This Agreement is entered into as of the date shown below, and
will be effective on September 27, 2000, between L A West, Inc., a
Corporation having its principal place of business at 0000 Xxxx X.X.
00, XxXxxxxx, Xxxxxxx 00000 ("MANUFACTURER") and DAIMLERCHRYSLER
CORPORATION, a Delaware corporation having its principal place of
business at 0000 XXXXXXXX Xxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000-0000
("DAIMLERCHRYSLER").
Following is a statement of acts underlying this Agreement:
DAIMLERCHRYSLER is engaged in the business of manufacturing and
marketing completed and partially completed motor vehicles, including
trucks, vans and truck chassis ("Vehicles"). MANUFACTURER is engaged
in the business of manufacturing and selling specialized bodies for
installation on truck chassis and for modifying or converting
Vehicle(s) or specialized use (all of which Vehicle(s), as modified by
MANUFACTURER, are referred to as "End Products").
MANUFACTURER has requested that DAIMLERCHRYSLER provide to it a
"pool" of Vehicle(s) to be maintained from time to time at
MANUFACTURER's authorized location as set forth in Exhibit A, attached
hereto and incorporated herein by reference, for its use in
manufacturing and/or modification with the purpose being to thereafter
sell the completed End Products to dealers authorized by
DAIMLERCHRYSLER to sell and service Vehicle(s) manufactured by it.
MANUFACTURER, desires to finance the acquisition of Vehicle(s)
from DAIMLERCHRYSLER through a financial institution acceptable to
DAIMLERCHRYSLER ("Finance Source").
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth below, the parties agree as follows:
1. PURCHASE AND SALE
During the term of this agreement, MANUFACTURER will purchase
Vehicle(s) from DAIMLERCHRYSLER, which Vehicle(s) will thereafter be
repurchased by DAIMLERCHRYSLER from MANUFACTURER, pursuant to the
terms of this Agreement.
2. SPECIAL VEHICLE SALES POLICY/PROCEDURES MANUAL
DAIMLERCHRYSLER will provide MAFACTURER with a copy of its
"Special Vehicle Sales Policy Procedures" Manual ("Manual"), setting
forth the policies and procedures MANUFACTURER agrees to follow with
regard to the Vehicle(s) purchased pursuant to this Agreement.
DAIMLERCHRYSLER reserves the right to change or amend the Manual as
DAIMLERCHRYSLER, in its sole discretion, deems necessary.
3. ORDERS
a. MANUFACTURER will provide DAIMLERCHRYSLER with forecasts of
its Vehicle(s) requirements at such times and for such periods as
DAIMLERCHRYSLER may request. DAIMLERCHRYSLER will determine, in its
sole discretion, the number and types of Vehicle(s) that will be
available fur order by MANUFACTURER.
b. MANUFACTURER will submit orders for Vehicle(s) electronically
via the DIAL system and will comply with the requirements and
procedures set forth in the Manual.
c. DAIMLERCHRYSLER will not be liable in any way for the
discontinuance of production or any Vehicle(s), or for any revision,
modification, production change, delay in delivery or for the supply
of Vehicle(s) to MANUFACTURER, nor will any term or provision of this
Agreement obligate DAIMLERCHRYSLER to supply any particular number,
model or type of Vehicle(s) to MANUFACTURER. MANUFACTURER's Vehicle(s)
orders arc offers to purchase, which are subject to acceptance by
DAIMLERCHRYSLER, in whole or in part.
4. SALE CONDITIONS: TRANSFER
a. DAIMLERCHRYSLER will deliver to MANUFACTURER those Vehicle(s)
for which the order in whole or in part has been accepted. Acceptance
of orders will be deemed to occur only when such Vehicle(s) are built
and shipped by DAIMLERCHRYSLER to MANUFACTURER, and is expressly
conditioned upon: (i) MANUFACTURER's obligation to resell such
Vehicle(s) to DAIMLERCHRYSLER pursuant to Paragraph 7 below; (ii)
MANUFACTURER's continued performance of all the terms and conditions
of this Agreement, and (iii) MANUFACTURER's agreement not to make any
additions or modifications to any Vehicle(s) from its authorized
location until it has been purchased by an authorized DAIMLERCHRYSLER
dealer pursuant to Paragraph 7 below or unless it has prior consent
from its Finance Source or has been identified as a demonstrator under
Paragraph 9 below.
