EXHIBIT 10.2.2
{Jaguar Logo]
Automobile Dealer
Sales and Service
Agreement
JAGUAR CARS
DEALER AGREEMENT
This Agreement dated as of (Month, Day, Year) is made by and between (Corporate
Name), a (State) corporation d/b/a/ Jaguar (Location Name) located at
(Address, City State, Zip Code) (hereinafter referred to as the "Dealer") and
JAGUAR CARS, a division of Ford Motor Company with its principal place of
business at 000 XxxXxxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxxx 00000-0000 (hereinafter
referred to as the "Company").
PREAMBLE
The Company is the exclusive authorized distributor in the United States of the
vehicles, parts and accessories manufactured and sold by Jaguar Cars Limited in
the United Kingdom.
The Company and Dealer sell unique motorcars to discriminating buyers, who
expect, and have a right to receive, products designed, engineered and
manufactured to the most exacting standards and retail customer services
unsurpassed in the luxury car industry. The Company and Dealer recognize that
their success depends upon their ability to satisfy those expectations and
commit to use their best efforts to supply products and services commensurate
with such standards. The Company and Dealer acknowledge and agree that
fullfillment of the terms and conditions of this Agreement are essential to the
achievement of these goals.
The Company and Dealer also agree that successful functioning under this
Agreement depends on their mutual cooperation, goodwill and fair dealing. The
broadest objective of this Agreement is to put the business relationship
between the Company and Dealer on a basis where these principles guide both
parties in their common effort to promote the sale of Jaguar Products and to
achieve the highest possible level of customer satisfaction with those products
and the authorized dealers who sell them.
APPOINTMENT OF DEALER
1. The Company hereby appoints the Dealer as a non-exclusive authorized
dealer in Jaguar Products at the Dealership Facilities. The Dealer hereby
accepts such appointment and assumes all of the duties, obligations and
responsibilities of an authorized Jaguar dealer, as specified in this
Agreement.
2. This Dealer Agreement and the "Dealer Agreement Standard Provisions" and
any Exhibits thereto (the "Standard Provisions") (which Standard Provisions
are expressly made a part of this Dealer Agreement, with the same force and
effect as if set forth herein in full) contain the entire agreement between
the parties hereto. Any amendment of this Agreement must be in writing and
signed by an
Executive Officer of the company and a duly authorized officer of Dealer
named in Paragraph 6 hereof. DEALER HEREBY ACKNOWLEDGES RECEIPT OF SAID
STANDARD PROVISIONS AND THE EXHIBITS THERETO AND DECLARES THE PERSONS NAMED
IN PARAGRAPH 6 HEREOF HAVE EXAMINED THE TERMS AND CONDITIONS CONTAINED
THEREIN AND ARE FULLY FAMILIAR WITH THEM.
3. Dealer shall not sell, assign or otherwise transfer, or attempt to sell,
assign or otherwise transfer this Agreement or sell or transfer any right
or delegate any duty, obligation or responsibility of Dealer hereunder. In
the event Dealer desire to change ownership or management of Dealer or
sell, assign or transfer all or substantially all of the assets used in its
Jaguar Operations, Dealer shall do so only in accordance with the terms and
conditions set forth in the Standard Provisions.
4. This Agreement is to be governed by, and construed in accordance with, the
laws of the state in which Dealer is located. If any provision of this
Agreement should be held invalid or unenforceable for any reason
whatsoever or in violation of any law of the United States, the
District of Columbia, or any state, this Agreement shall be considered
divisible as to such provision; such provision shall be deemed deleted from
this Agreement and the remainder of this Agreement shall be valid and
binding as if such provision had not been included herein.
5. This Agreement supersedes all prior agreements, whether oral or written,
between the parties hereto relative to the terms and conditions of Dealer's
appointment to sell and service Jaguar Products (except any Performance
Agreement(s) between the Company and Dealer that is/are expressly made a
part hereof).
6. This Agreement has been entered into by the Company in reliance upon
Dealer's representations that:
A. The following person(s) has/have an ownership interest (whether direct or
indirect) in Dealer:
PERCENTAGE
NAME AND HOME ADDRESS OF INTEREST TITLE
--------------------- ----------- -----
(Corporate Name or Individual) ( % ) (Title)
(Address)
(City, State, Zip Code)
B. The following person is hereby named the Dealer Operator, with full
managerial authority and responsibility for the operations of Dealer:
PERCENTAGE
NAME AND HOME ADDRESS OF INTEREST TITLE
--------------------- ----------- -----
(Name) ( % ) (Title)
(Home Address)
(City, State, Zip Code)
C. The following person(s) is/are Officers/Directors of Dealer and will
actually and substantially participate in the management of Dealer:
PERCENTAGE
NAME AND HOME ADDRESS OF INTEREST TITLE
--------------------- ------------ -------
(Name) (%) (Title)
(Home Address)
(City, State, Zip Code)
7. This
Dealer Agreement and the appointment made under its
provisions shall, unless sooner terminated for cause or by mutual
consent, as provided for in the Standard Provisions, remain in force
continuously commencing on (Month, Day, Year), provided however, that
the Dealer agrees to enter into any revised or modified Agreement
that the Company may hereafter, from time to time, offer to its
authorized dealers.
8. This Agreement shall not be valid unless and until executed by an
Executive Officer of the Company and by a duly authorized officer of
Dealer named in paragraph 6 hereof.
JAGUAR CARS
By ______________________________________________
Date: _____________
Xxxxx X. Xxxxxxxx
Vice President, Franchise Operations
Jaguar Cars
DEALER: (Corporate Name) D/B/A JAGUAR (LOCATION NAME)
By ______________________________________________
Date: _____________
(NAME)
As an individual and an officer of
(Corporate Name)
D/b/a Jaguar (Location Name)
[JAGUAR LOGO]
DEALER AGREEMENT
STANDARD PROVISIONS
TABLE OF CONTENTS
Page
ARTICLE 1 - Definitions 2
ARTICLE 2 - Obligations of the Company 3
ARTICLE 3 - Terms and Conditions of Sale
of Jaguar Vehicles 3
ARTICLE 4 - Dealership Facilities 5
ARTICLE 5 - Dealer Ownership, Management
and Personnel 6
ARTICLE 6 - General Requirements for Dealer's
Jaguar Operations 8
ARTICLE 7 - Sale and Promotion of Jaguar Products 9
ARTICLE 8 - Customer Service 10
ARTICLE 9 - Purchase and Inventory of Jaguar Parts 12
ARTICLE 10 - Financial Requirements, Statements
and Reports 13
ARTICLE 11 - Trademarks 14
ARTICLE 12 - Advertising and Merchandising 15
ARTICLE 13 - Indemnifications 15
ARTICLE 14 - Termination of the Agreement Prior
to its Expiration 17
ARTICLE 15 - Right of Succession 20
ARTICLE 16 - Extensions and Renewal of Agreement 21
ARTICLE 17 - Rights and Obligations Upon
Termination of Agreement 21
ARTICLE 18 - Miscellaneous Provisions 23
DEALER AGREEMENT STANDARD PROVISIONS
The following Standard Provisions of the Jaguar Cars
Dealer Agreement and the
Exhibits hereto (the "Standard Provisions") are expressly made a part of and are
incorporated by reference into the
Dealer Agreement and shall apply to and
govern the transactions, dealings and relations between the Company and Dealer
with the same force and effect as if set forth in full in the
Dealer Agreement.
