DEALER AGREEMENT
AGREEMENT made effective as of the 28th day of February, 1997, between
ROLLS-ROYCE MOTOR CARS INC., a Delaware Corporation, Xxxx Xxxxxx Xxx 000, 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000
SCOTTSDALE AUDI, LTD.
("Dealer").
WHEREAS, the Company is the sole authorized importer into the United
States of new Rolls-Royce and Bentley motor cars; and
WHEREAS, Dealer has expressed a desire to engage in the retail sale and
service of new Rolls-Royce and Bentley motor cars; and
WHEREAS, the Company has agreed to appoint Dealer to act as such, but
only on the terms and conditions set forth in this Agreement; and
WHEREAS, the parties recognize that the relationship between them can be
enduring and successful only if both parties conduct themselves in accordance
with the following declaration of purpose and principle:
(a) The names and marks "Rolls-Royce" and "Bentley" and the other tradenames,
trademarks and service marks collectively hereinafter defined as the
"Trademarks" have been universally recognized symbols of excellence for many
years. Consumers who purchase Rolls-Royce and Bentley motor cars from
authorized dealers, and have their motor cars serviced by authorized
establishments bearing the Trademarks, correctly expect superior products and
service in all respects. Dealer pledges to conduct itself in a manner which
assures the greatest possible satisfaction to consumers, wherever located.
(b) It is essential that the integrity of the Trademarks under which
Rolls-Royce and Bentley motor cars are sold and serviced be upheld by Dealer
and that Dealer not engage in any act or practice which might tarnish or
impair the outstanding reputation Rolls-Royce and Bentley motor cars enjoy in
the automotive world.
(c) The Company has the right and obligation to formulate and implement sales,
service, parts, marketing and related standards and policies which serve the
interests of all consumers and dealers and to which all dealers must adhere.
These
standards and policies are set forth in Sections 8, 9, 10, 11 and 13 of
Exhibit A Attached hereto.
(d) To all the above ends, the parties affirm that the relationship between
them must be courteous, cooperative and amicable at all times and in every
respect.
NOW, THEREFORE, in consideration of the agreements herein contained, the
Company and the Dealer agree as follows:
(I) The Company appoints Dealer as an authorized Rolls-Royce and Bentley
dealer for the period commencing on the above date and ending on September 30,
1997, or on any earlier date upon which termination of this Agreement may
become effective (the "term of this Agreement"), and Dealer accepts this
appointment. Such appointment shall apply only to Dealer's showroom and
facilities located at:
0000 X. XxXxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
and to no other location.
(II) Dealer will develop the retail sale of Rolls-Royce and Bentley
motor cars to the maximum potential pursuant to guidelines set forth in the
Company's Sales Goal Letter as it may be amended from time to time in the
following territory:
Phoenix ADI (see Paragraph IV)
(III) Dealer represents that it is currently an authorized dealer in the
following makes of motor vehicles:
Jaguar, Aston Xxxxxx, Porsche, Audi
Dealer agrees to notify the Company in writing of any change in such list
within thirty (30) days of any such change. Any such notice shall be addressed
to the attention of the Company's legal department.
(IV) Dealer agrees to the following additional provisions:
This agreement to be superseded upon issuance by the Company of a
revised form of Dealer Agreement, including new definition of
territory.
(V) The foregoing appointment and acceptance are subject in all respects
to the provisions of the Rolls-Royce Motor Cars Inc. Terms and Conditions of
Dealer Agreement annexed hereto as Exhibit A.
By their signatures hereto, the parties agree that they have read and
understand this Agreement, including the Rolls-Royce Motor Cars Inc. Terms and
Conditions of Dealer Agreement annexed hereto as Exhibit A and incorporated
herein, are committed to its purposes and principles and agree to abide by all
of its terms and conditions, in good faith for their mutual benefit. This
Agreement shall not become effective for any purpose until signed by Dealer
and countersigned below by the President of the Company.
SCOTTSDALE AUDI, LTD.
By: /s/ Xxxxxx Xxxxxxxxxxxxx
----------------------------------------
Name and Title: Xxxxxx Xxxxxxxxxxxxx,
Chairman
ROLLS-ROYCE MOTORS CARS INC.
By:
----------------------------------------
Title: President
EXHIBIT "A"
ROLLS-ROYCE MOTOR CARS INC.
TERMS AND CONDITIONS OF DEALER AGREEMENT
1. DEFINITIONS.
As used in this Exhibit A and the foregoing Dealer Agreement:
(a) "This Agreement" means this Exhibit A and the Rolls-Royce Motor Cars
Inc. Dealer Agreement to which this Exhibit A is annexed.
(b) "Manufacturer" means Rolls-Royce Motor Cars Limited, Pym's Lane,
Crewe, Cheshire, England.
(c) "Motor cars" means complete motor cars made by Manufacturer which
bear any of the Trademarks.
(d) "Products" means Motor cars and new and remanufactured assemblies,
parts, tools, accessories and overhaul and maintenance equipment therefor, all
as supplied by the Company.
(e) "Company's Warranty" means the written warranty or warranties in use
by Company for Products from time to time.
(f) "Trademarks" means the trademarks, tradenames and service marks
which the Company and the Manufacturer either own or are licensed to use from
time to time, including, but not limited to the following:
U.S. Reg. No. U.S. Reg. No.
------------- -------------
ROLLS-ROYCE 325,316 SILVER SHADOW 831,345
ROLLS-ROYCE 1,257,391 SILVER CLOUD 832,105
ROLLS-ROYCE 912,848 PHANTOM 856,912
ROLLS-XX-XXXXX design 197,089 SILVER SPIRIT 1,124,699
ROLLS-XX-XXXXX design 1,160,411 SILVER SPUR 1,251,086
ROLLS-XX-XXXXX design 1,275,757 CAMARGUE 1,045,862
Rolls-Royce radiator CORNICHE 1,021,031
grille design 1,063,799 BENTLEY 645,703
SILVER WRAITH 1,082,440 Bentley radiator
SILVER WRAITH 1,067,641 grille design 1,246,990
ROLLS 1,185,662 "B" and design 1,093,195
"B" and design 363,400
"Flying Lady" hood 850,902 "B" and design 344,524
ornament design
FLYING LADY 1,150,352 MULSANNE 1,238,195
SPIRIT OF ECSTASY 1,150,353 TURBO R 1,557,852
SILVER GHOST 1,067,640 BENTLEY EIGHT 1,551,811
Interlinked "RR" design 343,053 The Rolls-Royce Motor
Cars Royal Warrant
Interlinked "RR" design 344,372
2. OBLIGATIONS OF DEALER.
(a) Dealer acknowledges an obligation to maintain the high standards
associated with the Trademarks, to safeguard the interests of the Company and
the owners of the Trademarks and to refrain from any conduct which would
lessen the prestige of the Trademarks. Dealer acknowledges also an obligation
to give high quality, timely and effective service at rates reasonable for
Dealer's market area to every owner of a Motor car regardless of the place and
time of purchase of the Motor car.