b. MANUFACTURER may transfer Vehicle(s) to other Manufacturers
approved by DAIMLERCHRYSLER upon receipt of prior express
authorization from the DAIMLERCHRYSLER Special Vehicle Sales
Department.
c. DAIMLERCHRYSLER and MANUFACTURER agree that DAIMLERCHRYSLER
will retain the Manufacturer's Certificate of Origin (MCOs) prepared
by DAIMLERCHRYSLER for Vehicle(s) delivered to MANUFACTURER hereunder,
except as otherwise provided herein.
d. Upon notification from MANUFACTURER's Finance Source that it
will not extend MANUFACTURER credit for Vehicle(s) built by
DAIMLERCHRYSLER pursuant to MANUFACTURER's order, DAIMLERCHRYSLER will
not ship the Vehicle(s) and will place such Vehicle(s) in storage and
assess to MANUFACTURER a daily service charge ("Finance Hold Service
Charge") on each such Vehicle(s) placed in storage by DAIMLER
CHRYSLER. The amount of such service charges will be established by
DAIMLERCHRYSLER in its sole discretion from time to time. MANUFACTURER
will be assessed additional service charges in amount established by
DAIMLERCHRYSLER for drafts improperly returned, insufficient funds
checks, Vehicle(s) diverted to other purchasers and similar actions
resulting from or relating to MANUFACTURER's finance hold status.
DAIMLERCHRYSLER reserves the right to reassign Vehicle(s) it places in
storage at any time prior to receipt of payment for such Vehicle(s) by
MANUFACTURER's Finance Source.
5. PRICE
The price to be paid by MANUFACTURER for the Vehicle(s) will be
the same as the net invoice price charged by DAIMLERCHRYSLER to its
Dealers for such Vehicle(s) on the date said invoice is issued.
6. INSPECTION, STORAGE, AND LOSS OR DAMAGE TO VEHICLES
At the time of delivery to and acceptance by MANUFACTURER,
Manufacturer will examine each Vehicle, set forth on the delivery
documents any loss or damage noted thereto and immediately forward a
complete written summary thereof in accordance with the procedures set
forth in the Manual. Risk of loss will pass on delivery of Vehicle(s)
to MANUFACTURER, MANUFACTURER's agent or to the carrier, whichever
occurs first.
MANUFACTURER will at all times keep Vehicle(s) properly stored
and maintained in a secured, fenced and locked area and will not
remove any such Vehicle(s) from the authorized location(s) specified
in EXHIBIT A until repurchased by DAIMLERCHRYSLER. After delivery to
MANUFACTURER, MAUFACTURER will be responsible to DAIMERCHRYSLER for
any loss, damage, missing parts, accessories, components or diminution
in value of each Vehicle(s), whether or not covered by insurance.
MANUFACTURER will maintain a separate accounting of all
Vehicle(s) by model, serial number, Vehicle control number and
location and will furnish such information to DAIMLERCHRYSLER upon
request.
7. RESALE AND REPURCHASE
MANUFACTURER will notify DAIMLERCHRYSLER in accordance with the
procedures set forth in the Manual when Dealer desires to order and
purchase a Vehicle(s).
MANUFACTURER will resell and DAIMLERCHRYSLER will repurchase such
Vehicle(s) from MANUFACTURER, except as otherwise provided in
Paragraphs 9 and 15(a). DAIMLERCHRYSLER will credit MANUFACTURER's
Finance Source for the amount MANUFACTURER originally paid
DAIMLERCHRYSLER for the Vehicle(s) pursuant to Paragraph 5 above. Upon
the repurchase of such Vehicle(s), DAIMLERCHRYSLER may sell such
Vehicle(s) to such Dealer or other party at such price and on such
terms as DAIMLERCHRYSLER may determine, in its sale discretion.
