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Sales
Agreement
VOLVO
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VOLVO CARS OF NORTH AMERICA, INC.
SALES AGREEMENT
This Agreement dated March 24, 1993, is made in triplicate by and between
Xxxx & Xxxx, Inc.
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(NAME OF ENTITY)
A South Carolina Corporation
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(STATE WHETHER AN INDIVIDUAL PARTNERSHIP OR CORPORATION,
IF THE LATTER, SHOW NAME OF STATE IN WHICH INCORPORATED)
doing business as Xxxx & Xxxx, Inc.
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(TRADE NAME)
located at 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Chamblee
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(ADDRESS) (CITY)
De Ka1b Georgia 30341
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(COUNTY) (STATE) (ZIP CODE)
(hereinafter called "Dealer"), and Volvo Cars of North America, Inc., a Delaware
corporation with its principal place of business at Xxxxx Xxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000 (hereinafter called "Distributor").
PREAMBLE
The purpose of this Agreement is to provide for the sale and servicing of
Company Products at retail by Dealer in Dealer's Area of Responsibility in a
manner that will best serve the interest of the retail customer and be of
benefit to Dealer and Distributor.
Attainment of the purposes of this Agreement requires understanding,
cooperation, mutual trust and confidence between the parties. Dealer has entered
into this Agreement with confidence in Distributor's integrity and expressed
intention to deal fairly with its dealers and the public. Distributor has
entered into this Agreement with confidence in Dealer's integrity, ability, and
expressed intention to deal fairly with Distributor, other authorized dealers
and the public, and in reliance upon Dealer's undertaking to perform and carry
out the duties, obligations and responsibilities of an authorized Dealer set
forth in this Agreement.
The parties recognize that public confidence in Company Products is a valuable
component in their objectives and endeavors, and that the development and
maintenance of public confidence in Company Products requires them to
continuously assure the public of courteous, fair treatment and efficient,
dependable service. In order to promote and protect such public confidence, and
to promote Company Products, Dealer and Distributor will conduct their
businesses ethically and equitably.
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PARAGRAPH I A. Distributor hereby appoints Dealer as an
authorized dealer in Company Products. Dealer
hereby accepts such appointment and agrees to
perform the duties, obligations and
responsibilities of a dealer as herein provided.
B. This Agreement supercedes all prior agreements
between the parties relative to the sale and
servicing of Company Products and will continue
until terminated pursuant to Clause 25 hereof.
C. This Agreement contains the entire agreement
between the parties hereto. Any amendment hereto
must be in writing and signed by an Executive
Officer of Distributor and a person identified in
Paragraph II hereof on behalf of Dealer.
D. This Agreement is to be governed by, and
construed according to, the laws of the State of
New Jersey. If any provision of this Agreement is
invalid or unenforceable or prohibited by the laws
of the State or place where it is to be performed,
such provision is severable from the balance of
this Agreement.
E. Non-exclusively and in accordance with the
terms of this Agreement, Distributor will sell
Company Products to Dealer, and Dealer will
purchase Company Products from Distributor.
F. The parties hereto shall annually review
Dealer's Area of Responsibility and determine fair
and equitable performance standards for Dealer.
G. Dealer will use its best efforts to promote and
develop sales and service of Company Products in
its Area of Responsibility.
H. Distributor recognizes Dealer's special
interests and obligations in its Area of
Responsibility, as such Area may be designated
from time to time in accordance with Clause 1 (E)
hereof. Accordingly, if Dealer performs its
obligations under Paragraph I (G) hereof,
Distributor will not increase the number of
authorized dealers for Company Products in
Dealer's Area of Responsibility so as to
substantially impair Dealer's business in Company
Products as it has therefor been conducted except
after thirty (30) days prior written notice to
Dealer and a written survey showing need therefor,
provided that nothing contained in this Agreement
shall require or be construed to require Dealer's
approval of Distributor's appointment of any
authorized dealer.
I. Nothing contained in this Agreement limits any
person as to the geographic area in which, or the
persons to whom, it may sell Company Products.
PARAGRAPH II This Agreement has been entered into by
Distributor in reliance upon Dealer's
representations that:
A. The following person(s) is the principal
owner(s) of Dealer:
Name Home Address Percentage Title
of Interest
Xxxxxxx X. Xxxx, Xx. 100% President
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0000 Xxxxx Xxxx Xxxxx
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Xxxxxxxx. Xxxxxxx 00000
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B. The following person(s) also has an ownership
interest in Dealer:
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C. The following person(s) has full managerial
authority for the operations of Dealer:
Name Home Address Title
Same as Paragraph II A.