(b) The Company is entering into this Agreement in reliance upon the
representations, warranties and agreements of Dealer that (i) the persons who
on the date of this Agreement participate in the ownership of Dealer will be
the only persons who have any interest, of record or beneficially, in Dealer;
(ii) no other person, firm or corporation has or will have any right, option
or privilege under any circumstances to acquire any interest, of record or
beneficially, in Dealer; (iii) Dealer shall complete Exhibit B bearing the
date of this Agreement setting forth the names, addresses and ownership
interests of all persons with ownership interests in Dealer and identifying
each person having authority and responsibility for the management of Dealer's
business; (iv) Dealer will provide written notice to the Company not less than
sixty (60) days prior to any contemplated change in the ownership or interest
in Dealer, or in the identities of the persons who have authority and
responsibility for the management of Dealer's business and will not enter into
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any agreement to effect any such change without the prior written approval of
the Company; and (v) Dealer will obtain and maintain all licenses, permits and
approvals required by the state and locality in which Dealer is located.
3. SALES OF PRODUCTS.
(a) The Company will sell Products to Dealer. Dealer shall purchase all
Products, other than tools and overhaul and maintenance equipment, for resale
to end users.
(b) The Company may sell Products to any person, firm or corporation in
North or South America. In the event that the Company sells a new Motor car to
anyone other than one of the Company's authorized dealers, the Company will
(except in the case of sales to its officers, employees, or representatives
for their personal use) credit one commission to one of its authorized
dealers. Such commission shall be in an amount to be determined by the Company
in accordance with Company policy as amended from time to time. The Company
shall in its sole discretion determine the dealer who should receive this
commission, having in mind the place of sale, the location of the Motor car
purchased, and any contact its dealers may have had with the customer prior to
such sale.
(c) In no event shall Dealer sell new Motor cars to any purchaser whose
permanent residence is outside the United States.
4. PAYMENT FOR PRODUCTS.
(a) The Company will sell Products to Dealer at such prices as may be
announced from time to time by the Company. Product prices shall be based upon
the suggested retail selling price less a discount allowed to Dealer (except
in the case of tools and overhaul and maintenance equipment).
(b) Dealer agrees to pay in addition any reasonable charge by the
Company for the preparation of a Motor car, if any, including warehousing,
handling for distribution and delivery, plus a sum equivalent to any tax
imposed by any law of the United States, or any state, municipality or other
taxing authority, on the manufacture, ownership, distribution, use or sale of
any Motor car if the same is not included in the price payable to the Company
by Dealer, plus a market promotion contributed as provided in Section 13
hereof in an amount to be determined from time to time by the Company. The
Company will keep Dealer informed of any changes or additions made from time
to time in suggested United States retail prices, discount schedules and
market promotion contributions, and the Company reserves the right to change
such prices, discounts and contributions from time to time, upon notice to
Dealer to that effect, by telegram, facsimile or letter, but no change in
amounts charged to Dealer shall apply to Products which have been delivered to
Dealer prior to the effective date of such change.
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(c) The Company agrees to grant special allowances for demonstrator
Motor cars according to the Company's demonstrator policy in effect from time
to time.
(d) The Company may require Dealer to pay a deposit of a minimum of five
percent (5%) of the suggested retail price in effect at time of order for each
Motor car ordered by Dealer. Payment of the balance for Motor cars, or of the
full purchase price for all other Products, shall be made by Dealer prior to
delivery, by cash, bank or certified check, by irrevocable and confirmed
bankers' media, or by such other means as may be agreed upon between the
parties. The amount of such payment shall include any additional charges
payable under the foregoing Subsection 4(b).
(e) Dealer agrees at all times to obtain, maintain and increase as the
Company may require, adequate flooring and lines of credit from reputable
financial institutions or other credit sources approved by the Company.
(f) Should Dealer fail to pay for, or fail to comply with any agreed
financing arrangement in respect of, any Motor cars which have been ordered by
Dealer upon notice by the Company that such Motor cars are ready for delivery
to Dealer, the Company may: (i) cause the Motor cars to be stored at the risk
and expense of Dealer; (ii) cause the Motor cars to be shipped elsewhere
(including return to the Company or Manufacturer), and Dealer shall pay to the
Company promptly upon demand the expense sustained by the Company or
Manufacturer for storing, handling and shipping occasioned thereby; or (iii)
sell the Motor cars directly to any other person, firm or corporation without
obligation to pay any sum to Dealer. Dealer agrees that in the event of any
such non-payment or failure the Company shall be entitled to set off any
deposit paid in respect of the Motor cars involved against any claims the
Company may then or thereafter have against Dealer. The Company may exercise
all remedies it may have by law as an unpaid seller, whether or not such
rights are referred to above.
(g) Products other than Motor cars shall be billed to Dealer's parts
account with the Company. If Dealer fails to pay amounts due and owing to the
Company as set forth on Dealer's statement of account within thirty (30) days
after receipt of a statement of account from the Company, the Company may
require Dealer to order Products other than Motor cars on a cash basis only
until Dealer pays to the Company all amounts due and owing to the Company.
(h) Where erroneous payments or credits by the Company are found to have
been made to Dealer or Dealer's employees, either directly or through Dealer's
parts account, Dealer agrees that the Company shall have the right to charge
such erroneous payments or credits against Dealer's parts account.
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(i) Dealer shall execute and deliver, and shall where appropriate
cooperate with the Company in causing to be filed with the appropriate
authorities, any and all statements and documents required or permitted by the
Uniform Commercial Code and any other local laws for the protection of an
unpaid seller.
(j) The Company shall at all times have the right to retain or retake
possession of Products until paid in full therefor. The cost of such retention
or repossession shall be paid by Dealer.
(k) In the event that the Company shall commence an action against
Dealer to collect the purchase price, or to recover possession, of Products or
otherwise to exercise its rights as an unpaid seller, the Company shall be
entitled to recover the expenses of any such action, including costs and
reasonable attorneys' fees.
5. ORDERS AND REPORTS FROM DEALER.
The Company requires information provided by its dealers to develop
composite statistics which are used to assess Dealer's progress in meeting its
obligations hereunder; to provide a basis for recommendations which the
Company may make from time to time to assist Dealer in improving its
operations; to evaluate market conditions and the collective progress of all
of the Company's dealers; and to plan its operations and strategies. It is
necessary, therefore, that dealers provide information to the Company which is
clear and accurate and based upon generally accepted accounting principles.