If, in connection with the sale of any such Vehicle(s),
modifications, additions or changes of any nature are requested by
Dealer and completed by MANUFACTURER, the price and terms and
conditions of any such modifications, additions or changes will be
governed by a separate and distinct agreement between the MANUFACTURER
and Dealer, and DAIMLERCHRYSLER will have no liability, obligation or
responsibility with respect thereto to any person, including without
limitation, MANUFACTURER or Dealer.
MANUFACTURER will not resell any Vehicle(s) to any person or
entity other than DAIMLERCHRYSLER, except as provided in Paragraph 9
below with respect to demonstrator Vehicle(s).
8. PRE-DELIVERY SERVICE
All pre-delivery service will be performed in accordance with the
procedures set forth in the Manual.
9. DEMONSTRATOR VEHICLES
MANUFACTURER may modify Vehicle(s) purchased from DAIMLERCHRYSLER
for use as demonstrators only upon receipt of express approval for
using a Vehicle(s) as a demonstrator from DAIMLERCHRYSLER and
MANUFACTURER's Finance Source. In the event a demonstrator is not sold
by MANUFACTURER within one hundred and fifty (150) calendar days, then
MANUFACTURER will purchase such demonstrator through a Dealer.
Demonstrators will not be repurchased by DAIMLERCHRYSLER pursuant to
Paragraph 17(c) hereof.
10. COMPLIANCE
MANUFACTURER acknowledges that the reputation of DAIMLERCHRYSLER
and its products may be impacted by MANUFACTURER's performance of the
modifications. Therefore, MANUFACTURER agrees to employ the highest
standards of workmanship and commercial quality in its manufacture or
installation of End Products and to ensure that all End Products
comply with all applicable federal, state, or local laws, rules or
regulations.
MANUFACTURER agrees to provide and maintain a satisfactory and
competitive customer service and relations process for the retail
purchasers of End Products. MANUFACTURER will obtain and maintain the
names and addresses of first retail purchasers of End Products and
will provide such information as DAIMLERCHRYSLER may request
concerning the initial retail purchasers of End Products.
11. WARRANTIES
a. The only warranty made or deemed to have been made by
DAIMLERCHRYSLER applicable to Vehicle(s} delivered hereunder will be
DAIMLERCHRYSLER's limited warranty in effect for that model year
Vehicle(s}. DAIMLERCHRYSLER will supply MANUFACTURER with copies of
such warranty as soon as generally available. SUCH LIMITED WARRANTY
WILL BE THE ONLY WARRANTY MADE OR DEEMED TO HAVE BEEN MADE TO ANY
PERSON OR ENTITY BY DAIMLERCHRYSLER APPLICABLE TO VEHICLE(S)
HEREUNDER; EXCEPT WHERE PROHIBITED BY LAW, SUCH LIMITED WARRANTY IS
EXPRESSLY IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, AND THE REMEDIES SET FORTH IN
SUCH WARRANTY WILL BE THE ONLY REMEDIES AVAILABLE TO ANY PERSON WITH
RESPECT TO SAID VEHICLE(S). DAIMLERCHRYSLER does not assume or
authorize anyone to make any further obligation or liability in regard
to such Vehicle(s).
b. MANUFACTURER will furnish to customers, distributors or
DAIMLERCHRYSLER Dealers purchasing its End Products, a copy of
DAIMLERCHRYSLER's applicable limited warranty and owner registration
card, together with an owner's operator Manual.
c. DAIMLERCHRYSLER's certification and warranty obligations apply
only to the Vehicle(s) as furnished to Manufacturer, notwithstanding
any knowledge regarding the use or uses intended to be made of
Vehicle(s), proposed changes, modifications or additions to
Vehicle(s), or any assistance, representations or suggestions that may
have been made by DAIMLERCHRYSLER personnel; provided, however, that
modifications to Vehicle(s) made by MANUFACTURER shall not void any
Vehicle(s) warranty by DAIMLERCHRYSLER if MANUFACTURER can establish
that such modifications did not adversely affect the warrantable item
in question.
