DISTRIBUTOR'S OPERATING AGREEMENT
BETWEEN
A C CAR GROUP LIMITED
AND
CHARTERED TRUST PLC
THIS AGREEMENT is made the day of 199
BETWEEN
( 1 )A C CAR GROUP LIMITED of Pride House, Watford Metro Centre, Tolpits
Lane, Watford, Herts, WDl 8SB (Registered No. 3217998) ("the Distributor"/
(2) CHARTERED TRUST PUBLIC LIMITED COMPANY of 00/00 Xxxxxxx Xxxx, Xxxxxxx,
XX0 1 SR (Registered No. 661204) ("Chartered")
WHEREAS:
( 1 )The Distributor wishes that there should be a facility to enable its
Dealers in Products (both as hereinafter defined) to stock such Products as
stock available for supply to customers with the minimum increase in the capital
required for such purpose.
(2) Chartered is willing to purchase Products from the Distributor for the
purpose of reselling them to Dealers under such a facility and will allow them
before payment by the Dealer to be exhibited as stock on the Dealer's premises.
(3) The Distributor is willing to grant to Chartered a non-exclusive right
to purchase Products for that purpose.
(4) The parties wish to set out the terms on which such sales will take
place.
WHEREBY IT IS AGREED as follows:-
Definitions
In this Agreement the following expressions shall have the meanings set
opposite them below, that is to say:-
Credit Limit
the amount notified by Chartered to a Dealer which is the maximum aggregate
Purchase Price of Products which Chartered is willing to allow that Dealer to
have Delivered to it, and willing itself to have paid to the Distributor pending
imminent Delivery, at any one time without having paid Chartered in full
therefor;
Dealer
a dealer in the United Kingdom who has entered into a Dealer Franchise
Agreement and who stocks Products or who intends to stock them and with whom
Chartered has entered or will enter into a Purchase Agreement;
Dealer Franchise
the Distributor's standard form document entitled [".....................
Agreement Agreement"] under which the Distributor grants the Dealer non-
exclusive rights to purchase Products for re-sale to customers with the primary
responsibility for promoting the sale of Products within a defined territory;
Delivery
the act whereby the Distributor transfers physical control of the Product
to the Dealer by offloading the Product from the transporter used by the
Distributor or its agent onto the Dealer's premises, and "Delivered" shall be
construed accordingly;
Despatch Note
the document issued by the Distributor or its agent to a Dealer identifying
a Product by serial number, its unique identification number (which shall be the
number permanently marked on the Product so as to be visible immediately upon
inspection (by model and by type)), and which bears a Dealer's name and address
and the Distributor's relevant document identifying number(s), and which when
signed by or on behalf of the relevant Dealer evidences Delivery and acceptance
of the Product by that Dealer;
Invoice
the tax invoice from the Distributor to Chartered for the sale by the
Distributor to Chartered of a Product pursuant to the terms of this Agreement,
which shows the name and address of the Dealer to whom the Product has been
allocated, fully identifies the Product by serial number, model and type and
states its Purchase Price including the rate and amount of VAT;
Permitted Period
the period which starts from the date on which Chartered pays to the
Distributor the Purchase Price of a Product in accordance with clause 4 hereof
and expiring 180 days thereafter;
Purchase Agreement
the purchase agreement made between Chartered and a Dealer for the sale by
Chartered to the Dealer of Products, in substantially the form set out in
Appendix 2 hereto;
Products
passenger cars and commercial vehicles bearing the trade xxxx or name of,
and supplied by, the Distributor;
Purchase Price
the price payable by Chartered to the Distributor for the purchase of a
Product, being the Distributor's standard published wholesale cash price, less
any discount which the Distributor allows (at the date hereof at the rate of
twenty per cent in respect of any Product which a Dealer orders for immediate
demonstration use) current at the time of supply including VAT.
The headings to clauses are for guidance only, and do not form part of this
Agreement or affect its interpretation.
2. Allocation
2.1 The Distributor agrees to sell to Chartered and Chartered agrees to
purchase from the Distributor on the terms and conditions set out in this
Agreement Products which a Dealer has ordered from the Distributor and been
allocated and which the Distributor actually arranges to Deliver to the Dealer.
The Distributor will not provide any Product to a Dealer at a time when
that Dealer is in breach of any of its material obligations to the Distributor
under the Dealer Franchise Agreement or is carrying on business in a way which
can be reasonably considered as bringing the Distributor's or the Dealer's name
or business into disrepute.
2.2 Chartered may from time to time notify the Distributor that it refuses
to purchase hereunder any Products which have been or may be ordered from the
Distributor by, or allocated by the Distributor to, a Dealer specified in such
notice.
Such notification will take immediate effect and remain in full force and
effect unless and until Chartered notifies the Distributor otherwise, and the
Distributor shall not allocate or Deliver any such Products to such Dealer or
send to Chartered any Invoices therefor.
Chartered shall be entitled to give any such notification if the purchase
of the Products would result in that Dealer's Credit Limit being exceeded or if
in its opinion there are reasonable grounds for doing so, and shall inform the
Distributor of the reason for giving any such notification.
The Distributor shall not (without the prior consent of Chartered) on any
day in respect of any Dealer allocate or arrange to Deliver Products or send to
Chartered Invoices hereunder if the Purchase Price that would become due from
the Dealer to Chartered in respect of those Products would be in excess of
[...... .. .. ...] or such lower amount as would, when aggregated with any
balance of Purchase Prices of Products then outstanding from the Dealer, equal
the Dealer's Credit Limit.
