MITSUBISHI
MOTOR SALES OF AMERICA, INC.
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DEALER SALES AND SERVICE AGREEMENT
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THIS AGREEMENT is made and entered into by and between MITSUBISHI MOTOR SALES OF
AMERICA, INC., a California corporation, with headquarters at 6400 West Katella
Avenue, Cypress, California 90630 (hereinafter referred to as "MMSA"), and
Rockland Motors Partnership, a New York corporation ____, partnership __X__,
individual ____ , doing business as Rockland Mitsubishi at 73-75 North Highland
Avenue, Nyack, Rockland County, New York 10960 (hereinafter referred to as
"DEALER").
1. BASIS OF AGREEMENT
THIS AGREEMENT provides for the nonexclusive right of DEALER to sell and service
motor vehicles which are listed on the most recent MMSA Product List as issued
by MMSA from time to time, and related parts, accessories and options
distributed in the United States by MMSA. DEALER acknowledges that Mitsubishi
Motors Corporation and other manufacturers supplying motor vehicles to MMSA may
now or in the future distribute motor vehicles or related products in the United
States through distributors other than MMSA, and that entering into THIS
AGREEMENT confers no rights or benefits upon DEALER with respect to the sale or
servicing of such motor vehicles or products.
2. TERM
THIS AGREEMENT shall continue in effect for a period of three (3) years
from its effective date, unless earlier terminated by DEALER pursuant to Section
X.A. of the accompanying MMSA Dealer Sales and Service Agreement Standard
Provisions (hereinafter referred to as the "Standard Provisions")or earlier
terminated by MMSA pursuant to Section X.B. of the Standard Provisions. Unless
earlier terminated by MMSA or DEALER, MMSA shall, not less than three (3) months
prior to the expiration of
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THIS AGREEMENT, conduct an evaluation of DEALER'S performance to determine
whether DEALER qualifies for renewal of THIS AGREEMENT for an additional three
(3) year term. Criteria considered in such evaluation shall be as set forth in
the Dealer Development Plan then in effect for DEALER. If MMSA determines that
DEALER qualifies for renewal of its MMSA dealership, DEALER and MMSA shall
execute an MMSA Dealer Sales and Service Agreement in the form then used by
MMSA, which agreement will include similar provisions for further
re-qualification and renewal.
If at any time, MMSA determines that a different or revised form of dealer
sales and service agreement would better serve the interests of the parties,
MMSA may, upon a minimum of thirty (30) days' notice to DEALER, terminate THIS
AGREEMENT and offer the new or amended form of agreement to DEALER in its stead.
DEALER must accept the new or amended form of agreement within thirty (30) days
of receipt thereof.
3. OWNERSHIP OF DEALER
MMSA and DEALER recognize that the ability of DEALER to satisfactorily
perform THIS AGREEMENT is conditioned upon the continued active involvement in
and/or ownership of DEALER by the following person(s) in the percentage(s) shown
(hereinafter referred to as the "Owners"):
Involvement
in Management
Percentage of (Active or
Name Title Ownership Inactive)
Rockland Motors Corp. 30% Active
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DiFeo Partnership RCM, Inc. 70% Active
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THIS AGREEMENT has been entered into by MMSA in reliance upon, and in
consideration of, the personal qualifications and representations of the above-
named Owners. Accordingly, except as otherwise provided herein, no change in
the active involvement in DEALER'S management by the Owners and no change in the
ownership of DEALER by the Owners which results in a change in majority control
or interest shall be permitted by DEALER or any Owner without the prior written
approval of MMSA, which approval shall not be unreasonably withheld.
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4. MANAGEMENT OF DEALER
DEALER represents that Neale Kuperman exercises the functions of general
manager and Neale Kuperman exercises the functions of Dealer Principal
(hereinafter referred to as the "Executive Managers") of its MMSA dealership and
that each has complete authority to make all decisions on behalf of DEALER with
respect to the dealership operations.
MMSA has entered into THIS AGREEMENT in reliance upon, and in consideration
of, the personal qualifications and representations of the above-named EXECUTIVE
MANAGERS. Accordingly, DEALER agrees that there shall be no change in the
EXECUTIVE MANAGERS without MMSA'S prior written consent. DEALER shall give MMSA
prior written notice of any proposed change in EXECUTIVE MANAGERS (including the
name and qualifications of the person proposed to be appointed as a replacement
EXECUTIVE MANAGER) and MMSA shall have the right, in its sole and reasonable
discretion, to determine whether the proposed candidate possesses the requisite
qualifications and experience for the position.