Unless otherwise indicated, the term "Agreement" shall mean the Jaguar Cars
Dealer Agreement, its Standard Provisions and the Exhibits hereto, collectively.
ARTICLE 1 - DEFINITIONS
As used in the Agreement, the following terms shall have the following
meanings:
COMPANY-APPROVED UPGRADE PROGRAM - an agreement entered into by and
between the Company and Dealer, usually in the form of a Performance
Agreement, in accordance with which Dealer makes specified changes in
its Dealership Facilities, Jaguar Operations, management or personnel.
DEALERSHIP FACILITIES - the real property and buildings at which, and
out of which, Dealer operates its Jaguar sales, service and parts
operations.
DEALER OPERATOR - the person identified in Paragraph 6B of the Dealer
Agreement, or his successor.
EXECUTIVE OFFICER - the President, Senior Vice Presidents and Vice
Presidents of the Company.
JAGUAR OPERATIONS - all activities of Dealer relating to the sale,
repair or servicing of Jaguar Products and the rendering of customer
services on behalf of owners and prospective owners of such products.
JAGUAR PARTS - all parts, accessories or equipment for Jaguar Vehicles
manufactured and/or sold by Jaguar Cars Ltd. or the Company and
supplied to Dealer by the Company.
JAGUAR PRODUCTS - any Jaguar Vehicles or Jaguar Parts.
JAGUAR SIGNS - any display of the word "Jaguar," the Jaguar "Leaping
Cat," the Jaguar "Cat Head" and/or any other trademark, service xxxx,
or trade name now, or at any time hereafter, used or claimed by Jaguar
Cars Ltd. or the Company.
JAGUAR VEHICLES - any new vehicle manufactured by Jaguar Cars Ltd. and
sold and distributed by the Company.
PERFORMANCE AGREEMENT - a written agreement entered into by and between
the Company and Dealer, in accordance with which Dealer agrees to
construct, renovate and/or relocate its Dealership Facilities, to
change or augment its management and/or personnel or to otherwise
upgrade its Jaguar Operations.
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ARTICLE 2 - OBLIGATIONS OF THE COMPANY
2.1 The Company agrees to sell and deliver Jaguar Products to Dealer in
accordance with the terms and conditions of this Agreement.
2.2 The Company will use its best efforts to assist Dealer in the conduct of
Dealer's Jaguar Operations by providing a comprehensive range of support
services, including, but not limited to, the following:
(a) Conducting training courses for Dealer's personnel (it being,
however, Dealer's obligation to insure that its personnel attend
such courses);
(b) Preparing and disseminating sales, service, parts and warranty
literature relating to Jaguar Products, policies and procedures;
(c) Providing national advertising and promotional campaigns for Jaguar
Products;
(d) Developing and conveying suggestions and evaluations to assist
Dealer in the conduct of its Jaguar Operations.
ARTICLE 3 - TERMS AND CONDITIONS OF SALE OF JAGUAR VEHICLES
3.1 The Company and Dealer recognize and acknowledge that there have been and
may be times when demand for Jaguar Vehicles in the United States exceeds
available supply. As a result, the Company has developed and implemented
a system to allocate Jaguar Vehicles to its dealers in a fair, reasonable
and equitable manner. Attached to this Agreement as Exhibit A and
expressly made a part hereof is a description for the Jaguar Cars New
Vehicle Retail allocation System (hereinafter referred to as the
"Allocation System"). Dealer hereby acknowledges that it has distributed
said Exhibit to the persons listed in Paragraph 6 of the Dealer Agreement
and to its sales and service department managers and that those
individuals have examined and familiarized themselves with the terms of
the Allocation System.
3.2 The Company commits to allocate and sell Jaguar Vehicles to Dealer in
conformity with the Allocation System. Although the company does not
solicit or accept sold vehicle orders from its dealers, Dealer's
preferences with respect to colors and trims will be considered by its
District Sales Manager when distributing allocated vehicles among dealers
in his/her district, consistent with an equitable distribution of such
colors and trims among all dealers in such district.
3.3 During the term of this Agreement, Dealer shall continuously maintain,
with a financing institution reasonably acceptable to the Company, floor
plan financing exclusively for the purchase of Jaguar Vehicles in an
amount equal to or greater than the wholesale cost of a two months supply
of new Jaguar Vehicles, based on Dealer's average monthly allocation of
such vehicles. The Company will, upon request from Dealer, execute a
vehicle repurchase agreement with Dealer's financing institution, if such
an agreement is required in order for Dealer to secure floor plan
financing in accordance with this paragraph.
3.4 Payment to the company for Jaguar Vehicles is due and shall be made by
Dealer upon presentation of the Company's cash draft for said Jaguar
Vehicles to Dealer's financial institution or by such other method as the
Company may from time to time adopt. Title and ownership to Jaguar
Vehicles shall remain with the Company until payment in full for such
vehicles has actually been received by the Company.
3.5 Fluctuations in the prices of Jaguar Vehicles are to be anticipated
during the term of this Agreement. The Company will try to give Dealer
reasonable advance notice of any price increases, but this may not always
be possible. In the event the price of any Jaguar Vehicle
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which has already been allocated to Dealer is increased before the
vehicle is delivered to Dealer, Dealer shall pay the price in effect
before the increase, except where such price increase goes into effect
for a new model year vehicle, in which case Dealer will pay the increased
price. If the manufacturer's suggested retail price on any Jaguar Vehicle
in Dealer's stock is reduced, the Company will refund the difference, if
any, between the reduced dealer price and the price actually paid by
Dealer, net of any applicable rebates or allowances.
3.6 Dealer is responsible for and shall pay any and all sales taxes, use
taxes and any other governmental or municipal charges imposed or levied
or based upon the sale of Jaguar Vehicles by the Company to Dealer, or by
Dealer to its customers.
3.7 The Company will keep Dealer informed of the warranty or warranties
applicable to Jaguar Vehicles or Select Edition(R) Jaguar Vehicles.
Dealer will insure that such warranty or warranties, in the form prepared
and disseminated by the Company, are included in each agreement for the
sale of such Jaguar vehicles by Dealer, to the extent applicable, and
will furnish a copy of such warranty or warranties to the customer upon
delivery of any such Jaguar vehicle. OTHER THAN AS PROVIDED FOR IN SUCH
WARRANTY OR WARRANTIES (AND OTHER THAN WITH RESPECT TO IMPLIED WARRANTIES
TO DEALER, IF ANY, PROVIDED FOR BY LAW), NEITHER THE MANUFACTURER NOR THE
COMPANY GIVE ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS, ON ANY SUCH JAGUAR
VEHICLE.
3.8 If any Jaguar Vehicle has been delivered to Dealer without a label, or
with an incorrect or incomplete label affixed thereto pursuant to the
Federal Automobile Information Xxxxxxxxxx Xxx, 00 U.S.C. Section 1232,
dealer will notify the Company of such finding. Thereafter, the Company
shall give Dealer instructions with respect to affixing, correcting or
completing such label and Dealer warrants that it will comply with such
instructions.