d. MANUFACTURER represents and agrees that any modifications or
additions that it makes to Vehicle(s) furnished hereunder will be free
from defects in design, material or workmanship, including but not
limited to such defects, changes or additions that would cause End
Product to fail to meet applicable safety, emissions, noise and other
standards and regulations prescribed by federal, state, or local
authorities. Further, MANUFACTURER acknowledges its responsibility as
a manufacturer insofar as it modifies any Vehicle(s) furnished
hereunder, and in such capacity it agrees to certify and warrant the
Vehicle(s) as required by law after such changes or modifications have
been made. MANUFACTURER agrees that its warranty on any conversion,
modification or addition shall equal or exceed that period of time
and/or mileage as DAIMLERCHRYSLER may warrant on Vehicle(s) delivered
hereunder, except as otherwise provided or modified in the Manual from
time to time.
e. MANUFACTURER will not remove any labels or notices, including
but not limited to Monroney labels affixed to or provided with
Vehicle(s).
12. INSURANCE AND INDEMNIFICATION
a. (i) MANUFACTURER will maintain appropriate liability and
physical damage insurance in addition to appropriate amounts of
collision and comprehensive insurance on Vehicle(s) delivered
hereunder, and will submit proof of such insurance to DAIMLERCHRYSLER
upon request. Vehicle(s) shipped hereunder will carry the usual
coverage by the carrier while in transit.
(ii) MANUFACTURER will maintain commercial product liability
insurance in an amount not less than two million dollars ($2,000,000)
per occurrence. MANUFACTURER will furnish DAIMLERCHRYSLER with a
certificate evidencing such coverage, and will name DAIMLERCHRYSLER as
an additional insured, stating that such insurance is primary in
coverage to any other insurance which may be available to
DAIMLERCHRYSLER, and providing at least thirty (30) days written
notice to DAIMLERCHRYSLER of cancellation, modification or material
change to the policy. Such certificate will be underwritten by an
insurance carrier satisfactory to DAIMLERCHRYSLER.
b. MANUFACTURER will indemnify DAIMLERCHRYSLER against any and
all claims, damages, suits or actions including all costs, expenses
and actual attorneys' fees, for injury to persons or for loss of or
damage to property in connection with the use, operation or storage of
any Vehicle(s) delivered to MANUFACTURER hereunder, except where such
injury, loss or damage is proven to be the result of a defect covered
by DAIMLERCHRYSLER's warranty.
c.(i) If a product liability lawsuit is filed naming MANUFACTURER
as a defendant and it is determined by a court of competent
jurisdiction that the bodily injury or property damage alleged by the
plaintiff was caused solely by a design defect or defect created by
DAIMLERCHRYSLER in the manufacture or assembly of a Vehicle(s), part
or accessory, which defect was not reasonably susceptible of discovery
by MANUFACTURER upon its receipt or during the conversion or
modification process, then DAIMLERCHRYSLER will indemnify and hold
MANUFACTURER harmless from any losses, damages and expenses, including
reasonable attorneys' fees, resulting from such product liability
lawsuit; provided, however, that MANUFACTURER will have promptly
notified DAIMLERCHRYSLER of any such product liability lawsuit,
complaint or claim filed or maintained against it.
Upon such notice and request for indemnification hereunder,
DAIMLERCHRYSLER will have the option, upon notice to MANUFACTURER, to
retain counsel and assume full control over the defense of the
lawsuit, including settlement thereof. MANUFACTURER will cooperate in
the defense of such lawsuit, including the providing of witnesses at
MANUFACTURER's expense. If DAIMLERCHRYSLER is prevented by
MANUFACTURER from exercising this option, DAIMLERCHRYSLER's obligation
to indemnify MANUFACTURER will be rendered null and void and be of no
force or effect.
(ii) If a product liability suit is filed naming DAIMLERCHRYSLER
as a defendant, which suit concerns any Vehicle(s) sold by
DAIMLERCHRYSLER to MANUFACTURER, then MANUFACTURER will indemnify and
hold DAIMLERCHRYSLER harmless from any and all losses, damages and
expenses, including reasonable attorneys' fees, arising out of or
resulting from a claim involving MANUFACTURER's negligent or defective
design, manufacture or assembly of a conversion, conversion part or
accessory, or manufacture or installation of a specialized body which
is the subject of a lawsuit, complaint or claim against
DAIMLERCHRYSLER for property damage or personal injury where
DAIMLERCHRYSLER's liability, if any, arises solely nom the manufacture
or installation of such modifications or additions made by
MANUFACTURER.