Dealer acknowledges that the Company must rely upon such information and
agrees to use its best efforts to insure that such information is accurate.
(a) Dealer shall furnish to the Company a report at 14-day intervals as
specified by the Company showing new and used Motor cars delivered to
customers (including customer names and addresses and the dates of delivery),
and such other reports as the Company may reasonably require from time to
time.
(b) Dealer shall provide to the Company by the 15th day of each month a
complete monthly financial statement, including balance sheet and profit and
loss statement, certified as accurate by Dealer's chief executive or financial
officer. Such financial statement may be in the form required by any other
franchisor of Dealer.
(c) Dealer shall provide to the Company by the 15th day of each month,
in a format prescribed by the Company, a complete and accurate financial and
operating statement covering activities in the preceding month and calendar
year to date in connection with Motor car sales, service and parts.
(d) Within sixty (60) days after the close of Dealer's fiscal year,
Dealer shall provide to the Company a complete
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financial statement, certified as accurate by Dealer's regularly employed
accountants.
(e) Dealer will, at the time of executing and delivering this Agreement,
provide to the Company copies of (i) its certificate of incorporation, with
its by-laws and shareholder agreement, if any; (ii) a certificate from the
Secretary of State or other appropriate governmental authority that it is in
good standing in the jurisdiction in which it is incorporated or otherwise
constituted; and (iii) any license or permit which Dealer is required to
obtain and maintain in the state, county, and city in which Dealer is doing
business. Dealer will provide to the Company copies of all renewals of such
licenses and permits.
(f) Dealer will promptly report to the Company any change in its
corporate name or trading style and any change in its articles of
incorporation, by-laws or similar documents which could affect the
relationship between the parties created by this Agreement and the course of
dealings contemplated by it.
6. THE COMPANY'S RIGHT OF REJECTION OR MODIFICATION OF ORDERS;
ALLOCATIONS; LIMITATION OF LIABILITY.
(a) The Company will give careful consideration to each Product order
received from Dealer, but the Company shall have the unqualified right to
accept or reject each order as received, or to reduce the quantities of any
particular model or type which may be ordered by Dealer.
(b) The decision of the Company as to the allocation of Products among
the Company's dealers shall be final and binding upon Dealer, who shall have
no claim of any kind against the Company for its failure to fill orders
previously received or accepted by the Company.
(c) In no event will the Company be deemed to have assumed any
obligation except to fill orders as quickly as practicable in accordance with
the foregoing principles, and Dealer expressly agrees that neither the Company
nor Manufacturer shall be liable for any direct or consequential loss or
damage caused by the failure or inability of either of them, whether or not
the same shall have been caused by any act or omission of the Company,
Manufacturer, or any other person, to make delivery of any Products to Dealer,
Dealer's sole remedy being to cancel the purchase and to recover the deposit
in respect of Products so delayed or remaining undelivered for more than six
months after the agreed delivery date. In the event, however, that any
delivery is delayed by a strike, lock-out or by an act of God or by some other
cause beyond the Company's and Manufacturer's control, the Company shall have
the option to extend the time for the delivery for the period of delay so
caused.
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(d) Neither the Company nor Manufacturer shall be required to continue
to make available for sale any particular lines or models of Motor cars, or
parts, assemblies and accessories therefor.
(e) All orders placed by Dealer and all sales to it shall be subject to
the provisions of this Agreement, and any provision of any order placed by
Dealer which is inconsistent herewith shall be null and void unless specific
reference is made to such inconsistent provision in such order and unless such
inconsistent provision is accepted by a duly authorized officer of the Company
in writing.
7. CHANGE OF SPECIFICATION; ALTERATION OF PRODUCTS.
(a) The Company or Manufacturer may at any time without notice make
changes in the design or materials of Products. The Company shall not be
liable to Dealer on account of any such changes; nor shall the Company be
required to install the same on Products previously purchased by Dealer.
Models of Products may be discontinued at any time, and the Company shall not
be liable to Dealer on account of such changes.
(b) Dealer shall not alter any Products, whether new or used, or do
anything which will in any way tend to infringe, impeach or lessen the
validity of the patents or trademarks under which the Products may be made or
sold or which will in any way tend to impair the reputation of the Company or
Manufacturer. Dealer shall not do anything which will impair or terminate the
applicability of the Company's Warranty to any Products.
8. SALES RESPONSIBILITIES.
(a) Dealer shall establish and maintain suitable facilities for the sale
of Motor cars and assemblies, parts and accessories therefor. Dealer shall use
its best efforts to promote the sale of Motor cars. Dealer shall operate a
suitable showroom to house, protect and exhibit Motor cars and accessories to
best advantage.
(b) Dealer shall employ qualified sales and other personnel in numbers
sufficient to handle the sale of Motor cars and accessories. The number of
personnel required shall be determined by the Company based on an analysis of
market potential in Dealer's sales territory. If the Company or Manufacturer
shall from time to time conduct sales training schools, Dealer, at its own
expense, shall send all sales personnel to such schools for training in the
proper sale and representation of Motor cars and other Products.
(c) Dealer agrees to fulfill its obligations as set forth in the Sales
Goal Letter sent to Dealer from time to time, including but not limited to the
maintenance of an adequate inventory of new Motor cars. Notwithstanding the
existence or
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terms of a Sales Goal letter, Dealer shall maintain a minimum new car
inventory of one Rolls-Royce and one Bentley Motor car.
(d) Dealer will not conduct any aspect of its business of the sale of
Products at any location other than that referred to in Paragraph (l) of this
Agreement without the prior written consent of the Company.
(e) The Company shall have the right from time to time to inspect
Dealer's premises and its records and accounts with respect to the sale of
Products, and to make recommendations and set standards concerning the methods
of displaying and selling Products. Dealer shall give careful consideration to
such recommendations and shall take such recommended steps for the improvement
of its sales facilities and performance and to conform them to the standards
established by the Company.
9. SERVICE RESPONSIBILITIES.
(a) Dealer shall establish and maintain suitable facilities for the
service and repair of Motor cars. Dealer shall provide effective service at
reasonable rates according to Dealer's market area to any owner of a Motor car
who may request it, without regard to the age of the Motor car, the source of
purchase or the place where the Motor car is customarily based. Dealer agrees
to provide service performance satisfactory to the Company.
(b) Dealer shall employ qualified mechanics and other service personnel
to render prompt and effective service for Motor cars. If the Company or
Manufacturer shall from time to time conduct training schools, Dealer, at its
own expense, shall send all mechanics and other service employees to such
schools for training in the service of Motor cars.