5. SALES LOCALITY
Subject to and in accordance with the terms and conditions hereof, MMSA has
established the following SALES LOCALITY as the nonexclusive, primary area of
responsibility for DEALER'S promotion and sale of MMSA PRODUCTS:
City of Nyack
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County or Parish of Rockland State of New York
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Except as may be otherwise required by applicable law, MMSA reserves the
right to sell and/or lease MMSA PRODUCTS to others (including, without
limitation, public or private fleet purchasers and employees of MMSA or its
affiliates) and to enter into MMSA Dealer Sales and Service Agreements with
others within and without the SALES LOCALITY. MMSA and DEALER agree that
additional MMSA DEALERS may be appointed in or near the SALES LOCALITY when MMSA
determines, in accordance with applicable law, that additional MMSA sales and
service facilities are warranted.
Nothing contained in THIS AGREEMENT shall require or be construed to
require DEALER'S approval of MMSA entering into MMSA Dealer Sales and Service
Agreements OR ANY OTHER AGREEMENTS WITH OTHERS WITHIN OR WITHOUT THE SALES
Locality.
6. DEALERSHIP PREMISES
MMSA has approved the following premises as the location of DEALER'S MMSA
sales and service operations (hereinafter referred to as the "DEALERSHIP
PREMISES")
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MMSA NEW VEHICLE SALES FACILITIES
73-75 North Highland Avenue
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Nyack, New York 10960
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PARTS AND SERVICE FACILITIES
73-75 North Highland Avenue
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Nyack, New York 10960
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SALES AND GENERAL OFFICES
73-75 North Highland Avenue
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Nyack, New York 10960
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USED VEHICLE DISPLAY AND SALES FACILITIES
73-75 North Highland Avenue
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Nyack, New York 10960
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STORAGE FACILITIES
73-75 North Highland Avenue
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Nyack, New York 10960
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170 Route 303 (additional storage)
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N. Nyack, New York 10994
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BODY AND PAINT FACILITIES
N/A
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OTHER
N/A
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MMSA and DEALER recognize that DEALER may sell MMSA PRODUCTS to customers
wherever they may be located. However, in order that MMSA may establish and
maintain an effective network of MMSA DEALERS for the sale and servicing of MMSA
PRODUCTS, DEALER specifically agrees that, without the prior written approval of
MMSA, it shall not display MMSA TRADEMARKS or, either directly or indirectly,
establish any place or places of business for the conduct of any of its MMSA
dealership operations, except on the DEALERSHIP PREMISES in the manner and for
the purposes described above.
DEALER shall maintain all requirements and conditions of this MMSA Dealer
Sales and Service Agreement as outlined in DEALER'S most recent Dealer
Development Plan, including but not limited to exclusive facility, management
and capital requirements.
7. LICENSES
DEALER agrees to secure and maintain all licenses required for the
operation of its business as contemplated by THIS AGREEMENT in any state or
jurisdiction where its MMSA dealership operations are to be conducted. If any
such license or licenses are required, THIS AGREEMENT shall not become effective
unless and until all such required licenses have been obtained and DEALER
furnishes MMSA with a copy of all such licenses together with written notice
specifying the date and number, if any, of all such licenses. DEALER shall
notify MMSA immediately in writing if DEALER fails to secure, maintain or renew
any such license. If any required license is suspended or revoked, DEALER shall
notify MMSA immediately in writing of the effective date of such suspension or
revocation.
8. SCOPE OF AGREEMENT
DEALER agrees to be bound by and comply with each and every term of this
MMSA Dealer Sales and Service Agreement, all schedules hereto, the Standard
Provisions, the DEALER DEVELOPMENT
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PLAN, the most recent PRODUCT LIST and all PRODUCT ADDENDA, the WARRANTY MANUAL
and all other manuals heretofore or hereafter issued by MMSA, all modifications,
extensions or renewals of any of the foregoing, and each and every bulletin or
directive heretofore or hereafter issued to DEALER by MMSA. MMSA may from time
to time deliver to DEALER a PRODUCT ADDENDUM setting forth special terms and
conditions applicable to particular MMSA VEHICLES designated in the PRODUCT
ADDENDUM. Such special terms and conditions shall supersede and control any
inconsistent terms and conditions in THIS AGREEMENT with respect to the MMSA
VEHICLES designated in the PRODUCT ADDENDUM. Each PRODUCT ADDENDUM shall be
effective as of the date specified in the PRODUCT ADDENDUM and shall remain
effective (1) until it is amended or terminated by its own terms or by a new
PRODUCT ADDENDUM, (2) until the MMSA VEHICLES designated in the PRODUCT ADDENDUM
are no longer distributed by MMSA, or (3) until termination of THIS AGREEMENT.