13. TAXES
If not included in the purchase price, MANUFACTURER will pay all
personal property tax, excise or any other taxes which may be levied
on Vehicle(s), or on the sale, shipment, ownership, possession or use
thereof.
14. AUDIT
MANUFACTURER will permit DAIMLERCHRYSLER or its representatives
to enter its premises and make physical audits of Vehicle(s) purchased
hereunder together with any and all records pertaining to Vehicle(s)
purchase, payment, shipment and any modifications, additions or
conversions thereto.
15. DAMAGED VEHICLES AND LEMON LAW CLAIMS
a. DAIMLERCHRYSLER will have the right but no obligation to
repurchase any Vehicle(s) in MANUFACTURER's possession which is
determined by DAIMLERCHRYSLER to be damaged as a result of (i)
physical abuse or neglect of the Vehicle(s) or any component thereof;
(ii) acts of God; or (iii) any intentional or negligent act or
omission by MANUFACTURER or its employees and agents.
MANUFACTURER will comply with all procedures and policies
concerning the handling of damaged vehicles contained within the
Manual.
b. MANUFACTURER will immediately notify DAIMLERCHRYSLER in
writing of any claim, complaint or lawsuit naming or seeking to join
DAIMLERCHRYSLER as a defendant, where such claim, complaint or lawsuit
results from any End Product which may become the subject of any law
or regulation that impose liability on DAIMLERCHRYSLER or a third
party for the sale of any End Product presumed under such law or
regulation to be defective by reason, inter alia, of repeated
unsuccessful attempts to repair such vehicle within a specified period
of time or by reason of such Vehicle(s) being unavailable and out of
service to the purchaser for a specified period of time. MANUFACTURER
will give such notice promptly and prior to the time that any
presumption of liability arises under any such law or regulation.
MANUFACTURER will cooperate fully and take such actions as
DAIMLERCHRYSLER may request in defense of any action, claim, lawsuit
or judgment asserted against DAIMLERCHRYSLER covered by this
paragraph.
c. MANUFACTURER will indemnify and hold DAIMLERCHRYSLER harmless
from and against any and all loss, costs, expenses, claims, judgments
and settlements, including actual attorneys' fees, resulting from any
End Product presumed or adjudicated under any law or regulation to be
defective or contain a nonconformity by reason, of repeated
unsuccessful attempts to repair such End Product, within a specified
period of time or by reason of such End Product being unavailable and
out of service to the purchaser for a specified period of time.
16. PROPRIETARY INFORMATION
Any customer information, including but not limited to name and
address, and any design or advance product information received from
DAIMLERCHRYSLER will be deemed to be proprietary and confidential and
will not be disclosed by MANUFACTURER to any third party.
17. TERMINATION
a. This Agreement may be terminated with or without cause, at any
time by either party upon giving ten (l0) days prior written notice
from one to the other, provided however, that such termination will
not affect the parties' obligations with respect to Vehicle(s) placed
in the pool prior thereto. The written notice of termination will be
made by personal delivery or by registered mail addressed to the
addresses set forth above.
b. This Agreement will terminate automatically without notice
upon; (i) the attempted assignment of this Agreement by MANUFACTURER
without the prior written consent of DAIMLERCHRYSLER; (ii) an
assignment by MANUFACTURER for the benefit of creditors; or (iii) the
institution of voluntary or involuntary proceedings by or against
MANUFACTURER in bankruptcy or under insolvency laws or for corporate
reorganization, arrangement, receivership or dissolution.
c. Upon termination of the Agreement, MANUFACTURER will resell
and DAIMLERCHRYSLER will repurchase from MANUFACTURER., any Vehicle(s)
in the possession of MANUFACTURER so long as such Vehicle(s); (i) were
originally purchased from DAIMLERCHRYSLER, and were not previously
repurchased by DAIMLERCHRYSLER pursuant to Paragraph 7 above and (ii)
notwithstanding any other provision of this Agreement, are new,
undamaged, and unsold and have not been modified, converted or had any
alterations or modifications thereto.