ARTICLE 4 - DEALERSHIP FACILITIES
4.1 Dealer acknowledges and agrees that attractive, well-maintained and
conveniently located Dealership Facilities, consistent in design and
decor with, and appropriate for the presentation of, luxury automobiles
such as the Company's Jaguar Vehicles, are essential to the fulfillment
of Dealer's obligations under this Agreement.
4.2 If Dealer has completed a Company-approved Upgrade Program, Dealer agrees
to maintain and enhance its Dealership Facilities in accordance with the
Company's reasonable suggestions and increases in the volume of sales and
service business conducted by Dealer.
4.3 If Dealer has not completed a Company-approved Upgrade Program, Dealer
commits to consult with the Company to determine whether or not Dealer
should undertake such a program. Unless the Company notifies Dealer in
writing that it does not recommend that Dealer undertake such a program,
the Company and Dealer will negotiate and enter into a suitable
Performance Agreement in accordance with which Dealer will construct or
renovate Dealership Facilities, at a location and in accordance with
plans produced by Dealer and approved by the Company. In negotiating such
a Performance Agreement, the parties will give due consideration to the
economic consequences of the upgrade program on Dealer. It being,
however, understood that the short-term costs of such a program must be
weighed against, and be viewed in light of, its long-term benefits. Any
Performance Agreement entered into by Dealer and the Company shall be an
exhibit to these Standard Provisions and shall govern the relationship
between the parties as if set forth herein in full.
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Dealer agrees that its upgraded Dealership Facilities must meet the
Company's Facilities/Personnel Guide for a dealership of the size
contemplated and must be designed and decorated in a style consistent
with that of other dealership facilities constructed or renovated in
accordance with a Company-approved Upgrade Program. A copy of the
Performance Agreement between the Company and Dealer (or a sample
Performance Agreement between the Company and an existing dealer) is
attached hereto as Exhibit B. A copy of the Company's
Facilities/Personnel Guide is attached as Exhibit C and expressly made a
part hereof.
4.4 Dealer agrees that it will not relocate all or any part of its Jaguar
Operations unless and until it has first presented to the Company such
information as the Company deems necessary to evaluate the proposed new
site for such Jaguar Operations and has secured from the Company its
prior written consent to such relocation. Dealer understands that in
evaluating any proposed site, the Company will consider various factors,
including, but not limited to, the adequacy of the site for a dealership
of the size contemplated, the convenience and accessibility of the site
to existing and potential Jaguar owners and the type and quality of
residential buildings and commercial enterprises located in the general
area adjacent to and surrounding the site. The Company will conduct its
evaluation of any such proposed site as expeditiously as possible and
will use its best efforts to complete such evaluation within thirty (30)
days after it has received all of the information it requires to make
such evaluation. The Company will approve the proposed relocation only
if, based upon all the relevant factors, the Company in the exercise of
its good faith business judgment considers the proposed relocation to be
in the best interest of Dealer and of Jaguar owners in the area in which
Dealer is located.
4.5 Subject to applicable ordinances, Dealer agrees to erect or install such
Jaguar Signs as the Company shall reasonably require in accordance with a
sign survey of the Dealership Facilities to be conducted by or on behalf
of the Company.
ARTICLE 5 - DEALER OWNERSHIP, MANAGEMENT AND PERSONNEL
5.1 Dealer has provided the Company in the Dealer Agreement with a list of
the owners, officers and Dealer Operator of Dealer and Dealer recognizes
that the Company has entered into this Agreement on the basis of and
relies upon the representations concerning the ownership and management
of Dealer contained in the Dealer Agreement. Dealer will in no event make
or agree to any changes in such ownership or management without first
consulting with the Company and obtaining the express prior written
consent of an Executive Officer of the Company.
5.2 Dealer expressly recognizes and acknowledges that the identity,
reputation, financial resources, personal and business qualifications and
experience and marketing philosophy of the owners and management of the
Company's authorized dealers is of vital significance to the Company in
its efforts to achieve and maintain a level of retail representation for
Jaguar Products unsurpassed in the luxury car industry. Consequently, in
the event Dealer proposes to change its ownership or management or
desires to sell all or substantially all of the assets used in its Jaguar
Operations, Dealer will advise the Company in writing not less than sixty
(60) days prior to the effective date of any such proposed change in its
ownership or management and prior to entering into any binding
contractual agreement to sell all or substantially all of such assets.
The Company will not unreasonably withhold its approval of any such
proposal made to it by Dealer. In evaluating Dealer's proposal, the
Company will consider all of the relevant factors concerning the proposed
new owners or
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management, including but not limited to those factors set forth in this
paragraph above, as well as the Company's interest in promoting
competition between and among its authorized dealers and those of
competing manufacturers. The Company will also consider whether and to
what extent any proposed new owners or managers have prior experience in
the management of comparable luxury car dealerships. The Company will
not, however, approve any proposal which would result in the ownership by
the same person(s) or corporation(s) of two (2) or more authorized Jaguar
dealerships. Dealer will be notified in writing by the Company of its
decision with respect to Dealer's proposal within sixty (60) days after
the Company has received all of the information requested by the Company
concerning the proposal.
5.3 Dealer has designated in the Agreement a Dealer Operator with full
managerial authority and responsibility for the operations of Dealer. The
Dealer Operator shall devote substantial time and attention to the
management of Dealer; shall have full authority to make decisions and act
on behalf of Dealer; and shall have, or be entitled to acquire, not less
than a 10% interest in Dealer. Dealer agrees to inform Company in writing
prior to replacing or agreeing to replace the Dealer Operator. Dealer
shall supply the Company with any and all information the Company deems
necessary to evaluate the qualifications of any proposed successor to the
Dealer Operator, including but not limited to his/her prior luxury car
business experience and may condition its acceptance of the successor
upon satisfactory completion of a trial period. It is specifically
understood and agreed that no replacement of the Dealer Operator shall be
made or be effective without the prior written approval of a Zone Manager
or Executive Officer of the Company, except with respect to any
Designated Successor approved by the Company in accordance with Paragraph
15.2(a) (iii) hereof.
5.4 Dealer acknowledges and agrees that maintaining a stable, experienced
sales, service and parts staff is essential to the proper representation
of Jaguar Products. Dealer will employ in all managerial and technical
positions the number of individuals required by the Jaguar
Facilities/Personnel Guide. Each such individual should be experienced in
the sales and/or servicing of luxury products or must be expeditiously
trained in the sale and/or servicing of such products. Dealer expressly
agrees that all personnel engaged in Dealer's Jaguar Operations must
attend applicable training courses offered by the Company and must wear
appropriate attire when engaged in such operations.
ARTICLE 6 - GENERAL REQUIREMENTS FOR DEALER'S JAGUAR
OPERATIONS
6.1 Dealer shall at all times conduct its business in an ethical, fair and
courteous manner and shall avoid any conduct which might be harmful to
the reputation and marketing of Jaguar Products or which is in any way
inconsistent with the public interest.