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D. Except pursuant to Clause 35, any change in the
ownership or management of Dealer requires the
prior written approval of an Executive Officer of
Distributor, which shall not be unreasonably
withheld.
PARAGRAPH III A. Dealer will establish, staff, equip and
maintain a salesroom for Vehicles, facilities for
Service Parts sales, service facilities and
facilities for used passenger automobile sales in
Dealer's Area of Responsibility. Each such
facility will comply with reasonable written
lay-out, appearance and size standards developed
by the parties hereto pursuant to Paragraph I (F)
hereof, consistent with promoting the reputation
of, and public confidence in, Company Products,
and will be sufficient to enable Dealer to satisfy
Dealer's sales and service responsibilities
hereunder. Dealer will procure and maintain tools,
machinery and equipment adequate to meet the
normal requirements of owners of Company Products
in Dealers' Area of Responsibility. Dealer will
operate such facilities throughout the business
hours customary in the trade in Dealer's Area of
Responsibility.
B. This Agreement has been entered into by
Distributor in reliance on Dealer's
representations that selling and servicing of
Company Products will be conducted from the
following address(es):
(1) Sales: 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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(2) Service: 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
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Xxxxxxxx, Xxxxxxx 00000
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Dealer will not move such place or places of
business, or establish any additional place or
places of business for sales or servicing of
Company Products, without the prior written
approval of an Executive Officer of Distributor
which shall not be unreasonably withheld.
PARAGRAPH IV In order to more particularly define the
obligations of the parties hereto, it is further
agreed as follows:
CLAUSE I- A. COMPANY PRODUCTS means Vehicles and Service
DEFINITIONS Parts that from time to time may be offered for
sale by Distributor to authorized dealers.
B. VEHICLES means passenger vehicles bearing the
trademark "VOLVO"
C. SERVICE PARTS means service parts and
accessories supplied or approved by Distributor
for Vehicles.
D. DATE OF DISPATCH means the time at which
Distributor shall deliver products sold hereunder
to a carrier for delivery to Dealer or its
designee, in accordance with Dealer's
instructions.
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E. AREA OF RESPONSIBILITY means the geographic
area designated as such in writing by Distributor
from time to time.
F. DEALER PRICE means the price to Dealer for
Company Products as established by Distributor.
G. MANUFACTURER means Aktiebolaget Volvo of
Gothenburg, Sweden.
CLAUSE 2- A. Distributor has the right, from time to time
POLICY during regular business hours to inspect Dealer's
salesroom, facilities for service parts sales,
service facilities and used passenger automobile
outlet.
B. Dealer will maintain and employ in Dealer's
business and operations under this Agreement such
net working capital and net worth as enables
Dealer to satisfy Dealer's responsibilities under
this Agreement.
C. Distributor will provide, and Dealer will
participate in, and will make available to its
employees, training courses and personnel
development programs.
D. Dealer will conform to such reasonable written
rules and regulations consistent with this
Agreement as may, from time to time, be
promulgated by Distributor to Dealer.
E. Dealer will make reasonable efforts to handle
satisfactorily any matters relating to the sale or
servicing of Company Products in Dealer's Area of
Responsibility. Dealer will report promptly to
Distributor each complaint received by Dealer
relating to any Company Product which Dealer
cannot remedy, together with the name and address
of the complainant.
F. Dealer warrants that Dealer will procure and
maintain any license or other governmental
authorization necessary to engage in the
businesses contemplated by Paragraph III (A)
hereof.
CLAUSE 3- A. Distributor will keep Dealer informed of the
WARRANTIES ON warranty or warranties applicable to Company
COMPANY PRODUCTS Products, and will insure that such warranty or
warranties extend to each customer of Dealer upon
the sale of a Company Product by Dealer to a
customer. Dealer will include such warranty or
warranties, in the form and content specified by
Distributor, in each agreement for the sale of a
Company Product by Dealer, and will furnish a copy
of such warranty or warranties to the customer
upon delivery of that Company Product.
B. Distributor and Dealer each will fulfill
promptly their respective obligations under such
warranty or warranties. Said obligations are set
forth in detail, as are procedures for the
administration and payment of warranty claims, in
the Volvo Service Policy Manual and the Volvo
Parts and Accessories Operations Guide (including
any successor publications). Said Publications may
be amended by Distributor from time to time,
provided that no less than thirty (30) days prior
written notice to Dealer will be given in the
event of amendment to warranty obligations or
procedures.
C. Manufacturer and Distributor give no other
warranty, express or implied, including any
implied warranty of merchantability or fitness, on
any Company Product.