2.3 The Distributor will notify Chartered in writing each time that it
allocates Products to a Dealer, specifying the Purchase Price of those Products
and the intended delivery date. Chartered shall confirm within two banking days
of receipt of such notice whether or not it intends to refuse purchase of any of
the Products specified. If Chartered confirms that it accepts the purchase then
the Distributor shall be entitled to accept that as confirmation that the
Dealer's Credit Limit would not thereby be exceeded.
2.4 Subject to sub-clause 2.2 above the Distributor shall be deemed to have
accepted the offer by Chartered to purchase each such Vehicle when it sends to
Chartered an Invoice in respect of the same. The method set out in this
sub-clause 2.4 is the only method by which the Distributor shall accept the
offer to purchase a Vehicle. The Distributor shall send such Invoice to
Chartered only after it has set in hand or instructed its transport agent to set
in hand the Delivery of the relevant Vehicle to the Dealer within four working
days of making such arrangement.
3. Identification
The Distributor agrees to ensure that each Product is marked permanently in
an immediately visible position with a unique identification number before the
Product is despatched to a Dealer and to refer to each Product on all Invoices
and Despatch Notes by such identification number, model or type. The Distributor
shall provide to Chartered a certified true copy of any Despatch Note duly
signed by the Dealer
within two working days of written request by Chartered.
4. Payment of Purchase Prices
Provided that Chartered has not under clause 2.3 hereof refused to purchase
a Product from the Distributor Chartered shall pay to the Distributor the amount
of the Purchase Price due in respect of that Product, initiating such payment by
Bankers Automated Clearing System to the Distributor's bank account notified to
Chartered within two banking days of Chartered's receipt of the original Invoice
therefor. Interest on any late payment in cleared funds shall be paid at the
rate of 2 percent above Finance House Base Rate.
Title and Risk
5.1 Title to each Product shall pass from the Distributor to Chartered
forthwith upon Chartered's payment of the Purchase Price in relation to such
Product in accordance with clause 4 hereof.
5.2 The Distributor acknowledges that Products allocated by the Distributor
to a Dealer and sold to Chartered pursuant to this Agreement shall be at the
risk of the Distributor until they are actually Delivered to the Dealer.
Until such Delivery the Distributor shall indemnify Chartered in respect of
all loss or damage to a Vehicle howsoever caused and the Distributor shall at
its own expense insure and keep insured all such Products fully and adequately
against all normal risks with an insurer approved by Chartered and with a note
of Chartered's interest endorsed upon the policy of insurance.
The Distributor shall hold any monies payable under the insurance policy
relating to such Product in trust for Chartered and account to Chartered for
such monies.
6. Warranty
6.1 The Distributor agrees that the purpose for which all Products are sold
to Chartered under this Agreement is for re-sale, in accordance with the
stipulations expressly made by the Distributor, by Chartered to Dealers on
deferred payment terms.
It is therefore a condition of this Agreement that all Products provided by
the Distributor to Chartered shall be the property of the Distributor and as at
the date of Delivery be fit for supply as stock, shall be of satisfactory
quality and
shall conform to any written description or written representation made by
the Distributor or the manufacturer or any agent of either of them to Chartered
or to any Dealer.
6.2 The Distributor shall be deemed to have extended to the Dealer the
benefit of the collateral warranties set out in Appendix 1 hereto in relation to
any Products sold to Chartered and subsequently provided by Chartered to the
Dealer and shall indemnify Chartered against any liability of Chartered in
respect of a Product for which the Distributor would have been liable if it had
supplied the Product direct to the Dealer. The Distributor warrants that it
sells all Products to Chartered hereunder subject to and with the benefit of its
standard guarantee in force from time to time and that Chartered is entitled to
assign all its rights under each such guarantee to the relevant Dealer in
respect of any Product Delivered to him.
6.3 Where the Products (or any parts thereof) are not manufactured by the
Distributor the Distributor shall upon written request by Chartered assign to
Chartered the benefit of any guarantee, condition, warranty or servicing
agreement or arrangement received by the Distributor from the manufacturer (or
supplier to the Distributor) of such Products or part thereof. Chartered shall
be entitled to assign any such benefit to the relevant Dealer in respect of any
Product Delivered to him.
7. Repurchase of Certain Products
If for any reason Chartered recovers possession of any Product from a
Dealer (prior to the happening of a Specified Event under the terms of the
Purchase Agreement) Chartered shall return it as soon as practicably possible to
the Distributor's address shown above or such other address as the parties may
agree, and the Distributor shall repurchase such Product from Chartered. Risk in
any such returned Product shall pass to the Distributor on delivery to the place
agreed.
Within seven banking days after its receipt of Chartered's invoice for the
re-sale of any such Product the Distributor shall remit to Chartered an amount
equivalent to the Purchase Price (including VAT at the then current rate) of
that Product less an appropriate allowance if any (to be agreed by Chartered and
the Distributor) for any reduction in its value due to its being returned to the
Distributor other than in the condition in which the Distributor Delivered it
(and interest shall be payable on such net amount at the rate of 4 per cent
above the then prevailing Finance House Base Rate for every day after the said
seven banking days payment is not made).