6.2 Throughout the term of this Agreement, Dealer shall keep its Dealership
Facilities open for business during, and for not less than, the customary
business hours of the trade in Dealer's area.
6.3 Dealer will, at all times, maintain current and valid all licenses
required of Dealer for operation of Dealer or occupancy of the Dealership
Facilities and will adhere to all laws, rules, regulations and codes
relating to the conduct of its business which are applicable to Dealer.
In addition, Dealer will comply with all applicable provisions of the
National Traffic and Motor Vehicle Safety Act of 1966, the Federal Clean
Air Act, the Xxxxxxxxx-Xxxx Warranty Act and any applicable state
repair/replace legislation, all as amended,
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including regulations issued hereafter, together with any other federal,
state and local vehicle emission, safety and warranty legislation.
6.4 Without in any way limiting the generality of the foregoing paragraph,
Dealer shall not modify a Jaguar Product in any manner which causes, or
may cause, such Product to fail to comply with any motor vehicle safety
standard or which creates, or may create, an unreasonable risk to motor
vehicle safety.
6.5 Dealer shall use its best efforts to comply with all reasonable
directives and suggestions of the Company in the marketing and sale of
Jaguar Vehicles, the sale of Jaguar Parts and the performance of customer
services, including warranty servicing of Jaguar Vehicles.
6.6 Dealer agrees to purchase and use appropriate data processing and
computer systems to maintain its accounting records, perpetual parts
inventory and similar records on a current basis.
6.7 Dealer commits to review with care all customer satisfaction data
provided by the company to Dealer and to take such steps as are
reasonably necessary and appropriate to correct any deficiencies in its
sales, service or parts operations or customer services revealed by such
data.
6.8 The Company, through its designated employees and other designees, shall
have the right, at all reasonable times during regular business hours and
on reasonable notice to inspect the Dealership Facilities and to observe
the nature and quality of Dealer's customer services, and Dealer shall
cooperate fully and take all action necessary to facilitate such
inspections and observations.
ARTICLE 7 - SALE AND PROMOTION OF JAGUAR PRODUCTS
7.1 Dealer will use its best efforts to actively promote the sale of Jaguar
Products through systematic contacts with existing and potential owners
of Jaguar Vehicles and through such other reasonable means as the Company
may from time to time suggest.
7.2 Dealer acknowledges and agrees that the Company has appointed Dealer as
an authorized Dealer in Jaguar Products at the Dealership Facilities for
the primary purpose of selling and servicing Jaguar Products in the
market in which Dealer is located (which, in the absence of a more
specific definition, shall for the purposes of this Agreement mean the
geographic area in which Dealer is located and its immediate environs).
While nothing in this Agreement limits Dealer as to the geographic area
into which, or the persons to whom, Dealer may sell Jaguar Products,
Dealer acknowledges that it has assumed the obligation of selling and
servicing Jaguar Products in its market.
7.3 Within the limitations, if any, of the supply of Jaguar Vehicles made
available to Dealer by the Company, Dealer shall use its best efforts to
achieve the best sales performance possible in the market it has been
appointed to serve. Such sales performance shall be evaluated by the
Company from time to time in accordance with such fair and reasonable
sales objectives and such consistent market criteria as may be
established by the Company, including but not limited to a comparison for
a given period of the number of Jaguar Vehicles sold by the Dealer in its
market (or in the case of certain multi-dealer markets, in that portion
of its market which the Company determines is most conveniently served by
Dealer) expressed (i) as a percentage of all Jaguar Vehicles sold in the
Dealer's market (or relevant portion thereof) during such period and (ii)
as a percentage of certain selected vehicles of comparable quality, price
and specification sold in the Dealer's market (or relevant portion
thereof) during such period, all as compared with comparable percentages
achieved by other similarly situated Jaguar dealers. The Company commits
to make
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available to Dealer from time to time any data compiled by the Company of
the type described in this paragraph.
7.4 Subject to availability, Dealer shall have at the Dealership Facilities
for display purposes and for use as demonstrators a representative stock
of current model year Jaguar Vehicles, all of which shall be maintained
in first class operating and cosmetic condition.
7.5 In the event any Jaguar Product sold by the Company to Dealer is damaged
prior to delivery to Dealer, or is determined to be defective prior to
sale by Dealer, Dealer shall, upon notification to and in accordance with
instructions from the Company, repair such damage or defect or take such
other action as the Company may direct. The Company will reimburse Dealer
for any such work performed on a Jaguar Product at the Company's request
in accordance with applicable policies and procedures in effect at the
time such repairs are made.
7.6 Dealer recognizes and agrees that the Manufacturer shall have the right,
at any time and from time to time, to make changes in the design or
specifications of Jaguar Products. In the event of changes in the design
or specifications of Jaguar Products, the company shall have no
obligation to Dealer to make similar changes in Jaguar Products
previously delivered to Dealer or to otherwise compensate Dealer for such
products.
7.7 Dealer shall comply with all local, state and federal laws and
regulations applicable to Dealer, including, but not limited to, those
respecting licensing, consumer protection, and registration and model
year requirements, when selling Jaguar Vehicles.
ARTICLE 8 - CUSTOMER SERVICE
8.1 The Company and Dealer understand and agree that their mutual success
depends upon their ability to achieve unsurpassed levels of customer
satisfaction with Jaguar Products and the authorized dealers who
represent them. The Company commits to use its best efforts to assist
Dealer in achieving this objective and Dealer commits to provide the
highest level of expert customer service to all owners of Jaguar
Vehicles, regardless of whether or not they have purchased such vehicles
from Dealer.
8.2 Dealer expressly agrees that the operation of a fully-equipped,
well-managed Service Department, staffed with courteous personnel fully
trained in the servicing and repair of Jaguar Products is essential to
the fulfillment of Dealer's obligations under this agreement.
8.3 Dealer's Service Department must comply in all respects with the
requirements of Jaguar's Facilities/Personnel Guide (Exhibit B),
including but not limited to the requirements relating to the size and
layout of the facilities. Dealer and Company may, under certain
circumstances, agree to specific variations from the requirements of said
Guide, but it is agreed that the parties will strive to satisfy the
provisions of the Guide. Dealer expressly acknowledges and agrees that
those sections of the Service Department which are used for customer
reception and waiting areas must be designed and decorated in a style
consistent with the promotion and a presentation of luxury automobiles
like Jaguar Vehicles. Dealer also agrees that the entire Service
Department will be maintained in a clean, well-organized and attractive
condition.
8.4 Dealer will purchase and maintain in good working order (i) such special
Jaguar tools and shop equipment as the Company shall from time to time
specify in a Required Tools and Equipment List and (ii) such general
tools and shop equipment as are necessary and appropriate for the
servicing and repair of Jaguar Products.
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8.5 Dealer recognizes and accepts its obligation to use its best efforts to
effectively service and condition each new Jaguar Vehicle before delivery
in accordance with any pre-delivery service and conditioning schedules
furnished from time to time by the Company to Dealer.