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CLAUSE 4- Dealer will furnish to each retail purchaser of a
WARRANTY AND Vehicle from Dealer such form of Warranty and
SERVICE RECORD Maintenance Record and/or Operating Instructions
AND/OR OPERATING Book, if any, as may then be currently furnished
INSTRUCTIONS BOOK by Distributor.
CLAUSE 5- A. Dealer expressly recognizes its obligation to
"FREE SERVICE use its best efforts to effectively perform
COUPON" AND warranty and Free Service Coupon work on Vehicles,
WARRANTY WORK whether delivered by Dealer or by another
authorized Volvo dealer, in accordance with the
provisions of the "Volvo Warranty and Maintenance
Record" booklet. Dealer further recognizes that a
material and continuing default in its obligations
under this Clause constitutes a breach of Dealer's
obligations under Paragraph I (G) hereof.
B. Dealer authorizes Distributor to charge
Dealer's account for such "Free Service Coupon"
work on a Vehicle sold by Dealer as may be per-
formed by another authorized dealer and to credit
Dealer's account for such "Free Service Coupon"
work on a Vehicle sold by another authorized
dealer as may be performed by Dealer in such
amount as may be provided therefor.
CLAUSE 6- Dealer expressly recognizes its obligation to use
PRE-DELIVERY its best efforts to effectively service and
SCHEDULE condition each new Vehicle before delivery in
accordance with normal pre-delivery service and
conditioning schedules furnished from time to time
by Distributor to Dealer, and to perform such
other normal service and conditioning work as may
be prescribed in any then-current Volvo Service
Policy Manual, Notice, or Bulletin, furnished by
Distributor. Upon request by Distributor, Dealer
will furnish evidence of such performance of such
pre-delivery services. Dealer further recognizes
that a material and continuing default in its
obligations under this Clause constitutes a breach
of Dealer's obligations under Paragraph I (G)
hereof.
CLAUSE 7- Dealer expressly recognizes its obligation to use
REPAIR AND its best efforts to effectively perform repair or
MAINTENANCE maintenance required on Company Products in
SERVICE accordance with Distributor's current
recommendations and specifications. Dealer's
prices for such services shall always be
determined by Dealer in the exercise of its
discretion. Dealer further recognizes that a
material and continuing default in its obligations
under this Clause constitutes a breach of
Dealer's obligations under Paragraph I (G) hereof.
CLAUSE 8- A. Dealer at all times will keep in Dealer's place
SERVICE PARTS of business an inventory of Service Parts of an
assortment and in quantities that are necessary to
meet the current and reasonably anticipated
service requirements of Dealer's customers.
B. Dealer will not sell or offer for sale or use
in the repair of any Company Product, as a genuine
new Volvo Service Part, any part that is not in
fact a genuine new Volvo Service Part.
CLAUSE 9- A. Dealer will conduct its business in a manner
TRADE PRACTICES that will reflect favorably at all times on
AND ADVERTISING Distributor, Manufacturer, Company Products and
the good name and reputation of the foregoing.
B. Dealer will not engage in any deceptive,
misleading, or unethical practice or advertising.
C. Dealer will forthwith discontinue any
advertising upon written notice of objection
thereto by Distributor, or upon notice of
withdrawal of Distributor's approval thereof.
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CLAUSE 10- Dealer warrants that Dealer will not exhibit
EXHIBITIONS Vehicles without the written consent of
Distributor at any Motor Exhibition, Agricultural
Show, or the like.
CLAUSE 11- A. Dealer will keep records of its business
DEALER'S relating to Company Products. From time to time
ACCOUNTING AND during regular business hours, and on reasonable
REPORTS notice to dealer, Distributor may examine or cause
the examination of Dealer's accounts and records
relating to the sale and servicing of Company
Products. Dealer may be present at such
examination.
B. Dealer will furnish to Distributor, within
reasonable time limits specified by Distributor
and on the forms prescribed by Distributor or the
reasonable equivalent thereof, statements of the
financial condition and operating results of
Dealer's business in Company Products.
C. Dealer will furnish to Distributor, on such
forms and at such times as Distributor may
reasonably require, reports of Dealer's sales and
stock of Company Products and used automobiles.
CLAUSE 12- If Dealer finds that any new Vehicle has been
FACTORY SUGGESTED delivered to Dealer with an incorrect label, or
PRICE LABELS without a completed label, affixed thereto
pursuant to the Federal Automobile Information
Disclosure Act, 15 U.S.C. ss.1232, Dealer will
notify Distributor of such finding. Thereafter, in
the event Distributor gives written instructions
to Dealer with respect to correcting or completing
the form or content of such label, Dealer warrants
that it will comply with such written
instructions.
