EXHIBIT 10.12
Chrysler Corporation
Dodge
SALES AND SERVICE AGREEMENT
Xxxxxx Automotive Atlanta, LLC dba Xxxxxx Gwinnett Dodge located at 0000
Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000-0000, a Limited Liability Company,
hereinafter called DEALER, and Chrysler Corporation, a Delaware corporation,
hereinafter sometimes referred to as "CC", have entered into this Chrysler
Corporation Dodge Sales and Service Agreement, hereinafter referred to as
"Agreement", the terms of which are as follows:
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INTRODUCTION
The purpose of the relationship established by this Agreement is to provide a
means for the sale and service of specified Dodge vehicles and the sale of CC
vehicle parts and accessories in a manner that will maximize customer
satisfaction and be of benefit to DEALER and CC.
While the following provisions, each of which is material, set forth the
undertakings of this relationship, the success of those undertakings rests on a
recognition of the mutuality of interests of DEALER and CC, and a spirit of
understanding and cooperation by both parties in the day to day performance of
their respective functions. As a result of such considerations, CC has entered
into this Agreement in reliance upon and has placed its trust in the personal
abilities, expertise, knowledge and integrity of DEALER's principal owners and
management personnel, which CC anticipates will enable DEALER to perform the
personal services contemplated by this Agreement.
It is the mutual goal of this relationship to promote the sale and service of
specified CC products by maintaining and advancing their excellence and
reputation by earning, holding and furthering the public regard for CC and all
CC dealers.
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1 PRODUCTS COVERED
DEALER has the right to order and purchase from CC and to sell at retail only
those specific models of CC vehicles, sometimes referred to as "specified CC
vehicles," listed on the Motor Vehicle Addendum, attached hereto and
incorporated herein by reference. CC may change the models of CC vehicles listed
on the Motor Vehicle Addendum by furnishing DEALER a superseding Motor Vehicle
Addendum. Such a superseding Motor Vehicle Addendum will not be deemed or
construed to be an amendment to this Agreement.
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2 DEALER'S MANAGEMENT
CC has entered into this Agreement relying on the active, substantial and
continuing personal participation in the management of DEALER's organization by:
NAME POSITION
X. X. Xxxxxx III President
G. Xxxxxx Xxxx General Manager
DEALER represents and warrants that at least one of the above named individuals
will be physically present at the DEALER's facility (sometimes referred to as
"Dealership Facilities") during most of its operating hours and will manage all
of DEALER's business relating to the sale and service of CC products. DEALER
shall not change the personnel holding the above described position(s) or the
nature and extent of his/her/their management participation without the prior
written approval of CC.
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3 DEALER'S CAPITAL STOCK OR PARTNERSHIP INTEREST
If DEALER is a corporation or partnership, DEALER represents and agrees that the
persons named below own beneficially the capital stock or partnership interest
of DEALER in the percentages indicated below. DEALER warrants there will be no
change affecting more than 50% of the ownership interest of DEALER, nor will
there be any other change in the ownership interest of DEALER which may affect
the managerial control of DEALER without CC's prior written approval.
NAME VOTING NON-VOTING PARTNERSHIP ACTIVE
STOCK STOCK INTEREST YES/NO
Xxxxxx Villanova, LLC 54.0% % % No
Other Shareholders* 46.0% % % No
*See attachment incorporated herein by % % %
reference % % %
% % %
Total 100.0% % %
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4 SALES LOCALITY
DEALER shall have the non-exclusive right, subject to the provisions of this
Agreement, to purchase from CC those new specified CC vehicles, vehicle parts,
accessories and other CC products for resale at the DEALER's facilities and
location described in the Dealership Facilities and Location Addendum, attached
hereto and incorporated herein by reference. DEALER will actively and
effectively sell and promote the retail sale of CC vehicles, vehicle parts and
accessories in DEALER's Sales Locality. As used herein, "Sales Locality" shall
mean the area designated in writing to DEALER by CC from time to time as the
territory of DEALER's responsibility for the sale of CC vehicles, vehicle parts
and accessories, although DEALER is free to sell said products to customers
wherever they may be located. Said Sales Locality may be shared with other CC
dealers of the same line-make as CC determines to be appropriate.