8.6 Dealer shall act as the Company's representative for purposes of
performing all warranty obligations of the Company in accordance with the
terms and conditions of the warranties issued from time to time by the
Company. Dealer will provide prompt, courteous and expert warranty
service and repair of all Jaguar Products covered by the Company's
warranties, regardless of whether such Jaguar Products have been sold by
Dealer. In doing so Dealer shall comply with all local, state and federal
laws and regulations respecting such warranties and, as the Company's
representative, shall be responsible for the quality of the warranty
service it performs.
8.7 The procedures for the processing and disposition of warranty claims and
for the return and disposition of Jaguar Parts claimed to be defective
shall be as established from time to time by the Company. Dealer will be
promptly compensated for warranty work actually performed by Dealer, for
which Dealer submits full and complete warranty claims, and for which
Dealer has appropriate supporting documentation, in accordance with the
Company's warranty policies and procedures.
8.8 Dealer shall prepare and maintain such records as the Company may
reasonably require to support the warranty claims submitted by Dealer to
the Company. Dealer understands and agrees that the Company will from
time to time perform spot audits of such warranty records and supporting
documentation and Dealer agrees to comply with any suggestions made to it
to improve its recordkeeping as a result of such spot audits. Dealer also
understands and agrees that the Company reserves the right to conduct
full audits of Dealer's warranty claims and supporting documentation as
the Company may from time to time deem necessary and appropriate and that
the Company shall chargeback any credits previously posted to Dealer's
account for any incomplete or inaccurate warranty claims or for any
warranty claims for which Dealer lacks appropriate supporting
documentation.
8.9 Dealer will investigate any complaints relative to Jaguar Products made
by customers or referred to Dealer by the Company and shall be entitled
to compensation promptly upon completion of any work performed in
accordance with the terms of the Company's warranties or authorized by a
Company representative, provided that appropriate claims are submitted by
the Dealer in accordance with Company's policies and procedures.
ARTICLE 9 - PURCHASE AND INVENTORY OF JAGUAR PARTS
9.1 The Company shall sell Jaguar Parts to Dealers at such prices and upon
such terms and conditions as may be established from time to time by the
Company.
9.2 Dealer is responsible for and shall pay any and all sales taxes, use
taxes and other governmental or municipal charges imposed or levied or
based upon the sale of Jaguar parts to Dealer, or by Dealer to its
customers.
9.3 The Company will maintain an open account for Dealer in accordance with
such terms and conditions as the Company may from time to time establish.
The Company will credit such account with certain amounts due and owing
to Dealer from the Company, including but not limited to amounts due for
warranty claims submitted by Dealer to, and approved by, the Company.
Provided that Dealer's account with the Company remains current, the
Company will debit such account for certain purchases made by Dealer from
the Company, including but not limited to the total cost of all parts
orders filled by the Company for Dealer. The Company will issue a
statement at the end of each month summarizing the
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activity in Dealer's account for that month and indicating whether
Dealer's account is in a debit or credit position as of the last day of
such month. Dealer will be obligated to pay to the Company within ten
(10) days of the date of such statement the total amount of any debit
balance, without deduction or setoff of any kind.
9.4 If Dealer fails to keep its account with the Company current, or if the
Company determines in its sole discretion that Dealer's financial
condition is or may be impaired, Dealer's parts purchases will be filled
on a C.O.D. basis only. Collection charges, if any, on C.O.D. orders are
to be paid by Dealer.
9.5 Dealer shall acquire and at all times maintain a sufficient inventory of
Jaguar Parts to (a) meet all of its current and anticipated warranty and
service obligations on a prompt and regular basis, (b) meet or exceed any
reasonable stocking requirements established from time to time by the
Company and (c) develop and maintain a wholesale parts business. Dealer
expressly understands and agrees that failure to maintain an adequate and
representative stock of Jaguar Parts is inconsistent with its obligations
under this Agreement.
9.6 Dealer will maintain its entire Parts Department, including all parts
bins and aisles, in a clean, well-organized and attractive condition.
9.7 Dealer shall not represent as new, genuine Jaguar Parts or as parts
approved or authorized by the Company or the Manufacturer, any parts
which are not in fact new, genuine Jaguar Parts or parts expressly
approved or authorized by the Company or the Manufacturer. Dealer will
not, without the specific consent of the owner, install on any Jaguar
Vehicle any non-approved parts or accessories which may (a) affect the
owner's rights under any warranty applicable to the Vehicle or (b) create
any unreasonable risk to motor vehicle safety.
ARTICLE 10 - FINANCIAL REQUIREMENTS, STATEMENTS AND REPORTS
10.1 Dealer recognizes that in order to conduct its business on a profitable
basis and to fulfill its obligations under this Agreement, Dealer must at
all times maintain and have available for its Jaguar Operations
sufficient cash, net working capital and net worth to meet such
reasonable financial standards and requirements as the Company may from
time to time promulgate. If the Company in the exercise of its good faith
business judgment determines at any time that the amount of Dealer's
cash, net working capital or net worth fails to meet such standards and
requirements, Dealer will take whatever steps are necessary to meet the
Company's applicable requirements within a reasonable time after
notification by the Company to Dealer of any such deficiency.
10.2 Dealer shall furnish to the Company, on or before the tenth (10th) day of
each calendar month, on such forms as the Company may require, a
financial statement completely and accurately reflecting the results of
Dealer's Jaguar Operations for the preceding month and year-to-date.
Dealer shall also from time to time furnish to the Company such other
reports and financial statements, including but not limited to reviewed
financial statements, as the Company may reasonably require. Dealer also
agrees that the Company may from time to time arrange at its own expense
to audit Dealer's financial records.
10.3 The Company will not furnish to any third party any data, including but
not limited to financial statements, submitted to it by Dealer unless
authorized to do so by Dealer, or required by law.
10.4 Until the expiration or prior termination of this Agreement and
thereafter until consummation of all the transactions referred to in
Paragraph 17.1 hereof, the Company,
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through its designated employees and other designees, shall have the
right, at all reasonable times during regular business hours and on
reasonable notice, to inspect Dealer's books and records and all Jaguar
products on hand at the Dealership Facilities and Dealer shall cooperate
fully and take all reasonable actions necessary to facilitate such
inspections.
ARTICLE 11 - TRADEMARKS
11.1 Except as otherwise specifically authorized by the Company, Dealer may
use Jaguar Trademarks only:
(a) In connection with the promotion and sale from the Dealership Facilities
of new, or used Select Edition (R), Jaguar Products and customer service
for such Jaguar Products, pursuant to the terms of this Agreement; and
(b) Only in such manner and for such purposes incident to such promotion,
sale and customer services as the Company may specify from time to time.