CLAUSE 13- Dealer will maintain, during the existence of this
LINES OF CREDIT Agreement, a line of credit with a responsible
financing institution at a level permitting Dealer
to inventory Company Products commensurate with
annually set objectives.
CLAUSE 14- A. Dealer warrants that Dealer will comply with
TAXES all laws dealing with collection or payment by
Dealer of taxes applicable to resale transactions
by Dealer, and will furnish evidence of compliance
to Distributor upon written request.
B. As to any Company Products put to a taxable use
by Dealer or in fact purchased by Dealer otherwise
than for resale, Dealer warrants timely return and
payment of all applicable taxes.
CLAUSE 15- Payment for each Company Product purchased by
PAYMENTS BY DEALER Dealer will be made in cash in advance unless the
invoice or Dealer's then current and applicable
wholesale payment plan provides otherwise, in
which event the terms of the invoice or such plan
will govern. Receipt of any commercial paper will
not constitute payment until collected in full.
Dealer will pay all collection charges.
CLAUSE 16- Title to each Company Product purchased by Dealer
TITLE under this Agreement will pass to Dealer, or to
the finance institution designated by it, upon
delivery to the carrier or to Dealer, whichever
first occurs, but Distributor will retain a
security interest in, and right to repossess, any
such Company Product until paid therefor.
CLAUSE 17- At Distributor's request, Dealer will submit its
FIRM ORDERS firm orders for new Vehicles to be shipped during
an Allocation Period, and Dealer's estimated new
Vehicle requirements for the succeeding Allocation
Period. An Allocation Period shall not exceed
eight (8) weeks in duration.
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CLAUSE 18- A. Distributor will use its best efforts to
DELIVERIES fill each of Dealer's firm orders for Company
Products in accordance with delivery dates
specified by Dealer.
B. When allocation of available Company Products
is necessary, Distributor will allocate available
Company Products on a fair, equitable and
nondiscriminatory basis.
C. Delivery of standard current model year
Vehicles by Distributor pursuant to Dealer's firm
orders may be made at any time during the
Allocation Period for which Dealer has specified
delivery, or during the next Allocation Period.
D. After the Allocation Period next following that
Allocation Period for which Dealer has specified
delivery, any unfilled firm order for standard
current model year Vehicles shall continue as such
until cancelled by Dealer before the Date of
Dispatch.
E. Distributor's delivery and Dealer's right to
cancel orders for non-standard Vehicles shall be
subject to such terms and conditions as may be
indicated by Distributor in accepting Dealer's
orders for such Vehicles. Distributor may require
a non-refundable deposit as a condition precedent
to accepting any order for a non-standard vehicle.
F. If Dealer fails to accept or refuses any
Company Product delivered by Distributor pursuant
to this Clause 18, Dealer will pay Distributor all
expenses incurred by Distributor in shipping such
Company Product to Dealer and in (a) returning it
to the point of shipment, or (b) directing it to
another destination whichever is the less.
CLAUSE 19- Distributor will not be liable in any respect for
DELAYS IN failures or delays in deliveries due in whole or
DELIVERIES in part to such matters as shortage or curtailment
of material, labor, transportation or utility
services, or to any labor or production difficulty
in Manufacturer's plants or those of its
suppliers, or to any cause beyond Distributor's
control or without Distributor's fault or
negligence.
CLAUSE 20- Any claims which Dealer submits to Distributor
DEALER must be submitted in writing within such
CLAIMS reasonable time as may be specified by Distributor
for the submission of such claims. Claims
submitted after the expiration of the said time
will not be considered or allowed.
CLAUSE 21- Dealer will maintain a stock of new Vehicles of
STOCK VEHICLES the latest model in accordance with the annual
objectives mutually agreed to by Dealer and
Distributor.
CLAUSE 22- Dealer will keep available at all times, in good
DEMONSTRATORS running order and presentable condition for
demonstration purposes, an adequate number of
Vehicles equipped with accessories of the latest
model but not at any time less than two such
Vehicles.
CLAUSE 23- Distributor reserves for itself and Manufacturer
CHANGE IN MODELS the right to discontinue the manufacture or sale
AND/OR DESIGNS of any Company Product or to make changes in
design, or to add improvements to Company Products
at any time, all without notice to Dealer and
without incurring any obligation to Dealer either
with respect to any Company Product previously
ordered or purchased by Dealer or otherwise.
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CLAUSE 24- Distributor may change at any time and from time
CHANGE IN PRICES to time, the Dealer Price and Distributor's charge
for distribution and delivery of any Company
Product, provided that no less than ten (10) days
prior written notice shall be given to Dealer of
any change in the Dealer Price of Vehicles as to
which a Dealer Price has theretofore existed for
the current model year. Except as to such
discounts as may be allowed in writing by
Distributor, such price and such charge shall be
the price and charge in effect, and delivery to
Dealer shall be deemed to have been made and the
order deemed to have been filled, on the Date of
Dispatch.