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5 ADDITIONAL TERMS AND PROVISIONS
The additional terms and provisions set forth in the document entitled "Chrysler
Corporation
Sales and Service Agreement Additional Terms and Provisions" marked
"Form 91 (C-P-D)," as may hereafter be amended from time to time, constitute a
part of this Agreement with the same force and effect as if set forth at length
herein, and the term "this Agreement" includes said additional terms and
provisions.
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6 FORMER AGREEMENTS, REPRESENTATIONS OR STATEMENTS
This Chrysler Corporation Dodge
Sales and Service Agreement and other documents
(or their successors as specifically provided for herein) which are specifically
incorporated herein by reference constitute the entire agreement between the
parties relating to the purchase by DEALER of those new specified CC vehicles,
parts and accessories from CC for resale; and it cancels and supersedes all
earlier agreements, written or oral, between CC and DEALER relating to the
purchase by DEALER of Dodge vehicles, parts and accessories, except for (a)
amounts owing by CC to DEALER, such as payments for warranty service performed
and incentive programs, or (b) amounts owing or which may be determined to be
owed, as a result of an audit or investigation, by DEALER to CC due to DEALER's
purchase from CC of vehicles, parts, accessories and other goods or services, or
(c) amounts DEALER owes to CC as a result of other extensions of credit by CC to
DEALER. No representations or statements, other than those expressly set forth
herein or those set forth in the applications for this Agreement submitted to CC
by DEALER or DEALER's representatives, are made or relied upon by any party
hereto in entering into this Agreement.
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7 WAIVER AND MODIFICATION
No waiver, modification or change of any of the terms of this Agreement or
change or erasure of any printed part of this Agreement or addition to it
(except the filling in of blank spaces and lines) will be valid or binding on CC
unless approved in writing by the President or a Vice President or the National
Dealer Placement Manager of Chrysler Corporation.
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8 AMENDMENT
DEALER and CC recognize that this Agreement does not have an expiration date and
will continue in effect unless terminated under the limited circumstances set
forth in Paragraph 28. DEALER and CC further recognize that the passage of time,
changes in the industry, ways of doing business and other unforeseen
circumstances may cause CC to determine that it should amend all Chrysler
Corporation Dodge
Sales and Service Agreements. Therefore, CC will have the
right to amend this Agreement to the extent that CC deems advisable, provided
that CC makes the same amendment in Chrysler Corporation Dodge
Sales and Service
Agreements generally. Each such amendment will be issued in a notice sent by
certified mail or delivered in person to DEALER and signed by the President or a
Vice President or the National Dealer Placement Manager of Chrysler Corporation.
Thirty-five (35) days after mailing or delivery of such notice to DEALER, this
Agreement will be deemed amended in the manner and to the extent set forth in
the notice.
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9 ARBITRATION
Any and all disputes arising out of or in connection with the interpretation,
performance or non-performance of this Agreement or any and all disputes
arising out of or in connection with transactions in any way related to this
Agreement (including, but not limited to, the validity, scope and
enforceability of this arbitration provision, or disputes under rights
granted pursuant to the statutes of the state in which DEALER is licensed)
shall be finally and completely resolved by arbitration pursuant to the
arbitration laws of the United States of America as codified in Title 9 of
the United States Code, Sections 1-14, under the Rules of Commercial
Arbitration of the American Arbitration Association (hereinafter referred to
as the "Rules") by a majority vote of a panel of three arbitrators. One
arbitrator will be selected by DEALER (DEALER's arbitrator). One arbitrator
will be selected by CC (CC's arbitrator). These arbitrators must be selected
by the respective parties within ten (10) business days after receipt by
either DEALER or CC of a written notification from the other party of a
decision to arbitrate a dispute pursuant to this Agreement. Should either CC
or DEALER fail to select an arbitrator within said ten-day period, the party
who so fails to select an arbitrator will have its arbitrator selected by the
American Arbitration Association upon the application of the other party. The
third arbitrator must be an individual who is familiar with business
transactions and be a licensed attorney admitted to the practice of law
within the United States of America, or a judge. The third arbitrator will be
selected by DEALER's and CC's arbitrators. If said arbitrators cannot agree
on a third arbitrator within thirty (30) days from the date of the
appointment of the last selected arbitrator, then either DEALER's or CC's
arbitrator may apply to the American Arbitration Association to appoint said
third arbitrator pursuant to the criteria set forth above. The arbitration
panel shall conduct the proceedings pursuant to the then existing Rules.