11.2 Except as indicated in the preceding paragraph, Dealer shall not use, for
any purpose or in any manner, any word, coined word, symbol, or
abbreviation which is similar to, or may be confused with, or contains a
significant part or element of any Jaguar Trademark. Dealer shall not use
as part of its corporate or trade name the word "Jaguar" unless expressly
authorized to do so by the Company in writing. Dealer is expressly
authorized to use the designation "Authorized Jaguar Dealer," "Genuine
Jaguar Parts" and "Authorized Jaguar Service." No Jaguar Trademark may be
used except in the color, size, form and style as uniformly approved by
the Company. Dealer shall not remove or alter any Jaguar Trademark
affixed to any Jaguar Product. Dealer shall not file, register, or record
with any federal, state, local government, or agency thereof any name,
design or form which may conform to or be confused with a Jaguar
Trademark. Dealer acknowledges the exclusive ownership by Jaguar Cars
Ltd. or the Company of, and the validity of, the Jaguar Trademarks and
all registrations thereof, and shall not contest during the term of this
Agreement or at any time thereafter such exclusive ownership of, or the
validity of, the Jaguar Trademarks and all registrations thereof. The
parties agree to cooperate with each other and with Jaguar Cars Ltd. in
preventing any acts of trademark infringement or unfair competition with
respect to any Jaguar Trademark, but Jaguar Cars Ltd. and the Company
shall have sole control over all actions and legal proceedings to
suppress infringement of and unfair competition with respect to any
Jaguar Trademark.
11.3 Dealer shall discontinue the use of any Jaguar Trademark upon the
termination of this Agreement. In the event Dealer fails to comply with
the terms of this paragraph, the Company shall serve Dealer with written
notice of such failure and demand that Dealer immediately cease and
desist from the use of said trademarks. If after thirty (30) days Dealer
has failed to comply with said notice, Dealer shall be liable, in
addition to any other penalty available at law or in equity, and hereby
agrees to pay to the Company, the sum of One Hundred ($100.00) Dollars
per diem for every day or part thereof that its default under said notice
shall remain uncured.
ARTICLE 12 - ADVERTISING AND MERCHANDISING
12.1 Both the Company and Dealer recognize the need to maintain uniformly high
standards in the advertising and merchandising of Jaguar Products. Dealer
commits to conduct all of its advertising and merchandising efforts in a
truthful and ethical manner and consistent with the reputation and image
of Jaguar Products.
11
12.2 The Company will supply Dealer with advertising materials on such terms
and conditions as the Company may from time to time establish. Dealer
shall forthwith discontinue any advertising and cease to use or sell any
promotional materials or accessories to which the Company reasonably
objects in writing.
12.3 Dealer is expected to participate in the National Cooperative Advertising
Program and, where applicable, in the Major Market Advertising Program,
which are funded jointly by the Company and its authorized dealers and
operated by the Company, with the advice and consent of the Company's
authorized dealers. Failure by the Dealer to participate in such
programs, when a majority of other authorized dealers in the nation or in
Dealer's metropolitan area are participating, as the case may be, is
inconsistent with Dealer's obligations under this Agreement.
12.4 The Company will offer to Dealer, on the same terms and conditions as
other authorized dealers, such sales aids as brochures, posters,
promotional kits and similar advertising materials as the Company may
from time to time prepare and disseminate. Dealer will acquire such sales
aids as are reasonably necessary for the operation of its dealership.
ARTICLE 13 - INDEMNIFICATIONS
13.1 (a) The Company shall indemnify and hold Dealer harmless from loss,
damages and expense, including reasonable attorneys' fees, resulting
from or arising out of lawsuits filed against Dealer (i) which seek
damages for bodily injury or property damage (other than claims of
breach of warranty or violations of the Xxxxxxxxx-Xxxx Act, state
repair/replace statutes or similar federal, state or local laws)
caused by an alleged defect in the design or the manufacture of a
Jaguar Vehicle, not reasonably susceptible of discovery by Dealer in
either its pre-delivery inspection and preparation of the Jaguar
Vehicle or subsequent servicing, and (ii) which do not plead claims
against Dealer for negligence in the preparation, servicing, or
repair of a Jaguar Product.
(b) If any lawsuit pleads claims against Dealer for acts of negligence in
the preparation, servicing or repair of a Jaguar Product, the Company
shall nevertheless defend and indemnify Dealer, if the Company,
acting in good faith, makes a determination that the allegations of
dealer negligence are without merit or are not a genuine issue in the
lawsuit. Such initial determination shall, however, be subject to
review and reconsideration by the Company during the course of the
lawsuit. If the Company at any time determines in good faith that the
allegations of dealer negligence do raise a genuine issue in the
lawsuit, the Company will so advise Dealer, shall tender to Dealer
the defense of the lawsuit from that time forward, and shall have no
further obligation to defend or indemnify Dealer under this
provision.
13.2 (a) Dealer shall indemnify and hold the Company harmless from loss,
damage and expense, including reasonable attorneys' fees, resulting
from or arising out of lawsuits filed against the Company concerning:
(i) Dealer's alleged failure to perform, or negligent performance
of, its service obligations under this Agreement, or any
maintenance or repair service performed on any Jaguar Vehicle
or other motor vehicle sold or serviced by Dealer;
(ii) Dealer's alleged breach of any 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;
(iii) Dealer's alleged misleading statements, misrepresentations or
unfair or deceptive acts or practices, whether through
advertisement or otherwise, affecting any
12
customer of Dealer, provided, however, that the statements,
representations or advertisements are not based on information
or material produced or supplied by the Company.
(b) In the event that any action based upon or relating to allegations
set forth in subparagraph (i) through (iii) above is filed naming the
Company as a defendant, Dealer will, following receipt of notice from
the Company, undertake the defense of the action on behalf of the
Company at Dealer's sole expense. Dealer is specifically authorized
by the Company to settle or defend any such action on behalf of the
Company provided that the cost of said defense and/or settlement and
any judgment are borne exclusively by Dealer.
(c) If Dealer refuses for any reason to undertake the Company's defense
when obligated to do so under this article, the Company may conduct
its own defense and Dealer shall be liable for any judgments, costs
and attorneys' fees paid or incurred by the Company with respect
thereto.
(d) Dealer shall have the right to decline to accept the Company's
defense or, having accepted such defense may, prior to trial, tender
such defense back to the Company, if Dealer, acting in good faith,
makes a determination that the allegations upon which the action is
based do not fall within the terms of subparagraphs 13.2 (a)
(i)-(iii) herein.
13.3 (a) If Dealer or the Company intends to request of the other
indemnification or defense with respect to any lawsuit, each shall,
no later than ten (10) days after service of a complaint, notify the
other in writing of such request and shall supply to the other copies
of any pleadings served to date and any information then reasonably
available concerning the circumstances allegedly giving rise to such
complaint.
(b) Any request for defense and indemnification shall be accepted or
rejected by the party to whom the request is made within ten (10)
days following receipt of such request. Prior to receipt of a
response to its request, each party agrees to take all reasonable
steps to ensure that defense of the complaint is in no way
prejudiced. If the request is accepted, the party making 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. Any expenses incurred by either party prior to acceptance of
any request for defense and indemnification shall be borne solely by
the party making such request.
ARTICLE 14 - TERMINATION OF THE AGREEMENT
PRIOR TO ITS EXPIRATION
14.1 Subject to the terms and conditions of paragraph 17.4 hereof, the Company
and Dealer may at any time prior to the expiration date of this Agreement
agree to terminate this Agreement on such terms and subject to such
conditions as the parties hereto may consider mutually satisfactory.
14.2 Subject to the terms and conditions of paragraph 17.4 hereof, Dealer may
terminate this Agreement, by sending notice of such termination to the
Company sixty (60) days prior to the effective date of such termination.