In the event of the parties failing to agree upon any appropriate allowance
or value within the said seven banking days (or such longer period as the
parties may agree), the allowance or value in dispute shall be determined by an
expert appointed by
agreement between the parties and failing such agreement by the President
for the time being of the Society of Motor Distributors and Traders.
The expert's costs shall be borne equally by Chartered and the Distributor.
Within five banking days of its receipt of Chartered's invoice for the re-sale
of such Product following determination by the expert the Distributor shall
remit to Chartered an amount equivalent to the Purchase Price (including VAT at
the then current rate) of the Product less the allowance (if any) so determined
by the expert (and interest shall be payable on such net amount at the rate of 4
per cent above the then prevailing Finance House Base Rate for every day after
the said five banking days payment is not made).
8. Duration
This Agreement shall continue in force until the first of the following
events to occur:-
8.1 termination by any party upon the expiry of written notice of not less
than three months sent to the others, it being understood that this Agreement
remains in full force and effect during that period;
8.2 the Distributor or Chartered stops or expressly threatens to stop
payment (other than in accordance with clause 2 or pending any determination by
an expert pursuant to clause 7 hereof) or ceases or expressly threatens to cease
to carry on its business or a major part thereof, or either of the Distributor
or Chartered has a receiver or receiver and manager or administrator appointed
or if any meeting of creditors of the Distributor or Chartered is called or any
deed or arrangement or assignment for the benefit of creditors is entered into
by the Distributor or Chartered, or if distress or execution shall be levied or
enforced against the premises or any goods of the Distributor or Chartered or if
any judgment or decree for payment against the Distributor or Chartered shall
remain unsatisfied for more than 14 days, or if an order is made or an effective
resolution passed for the winding up of the Distributor or Chartered, or a
meeting of shareholders is called with a view to putting the Distributor or
Chartered into liquidation except for the purpose of amalgamation or
reconstruction;
8.3 termination by Chartered forthwith upon any written notice sent by
Chartered to the Distributor upon any ceasing of the Distributor to be a company
associated with A C Automotive Group, Inc. incorporated in the State of
Delaware, USA, within the meaning of "associated" given by section 416 of the
Income and Corporation Taxes Xxx 0000;
or until such date as may be mutually agreed by both parties
PROVIDED ALWAYS that termination shall not affect any liability of either
party to the other which has accrued prior to the date of termination.
9. Effect of Termination
On termination of this Agreement an account shall be taken of what Products
(if any) have been recovered by Chartered from a Dealer (prior to any Specified
Event under the terms of the Purchase Agreement happening in relation to such
Products) but in respect of which Chartered's invoice for the re-sale to the
Distributor hereunder has not yet been received by the Distributor, and this
Agreement shall continue in regard to the completion of matters in respect of
such Products as if this Agreement had not been terminated.
10. Notices
All notices or other communications hereunder shall be in writing and sent
by post or facsimile copier and shall be deemed to have been duly made or
given:-
10.1 if sent by post, when received or three days after having been
deposited in the mail first class postage prepaid, whichever is the earlier, or
10.2 if sent by facsimile copier, when sent
in either case addressed as follows (or as otherwise most recently notified
by one party to the other in writing at any time):-
to the Distributor:
A C Car Group Limited
A C Cars House
Xxxxxxx Drive North
Brooklands Industrial Park
Weybridge
Surrey KTl3 OYU
Fax Number: 0l 932 343444
to Chartered: Chartered Trust plc
00/00 Xxxxxxx Xxxx
Xxxxxxx XX00 SR
attn Manager, Business Credit (00/SE)
Fax no: 0l 222 480781
11. Law
This Agreement shall be governed by and construed in accordance with the
law of England.
IN WITNESS whereof this Deed has been duly executed by us on the respective
dates shown below and delivered on the date first above written.
Executed as a Deed by
A C CAR GROUP LIMITED
acting by:-
..................... . . .... . . Director
......... ......................... Director/Secretary
on the day of 199
Executed as a Deed by
CHARTERED TRUST PUBLIC LIMITED COMPANY
acting by:-
.............. ...................... Director
. ............................................... Director/Secretary
on the day of 199
APPENDIX 1
(as per clause 6.2)
In consideration of the Dealer purchasing on deferred payment terms Products
from Chartered pursuant to the terms of a purchase agreement between the Dealer
and Chartered the Distributor shall extend to the Dealer in relation to such
Products the same benefits including without limitation that of any standard
guarantee or warranty as would arise in favour of a Dealer purchasing Products
direct from the Distributor under the Distributor's standard conditions of sale
and/or pursuant to the Dealer Franchise Agreement with the Distributor.
APPENDIX 2
Specimen Purchase Agreement
CHARTERED TRUST PLC
A Standard Chartered Group Company
AGREEMENT FOR
PURCHASE OF
VEHICLES SUPPLIED BY
A C CAR GROUP LIMITED
ENGLAND, SCOTLAND, WALES & NORTHERN IRELAND
THIS AGREEMENT is made the day of 199
BETWEEN
( 1 ) "Chartered" CHARTERED TRUST PUBLIC LIMITED COMPANY whose registered
office is at 00/00 Xxxxxxx Xxxx, Xxxxxxx XX0 1 SR. Registered in England and
Wales Registered Number 661204.