Notwithstanding the foregoing, to the extent any provisions of the Rules
conflict with any provision of this Paragraph 9, the provisions of this
Paragraph 9 will be controlling.
CC and DEALER agree to facilitate the arbitration by: (a) each party paying to
the American Arbitration Association one-half (1/2) of the required deposit
before the proceedings commence; (b) making available to one another and to the
arbitration panel, for inspection and photocopying, all documents, books and
records, if determined by the arbitrator to be relevant to the dispute; (c)
making available to one another and to the arbitration panel personnel directly
or indirectly under their control, for testimony during hearings and prehearing
proceedings if determined by the arbitration panel to be relevant to the
dispute; (d) conducting arbitration hearings to the greatest extent possible on
consecutive business days; and (e) strictly observing the time periods
established by the Rules or by the arbitration panel for the submission of
evidence and of briefs.
Unless otherwise agreed to by CC and DEALER, a stenographic record of the
arbitration shall be made and a transcript thereof shall be ordered for each
party, with each party paying one-half (1/2) of the total cost of such recording
and transcription. The stenographer shall be state-certified, if certification
is made by the state, and the party to whom it is most convenient shall be
responsible for securing and notifying such stenographer of the time and place
of the arbitration hearing(s).
If the arbitration provision is invoked when the dispute between the parties is
either the legality of terminating this Agreement or of adding a new CC dealer
of the same line-make or relocating an existing CC dealer of the same line-make,
CC will stay the implementation of the decision to terminate this Agreement or
add such new CC dealer or approve the relocation of an existing CC dealer of the
same line-make until the decision of the arbitrator has been announced,
providing DEALER does not in any way attempt to avoid the obligations of this
Paragraph 9, in which case the decision at issue will be immediately
implemented.
Except as limited hereby, the arbitration panel shall have all powers of law and
equity, which it can lawfully assume, necessary to resolve the issues in dispute
including, without limiting the generality of the foregoing, making awards of
compensatory damages, issuing both prohibitory and mandatory orders in the
nature of
injunctions and compelling the production of documents and witnesses for
pre-arbitration discovery and/or presentation at the arbitration hearing on the
merits of the case. The arbitration panel shall not have legal or equitable
authority to issue a mandatory or prohibitory order which: (a) extends or has
effect beyond the subject matter of this Agreement, or (b) will govern the
activities of either party for a period of more than two years; nor shall the
arbitration panel have authority to award punitive, consequential or any damages
whatsoever beyond or in addition to the compensatory damages allowed to be
awarded under this Agreement.
The decision of the arbitration panel shall be in written form and shall include
findings of fact and conclusions of law.
It is the intent and desire of DEALER and CC to hereby and forever renounce
and reject any and all recourse to litigation before any judicial or
administrative forum and to accept the award of the arbitration panel as
final and binding, subject to no judicial or administrative review, except on
those grounds set forth in 9 USC Section 10 and Section 11. Judgment on the
award and/or orders may be entered in any court having jurisdiction over the
parties or their assets. In the final award and/or order, the arbitration
panel shall divide all costs (other than attorney fees, which shall be borne
by the party incurring such fees and other costs specifically provided for
herein) incurred in conducting the arbitration in accordance with what the
arbitration panel deems just and equitable under the circumstances. The fees
of DEALER's arbitrator shall be paid by DEALER. The fees of CC's arbitrator
shall be paid by CC.