14.3 The Company may terminate this Agreement upon thirty (30) days prior
written notice to Dealer in the event that any licensing or distribution
agreement or similar arrangement pursuant to which the Company is the
distributor of Jaguar Products in the United States shall terminate or
expire without renewal, provided that Jaguar Cars Exports Limited shall,
if it continues distribution in the United States through a subsidiary or
a third party
13
distributor, cause such entity to offer to Dealer, if Dealer is then in
good standing under this Agreement, a new Dealer Agreement on
substantially the same terms and conditions as are set forth herein.
14.4 If Dealer fails to secure or maintain any license or if any license of
the Company or Dealer, required for the performance of its obligations
under this Agreement, is suspended or revoked, regardless of the reason,
and such suspension or revocation is upheld after exhaustion of such
appeals as may be pursued, either party may terminate this Agreement by
giving written notice to the other.
14.5 The Company and Dealer agree that the following acts are so contrary to
the spirit and purpose of this Agreement as to warrant its termination:
(a) Any material misrepresentation by Dealer's owners, officers or Dealer
Operator as to any fact relied upon by the Company in entering into this
Agreement;
(b) Any attempted or actual sale, transfer or assignment by Dealer of this
Agreement, or any of the rights granted to it under this Agreement, or
any attempted or actual transfer, assignment or delegation by Dealer of
any of the responsibilities assigned to Dealer under this Agreement;
(c) Any attempted or actual sale, transfer or assignment by Dealer of all or
substantially all of the assets used by Dealer in its Jaguar Operations,
without prior consultation with and the prior written approval of the
Company, which approval shall not be unreasonably withheld, provided that
Dealer has fulfilled the terms and conditions of Article 5 hereof;
(d) Any change, whether voluntary or involuntary, in the ownership or
management of Dealer as set forth in Paragraph 6 of the Dealer Agreement,
without prior consultation with and the prior written approval of the
Company, which approval shall not be unreasonably withheld, provided
Dealer has fulfilled the terms and conditions of Article 5 hereof;
(e) Any change in the location of any of the Dealership Facilities or the
establishment of additional facilities without prior consultation with
and the prior written approval of the Company, which approval shall not
be unreasonably withheld, provided Dealer has fulfilled the terms and
conditions of Article 4 hereof;
(f) Insolvency of Dealer or the voluntary filing by Dealer of a petition in
bankruptcy, or filing of a petition to have Dealer declared bankrupt,
providing the petition is not vacated within sixty (60) days; or the
appointment of a receiver or trustee for Dealer or Dealer's business who
is not removed within sixty (60) days; or any levy under attachment,
execution or similar process or the execution of an assignment for the
benefit of creditors, or any process of law by which a third party
acquires rights in or to the ownership, operations or facilities of
Dealer;
(g) Conviction in any court of competent jurisdiction of Dealer, or of any of
the persons named in Paragraph 6 of the Dealer Agreement, of any crime or
violation of law; or the finding by any government agency or court that
Dealer has committed any unfair business practice, or, having been
charged with any such unfair business practice, the operative provisions
of a resolution of such charge permits the inference that all or some of
the acts charged actually occurred;
(h) Submission by Dealer of false reports, statements or claims on a repeated
basis, or of any fraudulent report, statement or claim;
(i) Failure by Dealer to conduct its sales, service and parts operations
during the customary business hours of the trade in Dealer's area for six
(6) or more consecutive business days, unless such failure is caused by
contingencies beyond the reasonable control of Dealer, as more fully
described in Paragraph 18.8 hereof;
14
(j) Substantial impairment of the financial condition of Dealer or, to the
extent it materially and adversely affects Dealer, of any of Dealer's
owners;
(k) Dealer's refusal or inability to pay any amount owed by Dealer to the
Company after demand for such payment has been made by the Company to
Dealer;
(l) Within the limitations, if any, of the supply of Jaguar Vehicles made
available to Dealer by the Company, failure by Dealer to achieve such
reasonable sales objectives as may from time to time be established by
the Company.
(m) The failure by Dealer to maintain warranty records in accordance with the
Company's warranty policies and procedures, after notice by the Company
to Dealer of such failure and a reasonable opportunity to cure, it being
recognized by both parties that such records are vital to the processing
and substantiation of warranty claims submitted by Dealer to the Company;
(n) Any substantial breach or violation of any material obligation contained
in this Agreement.
14.6 If the company determines that Dealer has failed to provide adequate
Dealership Facilities, in accordance with the standards set forth in this
Agreement, or has failed to fulfill the sales and service obligations
Dealer has assumed under this Agreement, the Company will advise Dealer
of such failure and attempt to discuss it with Dealer. Thereafter, the
Company shall notify Dealer in writing by Certified or Express Mail of
the nature of the failure, of the acceptable remedy and of the period of
time (not less than six months) during which Dealer will be expected to
remedy the failure. If Dealer refuses to enter into a Performance
Agreement acceptable to the Company with respect to those failures
identified in the Company's notice or fails to substantially remedy such
failures at the end of the period provided for in such notice or
Performance Agreement, the Company may terminate this Agreement upon
ninety (90) days written notice to Dealer.
14.7 Failure by the Company to terminate this Agreement pursuant to Paragraphs
14.5 or 14.6, shall not be deemed a waiver of the Company's right to so
terminate this Agreement unless and until the event or situation
entitling the Company to terminate this Agreement has ceased to exist.
ARTICLE 15 - RIGHT OF SUCCESSION
15.1 The Company may terminate this Agreement by written notice to Dealer if
any person listed in Paragraph 6 of the Dealer Agreement dies or if the
Dealer Operator is so physically or mentally incapacitated as to be
unable to actively exercise full managerial authority over Dealer. The
effective date of the termination shall be stated in the notice, but will
not be less than ninety (90) days after receipt of the notice.
15.2 (a) Notwithstanding the right of the Company to terminate this agreement
upon death or incapacity as set forth above, the Company will not
terminate this Agreement if:
(i) The surviving owners, officers or Dealer Operator listed in
Paragraph 6 of the Dealer Agreement remain unchanged and can in
the opinion of the Company, comply with the requirements imposed
upon Dealer by this Agreement; or
(ii) Within the 90-day notice period referred to above, or such
reasonable time as circumstances may require and the Company may
approve, arrangements are completed for the assumption of active
management and/or ownership of Dealer during the remainder of the
term of this Agreement by persons satisfactory to the Company; or
15
(iii) The Company has previously approved a Designated Successor for the
deceased owner, officer or Dealer Operator in accordance with
procedures established by the Company from time to time.
(b) In the event that the deceased owner, officer or Dealer Operator is
possessed of a beneficial interest in Dealer which, by reason of
death, passes directly to his/her surviving spouse and/or children
and if the surviving owners, officers or Dealer Operator of Dealer
listed in Paragraph 6 of the Dealer Agreement can, in the opinion of
the Company, comply with the requirements imposed upon Dealer by this
Agreement, the Company will consent to the retention by such spouse
and/or children of any such interest in Dealer subject, however, to
the rights, if any, of the surviving owner(s), officer(s) or Dealer
Operator to buy out the spouse's and/or children's interest in
accordance with any agreement made between or among them.