(c) Dealer will not conduct any aspect of its business of servicing
Motor cars at any location other than that referred to in Paragraph (l) of
this Agreement without the prior written consent of the Company.
(d) Dealer shall comply with all service-related policies and procedures
issued by the Company. Dealer shall promptly investigate and handle any
complaint which may be assigned to Dealer by the Company for investigation and
handling, and shall supply service as may be reasonably required in the
circumstances.
(e) Dealer acknowledges and understands that pursuant to the
requirements of federal law, the Company or Manufacturer may from time to time
recall Products for correction. Dealer shall promptly comply with the
Company's instructions for modification or alteration of any Products in
connection with any such recall, including, without limitation, Products
theretofore sold by Dealer or by any other of the Company's dealers, and shall
not
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sell or deliver any Product covered by any such instructions until the
required modifications or alterations shall have been properly accomplished.
Dealer shall indemnify and hold harmless the Company and Manufacturer from any
liability, loss or expense, including reasonable attorneys' fees, which either
shall suffer by reason of the failure by Dealer to comply with the provisions
hereof.
(f) Dealer will, in the conduct of its operations, comply with all
applicable federal, state and local laws, rules and regulations including,
without limitation, those relating to the Company's Warranty, the manner of
rendering maintenance and repair service, environmental compliance, automobile
safety, anti-air pollution and disclosure of information, including warranty
information, to retail customers and the use, if any, of Dealer's name, marks
or logos on the Products. Dealer agrees that it will not use its own or any
third party's name, marks, or logos on the Products in any way without the
Company's prior authorization and approval. The Company shall provide to
Dealer, and Dealer to the Company, such information and assistance as may
reasonably be requested by the other in connection with compliance with such
federal, state and local laws, rules and regulations. Dealer shall purchase
from the Company such special tools and equipment as in the Company's judgment
are required to effect such compliance.
(g) Dealer acknowledges and understands that pursuant to the laws of the
states, a presumption may arise that a consumer is entitled to a purchase
price refund or replacement vehicle when multiple warranty repairs are
unsuccessful or when the vehicle's cumulative time out of service for warranty
repairs exceeds a stated amount. Dealer acknowledges and understands,
therefore, the importance of compliance with the provisions of Sections 9(a),
9(b), 9(d), 9(f), 10(a) and 11. Dealer shall keep accurate service records for
each Motor car. Dealer shall immediately notify its Zone Service Manager of
the chassis number and owner of a Motor car covered by the Company's Warranty
which has been (i) delivered to Dealer for the second time for the repair of
the same or a related nonconformity or (ii) out of service for repairs at
Dealer's repair facility for a total of ten (10) or more days. Dealer shall
confirm such notice in writing to the Company within three (3) days of the
event triggering such notice. Dealer shall indemnify and hold harmless the
Company and Manufacturer from any liability, loss or expense, including
reasonable attorney's fees, which it shall suffer by reason of any failure by
Dealer to properly or promptly perform warranty service or to comply with
policies and procedures established by the Company from time to time with
respect to warranties or the submission of warranty information.
(h) The Company shall have the right from time to time to inspect
Dealer's premises and its records and accounts with respect to the service of
Products, and to make recommendations and set standards concerning the
maintenance and operation
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thereof. Dealer shall give careful consideration to such recommendations and
shall take such recommended steps as may be necessary for the improvement of
its service facilities and activities and to conform them to the standards
established by the Company.
(i) Dealer acknowledges and understands that the Company may establish
Approved Coachwork Repair facilities (individually "ACR" and collectively
"ACRs") for the limited purpose of providing quality coachwork for owners of
Motor cars. Dealer acknowledges and understands that the Company may appoint
ACRs who are not authorized dealers as well as ACRs who are authorized
dealers. ACRs may be appointed within Dealer's sales territory as defined in
this Agreement. The appointment of Dealer as an ACR, or the termination of
Dealer as an ACR, does not affect the terms and conditions of this Agreement
or the rights and obligations of the Company and Dealer under this Agreement.
The ACR agreement is not a Dealer Agreement and is separate and distinct from,
and not a part of, this Agreement.
10. PARTS RESPONSIBILITIES.
(a) Dealer shall purchase an initial stock of parts, service tools and
equipment required by the Company. The initial stock of parts, service tools
and equipment shall be charged to Dealer's parts account. Dealer shall
maintain a stock of spare parts, tools, equipment, assemblies and accessories
as required by the Company for the repair and maintenance of Motor cars and
for sale to individuals and service and repair centers. Dealer shall purchase
new model parts kits, service tools and equipment as required by the Company.
New model parts kits, service tools and equipment shall be charged to Dealer's
parts account. While it is not expected that Dealer will maintain a stock from
which every possible order can be filled, Dealer nevertheless recognizes and
agrees that the maintenance of an adequate inventory is essential to
successful representation of the Company.
(b) Dealer shall purchase and maintain current catalogs, literature,
price lists and technical manuals as required by the Company in order properly
to administer Dealer's parts department. All such catalogs, literature, price
lists and technical manuals shall be charged to Dealer's parts account. Dealer
acknowledges and agrees to maintain the confidentiality of information
concerning pricing and inventory communicated by the Company, its
representatives and contractors, whether through the Dealer Communication
Network or otherwise.
(c) Dealer will not offer for sale, or use in the repair of any Motor
car, as a genuine Rolls-Royce or Bentley spare part, assembly or accessory,
any such Product that has not in fact been approved as to type and
specification by the Company.
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11. COMPANY'S WARRANTY.
(a) The Company's Warranty applicable to new Motor cars shall be
prominently displayed in Dealer's premises and shall be incorporated as a
condition of each Motor car sale made by Dealer. No order shall be accepted by
Dealer without calling the attention of the purchaser to the provisions of the
Company's Warranty. Dealer shall require each buyer of a new Motor car to sign
an Owner Identification Card attesting that buyer has read the provisions of
the Company's Warranty. Dealer shall promptly forward the signed Owner
Identification Card to the Company. Dealer is familiar with and accepts the
Company's Warranty in effect at the time of this Agreement. THE COMPANY'S
EXPRESS WARRANTY SHALL EXCLUDE THE IMPLICATION OF ALL OTHER WARRANTIES
(INCLUDING THE DURATION OF IMPLIED WARRANTIES AS EXPRESSED THEREIN),
LIABILITIES, CONDITIONS OR OBLIGATIONS WHETHER OR NOT ARISING FROM THE
NEGLIGENCE, BREACH OF CONTRACT OR OTHER DEFAULT OF THE COMPANY OR OF
MANUFACTURER OR ANY OF THEM OR OF THE AGENTS, SERVANTS OR EMPLOYEES OF ANY OF
THEM, ALL OF WHOM DEALER HEREBY RELEASES IN EXCHANGE FOR THE COMPANY'S
WARRANTY. The Company will notify Dealer in writing of any change in the
provisions of the Company's Warranty to be issued in the future, but no such
change shall be effective as to deliveries made to Dealer, or to any ultimate
purchaser, respectively, prior to the receipt of such notice in writing by
Dealer. Acceptance by Dealer of delivery of any Motor car covered by the
Company's Warranty after receipt of such notice shall be deemed acceptance by
Dealer of the Company's Warranty as changed.
