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EXHIBIT 10.49
(LOGO) FORD MOTOR COMPANY
Atlanta Region
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SUPERSEDING
FORD SALES AND SERVICE AGREEMENT
AGREEMENT made as of the day of , 19 ,
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by and between XXXX XXXX, INC.
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(Name of Entity)
CORPORATION, GEORGIA
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(State whether an individual, partnership (Show name of the State in which
or corporation) incorporated or registered)
doing business as XXXX XXXX, INC.
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(Trade Name)
and with a principal place of business at 0000 XXXXX XXXX XXXXX
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(Street Address)
SMYRNA XXXX XX 00000
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(City) (County) (State) (Zip Code)
(hereafter called the "Dealer") and Ford Motor Company, a Delaware corporation
with its principal place of business at Dearborn, Michigan (hereinafter called
the "Company").
- PREAMBLE -
The purpose of this agreement is to (i) establish the Dealer as an
authorized dealer in COMPANY PRODUCTS including VEHICLES (as herein defined),
(ii) set forth the respective responsibilities of the Company in producing and
selling those products to the Dealer and of the Dealer in reselling and
providing service for them and (iii) recognize the interdependence of both
parties in achieving their mutual objectives of satisfactory sales, service and
profits by continuing to develop and retain a broad base of satisfied owners of
COMPANY PRODUCTS.
In entering into this agreement, the Company and the Dealer recognize
that the success of the Company and of each of its authorized dealers depends
largely on the reputation and competitiveness of COMPANY PRODUCTS and dealers'
services, and on how well each fulfills its responsibilities under this
agreement.
It is the opinion of the Company that sales and service of COMPANY
PRODUCTS usually can best be provided to the public though a system of
independent franchised dealers, with each dealer fulfilling its responsibilities
in a given locality from properly located, adequate, well-equipped and
attractive dealerships, which are staffed by competent personnel and provided
with the necessary working capital. The Dealer recognizes that, in such a
franchise system, the Company must plan for the establishment and maintenance of
the numbers, locations and sizes of dealers necessary for satisfactory and
proper sales and service representation in each market area as it exists and as
it develops and changes. At the same time, the Company endeavors to provide each
of its dealers with a reasonable profit opportunity based on the potential for
sales and service of COMPANY PRODUCTS within its locality.
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The Company endeavors to make available to its dealers a variety of
quality products, responsive to broad wants and needs of the buying public,
which are attractively styled, of sound engineering design and produced on a
timely basis at competitive prices. The development, production and sale of such
products require that the Company and its manufacturing sources make large
continuing investments in plants, equipment, tools and other facilities,
engineering and styling research and development, quality control procedures,
trained personnel and marketing programs. Heavy commitments must also be made in
advance for raw materials and finished parts. For purposes of making these
investments and commitments, planning production and estimating costs for
setting prices, the Company assumes in advance an estimated volume of sales for
each of its products. Within each year, it develops production schedules from
orders submitted by its franchised dealers and its and their best estimates of
the market demand for COMPANY PRODUCTS.
In turn, each of the Company's franchised dealers makes important
investments or commitments in retail sales and service facilities and equipment,
in working capital, in inventories of vehicles, parts and accessories, and
trained sales and service personnel based on annual planning volumes for their
markets.
If satisfactory volumes for either the Company or a dealer are not
realized, each may suffer because of commitments already made and the cost of
manufacturing and of selling each product may be increased. Each dealer must
give the Company orders for the products needed to serve its market. The Company
seeks to adjust production schedules, to the extent feasible, to fill dealer
orders, and to allocate fairly any product in short supply, but inevitably both
the Company and its dealers suffer loss of profits to the extent they cannot
meet market demands. Thus, the automotive business is a high risk business in
which the Company, its manufacturing sources and its dealers can succeed only
though cooperative and competitive effort in their respective areas of
manufacturing, sales, service and customer satisfaction.
Because it is the dealer who deals directly with, and develops the sale
of COMPANY PRODUCTS to the consuming public, the Company substantially relies on
its dealers to provide successful sales and merchandising programs, competent
service operations and effective owner relations programs. To do this, dealers
must carry out their responsibilities of establishing and maintaining adequate
wholesale and retail finance plans, new and used vehicle sales programs, parts
and service sales programs, personnel training and supportive capitalization and
working capital. To assist its dealers in these responsibilities, the Company
establishes and periodically updates standards of operation and planning guides
based on its experience and current conditions. It also offers sales and service
training courses, advice as to facilities, counseling in the various phases of
new and used vehicle merchandising, parts and service merchandising, leasing,
daily rentals and facilities development. It also conducts national advertising,
promotional and other marketing programs and assists dealers in developing
complementary group and individual programs.
To enable the Company to provide such assistance, it requires dealers
to submit uniform and accurate sales, operating and financial reports from which
it can derive and disseminate analytical and comparative operating data and
advice to dealers. The Company also solicits dealers to bring to its attention
through their National Dealer Council organization any mutual dealer problems or
complaints as they arise.