9. DEFINITIONS
Italicized terms used herein shall have the meanings set forth in Section
II of the Standard Provisions.
10. GOVERNING LAW
THIS AGREEMENT shall be governed by, and construed in accordance with, the
laws of the State of California.
11. JURISDICTION
MMSA and DEALER agree that all litigation between MMSA and DEALER which may
arise out of or in connection with THIS AGREEMENT or any transaction between
them shall be subject to the exclusive jurisdiction of the courts of the State
of California or of the federal courts sitting therein, and each hereby consents
to the jurisdiction of such courts. DEALER agrees that any and all process
directed to it in any such litigation may be served upon it outside of
California with the same force and effect as if such service had been made
within California.
12. LEGAL EFFECT
THIS AGREEMENT terminates and supersedes all prior written or oral
agreements and understandings, if any, between MMSA and DEALER, except (1) any
agreements expressly referred to and incorporated herein, (2) any indebtedness
which may be owing by either MMSA or DEALER to the other, and (3) any of
DEALER'S unfilled orders with MMSA for any MMSA PRODUCTS placed with MMSA
pursuant to the provisions of any sales agreement terminated or superseded by
THIS AGREEMENT. Except as herein otherwise provided, upon execution of THIS
AGREEMENT by DEALER and in consideration of MMSA'S entering into THIS AGREEMENT,
DEALER releases MMSA from any and all claims, demands, contracts and liabilities
(including, but not limited to, statutory
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liabilities), known or unknown, of any kind or nature whatsoever, arising from
or out of or in connection with any such prior agreements, business
transactions, course of dealing, discussions or negotiations between the parties
prior to the effective date hereof. DEALER expressly acknowledges and waives
the application of California Civil Code Section 1542 which provides as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor."
13. NOTICES
Any notice to be given hereunder may be delivered to the party if a sole
proprietor, to a partner of the party if a partnership, or to an officer of the
party if a corporation, or may be given by sending such notice by registered or
certified mail or by telegram or tested telex addressed, if to DEALER, to its
principal office as above stated, and if to MMSA, to its headquarters as above
stated, marked "Attention President." Except as otherwise provided in THIS
AGREEMENT, any notice so given shall be considered to have been given when
delivered or mailed as provided above.
14. AUTHORITY OF DEALER
If DEALER is a partnership or corporation, DEALER shall provide MMSA with a
certified copy of the partnership authorization, corporate resolution or other
document evidencing the authority of DEALER to enter into and adhere to the
terms of THIS AGREEMENT.
15. VALIDITY
No representative of MMSA shall have authority, other than by a writing
signed by the President or an Executive Vice President or two Vice Presidents of
MMSA, to renew, extend or terminate THIS AGREEMENT, or to amend, modify or waive
any provision of THIS AGREEMENT or any performance required hereby, or to make
any agreement which imposes obligations on either MMSA or DEALER not
specifically imposed by THIS AGREEMENT.
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IN WITNESS OF THE FOREGOING, the parties hereto have executed THIS
AGREEMENT in duplicate. THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL IT HAS
BEEN SIGNED BY THE PRESIDENT OR AN EXECUTIVE VICE PRESIDENT OR TWO VICE
PRESIDENTS OF MMSA. DEALER WILL BE NOTIFIED IN WRITING BY MMSA WHEN THIS
AGREEMENT HAS BEEN SO SIGNED, WHICH NOTICE WILL SPECIFY THE EFFECTIVE DATE OF
THIS AGREEMENT.
Rockland Motors Partnership
dba Rockland Mitsubishi
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(Dealer's Firm Name)
By /s/ Illegible Date 8/29/94
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Title V.P.
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By Date
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Title
---------------------------- /s/ Illegible
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(Witness)
MITSUBISHI MOTOR SALES OF AMERICA, INC.