(2) "the Dealer' of
Registered Number:
RECITALS
A. By an Agreement ("the A C Car Group Dealer Agreement") made between (1)
the Dealer and (2) A C Car Group Limited of A C Cars House, Xxxxxxx Drive North,
Brooklands Industrial Park, Weybridge, Surrey, KTl3 OYU ("the Distributor") the
Dealer has been authorised to sell retail Vehicles supplied by the Distributor,
subject to the terms of the A C Car Group Dealer Agreement which shall remain in
full force and effect save where expressly varied by this Agreement.
B. At the request of the Distributor Chartered is willing to purchase
Vehicles from the Distributor and to resell the same to the Dealer on the terms
of this Agreement under which the Dealer agrees to purchase the Vehicles from
Chartered upon terms that title to the Vehicles will not pass to the Dealer
until full payment has been made, and on the terms set out in the facility offer
letter sent by Chartered to and accepted by the Dealer, as varied by any
subsequent letters from Chartered from time to time.
OPERATIVE CLAUSES
Definitions
In this Agreement the following expressions shall have the meanings set opposite
them below, that is to say:-
"Charge Rate"
The Finance House Base Rate ("FHBR") plus the percentage rate from time to time
in force calculated in accordance with Schedule 1 hereto or Clause 12 as
appropriate.
"Purchase Price"
The amount payable by Chartered to the Distributor in respect of a parficular
Vehicle including all price increases and decreases notified to Chartered by the
Distributor and including VAT thereon at the rate current at the time when such
payment by Chartered is due.
"Specified Events"
The events specified in Schedule 2 hereto.
"Vehicles"
Means new and used vehicles capable of carrying passengers and having three or
more wheels, supplied by the Distributor.
NOW IT IS AGREED as follows:
Purchases
Chartered agrees to sell to the Dealer and the Dealer agrees to purchase
from Chartered on the terms and conditions set out in this Agreement all
Vehicles which the Dealer orders from the Distributor as below (the Dealer
acknowledges that Chartered will purchase such Vehicles from the Distributor so
as to enable Chartered to resell the same to the Dealer) provided that the
proposed sale to the Dealer of a particular Vehicle hereunder shall not proceed
if its doing so would cause the aggregate Purchase Price of the Vehicles held by
the Dealer at any one time to exceed such monetary limit (not being less than
25,001 pounds ) as is from time to time notified by Chartered to the Dealer in
writing or if Chartered in its sole discretion refuses to sell such Vehicle to
the Dealer for any other good and sufficient reason.
2 Orders and Deliveries
(i) The Dealer shall place his orders for the Vehicles with the Distributor
(by confirming his acceptance of the allocation or delivery schedule sent to him
by the Distributor) and will if requested by Chartered at the same time send a
copy of such orders to Chartered at the above address marked for the attention
of the Manager, Dealer Service Centre (08/EE);
(ii) If the Dealer wishes to complain about the condition of any Vehicle
delivered to it by the Distributor the Dealer shall notify both Chartered and
the Distributor in writing within 24 hours of the date and time on which that
Vehicle was so delivered. Each such complaint shall be dealt with in accordance
with the provisions of the A C
Car Group Dealer Agreement relating to damage to Vehicles at the time of
delivery.
3 Handling Charge
(i) The Dealer shall pay to Chartered monthly in arrear on demand a
handling charge ("the Handling Charge") and VAT thereon if applicable. The
Handling Charge payable for the calendar month in question shall be calculated
at the Charge Rate applicable to that month on a daily basis on the aggregate
Purchase Price of the Vehicles held by the Dealer (and on any other monies from
time to time owed by the Dealer to Chartered) at the close of business on each
day or if the Dealer is not open for business on any particular day at the close
of business on the last previous day on which the Dealer was open for business.
A year shall be deemed to consist of 365 days. A Vehicle is "held" by the Dealer
from the date on which Chartered is required to pay the Distributor's invoice to
Chartered in respect of a Vehicle to the day on which (a) Chartered receives
payment of the Purchase Price in respect of such Vehicle or (b) the Vehicle is
returned to the possession of Chartered (in either case inclusive of both such
days).
(ii) Notwithstanding sub-clause (i) above Chartered may at its discretion
require payment from the Dealer of deposits in respect of the Vehicles, the
aggregate Purchase Price of the Vehicles being reduced merely for the
calculation of Handling Charges, and of usage of the monetary limit of the
facility notified by Chartered, from time to time by the amount of such deposits
during such time as they are held.
(iii) If the Handling Charge is not paid on its due date Chartered may
charge daily interest at the Charge Rate on the amount unpaid and Chartered will
have the right to terminate this Agreement.
(iv) Chartered may at its discretion allow Handling Charge free days in
accordance with terms from time to time agreed by Chartered with the
Distributor.
4 Title
Title in a Vehicle will remain in Chartered until the payment in full by
the Dealer to Chartered of the Purchase Price in respect of that Vehicle (if so
requested by Chartered such payment must be made by Direct Debit and if not paid
in cash will be deemed unpaid until actually cleared by Chartered's bankers).
Chartered shall be entitled to maintain an action against the Dealer for the
Purchase Price (or any balance thereof unpaid) of any Vehicle agreed to be
purchased by the Dealer notwithstanding that title to such Vehicle has not
passed to the Dealer.