Because the Company relies heavily on its dealers for success, it
reserves the right to cease doing business with any dealer who is not
contributing sufficiently to such success. Similarly, the Company recognizes
that its dealers look to it to provide competitive products and programs and
that, if it does not do so, any dealer may elect to cease doing business with
the Company.
The Company has elected to enter into this agreement with the Dealer
with confidence in the Dealer's integrity and ability, its intention to carry
out its responsibilities set forth in this agreement, and its desire to provide
courteous, competent and satisfying sales and service representation to
consumers for COMPANY PRODUCTS, and in reliance upon its representations as to
the persons who will participate in the ownership and management of the
dealership.
The dealer has elected to enter into this agreement with the Company
with confidence in its integrity and ability, its intention to provide
competitive products and assist the Dealer to market them successfully, and its
desire to maintain high quality dealers.
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Both parties recognize the rights of the Dealer and the Company under
this agreement are defined and limited by the terms of this agreement and
applicable law. The Company and the Dealer further acknowledge that their
methods of operation and business practices have an important effect on the
reputation of the Dealer, the Company, COMPANY PRODUCTS and other franchised
dealers of the Company. The Company and the Dealer also acknowledge that certain
practices are detrimental to their interests, such as deceptive, misleading or
confusing advertising, pricing, merchandising or business practices, or
misrepresenting the characteristics, quality, condition or origin of any item of
sale.
It is the expectation of each of the parties that by entering into this
agreement, and by the full and faithful observance and performance of its
duties, a mutually satisfactory relationship will be established and maintained.
- TERMS OF THE AGREEMENT -
IN CONSIDERATION of the mutual agreements and acknowledgements
hereinafter made, the parties hereto agree as follows:
A. The Company hereby appoints the Dealer as an authorized dealer at
retail in VEHICLES and at retail and wholesale in other COMPANY PRODUCTS and
grants the Dealer the privilege of buying COMPANY PRODUCTS from the Company for
sale in its DEALERSHIP OPERATIONS (as herein defined). The Company also grants
to the Dealer the privilege of displaying, at approved location(s), the
Company's trademarks and trade names applicable to COMPANY PRODUCTS. The Dealer
hereby accepts such appointment.
B. Subject to and in accordance with the terms and conditions of this
agreement, the Company shall sell COMPANY PRODUCTS to the Dealer and the Dealer
shall purchase COMPANY PRODUCTS from the Company.
C. The Ford Motor Company Ford Sales and Service Agreement Standard
Provisions (Form "FD925-A"), a duplicate original of which is attached to the
Dealer's duplicate original of this agreement, have been read and agreed to by
the Company and by the Dealer, and such Standard Provisions and any duly
executed and delivered supplement or amendment thereto, are hereby made a part
of this agreement with the same force and effect as if set forth herein in full.
D. This agreement shall bind the Company when it bears the facsimile
signature of the General Manager, and the manual countersignature of the
General, Sales Manager, Market Representation Manager, or a Regional Sales
Manager, of the Ford Division of the Company and a duplicate original thereof is
delivered personally or by mail to the Dealer or the Dealer's principal place of
business.
E. The Dealer acknowledges that (i) this agreement may be executed only
in the manner provided in paragraph D hereof, (ii) no one except the General
Manager, The General Sales Manager, or Market Representation Manager of the Ford
Division of the Company, or the Secretary or an Assistant Secretary of the
Company, is authorized to make or execute any other agreement relating to the
subject matter hereof on behalf of the Company, or in any manner to enlarge,
vary or modify the terms of this agreement, and then only by an instrument in
writing, and (iii) no one except the General Manager of the Ford Division of the
Company, or the Secretary or an Assistant Secretary of the Company, is
authorized to terminate this agreement on behalf of the Company, and then only
by an instrument in writing.
F. In view of the personal nature of this agreement and its objectives
and purposes, the Company expressly reserves to itself the right to execute a
Ford Sales and Service Agreement with individuals or other entities specifically
selected and approved by the Company. Accordingly, this agreement and the rights
and privileges conferred on the Dealer hereunder are not transferable,
assignable or salable by the Dealer and no property right or interest, direct or
indirect, is sold, conveyed or transferred to the Dealer under this agreement.
This Agreement has been entered into by the Company with the Dealer in reliance
(i) upon the representation and agreement that the following person(s), and only
the following person(s), shall be the principal owners of the Dealer:
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HOME PERCENTAGE
NAME ADDRESS OF INTEREST
SUNBELT AUTOMOTIVE GROUP, INC. 0000 Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxx 000X 100
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Xxxxxxx, XX 00000
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(ii) upon the representation and agreement that the following person(s), and
only the following person(s), shall have full managerial authority for the
operating management of the Dealer in the performance of this agreement:
HOME TITLE
NAME ADDRESS
XXXX X. XXXXXX 0000 XXXXXXXXX XXXX, XXXXXXXXXX, XX 00000 PRESIDENT
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K. XXXXX XXXXXX 0000 XXXXXXX XXXXX, XXXXXXXXXXXX, XX 00000 GENERAL MANAGER
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and (iii) upon representation and agreement that the following person(s), and
only the following person(s), shall be the remaining owners of the Dealer:
HOME PERCENTAGE
NAME ADDRESS OF INTEREST
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The Dealer shall give the Company prior notice of any proposed change in the
said ownership or managerial authority, and immediate notice of the death or
incapacity of any such person. No such change or notice, and no assignment of
this agreement or of any right or interest herein, shall be effective against
the Company unless and until embodied in an appropriate amendment to or
assignment of this agreement, as the case may be, duly executed and delivered by
the Company and by the Dealer. The Company shall not unreasonably withhold its
consent to any such change.