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10 SIGNATURE
This Agreement becomes valid only when signed by the President or a Vice
president or the National Dealer Placement Manager of Chrysler Corporation and
by a duly authorized officer or executive of DEALER if a corporation; or by one
of the general partners of DEALER if a partnership; or by DEALER if an
individual.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement which is
finally executed at Auburn Hills, Michigan, in triplicate, on June 5, 1997
Xxxxxx Automotive Atlanta, LLC
dba Xxxxxx Gwinnett Dodge
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(DEALER Firm Name and D/B/A, if applicable)
By: /s/ X. X. Xxxxxx
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(Individual Duly Authorized to Sign)
President
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(Title)
CHRYSLER CORPORATION
By: /s/
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National Dealer Placement Manager
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(Title)
DAIMLERCHRYSLER OWNERSHIP BY
HOLDING COMPANY
DaimlerChrysler Motors Corporation DAP-6 (Rev. 12-98)
XXXXXX AUTOMOTIVE ATLANTA, LLC XXXXXX DODGE COUNTRY
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(Dealer - Firm Name) (DBA Name, if applicable)
0000 XXXXXXXX XXX XXXXXX, XX 00000-0000
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(Street Address) (City, State, Zip)
Dealer Principal,
As you know, DaimlerChrysler Motors Corporation (DCMC) entered into (a) Dodge
(List All DCMC Vehicle Lines)
Sales and Service Agreement(s) ("Dealer Agreement(s)") with your company on
6-5-97. Paragraph 3 of the Dealer Agreement(s) shows the beneficial ownership
of all of the outstanding capital stock, membership or partnership interest
in your company as:
NAME % OWNERSHIP NAME % OWNERSHIP
---- ----------- ---- -----------
XXXXXX AUTOMOTIVE GROUP LLC 100.0% %
In this regard, you have requested that DCMC make an exception to its policy
that the ownership interest in a dealer corporation, limited liability company
or partnership with which it enters into a Dealer Agreement must be vested in
natural persons, and not a corporation, limited liability company or partnership
("Holding Company").
This is to advise you that DCMC hereby approves the above-described ownership
of your company subject to and in reliance upon your company and the above
named Holding Company(s) agreeing that the provisions of Paragraph 28 of the
Dealer Agreement(s) executed between your company and DCMC, concurrent with
the signing of this letter by DCMC and to the extent that it refers to
changes in ownership interest, shall be deemed to refer to the ownership of
the above named Holding Company(s) as well as to the ownership of your
company.
The beneficial ownership of all of the capital stock, membership or partnership
interest of XXXXXX AUTOMOTIVE GROUP LLC is as follows:
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(Name of Holding Company One)
NAME % OWNERSHIP NAME & OWNERSHIP
----- ----------- ---- -----------
Xxxxxx Auto Holdings LLC 59.2% %
Minority Owners 40.7% %
The beneficial ownership of all of the capital stock, membership or partnership
interest of ___________________________________ is as follows:
(Name of Holding Company Two)
NAME % OWNERSHIP NAME % OWNERSHIP
% %
--------------- ------- ------ -------
% %
--------------- ------- ------ -------
[X] MORE THAN TWO (2) HOLDING COMPANIES HAVE AN OWNERSHIP INTEREST IN DEALER.
SEE ATTACHED OWNERSHIP CHART MARKED EXHIBIT "A" INCORPORATED HEREIN BY
REFERENCE.
If all of the above is agreeable to you, please indicate your understanding and
acceptance thereof by signing the copies of this letter in the spaces provided
below.
Accepted: XXXXXX AUTOMOTIVE GROUP LLC Accepted:
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(Holding Company One) (Holding Company Two)
By: By:
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Title: Title:
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Accepted: XXXXXX AUTOMOTIVE ATLANTA, LLC DAIMLERCHRYSLER MOTORS CORPORATION
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(Dealer Firm Name)
XXXXXX DODGE COUNTRY By:
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(D/B/A Name, if applicable) National Dealer Placement Manager
By: Date: Sept. 13, 2000
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Title:
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