Notwithstanding the foregoing, DAIMLERCHRYSLER will not be
obligated to repurchase from MANUFACTURER demonstrator Vehicle(s),
Vehicle(s) having mileage in excess of five-hundred (500) miles or
prior model year Vehicle(s).
d. If DAIMLERCHRYSLER repurchases Vehicle(s) in accordance with
15(c) above, MANUFACTURER will provide DAIMLERCHRYSLER sufficient
evidence to sustain a finding of a good clear title to such
Vehicle(s), and evidence that the MANUFACTURER has fully complied with
all applicable bulk sales laws, along with a warranty that such
Vehicle(s) are conveyed by MANUFACTURER free and clear of all liens
and encumbrances.
e. DAIMLERCHRYSLER will give written notice to MANUFACTURER of
those Vehicle(s) that it intends to repurchase under Paragraph 15.
Vehicle(s) purchased pursuant to this paragraph will be returned to
location(s) specified by DAIMLERCHRYSLER and in accordance with
DAIMLERCHRYSLER procedures therefor.
f. DAIMLERCHRYSLER will credit MANUFACTURER's Finance Source for
an amount equal to the amount MANUFACTURER paid DAIMLERCHRYSLER for
such Vehicle(s) pursuant to Paragraph 5. Such credit will be made
within a reasonable time following MANUFACTURER's fulfillment of the
obligations set forth in this paragraph, subject to MANUFACTURER's
tender of a general release, satisfactory to DAIMLERCHRYSLER, that
releases DAIMLERCHRYSLER from any and all obligations with respect to
this Agreement, except as to paragraph 12, and further subject to
DAIMLERCHRYSLER's right to offset any obligations owing to
DAIMLERCHRYSLER by MANUFACTURER.
g. Upon termination of this Agreement, neither party will have
any further obligations to the other party except as to those set
forth in Paragraphs 10 through 17.
18. GENERAL PROVISION
a. No waiver of the terms and conditions of this Agreement or
change or erasure of any printed parts will be deemed to have been
given to either party unless the same be given in writing by
DAIMLERCHRYSLER. The failure of DAIMLERCHRYSLER to enforce its rights
or remedies upon any default or breach by MANUFACTURER of any of the
terms and conditions of this Agreement will not be construed as a
waiver of any provisions of this Agreement, or of any of its rights or
remedies.
b. DAIMLERCHRYSLER will have the right to offset and apply any
and all Finance Hold Service Charges, additional charges, credits and
other monies against any credits that may be due MANUFACTURER from
DAIMLERCHRYSLER. .
c. This Agreement does not create the relationship of principal
and agent between DAIMLERCHRYSLER and MANUFACTURER, and under no
circumstances is either party to be considered the agent of the other.
d. This Agreement, the Manual, and the attachments hereto
constitute the entire agreement between the parties relative to the
providing of Vehicle(s) between DAIMLERCHRYSLER and MANUFACTURER, and
cancels and supersedes all earlier agreements, written or oral,
between DAIMLERCHRYSLER and MANUFACTURER relating thereto.
e. No waiver, modification or change of any of the terms of this
Agreement or change or erasure of any printed part of this Agreement
or addition to it will be valid or binding on DAIMLERCHRYSLER unless
approved by an officer of DAIMLERCHRYSLER.
f. MANUFACTURER may not assign this Agreement nor delegate
performance of any of the obligations hereunder without the prior
written consent of DAIMLERCHRYSLER.
g. Paragraph headings are for convenience only and will not be
used to construe this Agreement.
h. This Agreement shall be governed and construed in accordance
with the laws of the State of Michigan as if entirely performed
therein.
i. Unless otherwise specified in this Agreement, notice will be
sufficient if mailed by first class mail, postage prepaid to the party
at the address set forth on page one of this Agreement, or to such
other address as the parties may designate, which notice will be
effective upon mailing.
IN WITNESS WHEREOF, the parties have caused their authorized
representatives to sign this Agreement which is finally entered into
when signed by DAIMLERCHRYSLER at Auburn Hills, Michigan, as of the
date shown below.