G. (Strike out either subparagraph (1) or (2) whichever is not
applicable.)
(1) This agreement shall continue in force and effect from the date of
its execution until terminated by either party under the provisions of
paragraph 17 hereof.
H. Both the Company and the Dealer assume and agree to carry out and
perform their respective responsibilities under this agreement.
The parties hereto have duly executed this agreement in duplicate as of the day
and year first above written.
FORD MOTOR COMPANY
[FORD LOGO] XXXX XXXX, INC.
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(Dealer's Trade Name)
General Manager, Ford Division By
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Countersigned by (Title)
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[FORD LOGO] FORD MOTOR COMPANY
Atlanta Region
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ADDENDUM TO
FORD SALES AND SERVICE AGREEMENT Dated
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FOREIGN SALES AGREEMENT (Fiesta) Dated (the
--------------------- "Agreements:)
FOREIGN SALES AGREEMENT (Courier) Dated
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FORD TRUCK SALES AND SERVICE AGREEMENT DATED
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FORD HEAVY DUTY TRUCK SALES AND SERVICE AGREEMENT DATED
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by and between XXXX XXXX INC.
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(Dealership Trade Name)
CORPORATION, in the State of GEORGIA
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(State whether Partnership or Corporation) (Show name of State in which incorporated or
registered)
doing business as XXXX XXXX INC.
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(Dealership Trade Name)
(the "Dealer") and Ford Motor Company, a Delaware corporation (the "Company").
THE PARTIES AGREE that the following addendum to Paragraph (F) containing clause
(i)(a) is annexed and made part of the Agreements:
F(i)(a) upon the representation and agreement that the following person(s)
and/or entity(ies), and only the following person(s) and/or entity(ies) shall
have ownership interests in the principal owner(s) referred to in clause (i) of
this Paragraph F:
NAME OF PRINCIPAL OWNERS(S) WHICH NAME AND ADDRESS OF PERSON(S) OR ENTITY(IES) PERCENTAGE
ARE PARTNERSHIPS OR CORPORATIONS HAVING OWNERSHIP INTEREST(S) IN PRINCIPAL OWNERS(S) OF OWNERSHIP
(STATE OF INCORPORATIONS) (INDICATE STOCKHOLDER OR PARTNER) INTEREST
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SUNBELT AUTOMOTIVE GROUP, INC. XXXXXX X. XXXXXXXXXXX, XX., (STOCKHOLDER)
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GEORGIA 0000 XXXXXX XXXX, XXXXXXXX, XX 00000 5.9
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XXXX X. XXXXXX, (STOCKHOLDER)
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0000 XXXXXXXXX XXXX, XXXXXXXXXX, XX 00000 2.8
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XXXXXX X. XXXXXXXXXXX, III & WMB III FAMILY TRUST, (STOCKHOLDER)
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000 XXXXXXX XXXX, XXXXXXX, XX 00000 7.1
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XXXXX X. XXXXXX & RBJ FAMILY TRUST, (STOCKHOLDER)
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0 XXXXXXXXX XXXXX, XXXXXXX, XX 00000 6.5
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XXXXXXXXX X. XXXXXXXX & JBT FAMILY TRUST, (STOCKHOLDER)
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000 XXXXX XXXX, XXXXXXXXXXXX, XX 00000 6.5
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XXXXXXX X. XXXXXXXX & PBM FAMILY TRUST, (STOCKHOLDER)
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0000 XXXXXXXXXXXX XXXXX, XXXXXXXX, XX 00000 6.5
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XXXXXXX X. XXXXXXXXX & LBR FAMILY TRUST, (STOCKHOLDER)
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0000 XXXXXX XXXXXX XXXX, XXXXXXXXXXX, XX 00000 6.8
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REMAINING STOCKHOLDERS, (STOCKHOLDER)
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57.9
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The provisions of this paragraph F requiring notice to and consent by the
Company to any changes in ownership shall apply to any change in the person(s)
or entity(ies) having an ownership interest in the principal owner(s) set forth
in this clause F(i)(a).
IN WITNESS WHEREOF, the Company and the Dealer have duly executed this addendum
in duplicate as of the__________day of_______________, 19___________.
FORD MOTOR COMPANY XXXX XXXX INC.
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(Dealer's Trade Name)
By By
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Assistant Secretary (Signature and Title)
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