5 Payment for Vehicles
The Dealer must forthwith notify Chartered of the happening of a Specified
Event in respect of any of the Vehicles and immediately pay to Chartered the
Purchase Price in respect thereof by direct debit from the Dealer's bank
account.
Failure by the Dealer to make such payment on the happening of the
Specified Event shall be deemed to be a repudiation of this Agreement by the
Dealer entitling Chartered to take possession of any of the Vehicles in which
title has not passed to the Dealer and to enter the premises of the Dealer for
that purpose.
If any Purchase Price is not paid on the above happening the Dealer shall
pay to Chartered with monthly rests interest calculated daily on the amount
unpaid at a rate of up to FHBR plus 5% per annum.
6 Dealer's Obligations
Until the Dealer has paid Chartered the Purchase Price for each or where
appropriate all of the Vehicles the Dealer shall:-
(a) from the time when the Distributor or its agent delivers the Vehicles
to the Dealer:-
(i) properly house and supervise the Vehicles to the satisfaction of
Chartered and bear the risk of any loss or damage thereto and at the request of
Chartered shall assign the benefit of any claim in respect thereof to Chartered
and any monies recovered thereunder by the Dealer shall be held in trust for
Chartered in the Account as referred to in Clause 14 (iii) hereof;
(ii)insure the Vehicles at his own expense comprehensively with an
insurance company approved by Chartered in the sum of the total Purchase Price
on terms that all monies recovered will be directly paid to Chartered;
(iii) not without the prior consent of Chartered alter the Vehicles or any
equipment fitted to them or remove the Vehicles from the premises of the Dealer
and at all times, if required by Chartered, store the Vehicles in such a way as
they can be readily recognised as the property of Chartered and permit Chartered
or its agent or their representatives to inspect the Vehicles;
(iv) keep accurate records showing the history and exact location of the
Vehicles and make such returns to Chartered and provide such financial and other
information relating to the Dealer and his business as shall be requested by
Chartered; and
(b) at no time either
(i) assign transfer charge or otherwise deal with this Agreement in whole
or in part or to agree to or attempt to create or suffer the creation of any of
the foregoing, nor charge or otherwise encumber or attempt to encumber any of
the Vehicles; or
(ii) until the termination of this Agreement without the prior consent of
Chartered enter into any agreement or other arrangement of a similar kind or
effect for the provision of stocking or other loan or credit facilities in
connection with the purchase or sale of Vehicles.
7 Limitation of Liability
Chartered shall have no liability or obligation hereunder to accept any
order or allocation of Vehicles and Chartered shall be entitled to cancel any
order made by the Dealer (or countermand any allocation) and the Dealer shall
have no right or claims against Chartered in respect of Vehicles purchased
hereunder which it would not have against the Distributor had the Dealer bought
the Vehicles directly from the Distributor, and any rights or claims which the
Dealer has shall be pursued at his own expense against the Distributor as if the
Vehicles had been purchased directly from the Distributor, and for the purpose
hereof the Vehicles are sold with the benefit of the Distributor's warranty so
far as Chartered is able to give the same.
8 Chartered Demand to Return Vehicles
(i) Chartered may on termination of this Agreement pursuant to Clause 10
below, unless it requires the Dealer to retain the Vehicles (or any of them)
hereunder, demand ("xxx Xxxxxx") that the Dealer return to Chartered or any
other body nominated by it all or any of the Vehicles the title in which has not
passed hereunder, and thereupon the affected Vehicles shall be returned to
Chartered and/or as and where it directs forthwith by the Dealer at his own
expense in the same new and unused condition and the Dealer shall indemnify
Chartered for any action it reasonably takes to recover possession of the
Vehicles or any of them and will pay to Chartered any sums by which the price
obtained for any such Vehicle falls below the Purchase Price thereof.
(ii) On the making of the Demand by Chartered, subsequent to which the
Dealer shall be deemed to be in possession of the Vehicles without Chartered's
consent, the power for the title in the Vehicles or any of them the vehicles
without the prior written consent of Chartered save only at the expense of the
Dealer to keep and store the Vehicles in the same new and unused condition and
insured hereunder.
9 No Right to Return by Dealer
Subject to the terms of clause 8, the Dealer shall not be entitled to
return to Chartered any
Vehicles being purchased under the terms of this Agreement.
10 Termination
This Agreement shall commence on the date hereof and continue until
terminated:-
(i) by either party giving to the other not less than one month's notice in
writing of termination, or
(ii)forthwith upon Chartered giving to the Dealer notice in writing that
Chartered is of the opinion that there has been a material deterioration in the
financial standing of the Dealer or that the Dealer has committed any breach of
the terms of this Agreement or any other agreement between Chartered and the
Dealer express or implied, or
(iii)automatically upon the happening of any of the events specified in
Clause 6(b) (i) hereof, or in the event of the Dealer being a company, upon the
presentation of a petition or the passing of a resolution to wind up the Dealer
or upon the Dealer having a Receiver of its property or any part thereof
appointed or upon the Dealer (being an individual) entering into any composition
or arrangement with any of his creditors or having a petition for bankruptcy
presented against him or becoming the subjection of an application for an
interim order or calling any meeting of his creditors or becoming in apparent
insolvency in Scotland or having execution or distress threatened or levied on
any of his goods or ceasing or threatening to cease to carry on business, or
(iv)automatically upon the termination of whatever cause of the.