CLAUSE 25- A. This Agreement will continue in full force and
TERMINATION OF effect, and will govern all relationships and
AGREEMENT transactions between the parties hereto, until
terminated pursuant to the provisions of this
Clause 25.
B. Dealer may terminate this Agreement at any
time, without assigning any reason therefor, by
giving sixty (60) days prior written notice of
termination to Distributor.
C. Distributor may terminate this Agreement:
1. Effective upon no less than thirty (30)
days prior written notice to Dealer (subject
to Paragraph (D) of this Clause 25), in the
event that:
a. Dealer shall fail to correct any
default in performance of its
responsibilities under Paragraph I (G)
or Clauses 2 (B), 2 (F), 8, 9 (B), ll,
15, 21, 22, or 34 (B) within sixty (60)
days after written notice of such
default is given to Dealer; or
b. Any dispute, disagreement or
controversy between or among persons
identified in Paragraph II of this
Agreement which adversely affects the
ownership, operation, management, or
business of Dealer arises and is not
resolved within sixty (60) days after
notice thereof is given to Dealer; or
c. Dealer or a person identified in
Paragraph II of this Agreement is
finally convicted in a court of
competent jurisdiction of a crime which
adversely affects the operation or
business of Dealer or the good name or
reputation of Distributor or Company
Products; or
d. Dealer (if Dealer is an individual)
or any person identified in Paragraph II
(A) of this Agreement shall suffer death
or total physical or mental incapacity;
or
e. Dealer misrepresents the ownership or
management of Dealer either in
connection with the application for this
Agreement or thereafter; or
f. Dealer shall file a voluntary
petition in bankruptcy, or shall be
adjudicated as a bankrupt pursuant to an
involuntary petition, or shall suffer
appointment of a temporary or permanent
receiver, trustee, or custodian for
Dealer or Dealer's business who shall
not be discharged within thirty (30)
days, or shall make an assignment for
the benefit of creditors; or
g. An unapproved change is made by
Dealer in the ownership or management of
Dealer specified by Paragraph II hereof,
or in the locations of Dealer businesses
for Company Products specified by
Paragraph III (B) hereof.
2. After January 1, 1978, effective on no
less than one hundred twenty (120) days prior
written notice to Dealer in connection with
the simultaneous termination of all
outstanding Sales Agreements for Company
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Products as to which Distributor is a party, in
connection with Distributor's simultaneous
offering to all then-current authorized dealers
in Company Products (including Dealer) a new or
amended standard form of Sales Agreement.
D. Any claim by Dealer that good cause for
termination of this Agreement by Distributor does
not exist pursuant to Clause 25 (C) (1) hereof may
be settled by arbitration upon the request of
Dealer. Such request, if made, shall be made in
writing by Dealer to the American Arbitration
Association, and written notice of such request
shall be given by Dealer to Distributor, within
thirty (30) days after Distributor's notice of
termination under Clause 25 (C) (1) hereof. Such
request shall suspend the effective date of
termination pending the outcome of the
arbitration.
1. Dealer may formally initiate an
arbitration under this Clause 25 (D) by
filing a written request therefor, together
with the appropriate filing fee, at any
office of the American Arbitration
Association, which shall then become the
locale and site of the arbitration
proceeding.
2. The arbitration shall be conducted in
accordance with the Commercial Rules of the
American Arbitration Association and in
consonance with the United States Arbitration
Act (8 U.S.C. ss.1 et seq.).
3. The arbitration shall be heard by a single
impartial arbitrator mutually agreeable to
the parties hereto, and selected from a panel
of American Arbitration Association
Arbitrators.
4. If the arbitrator finds that Distributor
has shown that termination of this Agreement
would accord with the provisions hereof and
the standards set forth in the Automobile
Dealers Franchise act, 15 U.S.C. ss.1221-1225
(the "Act"), the termination shall become
effective on the date of such finding, Dealer
shall pay the fees and expenses of the
arbitration, and said termination is
expressly recognized by Dealer as having been
made by Distributor without breach by
Distributor of the Act. Absent such finding
by the Arbitrator, Distributor's notice of
termination shall be wholly void, and
Distributor shall pay the fees and expenses
of the Arbitration.
CLAUSE 26- A. Termination of this Agreement shall end
PROCEDURE ON Dealer's status as an authorized Volvo Dealer, but
TERMINATION shall not affect any liability of either party to
the other accruing prior to the date of
termination, or arising out of this Agreement.
