminate this Agreement by giving notice to Retailer, with
termination to be effective upon receipt by Retailer of notice.
48. FINANCIAL INFORMATION
Retailer agrees that the Company may provide to, or obtain financial information
from, financial institutions which have an actual or prospective relationship
with Retailer.
49. ENTIRE AGREEMENT
This Agreement supersedes all prior agreements between the parties relative to
the sale and servicing of Company Products. This Agreement contains the entire,
integrated agreement between the parties and any amendment, modification, or
waiver of any provision of this Agreement must be in writing and signed by an
Officer, and on behalf of Retailer by a person identified in Section 2A.
50. NO FRANCHISE FEE OR ADDITIONAL PAYMENTS
Retailer represents and warrants that it has paid no fee, nor has it provided
any funds, goods or services to any Company employee or agent in lieu of a fee,
as consideration for the Company's entering into this Agreement, and that the
sole consideration for the Company's entering into this Agreement was Retailer's
Principal Owners' and General Manager's abilities, integrity, assurances of
personal services and expressed intention to deal fairly and equitably with the
Company and the public and all other promises recited in this Agreement.
In addition, Retailer represents and warrants that neither it nor any Principal
Owner has received any consideration, except as described in this Agreement, for
entering into this Agreement.
51. CAPTIONS
The captions for the sections of this Agreement are for convenience and
reference only and will not be construed to explain, modify, amplify or aid in
the interpretation, construction or meaning of the provisions of this Agreement,
or be a part of this Agreement.
52. TIME OF THE ESSENCE
Time is of the essence with respect to each provision of this Agreement.
53. DATE OF PERFORMANCE
If any date for the performance of obligations by any party under this Agreement
falls on any day that is not a business day, the date on which such obligation
is to be perfon-xxx will be deemed to be the next business day.
54. RULES OF CONSTRUCTION
The following rules shall apply to the construction and interpretation of this
Agreement:
A. Singular words connote the plural number as well as the singular and vice
versa, and the masculine includes the feminine and the neuter.
B. All references herein to particular articles, sections, subsections or
exhibits are references to articles, sections, subsections or exhibits of this
Agreement.
C. Each party and its legal counsel have reviewed and revised (or requested
revisions of) this Agreement and, therefore, any usual rules of construction
requiring that ambiguities are to be resolved against a particular party shall
not be applicable in the construction and interpretation of this Agreement.
V. DEFINITIONS
55. DEFINITIONS
In addition to certain terms defined elsewhere in this Agreement, the following
definitions shall apply throughout this Agreement:
AREA OF RESPONSIBILITY: The non-exclusive area that the Company designates from
time to time as Retailer's primary geographic territory for the marketing,
promoting, selling and servicing of Company products.
AUTHORIZED RETAILER(S): Retailers authorized by the Company to conduct Retailer
Operations in connection with the marketing, promoting, selling and servicing of
Company Products pursuant to the then current, duly executed Authorized Retailer
Agreement.
BUSINESS PLAN: The written business plan, in a form satisfactory to the Company,
and any updates thereto, produced by Retailer and provided to the Company, which
describes how Retailer will develop and maintain its Volvo business.
COMPANY POLICY(IES): All guidelines, regulations, programs, manuals, bulletins,
policies, and procedures and subsequent amendments established by the Company
from time to time.
COMPANY PRODUCTS: Company Vehicles and Genuine Volvo Parts and Accessories that
bear the Volvo trademark(s), and special tools, all of which from time to time
the Company may offer to Retailer.
COMPANY VEHICLES: Volvo passenger cars manufactured by or for Manufacturer, and
offered by the Company to Retailer for purchase.
GENUINE VOLVO PARTS AND ACCESSORIES: Those parts and accessories, bearing the
Marks/Trademarks, manufactured by or for Manufacturer or the Company, and
offered for sale to Retailer by the Company.
MANUFACTURER: Volvo Car Corporation, Gothenburg, Sweden, and any affiliate or
successor in interest.
MARKET AREA: The non-exclusive area, encompassing one or more Areas of
Responsibility, that the Company designates from time to time as Retailer's
primary geographic territory for the marketing, promoting, selling and servicing
of Company products.
XXXX(S)/TRADEMARK(S): Any trademark or service xxxx that the Company either
owns, or is authorized to use and/or license, with rights of enforcement.
MEDIATION GUIDELINES: The policies to be followed in mediating a dispute between
the Company and Retailer as described in Section II.
MEDIATION PANEL: The panel of Retail Mediators, as described in Section I 1.
OFFICER: The president or any executive vice president, senior vice president or
vice president of the Company.
PARTNER(S)(SHIP)(ING): The terms partnership, partner(s) and partnering, as used
in this Agreement and the Preamble, shall refer to the cooperative and mutually
advantageous relationship that this Agreement is intended to xxxxxx between the
Company and Retailer. The use of the terms partnership, partner(s) and
partnering in this Agreement is not intended to create a legal partnership or
joint venture between the parties to this Agreement. The Company and Retailer
understand that each party is and shall remain, during the term of this
Agreement, a wholly independent entity and that this Agreement does not create a
fiduciary or agency relationship between the parties. PRINCIPAL OWNER(S): Those
owners of Retailer described in Section 2A.
REMAINING OWNER(S): Those owners of Retailer that remain after the death or
incapacity of a Principal Owner, as referenced in Section II.
REPURCHASE PRODUCTS: Company Products, described in Section 38.
RETAILER: The entity that is authorized to market, promote, sell and service
Company Products under this Agreement.
RETAILER FACILITY(IES): Retailer's land, buildings, improvements, and fixtures
described in Section 6.
RETAILER FACILITIES GUIDE: The Company's guide for retail facilities, as such
may be issued from time to time.
RETAILER MEDIATORS: Retailers selected by the Company and a representative group
of Authorized Retailers to serve as mediators in the resolution of a dispute
between the Company and a Retailer in accordance with Section II.
RETAILER OPERATIONS: Retailer's business of marketing, promoting, selling and
servicing Company Products.
VOLVO: A trademark, tradename and service xxxx of AB Volvo, a Swedish
corporation.
VOLVO CUSTOMER: A person or entity that has purchased, leased or obtained
service for, any Company Product.
VOLVO SELECT PRE OWNED VEHICLE: A Volvo vehicle that has been reconditioned by a
participating Retailer in accordance with Company Policies.
WORKING CAPITAL GUIDE: The guide produced by the Company to assist Retailer in
determining, establishing, modifying, and maintaining Retailer's capital
necessary to provide a superior ownership experience for Volvo Customers in
Retailer's Area of Responsibility or Market Area.
This Agreement will not be binding unless it bears the signatures of an Officer
on behalf of the Company and of a person named in Section 2A on behalf of
Retailer.
VOLVO CARS OF NORTH AMERICA, INC. RETAILER
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------- -----------------------
Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxx
Title: Regional Vice President Title: General Manager