.............. Dealer Agreement.
Such termination shall take effect without prejudice to antecedent rights
and liabilities and in particular (but without prejudice to the generality of
the foregoing) the obligations of the Dealer to pay all monies owing to
Chartered and notwithstanding such termination:
(a) the obligations of the Dealer under Clause 6 hereof shall continue in
respect of each Vehicle then held by or on behalf of the Dealer until such time
as, upon Chartered making the Demand under Clause 8, the same is returned into
the possession of Chartered or as it may direct pursuant to Clause 8 hereof,
and
(b) the Handling Charge shall continue to accrue until, upon Charfered
making the Demand, all Vehicles have been returned into the possession
of Charfered or as and where it may direct aforesaid.
Chartered shall be entitled to refrain from making the Demand, and instead
to require the Dealer to retain the Vehicles (or any of them). In respect of all
Vehicles not returned to Chartered following termination of this Agreement, the
Dealer's obligation to purchase those Vehicles on the terms of this Agreement
shall continue.
11 Instalment Credit Business
During the currency of this Agreement the Dealer will give to Charfered or
an associated company nominated by it the right of first refusal to finance all
available Hire Purchase, Credit or Conditional Sale, Personal Loan or other form
of instalment credit business and all leasing and contract hire business
consequent upon sales and leases of cars and other vehicles provided Charfered
or such associated companies is prepared to finance or lease the same on its
terms and conditions for the time being in force in relation to similar
transactions and also provided that Charfered has not specifically waived this
right.
12 Demonstrators
Where in respect of any Vehicle from time to time held by the Dealer under
the terms of this Agreement, prior to the happening of any Specified Event, the
Dealer wishes to use such Vehicle on a public road for demonstration purposes
and prior to such use obtains the consent of Chartered to that use, then the
title in such Vehicle shall remain in Chartered and the provisions of this
Agreement shall continue to apply except ( 1 ) that the Dealer shall not without
the prior consent of Chartered allow any Specified Event set out in paragraph
(i), (ii), (vii), (viii) or (x) of Schedule 2 hereto fo happen to such Vehicle
prior to the expiry of 180 days from the date on which such Vehicle is first
registered for use on a public road ("the Registration Date") (2) that the
Charge Rate applicable to that Vehicle will be 2.0|^| per annum above FHBR from
time to time (or such other rate as may from time to time be notified to the
Dealer by Charfered hereunder), and (3) that the Purchase Price shall be payable
as follows:-
(i) the VAT in respect of such Vehicle shall be due and payable on the
Registration Date, and
(ii)the balance of the Purchase Price net of VAT in respect of such Vehicle
shall (subject to (iii) below) be payable as to twenty per cent by five equal
instalments monthly in arrear and as to the remaining eighty per cent 180 days
after the Registration Date;
(iii)if prior to payment of the whole Purchase Price in accordance with the
provisions of (i) and (ii) above any of the Specified Events occurs (other than
the registration of such Vehicle or its use for demonstration purposes and other
than the Specified Event set out in paragraph (xii) of Schedule 2 hereto) the
balance of the Purchase Price remaining unpaid at that time shall become
immediately payable and the provisions of Clause 5 above apply (provided always
that the occurrence of any Specified
Event set out in paragraph (iv), (v) or (vi) of Schedule 2 hereto shall not
result in the balance of the Purchase Price remaining unpaid becoming
immediately payable in accordance with the provisions of this Clause (iii) if
(and only if) Chartered prior to occurrence of the Specified Event consented in
writing to the same).
The Dealer acknowledges that the deferred payment facility set out in this
clause shall apply only in respect of a maximum of one Vehicle at any one time
(or as otherwise agreed by Charfered in writing).
13 Surcharge
Chartered reserves the right to levy a surcharge to cover any costs
incurred by Chartered in providing any additional services to the Dealer, at the
Dealer's request, which do not form part of the standard service provided by
Chartered in connection with the facility, and also to cover any losses or
expenses incurred by Chartered as a result of the Dealer not conforming with any
of the terms and conditions of this Agreement and of any facility offer letter
issued by Chartered in connection with this Agreement.
14 Miscellaneous
(i)If the Dealer comprises two or more persons all covenants by the Dealer
shall be construed as joint and several covenants by such persons.
(ii)No variation of the provisions hereof or consent given by Chartered
shall be binding upon Chartered unless the same shall be in writing duly signed
by it or on its behalf and such variation or consent shall be particular to the
circumstances mentioned by such writing and shall not be regarded as a general
variation.
Further no time or other indulgence granted to the Dealer shall prejudice
the strict rights of Chartered under this Agreement. Chartered reserves the
right to vary or amend the terms of this Agreement on giving to the Dealer one
month's notice in writing provided always that the monetary limit referred to in
Clause 1 hereof and/or the periods referred to in paragraph (xii) of Schedule 2
hereto and Clause 12 hereof (together with the amounts and timing of payments)
may be varied forthwith by notice in writing to the Dealer.
(iii)The Dealer shall have authority to sell Vehicles supplied hereunder
and for which he has not yet paid, subject however in the case of demonstrators
to the terms of clause 12 (i) hereof, provided that in doing so as regards the
purchasers he acts and purports to act as principal only, although as regards
Chartered he is authorised to effect the said sales only on terms that he holds
the proceeds of such sales (including any vehicles accepted by the Dealer in
part-exchange) in trust for Chartered until the
Purchase Price has been paid to Chartered.