B. Upon termination Dealer agrees to immediately
discontinue the use of any trademarks or trade
names made up in whole or in part of any trademark
or trade name belonging to Distributor or
Manufacturer; to remove all signs containing any
such trademarks or trade names; and to render
unfit for the use originally intended (or to
certify to Distributor that Dealer will not use
for the purpose originally intended) any
stationery, printed matter, or advertising
containing any such trademarks or trade names.
After termination Dealer will not represent, and
will not continue any practices which might make
it appear, that it is still an authorized Volvo
Dealer and will permanently discontinue any use of
the word Volvo in Dealer's corporate title, firm
name or trade name and will take such steps as may
be necessary or appropriate in the opinion of
Distributor to change such corporate title, firm
name or trade name to eliminate the word Volvo
therefrom, all without cost or expense to
Distributor.
C. On termination under Clause 25 (C) (1) all
unfilled orders for Company Products will be
cancelled, subject to Clause 18 (E). On
termination under
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Clause 25 (B) Distributor will have the option to
complete or cancel all unfilled orders for Company
Products then pending and will have a similar
right to complete or cancel any firm orders given
after notice and before termination. Termination
under Clause 25 (C) (2) shall not affect unfilled
orders for Company Products then pending.
D. After termination acceptance of orders from
Dealer by Distributor, or the continuance of the
sale by Dealer of Company Products, or the
referring of inquiries to Dealer by Distributor or
any business relations either party has with the
other will not be construed as a renewal of this
Agreement nor a waiver of the termination. If
Distributor accepts any orders from Dealer after
termination all such transactions will be
governed, unless the contrary intention appears,
by the terms of this Agreement applicable to such
transactions.
CLAUSE 27- A. Within thirty (30) days after termination of
REPURCHASES BY this Agreement under Clause 25 (B) Distributor may
DISTRIBUTOR give Dealer written notice of Distributor's
exercise of an option granted hereby to repurchase
all of the following:
1. All new, unused, undamaged, standard,
current model year Vehicles which Dealer may
own or have an interest in on the date of
notice to Dealer of Distributor's exercise of
the aforementioned option, at the price paid
by Dealer to Distributor for such Vehicles
(a) less any price reduction allowance
credited or paid to Dealer (net after
discounts, allowances or adjustments), (b)
plus transportation charges paid by Dealer;
2. All new, unused, standard, current model
year Vehicles which Dealer may own or has an
interest in on the date of notice to Dealer
of Distributor's exercise of the
aforementioned option, which were received by
Dealer from Distributor, in a damaged
condition and were not repaired by Dealer to
standard condition, at the price specified in
subparagraph (1) of this Paragraph (A), but
provided that Dealer shall subrogate all
claims for the repair of such Vehicles to the
benefit of Distributor;
3. All new, undamaged Service Parts offered
for sale by Distributor to its dealers on the
date of termination which Dealer may own or
have an interest in on the date of notice to
Dealer of Distributor's exercise of the
aforementioned option, at the Dealer Price
for such Service Parts on the date of
termination less a handling charge of ten
percent (10 % ) and any charges actually paid
by Distributor for the transportation of such
Service Parts from Dealer's place of business
to Distributor's place of business; and
4. All tools, signs and other special
equipment which are, because of design,
applicable only to Company Products, which
Dealer may own or have an interest in on the
date of notice to Dealer of Distributor's
exercise of the aforementioned option, and
which are in useable and good condition
(except for reasonable wear and tear), at the
price paid by Dealer therefor less an amount
equal to the accrued straight line
depreciation on such equipment during
Dealer's (assumed) ownership thereof, if such
equipment had a useful life of five (5)
years, and less any charges actually paid by
Distributor for the transportation of such
equipment from Dealer's place of business to
Distributor's place of business. Dealer will
furnish to Distributor satisfactory evidence
of the date on which Dealer acquired an
interest in such equipment, and of the price
paid by Dealer therefor.
5. Vehicles, Service Parts, and equipment
specified in the four preceding subparagraphs
of this Paragraph (A) are referred to
collectively in this Clause 27 as "Repurchase
Products."
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B. Within thirty (30) days after termination of
this Agreement under Clauses 25 (C) (1) or 25 (C)
(2) (provided in the latter instance that Dealer
shall not then be a party to a Sales Agreement
with Distributor) Distributor shall repurchase
from Dealer, and Dealer shall sell to Distributor,
all Repurchase Products which Dealer may own or
have an interest in on the effective date of
termination, at the prices specified for the
particular Repurchase Product by subparagraph (1),
(2), (3), or (4) (as the case may be) of Paragraph
(A) of this Clause 27.