(b) Dealer shall expeditiously perform effective service at reasonable
rates according to Dealer's market area to correct any defect covered by the
Company's Warranty. The Company will provide Dealer with spare parts,
assemblies and accessories necessary for such repairs under the terms of such
warranty, and Dealer, recognizing that it is acting on behalf of the Company
in the fulfillment of the Company's Warranty, agrees that it will use only
such Company-provided spare parts, assemblies and accessories in the
performance of warranty service. Dealer will pay for such spare parts,
assemblies and accessories and will receive credit for the same from the
Company. Dealer shall also perform such work as is specified in recommended
maintenance programs and procedures promulgated from time to time. The
allowance of the Company's warranty claim submitted by Dealer, or the making
of any policy payment, shall in no event be deemed to be a waiver of any
provision of the Company's Warranty or of this Agreement, nor shall any such
allowance or payment be deemed to create an agreement on the part of the
Company to allow a similar claim or to make a similar payment in the future.
(c) The Company shall have the right, from time to time and at any time
during normal business hours, to inspect Dealer's books and records relating
to all claims made by a consumer or by Dealer under the Company's Warranty.
If, for any reason, Dealer refuses to allow the Company to inspect Dealer's
books and
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records relating to Warranty claims, or if Dealer is unable to substantiate
claims made by a consumer or by Dealer under the Company's Warranty, the
Company reserves the right to charge back to Dealer any payments or credits
received by Dealer pursuant to the Company's Warranty for such claims.
(d) Upon delivery of each Motor car, Dealer agrees to supply to the
Company full information as to the chassis number of the Motor car, the date
of delivery of the Motor car to the buyer and the name and address of the
buyer.
(e) The term of the Company's Warranty for each new Motor car sold to
Dealer shall begin to run upon the earlier of either the first retail sale of
such Motor car by Dealer or the passage of two years from the date of the
Company's sale of such Motor car to Dealer. The Company shall establish a
warranty policy for demonstrators and trials cars, which policy may be amended
by the Company from time to time.
(f) The benefit of the Company's Warranty, by its terms, will not be
available to the owner of a Motor car sold or used for commercial service or
hire. If a Motor car is so used or if its buyer evidences an intention so to
use it, Dealer shall promptly inform the Company in writing of such fact (in
advance of delivery, whenever possible), and the Company shall thereafter
issue, or condition its approval of the sale upon the issuance and acceptance
of, a warranty from the Company with respect to said Motor car in such form
and subject to such limitations as may be deemed appropriate to such
commercial service or hire.
(g) Dealer agrees to acknowledge, investigate and handle all complaints
from customers in a manner which will enhance the good will of the Company,
Manufacturer and the Products. Dealer agrees to participate in and cooperate
with such consumer dispute resolution procedures as the Company may designate
from time to time.
(h) The Company may from time to time offer or authorize others to offer
certain warranties or service contracts applicable to previously-owned Motor
cars. Dealer agrees to participate in the operation of such programs.
12. MUTUAL INDEMNIFICATION.
(a)(i) Subject to the provisions of this Section 12, the Company shall
defend and hold Dealer harmless against any judgment which may be rendered
against Dealer, including assessed costs and reasonable attorneys' fees,
resulting from complaints (exclusive of claims alleging or founded upon breach
of express or implied warranty, as to which Dealer's remedies as provided in
Section 11 shall be exclusive) seeking monetary damages filed against Dealer
concerning:
-12-
(A) alleged bodily injury or property damage (including damage to
Products themselves) claimed to have been caused by an alleged defect in
the design, manufacture or assembly of Products (except alleged defects
in the design or manufacture of tires), provided, however, that any
claimed defect in manufacture or assembly was not such as should have
been detected by Dealer in a reasonable inspection of Products, whether
in the performance of the pre-delivery inspection or otherwise;
(B) alleged failure of Products to conform, because of changes in
standard equipment or material component parts, to the description set
forth in advertisements or product brochures made available to Dealer by
the Company and allegedly relied on by the first retail customer, unless
Dealer received written notice of such changes from the Company prior to
the date of delivery of affected Products to such customer; or
(C) any alleged substantial Product damage repaired by the Company
(excluding paint damage and removal and replacement of the damaged part
or component with a like part or component) prior to the time the
Product is delivered to Dealer's designated location, unless the Company
has notified Dealer in writing of such damage and repair prior to the
date of delivery of affected Products to the first retail customer.
(ii) In the event that any complaint containing allegations as set forth
in (A) through (C) above is filed naming Dealer as a defendant, the Company
will, following receipt of notice as provided in Subsection (c) of this
Section 12, undertake at its sole expense the defense of the complaint on
behalf of Dealer. The Company is specifically authorized by Dealer to settle
or to continue to defend any such complaint filed against Dealer, provided
that the Company shall be solely liable for the payment of the amount of any
settlement which it effects.
(iii) Should the Company for any reason refuse to undertake the defense
on behalf of Dealer when it is obligated to do so under this Section 12,
Dealer may conduct its own defense and the Company's liability shall be
limited to judgments, assessed costs and reasonable attorneys' fees paid by
Dealer.
(iv) The Company shall have the right to decline to accept such defense
or, after accepting the defense but prior to trial, to tender the defense back
to Dealer, and Dealer shall accept such tender, if the Company reasonably
concludes that the allegations being pursued are no longer those set forth in
(A) through (C) above.
(b)(i) Subject to the provisions of this Section 12, Dealer shall
indemnify and hold the Company and Manufacturer harmless
-13-
against any judgment which may be rendered against the Company or
Manufacturer, plus reasonable attorneys' fees, resulting from complaints
seeking monetary damages filed against the Company or Manufacturer,
concerning:
(A) Dealer's alleged failure to perform, or negligent performance
of, the service obligations assumed by it pursuant to this Agreement, or
any maintenance or repair service on Products or such other motor
vehicles as may be sold or serviced by Dealer;
(B) Dealer's alleged breach of contract between Dealer and
Dealer's customer, provided, however, that the breach was not caused by
any act or omission on the part of the Company concerning which the
Company unreasonably failed to notify Dealer prior to the date of
Dealer's entering into the contract with its customer; or
(C) Dealer's alleged misleading statements, misrepresentations, or
unfair or deceptive acts or practices, whether through advertisements or
otherwise, affecting any customer of Dealer, provided, however, that the
statements, representations or advertisements are not based on
information or material produced or supplied by the Company and not
subsequently superseded or withdrawn by written notice from the Company
to Dealer.