Forthwith upon notice by Chartered to the Dealer at any time all monies so
held in trust for Chartered shall be kept separate from the Dealer's other
monies and shall be paid into a bank account in the name of Chartered ("the
Account").
The Dealer shall not have authority to sell or otherwise deal with any
vehicles which have been taken by the Dealer in part-exchange and which are held
in trust for Chartered. If in breach of his obligations under this sub-clause
the Dealer uses any of the said monies to purchase other vehicles or sells any
of the vehicles taken by him in part-exchange then such vehicles and such
proceeds of sale (together with any further proceeds of sale or further vehicles
taken in part-exchange) shall also be held in trust for Chartered in accordance
with the provisions of this sub-clause.
(iv)This Agreement shall extend to England Scotland Wales and Northern
Ireland but shall be governed by and construed in accordance with the Law of
England.
(v) All notices and other communications to either party shall be in
writing and sent by post or facsimile copier and shall be deemed to have been
duly made or given (if sent by post) when received or two days after having been
deposited in the mail first class postage pre-paid, whichever is the earlier,
or, if sent by facsimile copier, when sent, and shall be addressed to the places
given in this Agreement or such other address as either party may specify to the
other by prior notice in writing.
(vi)Chartered shall have the right to set off against any monies payable by
Chartered to the Dealer any monies and liabilities of any nature whatsoever and
howsoever arising from time to time due, owing or incurred by the Dealer to
Chartered.
15. Information
(i) The Dealer shall send to Chartered each year a complete copy of the
Dealer's annual report and accounts including balance sheets and profit and loss
accounts duly certified by the Dealer's auditors or externa) accountants as
appropriate and fully approved by the Dealer promptly upon such certification by
auditors or accountants. The Dealer shall at any time supply Chartered with such
further information as Chartered may from time to time request including draft
and periodic management accounts.
(ii) The Dealer undertakes to inform Chartered forthwith of:-
(ii).l the commissioning of any report or investigation regarding the
Dealer's business by any other lender or funder, or
(ii).2 in the case of a Dealer which is a limited company any change in
shareholding affecting the balance of its control or in the case of a
Dealer which is a partnership any change in the composition or any dissolution
of the partnership or in the case of a Dealer which is a sole proprietorship any
change from such status whether to a partnership or to a limited company.
The Dealer agrees to provide such further information relating to the above
matters as Chartered may request.
AS WITNESS the hands of the parties hereto on the day and year first before
written.
SCHEDULE 1
CHARGE RATE
(for the computation of the Handling Charge under Clause 3 other than in respect
of demonstrators, to which Clause 12 applies)
In this Schedule "the volume of instalment credit" means the aggregate
amount of advances made by Chartered or its nominees for new and used vehicles
supplied by the Dealer to the Dealer's customers at the premises from which the
Dealer retails Vehicles excluding the finance charges thereon.
2. The Charge Rate applicable for any period will be calculated as follows:-
2.1 For the period from the date on which Charfered opens the Dealer's
account in respect of Vehicles ("the Opening Date") to whichever of 31 March, 30
June, 30 September or 31 December is the end of that calendar quarfer in which
elapses an interval of 6 months from such date the Charge Rate shall be the rate
specified in the offer letter sent to and accepted by the Dealer.
2.2 On the date of expiry of the period specified in paragraph 2.1 of this
Schedule ("the First Review Date") or as soon as practicable thereafter
Charfered shall calculate the Charge Rate to be applicable for the period from
the First Review Date until the last day of the next following calendar quarfer
("the Second Review Date") by reference to the ratio of the volume of instalment
credit in the period from the start of the calendar month in which occurs the
Opening Date until the end of the calendar month immediately preceding the First
Review Date ("the First Review Cut-Off Date") (annualised as below) relative to
the average utilisation by the Dealer in the period from the Opening Date until
the First Review Cut-Off Date of the stocking facility/-ies made available to
the Dealer (for example:-
If the account were opened on 22 July, the First Review Date would be 31
March.
The Charge Rate for the quarter from 1 April to 30 June would be computed
reflecting instalment credit between 1 July and 28 February, after annualising
such instalment credit, and average utilisation between 22 July and 28
February).
Such calculation shall be made in accordance with the following table:-
Ratio of Instalment Credit Charge Rate as a % related to
volume to average utilisation Finance House Base Rate
The left hand side of the ratio in the first column is the volume of
instalment credit in any period under review and the right hand side of the
ratio therein (shown as:l ) is the average utilisation of the stocking
facility/ies for the associated period.
In calculating on the First Review Date the Charge Rate applicable for the
ensuing calendar quarter Chartered will annualise the volume of instalment
credit advanced up to the First Review Cut-Off Date (for example, if the volume
of instalment credit advanced is u140,000 and a complete seven month period has
elapsed from the Opening Date until the First Review Cut-Off Date, that is
regarded for the purposes of the above table as being u240,000).