C. In the event that Distributor elects to
repurchase Repurchase Products pursuant to
Paragraph (A) of this Clause 27, or in the event
that Distributor becomes obligated to repurchase
Repurchase Products pursuant to Paragraph (B) of
this Clause 27, then:
1. Dealer shall promptly deliver such
Repurchase Products to Distributor, and
2. Dealer shall comply with any and all
applicable laws and requirements which may be
necessary or proper to transfer good title to
Repurchase Products to Distributor, free and
clear of any charge, lien, or encumbrance,
and
3. Distributor shall pay Dealer for
Repurchase Products acquired by it pursuant
to this Clause 27 promptly following Dealer's
fulfillment of its obligations under this
Clause and Clause 26 (B).
CLAUSE 28- Any notice given hereunder shall be deemed given
SERVICE OF NOTICE on the seventh day after it has been sent by first
class certified mail, return receipt requested,
properly enclosed in a wrapper addressed to the
party for whom it is intended at such party's
address hereinabove set forth. Notices may also be
given by personal delivery by Dealer to an
Executive Officer of Distributor, or by
Distributor to any principal owner named in
Paragraph II (A) hereof. Each party will promptly
give written notice to the other of any change of
address.
CLAUSE 29- Failure by either party at any time to require
WAIVER performance by the other party or to claim a
breach of any provision of this Agreement will not
be construed as a waiver of any subsequent breach
nor affect the effectiveness of this Agreement,
nor any part thereof, nor prejudice either party
as regards any subsequent action..
CLAUSE 30- This Agreement does not in any way create the
DEALER NOT AGENT relationship of principal and agent between
OF DISTRIBUTOR Distributor and Dealer. Dealer warrants that it
will not act or attempt to act, or represent
itself, directly or by implication, as agent of
Distributor or in any manner create or attempt to
create any obligation on behalf of or in the name
of Distributor.
CLAUSE 31- Dealer has no authority to establish an associate
SUBDEALERS dealer or subdealer for Company Products.
CLAUSE 32- Dealer has no authority to assign the whole or any
ASSIGNMENT part of this Agreement, or any right or interest
hereunder, without the prior written consent of an
Executive Officer of Distributor, which shall not
be unreasonably withheld.
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CLAUSE 33- Distributor recognizes Dealer's right to sell or
DISPOSITION OF otherwise dispose of all or substantially all of
BUSINESS BY DEALER Dealer's assets related to Dealer's obligations or
performance under this Agreement, including Good
Will, at any time and on such terms and conditions
as Dealer may decide to accept in the exercise of
its sole discretion. Distributor shall not
unreasonably refuse to enter into a new agreement
with the person contracting to so acquire or so
acquiring such assets from Dealer, the provisions
of which will be substantially the same as the
provisions of this Agreement.
CLAUSE 34- In connection with this Agreement, Distributor has
TRADEMARKS AND been authorized by Manufacturer to permit Dealer
TRADE NAMES to use the name "Volvo" under the following terms
and conditions, to each of which Dealer agrees:
A. During the existence of this Agreement, Dealer
may, nonexclusively; use the name "Volvo" in the
trade name used in connection with the conduct of
Dealer's business under this Agreement. Dealer
will not claim or make any attempt to register any
corporate or other name or trademark which
includes the name "Volvo" in any place or office,
but Dealer may, in connection with Dealer's
operations under this Agreement register a trade
name containing the name "Volvo" where
registration of fictitious names under which
businesses are conducted is required by law.
B. Dealer acknowledges that the name "Volvo" is a
valid and existing trademark presently owned by
Manufacturer and is registered by Manufacturer in
the United States Patent Office, that Manufacturer
presently has the sole right to use such trademark
(except to the extent that it has previously
expressly authorized others to do so) and to
authorize others to use such trademark, and that
valuable good will has accrued to and is attached
to such trademark.
C. Dealer will take any action which Distributor
shall deem necessary or desirable to permit
Distributor or Manufacturer to use, or to license,
or to permit others to use, the name "Volvo" in
Dealer's Area of Responsibility, including without
limitation the use of "Volvo" in the name of any
other company.
D. Dealer will not alter any Company Product
furnished hereunder or change or substitute any of
its equipment nor do anything that will in any way
infringe, impeach or lessen the validity of the
trademarks associated with any Company Product.