(ii) In the event that any complaint containing allegations as set forth
in (A) through (C) above is filed naming the Company or Manufacturer as a
defendant, Dealer will, following receipt of notice as provided in Subsection
(c) of this Section 12, undertake at its sole expense the defense of the
complaint on behalf of the Company. Dealer is specifically authorized by the
Company to settle or to continue to defend any such complaint filed against
the Company, provided that Dealer shall be solely liable for the payment of
the amount of any settlement which it effects.
(iii) Should Dealer for any reason refuse to undertake the defense on
behalf of the Company when it is obligated to do so under this Section 12, the
Company may conduct its own defense and Dealer's liability shall be limited to
judgments, assessed costs and reasonable attorneys' fees paid by the Company.
(iv) Dealer shall have the right to decline to accept such defense or,
after accepting the defense but prior to trial, to tender the defense back to
the Company, and the Company shall accept such tender, if Dealer reasonably
concludes that the allegations being pursued are no longer those set forth in
(A) through (C) above.
(c)(i) Whenever a complaint is filed against either the Company or
Dealer or both of them, each shall, within fifteen (15) days after service of
the complaint, notify the other in
-14-
writing, as provided in Section 22, of any request to assume its defense and
to indemnify it, and shall provide at that time copies of any pleadings which
have been served to date, together with all information then available
regarding the circumstances giving rise to the complaint. In the event this
provision is for any reason not complied with, Subsections (a) and (b) of this
Section 12 shall not apply for purposes of that complaint.
(ii) The request to assume the defense and to indemnify shall be
accepted or rejected by the party to which it is made within one month
following its receipt. Prior to receipt of a response to its request, each
party agrees to take all reasonable steps to ensure that the defense to the
complaint is in no way prejudiced, whether by action or inaction. If the
request is accepted, the party which made the request shall cooperate fully in
the defense of the complaint in such manner and to such extent as the party
assuming the defense may reasonably require, provided, however, that
Subsections (a) and (b) of this Section 12 shall be applicable commencing with
the date on which the request is accepted, and any expenses or other
obligations incurred prior to such acceptance by the party which made the
request shall be borne solely by such party.
(d) Whenever a complaint alleges liability on the part of both the
Company (on the bases set forth in Subsection (a) of this Section 12) and
Dealer (on the bases set forth in Subsection (b) of this Section 12), each
party shall be responsible for its own defense, including costs and attorneys'
fees, unless one party offers to undertake the total defense and the other
party agrees thereto in writing. The Company or Dealer responsibility for its
own defense pursuant to this Subsection (d), or pursuant to any other
circumstances not within the scope of this Section 12, shall in no way affect
whatever legal rights either may have to indemnification or contribution.
13. MARKETING, ADVERTISING AND PROMOTION.
(a) The decision as to the best method of advertising and promoting
Products for resale in the United States shall at all times rest with the
Company. Dealer will not advertise or trade in Products for resale in such a
manner as to prejudice the sale thereof, and will immediately withdraw any
advertisement, or cease any method of trading, on being notified by the
Company that it considers the same objectionable. The Company may require
Dealer to submit advertisements to the Company for approval prior to
publication, which approval shall not be unreasonably withheld.
(b) Dealer shall at all times use its best efforts to bring Products to
the favorable notice of the public. Subject to applicable governmental
ordinances, regulations and statutes, Dealer agrees to erect and maintain at
Dealer's location, entirely at Dealer's expense, standard authorized product
and service signs of types recommended by the Company, as well as
-15-
such other authorized signs as are necessary to advertise Dealer's operations
effectively. Dealer shall announce upon its stationery, circulars, invoices
and other promotional materials that it is an authorized dealer of Motor cars.
Any use by Dealer in such connection of the Trademarks shall be accompanied by
a prominent notation in form satisfactory to the Company that the Trademarks
are registered in the United States Patent and Trademark Office.
(c) Dealer shall not, without the Company's prior written consent,
permit Products to be photographed or otherwise utilized by third parties to
advertise or promote other products, services, activities or events of any
kind.
(d) Dealer shall purchase the Company's annual marketing package and any
other additional marketing materials required by the Company from time to
time. The annual marketing package and additional marketing materials shall be
charged to Dealer's parts account.
(e) Dealer shall contribute to the Company's cooperative Advertising
Partnership, which shall be used to promote the sale of Products. The Company
shall have discretion as to the manner in which contributions are utilized in
advertising.
14. RELATIONSHIP OF THE PARTIES AND MANUFACTURER.
Neither Dealer nor any of its officers, agents or employees is
authorized to bind the Company or Manufacturer or to transact business for the
account of either of them in any way whatsoever. This Agreement shall not be
deemed to create any agency on the part of Dealer, or a joint venture between
the parties. Manufacturer shall not be deemed to have assumed any liability or
obligation to Dealer hereunder. Dealer acknowledges and agrees that the
Company does not, directly or indirectly, require or accept any fee or charge
for the right to enter into or conduct business under this Agreement or for
the right to sell, resell or distribute Products; Dealer further acknowledges
and agrees that payments by Dealer to the Company for Products or otherwise as
provided in this Agreement do not constitute such a fee or charge.
15. EXHIBITS AND TRIALS.
Dealer will not exhibit or assist in exhibiting any Motor cars at any
exhibition, or take part or assist in or support any competition or
competitive or other trial (except by a customer) of or relating to Motor
cars, or publish or cause or assist to be published any advertisement or
description of the result of any trial, competition or individual performance
of Motor cars, without the prior written approval of the Company.
-16-
16. TERMINATION OF AGREEMENT.
(a) Upon not less than sixty (60) days notice in writing, Dealer at its
option may terminate this Agreement.
(b) Upon notice to Dealer, this Agreement may be terminated by the
Company in any of the following circumstances:
(1) If Dealer becomes insolvent; or if Dealer is unable to pay its
debts as they become due; or if Dealer or any person owning or holding,
beneficially or otherwise, a majority or controlling interest in Dealer,
commences proceedings under any federal or state law for the relief of
debtors; or if a receiver or trustee is appointed for Dealer, or if
Dealer makes an assignment for the benefit of creditors; or if Products
are subjected to execution or other judicial process.
(2) If any change takes place in the identity of the persons who
participate in the ownership, or the persons who have authority and
responsibility for the management, of Dealer, or Dealer otherwise
commits a breach of Section 2(b) of this Agreement.