By Date
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(President)
OR
By Date
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(Executive Vice President)
OR
By /s/ Robert LaBass Date October 13, 1994
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(Vice President)
and
By /s/ Illegible Date October 13, 1994
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(Vice President)
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ATTACHMENT 1
DRAFT ONLY
CHANGE IN
MAJORITY OWNERSHIP OR CONTROL, OR MANAGEMENT OF
DEALER
August 20, 1996
Mr. Samuel X. DiFeo
EMCO DiFeo Automative Group
583 Route 440
Jersey City, NJ 07304
Re: ROCKLAND MOTORS PARTNERSHIP dba ROCKLAND MITSUBISHI
Dear Mr. DiFeo:
The Dealer Sales and Service Agreement (the "Dealer Agreement") with
Mitsubishi Motor Sales of America, Inc. ("MMSA") prohibits a change of majority
ownership or control of the Dealer without the prior written approval of MMSA,
which approval will not be unreasonably withheld. The purpose of this
provision, together with the provision requiring MMSA approval for a change in
the Executive Managers of the Dealer, is to preserve the identity of the owners
and managers whose automotive industry experience, reputation and abilities were
the basis for MMSA's decision to award to the Dealer the Mitsubishi automobile
dealership. A failure to observe these provisions can result in termination of
the Dealer Agreement.
Some Mitsubishi Dealers, or one of their parent entities in a chain of
ownership, may consist of entities whose equity securities are, or will in the
future become, publicly traded. The purpose of this letter is to explain in
greater detail what constitutes a change of ownership or control of the Dealer
in that context.
For purposes of this letter, capitalized terms used herein without
definition shall have the meanings ascribed to them in the Dealer Agreement.
Additionally, the following definitions shall apply herein:
"GROUP" shall have the meaning contemplated in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended.
"MAJORITY OWNERSHIP" of a Dealer or other Person shall mean beneficial
ownership or control, directly or indirectly, of either (a) a majority of
the outstanding equity securities of such Dealer or other Person entitled
to vote generally in the election of directors, trustees or
Rockland Motors Partnership
August 20, 1996
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members of any other governing body of such Dealer or other Person or (b)
equity securities of such Dealer or other Person representing a majority of
all outstanding votes entitled to be cast in the election of directors,
trustees or members of any other governing body of such Dealer or other
Person.
"PARENT COMPANY" shall mean a Person holding, directly or indirectly,
Majority Ownership of the Dealer.
"PERSON" shall mean to any individual, corporation, partnership,
trust, or other entity.
For a Dealer whose equity securities are publicly traded, and for a Dealer
having one or more Parent Companies with publicly traded equity securities, a
change of majority ownership or control of such Dealer will be deemed to have
occurred upon the happening or existence of any of the following events or
circumstances:
(a) Any Person or Group holding, as of the date hereof, Majority
Ownership of the Dealer or a Parent Company thereof ceases to
hold such Majority Ownership; or
(b) Any Person or Group acquires Majority Ownership of the Dealer or
a Parent Company thereof after the date hereof; or
(c) A majority of the directors, trustees or other members of the
governing body of the Dealer or any Parent Company thereof who
newly assume such positions after the date of the Dealer
Agreement were not nominated to such positions by their
predecessors on such governing body.
You have advised us, through your attorney Laurence Weltman of Willkie
Farr & Gallagher, that several of the minority shareholders in your Parent
Company, United Auto Group, Inc. ("United Auto") are parties to a shareholder
agreement that will be terminated when United Auto consummates a public
entity offering later this year. This is to advise you that, notwithstanding
the foregoing, the termination of such shareholder agreement will not, in and
of itself, constitute a change of majority ownership or control pursuant to
the terms of your Dealer Agreement with us. Further, the existing
shareholders will not be deemed to be a Group solely by virtue of having or
exercising in concert registration rights with respect to their shares in
United Auto.
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Rockland Motors Partnership
August 20, 1996
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Please acknowledge your understanding of and agreement with the foregoing
by executing a copy of this letter in the space provided below and returning
such copy to me.
Very truly yours,
MITSUBICHI MOTOR SALES OF
AMERICA, INC.
By: /s/ Illegible
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ACKNOWLEDGED AND AGREED TO:
ROCKLAND MOTORS PARTNERSHIP
by DIFEO PARTNERSHIP RCM, INC.
By: /s/ Carl Spielvogel
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