E. The permission herein granted shall terminate
automatically if, at any time:
1. Dealer ceases to act as a dealer in
Company Products; or
2. Dealer sells motor vehicles or parts or
accessories therefor, other than Company
Products, under any name containing the name
"Volvo"; or
3. Dealer files a voluntary petition in
bankruptcy, or is adjudicated as a bankrupt
pursuant to an involuntary petition, or
suffers appointment of a temporary or
permanent receiver, trustee or custodian for
Dealer or Dealer's business who is not
discharged within thirty (30) days, or makes
an assignment for the benefit of creditors;
or
4. Dealer assigns or attempts to assign any
interest in this Agreement, or
5. This Sales Agreement expires or is
terminated.
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F. Distributor or Manufacturer, upon thirty (30)
days prior written notice to Dealer, may terminate
the permissions given by this Clause 34 at any
time.
G. Upon termination of the permissions given by
this Clause 34, Dealer will immediately
discontinue the use of the name "Volvo" in
Dealer's trade name, and will also immediately
discontinue the use of any signs, structures, and
forms of advertising based upon Dealer's trade
name which include the name "Volvo" As soon as
possible after such termination, Dealer will take
all necessary and appropriate action to effect a
change in Dealer's trade name so that it will no
longer contain the name "Volvo" or any combination
or variation thereof, or any other name
deceptively similar thereto.
H. Dealer's interest in this trademark license is
personal and non-assignable.
I. Distributor's rights hereunder shall inure to
the benefit of, and are assignable to, any
successor to its business.
J. All rights exercisable by Manufacturer as the
owner of the trademark "Volvo" shall, in the event
of any assignment of such trademark, be fully
exercisable by and inure to the benefit of the
assignee.
CLAUSE 35- Upon termination of this Agreement because of the
DEALER'S SUCCESSOR death or incapacity of any principal owner named
ON DEATH OR in Paragraph II (A) hereof:
INCAPACITY
A. Distributor will offer a one-year Interim Sales
Agreement for Company Products:
1. to any person previously nominated by
notice in writing to Distributor, by such
owner as his successor, together with any
remaining persons named in Paragraph II (A)
or II (B) provided that:
a. the nominee has been participating in
the management of the dealership for a
reasonable period of time and is named
in Paragraph II when notice of such
termination is given, and
b. if more than one person has been
nominated, Distributor in its discretion
will determine to which nominee or
nominees the Interim Sales Agreement
will be offered; or
2. if there is no valid nominee, then to the
spouse of such owner together with any
remaining persons named in Paragraph II (A)
or (B) provided that managerial authority for
the operation of the dealership will continue
to be vested in the persons theretofore named
in Paragraph II (C), if any, or in the
absence of such persons, in other persons
mutually agreeable to such spouse and
Distributor.
B. Distributor will, within thirty (30) days after
it first learned of such death or incapacity,
offer to a nominated successor under Clause 35 (A)
(1) or to the spouse referred to in Clause 35 (A)
(2) the one year Interim Sales Agreement for
Company Products provided that:
a. Dealer within thirty (30) days of the
occurrence of such death or incapacity
will have given notice to Distributor of
such an occurrence, and
b. in the event that the person to whom
an Interim Sales Agreement is offered
does not accept the same within thirty
(30) days the offer will automatically
expire.
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C. The aforementioned Interim Sales Agreement will
be the same as Distributor's then standard Sales
Agreement for Company Products, except that its
duration will be limited to one (1) year, and
shall not be subject to renewal. Distributor may,
in its discretion, extend the term of any Interim
Sales Agreement to facilitate the purchase by
others of the former owner's interest in the
dealer ship. At the end of any Interim Sales
Agreement, Distributor will offer its then
standard form of Company Products Sales Agreement
to the persons named in Paragraph II (A) of the
Interim Sales Agreement, provided that said
persons then possess the requisites of an
authorized dealer.
PARAGRAPH V A. This Agreement in its entirety, consisting of
14 pages, has been read and agreed to by
Distributor and Dealer. Notwithstanding anything
to the contrary' hereinabove set forth,
Distributor has the right to amend, modify, or
change its standard Dealer Sales Agreements,
including this Agreement, as necessitated by
legislation or governmental regulation materially
affecting the relationship between Distributor and
Dealer existing on the date hereof.
B. This Agreement will not be binding unless it
bears the signatures of an Executive Officer of
Distributor and of a person named in Paragraph II
(A) hereof on behalf of Dealer.
IN WITNESS WHEREOF the parties hereto have duly
executed this Agreement in triplicate as of the
day and year first written.
Volvo Cars of North America, Inc. Dealer
By /s/ Xxxxxxx X Xxxxxx By /s/ Xxxxxxx X. Xxxx, Xx.
----------------------------- ----------------------------
Xxxxxxx X Xxxxxx Xxxxxxx X. Xxxx, Xx.
Title Senior Vice President Title President
-------------------------- -------------------------
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