(3) If Dealer or any of Dealer's employees, representatives or
agents provides false information to the Company, whether in connection
with the requirement of Section 5 of this Agreement or otherwise.
(4) If Dealer or stockholders, directors, officers or employees
thereof shall be convicted in any court of a violation of law, or shall
plead nolo contendere or the equivalent to any criminal charge or shall
be found liable in a civil action under circumstances tending, in the
Company's reasonable opinion, adversely to affect the operation of the
business of Dealer or the good will or reputation of the Company,
Manufacturer or Products or the operation of the business of the
Company.
(5) If there is a material change unacceptable to the Company in
the premises occupied by Dealer.
(6) If Dealer shall fail to function as a going concern or to
conduct its operations in the normal course of business.
(7) If Dealer shall be guilty of a material breach of its
obligations under this Agreement or if Dealer shall conduct its business
in a manner which in the reasonable opinion of the Company will result
in material harm to the business of the Company or the business of
Manufacturer or if Dealer shall fail for any legal reason to be duly
qualified to act as a dealer hereunder, but in any of the circumstances
mentioned in this Subsection (7) the right of
-17-
cancellation may not be exercised unless the Company shall have first
notified Dealer of the claimed breach, conduct or failure and Dealer
shall have failed within ten (10) days thereafter to cure such breach,
conduct or failure or, if a longer time under the circumstances is
necessary, to initiate the correction thereof and to prosecute such
correction with diligence to completion.
(8) If the Company shall cease to be an importer of Products.
(9) If the Company determines to terminate this form of Dealer
Agreement and to offer dealers a new or amended form of Dealer
Agreement.
(10) If any other reason or circumstance exists which constitutes
cause for termination under applicable federal or state laws.
(11) (i) If any principal participant in the ownership of Dealer
(a "principal owner") dies or becomes incapacitated; provided, however,
that the Company will offer an interim agreement of one year's duration
to any person nominated in writing and accepted by the Company to
succeed to such ownership interest in Dealer in the event a principal
owner dies or becomes incapacitated. Such nomination must list all
persons who have authority and responsibility for the management of
Dealer's business, must be executed by all persons holding ownership
interests in Dealer, must be notarized, and must be received and
accepted by the Company prior to such death or incapacity. Acceptance by
the Company shall be in its discretion. A principal owner may cancel an
accepted nomination by notarized written notice to the Company, provided
notice is received by the Company before the principal owner's death or
incapacity. The Company may not cancel an accepted nomination unless a
change in the circumstances of the successor nominee, in the opinion of
the Company, disqualifies such successor nominee and the Company so
notifies Dealer. A superseding nomination may then be made by the
principal owner affected for acceptance by the Company.
(ii) In the event no person is nominated and accepted to succeed
to a principal owner's ownership interest, and if such interest passes
directly to a surviving spouse or children, and if the remaining owners
and management of Dealer can, in the Company's opinion, comply with the
requirements of this Agreement, the Company will consent to the
retention by such spouse or children of a non-management interest in the
franchise subject, however, to any rights of the remaining owners and
management to buy out the spouse's or children's interest in accordance
with any agreement made by them.
-18-
(iii) The interim agreement to be offered under this Subsection 11
is not renewable; however, the Company may, in its discretion, extend
the term thereof in order to facilitate the purchase by others of the
former principal owner's interest in Dealer. At the end of any interim
agreement, the Company will offer its standard Dealer Agreement to the
then-current principal owners, provided that such persons in all
respects meet the requirements for appointment as a Rolls-Royce and
Bentley dealer.
(c) Neither the Company nor Manufacturer shall, by reason of any
termination, however occasioned, or by reason of non-renewal of Dealer's
appointment, be liable to Dealer for compensation, reimbursement or damages or
on account of the loss of prospective profits on anticipated sales or on
account of expenditures, investments, leases or commitments in connection with
Dealer's business or good will, or on any other account.
17. EFFECT OF TERMINATION OR EXPIRATION.
Upon the date on which termination of this Agreement becomes effective,
or at the end of the term of this Agreement (unless it is immediately
succeeded by a new written agreement between the parties):
(a) Dealer shall forthwith cease all use of any of the Trademarks and
return to the Company all parts books, service manuals, signs illustrating
Products or bearing any of the Trademarks and all other items supplied by the
Company. Dealer shall transfer to the Company or to its nominees all its
orders for Products and deposits received from customers, provided Dealer
shall be entitled to receive a commission in respect of any outstanding orders
for specific retail customers previously accepted by the Company.
(b) The Company shall have the option to reacquire from Dealer each
unused, undamaged and unsold Motor car in Dealer's stock, at a price to be
determined by the Company. The Company shall likewise have the option of
purchasing other Products in Dealer's possession and any signs, brochures or
other promotional materials which were purchased from the Company, at their
original cost to Dealer, less a reasonable discount for use, damage or
deterioration; provided, however, that if Dealer shall cease to be a Dealer
for any reason other than termination of this Agreement by Dealer, then the
Company shall purchase and reacquire unused, undamaged and unsold parts and
accessories listed in the price list current at that time at a price equal to
Dealer net price less stock discount and a 15% handling charge.
(c) Dealer will promptly remove at its own expense all signs bearing any
of the Trademarks and will destroy all letterheads, stationery and other forms
used by Dealer bearing any of the Trademarks. Dealer will forthwith
discontinue representing itself to be an authorized dealer in any way.
-19-
Dealer further agrees to take all steps necessary to change as soon as
possible its telephone directory listings and advertisements to
eliminate any reference to the Trademarks. Dealer agrees that as a
result of any continued unauthorized representation that Dealer is an
authorized dealer in Products the Company would suffer damage in an
amount difficult or impossible to ascertain. Accordingly, Dealer agrees
to pay the Company, as liquidated damages and not as a penalty, $500 for
the breach of its obligations under this Subsection (c) for each day
that such breach continues and the costs, including reasonable
attorneys' fees, that the Company may incur in enforcing compliance with
this Subsection. The right of the Company to such liquidated damages and
costs is in addition to all other rights and remedies which the Company
may elect to invoke including, but expressly not limited to, injunction
and specific performance.
(d) Dealer shall turn over to the Company, free of charge, all of its
sales records, service records and customer lists and other records and data
relating to the sales and service of Motor cars.
(e) Dealer shall return to the Company all data processing equipment
(including but not limited to terminals, keyboards and printers) provided to
Dealer by the Company, which equipment remains the property of the Company.