ARTICLE 16 - EXTENSIONS AND RENEWAL OF AGREEMENT
16.1 This Agreement can be extended or renewed only through an express written
instrument to that effect and only if such instrument is duly executed by
an Executive Officer of the Company and by a duly authorized person
listed in Paragraph 6 of the Dealer Agreement. Any business relations of
any nature whatsoever between the Company and Dealer after the expiration
of this Agreement or after its prior termination pursuant to the terms of
this Agreement, without such written extension or renewal shall not
operate as an extension or renewal of this Agreement. Nevertheless, all
such business relations, so long as they are continued, shall be governed
by terms identical with the provisions of this Agreement.
ARTICLE 17 - RIGHTS AND OBLIGATIONS UPON
TERMINATION OF AGREEMENT
17.1 Upon termination of this Agreement by either party or upon its expiration
without renewal, the Company will repurchase from Dealer the following
assets only, free and clear of any liens or encumbrances:
(a) All new and unused Jaguar Vehicles of the then current or preceding
model year bought by Dealer from the Company, for which the Company
will pay Dealer the net price paid by Dealer for such vehicles, less
a deduction for any damage and less any applicable rebates or
allowances;
(b) All new, unused and undamaged Jaguar Parts still in their original
packaging (i) which Dealer purchased from the Company during the
12-month period preceding the effective date of termination of the
Agreement (the "Matching Period") and (ii) which Dealer purchased
prior to the Matching Period, but which are then classified by the
Company as "Jaguar Stocking Parts," meaning those parts which the
Company is then selling and can reasonably expect to sell to dealers
in the future. The Company will pay Dealer for those eligible parts
actually returned to it under this provision the dealer price for
such parts in effect at the time the parts are returned to the
Company.
(c) Jaguar Signs which the Dealer purchased from the Company or from a
supplier approved by the Company. The Company will pay for such
Jaguar Signs, Dealer's original purchase price for such signs, less
"straight-line" depreciation computed on the basis of a useful life
of five years;
(d) Special tools and equipment purchased by Dealer during the Matching
Period from the Company. The Company will pay for such special tools
and equipment Dealer's
16
original purchase price therefor, less "straight-line" depreciation
computed on the basis of a useful life of five years and subject to
adjustments based on use and condition;
(e) Dealer shall be responsible for returning to the Company, on a
freight prepaid basis, any assets which the Company is obligated to
repurchase from Dealer in accordance with the terms of this
Agreement.
17.2 The Company may require and Dealer commits to supply proof that any
Jaguar Products eligible for repurchase in accordance with the terms and
conditions of Paragraph 17.1 are free and clear of any liens or
encumbrances.
17.3 Upon termination of this Agreement, all pending unfilled orders from
Dealer for Jaguar products shall be deemed cancelled. The Dealer shall
thereupon discontinue the use of all Jaguar Trademarks by removing the
same from the Dealership Facilities and from all advertising, signs,
stationery, brochures, and the like, and will not thereafter advertise
itself or hold itself out as an Authorized Jaguar Dealer.
17.4 Upon termination of this Agreement by either party, upon its expiration
without renewal, or upon the Company's approval of any purchaser(s) of
Dealer or of all or substantially all of the assets used in Dealer's
Jaguar Operations in accordance with the terms and conditions of this
Agreement, the Company and Dealer shall execute and deliver to each other
the form of Mutual Release and Termination Agreement then in use by the
Company. Said Mutual Release and Termination Agreement (i) shall
unconditionally terminate the Dealer Agreement then in force between the
Company and Dealer and (ii) shall provide for the mutual release by each
of the parties hereto of any and all claims either may have against the
other, excepting only such claims as are then known to and pending
between the Company and Dealer and which are expressly set forth and
specified in said Mutual Release and Termination Agreement.
ARTICLE 18 - MISCELLANEOUS PROVISIONS
18.1 Dealer understands and acknowledges that this Agreement, and any
modifications or amendments or any notice of prior termination of this
Agreement, shall be effective only if signed by an Executive Officer of
the Company, except with respect to Performance Agreements which may be
signed by a Zone Manager of the Company. Except as provided for in the
preceding sentence, no contracts, agreements, representations,
understandings, arrangements, modifications or amendments of any kind
with respect to this Agreement will be binding upon the Company.
18.2 This Agreement contains the entire agreement between the parties, except
with respect to any Performance Agreement(s) between the parties which
is/are expressly made a part thereof. No representations or statements,
other than those expressly set forth herein, were made or relied upon by
the Company or Dealer in entering into this Agreement.
18.3 This Agreement is made solely by and between the Company and Dealer and
neither confers upon, nor shall be deemed to confer upon, any person not
a party hereto any third party rights or benefits of any kind.
18.4 Nothing herein shall be deemed to make Dealer an agent for the Company in
any respect, nor is Dealer authorized to transact any business or to
incur any obligation or liability on behalf of the Company.
18.5 Any notices under, or pursuant to, the provisions of this Agreement shall
be directed to the respective addresses of the parties stated herein or,
if either of the parties shall have
17
specified another address by notice in writing to the other party, to the
address so specified. The parties shall advise each other forthwith, in
writing, of any change of such address.
18.6 Except as otherwise provided for in this Agreement, the failure of either
party at any time to require performance by the other party of any
provision hereof shall in no way affect the full right to require such
performance at any time thereafter, nor shall the waiver by either party
of a breach of any provision hereof constitute a waiver of any succeeding
breach of the same or any other such provision, nor constitute a waiver
of the provision itself.
18.7 Nothing in this Agreement shall give Dealer the right to continue to be
supplied by the Company with the Jaguar Vehicle line or any particular
Jaguar Vehicle models, which may at any time be withdrawn or suspended
from importation and sale in the United States, without prior notice to
Dealer and without any obligation or liability on the part of the Company
by reason thereof. Nothing in this Agreement shall give Dealer the right
to sell any vehicle line, distributed by the Company or any successor of
the Company, other than Jaguar Vehicles.
18.8 Performance of this Agreement or of any contract for the delivery of
Jaguar Products is subject to all contingencies beyond the reasonable
control of either party, such as labor disputes or work stoppages,
production or shipping restrictions or delays, governmental orders or
restrictions, acts of God, or force majeure. The obligations of either
party shall be suspended during any such contingency, without liability
to the other for direct or consequential damages and without extending
the term of this Agreement.
18.9 Dealer acknowledges and understands that Federal law requires
manufacturers of motor vehicles sold in the United States to affix to
designated items of original equipment, and replacement parts for such
equipment, labels containing certain identifying information ("anti-theft
labels"). In certain cases, the manufacturer of Jaguar Vehicles places a
transparent paint mask over such anti-theft labels. Dealer will, when
performing any service or repair work (such as painting or rust proofing)
insure that such anti-theft labels are neither obliterated nor obscured
and will remove any protective paint masks prior to delivering or
returning a Jaguar Vehicle to a customer.
18.10 Except as otherwise specifically provided for herein, where a response is
required of either party to any action, proposal or submission of the
other, the parties agree to use their best efforts to respond as
expeditiously as shall be, under all the relevant circumstances,
practicable.
18