2.3 On the Second Review Date or as soon as practicable thereafter
Chartered shall calculate the Charge Rate to be applicable for the period from
the Second Review Date until the last day of the next following calendar quarter
("the Third Review Date") by reference to the ratio of the volume of instalment
credit in the period from the start of the calendar month in which occurs the
Opening Date until the end of the calendar month immediately preceding the
Second Review Date ("the Second Review Cut-Off Date") (annualised as below)
relative to the average utilisation by the Dealer in the period from the Opening
Date until the Second Review Cut-Off Date of the stocking facility/-ies made
available to the Dealer and in accordance with the above-mentioned table.
For the purpose of this calculation Chartered will annualise the volume of
instalment credit advanced up to the Second Review Cut-Off Date (for example, if
the volume of instalment credit advanced is u200,000 and a complete ten month
period has elapsed from the Opening Date until the Second Review Cut-Off Date,
that is regarded for the purposes of the above table as being 240,000 pounds).
2.4 On the Third Review Date or as soon as practicable thereafter Chartered
shall calculate the Charge Rate to be applicable for the period from the Third
Review Date until the last day of the next following calendar quarter in
accordance with the above-mentioned table and by reference to the ratio,
relative to the average
utilisation by the Dealer in the relevant period (calculated in accordance
with paragraph 2.4.1 or 2.4.2 as appropriate below) of the stocking
facility/-ies made available to the Dealer, of the volume of instalment credit
advanced in the twelve month period prior to the end of the calendar month
immediately preceding the Third Review Date ("the Third Review Cut-Off Date").
The relevant period shall be calculated as follows:-
2.4.1 If the Opening Date shall have occurred in a calendar month in the
year preceding the year in which the Third Review Date occurs which is prior to
the month in which the Third Review Date so occurs then the relevant period
shall be the twelve month period prior to the Third Review Cut-Off Date.
(For example, if the Third Review Date is 30 September 2000 and the Opening
Date occurred prior to 1 September 1999 the relevant period (i.e, the period for
calculating the average utilisation by the Dealer of the stocking facility/-ies
made available to the Dealer) shall be the twelve month period commencing on 1
September 1999 and ending on 31 August 2000).
2.4.2 If the Opening Date shall have occurred in the same calendar month in
the year preceding the year in which the Third Review Date occurs as the month
in which the Third Review Date occurs the relevant period shall be the period
from the Opening Date to the Third Review Cut-Off Date.
(For example, if the Third Review Date is 30 September 2000 and the Opening
Date occurred between 1 September 1999 and 30 September 1999 the relevant period
(i.e, the period for calculating the average utilisation by the Dealer of the
stocking facility/-ies made available to the Dealer) shall commence on the
Opening Date and end on 31 August 2000).
2.5 After the Third Review Date the review dates shall be on the last day
of each calendar quarter thereafter in accordance with the dates specified in
paragraph 2.1 of this Schedule and the Charge Rate for each ensuing three month
period will be calculated by reference to the ratio of the volume of instalment
credit in the twelve month period prior to the end of the calendar month
immediately preceding the date on which the review in question is being carried
out relative to the average utilisation by the Dealer in such period of the
stocking facility/-ies made available to the Dealer and in accordance with the
above-mentioned table.
SCHEDULE 2
THE SPECIFIED EVENTS
(i) the acceptance by a customer of an offer for sale of a Vehicle made to
a customer by
the Dealer;
(ii) the acceptance by the Dealer of an offer made to the Dealer by a
customer to purchase a Vehicle;
(iii) the despatch by hand or by post of an application for a Vehicle to be
registered;
(iv) the giving of written instructions for the purpose of any alteration,
adaptation or addition to a Vehicle or its equipment;
(v) the despatch of a Vehicle for any purpose mentioned in sub-paragraph
(iv) above;
(vi) the commencement of any work to make any alteration, adaptation or
addition to a Vehicle or its equipment;
(vii) making a Vehicle the subject of a legally enforceable hire
agreement,0r hiring it out;
(viii) making a Vehicle the subject of a legally enforceable hire purchase
agreement, credit sale agreement, charge,1ien or xxxx of sale,0ther than a
charge or lien created by the registered person;
(ix ) the use of a Vehicle on a public road for demonstration purposes, or
its use for any purpose other than display, by the Dealer;
(x) the purchase of a Vehicle by the Dealer for its appropriation as stock
or to his own use or that of any other person;
(xi) the transfer of a Vehicle by the Dealer to another person or dealer in
Products;
(xii) the expiry of 180 days after the date when Chartered pays the
Purchase Price of a Vehicle to the Distributor upon its setting in hand the
delivery of such Vehicle to the Dealer;
(xiii) the doing by the Dealer of any act which is inconsistent with his
right or ability to return a Vehicle; (xiv) a Vehicle having travelled (except
resting on a transporter vehicle) 100 or more miles;
(xv) a Vehicle becoming a write off for insurance purposes.
Sub-Paragraphs (iv), (v) and (vi) above shall not apply where the
alteration, adaptation or addition -
(a) is carried out on the instructions of Chartered or the Distributor; or
(b) consists of any maintenance or repair; or
(c) consists of the addition of any "slip-on" type of accessory for sales
promotion.
SIGNED on behalf of the DEALER in the
presence of:-
Signature of Witness ..............................
Full Name . ............................
Address
)
) . . . . . .... . ..................................
SIGNED on behalf of CHARTERED TRUST )
PUBLIC lIMITED COMPANY in the presence of:-) ...........................
Signature of Witness ............................... . .................
Full Name ................ . .... . ................................ . .
Address ....................................... .... ...................