(f) The acceptance of any order from, or the sale of any Products to,
Dealer after the termination or expiration of this Agreement shall not be
construed as a renewal or extension thereof nor as a waiver of termination,
but in the absence of a new written agreement signed by both parties, each
such transaction shall be considered to be undertaken pursuant to a contract
at will and shall otherwise be governed by provisions identical to the
relevant provisions of this Agreement.
(g) Dealer warrants and represents to the Company that all property
returned by Dealer to the Company pursuant to this Section 17 will be free and
clear of all liens, encumbrances and security interests. Dealer agrees to
indemnify the Company and hold it harmless from all liability, loss and
damage, including reasonable attorneys' fees, arising out of or resulting from
any breach of the foregoing representation and warranty.
18. TRADEMARKS, TRADE NAMES AND SERVICE MARKS.
Dealer recognizes that the Trademarks have become, by reason of the
excellence of the products and service they identify and their continued use
in commerce over a period of many decades, universally recognized symbols of
quality and are of unique and exceptional value. Dealer further recognizes and
acknowledges that the continuity of its operation as a financially sound and
viable business organization, able to meet its obligations as they become due
and without any resort to remedies for the
-20-
benefit of debtors, is essential to the protection and preservation of its
reputation and the Company's reputation and the integrity of the Trademarks.
Accordingly, the parties have agreed as follows:
(a) Dealer acknowledges that the Company and Manufacturer have the
exclusive ownership of or exclusive right to use the Trademarks in the
distribution and sale of Products and related services and that the Trademarks
are valid. Dealer will never contest such ownership and right or the validity
of any of the Trademarks. Dealer further agrees that it will never attempt to
register any tradename, trademark or service xxxx which consists of,
incorporates, includes, or is a colorable imitation of any of the Trademarks,
and if Dealer does so in breach of this Agreement, Dealer does so in
constructive trust for the Company and Manufacturer of their designee.
(b) Dealer is hereby granted a non-exclusive right and license to use
the Trademarks in connection with the conduct of its business under this
Agreement, but only in such connection. The term of such right and license
shall terminate when this Agreement shall terminate, however such termination
might be occasioned.
(c) Dealer will not use any of the Trademarks as a part of its corporate
style or tradename without the prior written consent of the Company, which
consent the Company may deny or may grant on such terms and conditions as the
Company may from time to time prescribe and which the Company may withdraw at
any time, all in the absolute discretion of the Company.
(d) Any particular use of any of the Trademarks by Dealer will be
discontinued immediately if, in the sole judgment of the Company, such use is
inconsistent with the reputation and standing of the Company or Manufacturer
or with the Company's business, advertising or public relations policies.
(e) Dealer shall not produce, sell or distribute any items bearing the
Trademarks except items Dealer purchases from the Company.
(f) Dealer will promptly report to the Company any use of the Trademarks
by any person, firm or corporation, in connection with the distribution of
Products or otherwise, which comes to the attention of Dealer and which Dealer
has reason to believe is unauthorized, and Dealer will comply with reasonable
requests by the Company for cooperation in connection with the investigation
of or legal action to prevent unauthorized uses. Dealer understands and agrees
that only the Company or the owners of the Trademarks in their sole discretion
may initiate legal action involving the Trademarks and that Dealer may not
initiate any legal action which directly or indirectly involves the
Trademarks.
-21-
19. SEPARABILITY.
Should any provision of this Agreement be unenforceable or prohibited by
any applicable law, this Agreement shall be considered divisible as to such
provision, which shall be inoperative, but the remainder of this Agreement
shall be valid and binding as though such provision were not included herein.
20. ASSIGNMENT.
Neither party may assign this Agreement, or any of its interests herein,
without the written consent of the other party, except that the Company may
assign this Agreement without such consent to any person, firm or corporation
succeeding to its business and also to any subsidiary or affiliated company of
the Company. Any assignment in violation of this Section shall be void.
21. ENTIRE AGREEMENT.
Dealer agrees that it has not relied on any representations, warranties
or promises not contained herein, that no oral statement has been made to it
that in any way tends to change or modify any of the terms of this Agreement,
that there is no oral agreement or understanding between the parties affecting
this Agreement or relating to the subject matter hereof, that this Agreement
sets forth the entire understanding of the parties, and that there are not
agreements or understandings between the parties except as set forth herein.
No provision of this Agreement may be altered, amended or terminated except by
an instrument in writing signed by an executive officer of Dealer and of the
Company.
22. NOTICE.
Any notice under this Agreement shall be in writing and shall be sent by
certified mail, postage prepaid, telegram facsimile or mailgram to the
addresses set forth at the head of this Agreement or such other addresses as
may be designated in writing by like notice from time to time. All notices
required to be sent by Dealer to the Company under this Agreement shall be
addressed to the attention of the legal department.
23. NO IMPLIED WAIVERS.
Any failure of either party to this Agreement to require performance by
the other party of any provision herein shall in no way affect the right of
such party to require such performance at any time thereafter, nor shall any
waiver by either party of a breach of any provision herein constitute a waiver
of any succeeding breach of the same or any other provision, nor constitute a
waiver of the provision itself.
-22-
24. GOVERNING LAW.
This Agreement shall be interpreted and enforced in accordance with the
law of the State of New York applicable to agreements executed and wholly to
be performed in such state. If any provision herein contravenes the valid laws
or regulations of any state or other jurisdiction wherein this Agreement is to
be performed, or denies access to the procedures, forums, or remedies provided
by for such laws or regulations, such provision shall be deemed to be modified
to conform to such laws or regulations, and all other terms and provisions
shall remain in full force and effect.
-23-
EXHIBIT "B"
ROLLS-ROYCE MOTORS CARS INC.
DEALERSHIP STRUCTURE, MANAGEMENT AND OWNERSHIP
STRUCTURE
Dealership Name: SCOTTSDALE AUDIT, LTD.
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Type (corporation, partnership,
sole proprietorship): corporation
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Parent and subsidiary corporations: United Auto Group
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MANAGEMENT
General Manager: Xxxxxx X. Xxxxxxxx
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General Sales Manager: Xxx Xxxxxxx
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Sales Manager: Xxxxx Xxxxxxxxx
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Service Manager: Xxxxx Xxxxxx
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Parts Manager: Xxxx Xxxxx
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Other:
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OWNERSHIP
List all partners/shareholders with 5% or greater holdings:
1) Name: United Auto Group
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Address: 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
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Type (individual, corporation,
partnership, other): corporation
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2) Name:
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Address:
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Type (individual, corporation,
partnership, other):
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3) Name:
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Address:
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Type (individual, corporation,
partnership, other):
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4) Name:
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Address:
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Type (individual, corporation,
partnership, other):
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5) Name:
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Address:
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Type (individual, corporation,
partnership, other):
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6) Name:
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Address:
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Type (individual, corporation,
partnership, other):
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