ISUZU DEALER SALES
AND
SERVICE AGREEMENT
AGREEMENT effective the 16th day of September, 1996,
by and between
AMERICAN ISUZU MOTORS INC.,
a California corporation (hereinafter called "Distributor")
and
Fair Cadillac-Oldsmobile-Isuzu Partnership
[an individual][partnership formed in the State of Connecticut ]
[corporation incorporated in the State of ______________________]
[doing business as Fair Isuzu ]
whose business location is 100 Federal Road, Danbury, CT 06813
(hereinafter called "Dealer").
PURPOSE
The purpose of this Agreement is to set forth the basic rights, duties and
procedures that apply to the relationship and business transactions between
Distributor and Dealer, and to provide for the sale and servicing of Isuzu
Products in a manner that will best serve the interests of Distributor, Dealer,
and owners and purchasers of Isuzu Products. This Agreement sets forth the
rights which Dealer will enjoy as an Authorized Isuzu Dealer; the
responsibilities which Dealer assumes in consideration of these rights; and the
respective rights and obligations of Distributor and Dealer to each other. The
parties recognize that the success of Distributor and Dealer depends upon mutual
understanding and cooperation between Distributor and Dealer and how well they
each fulfill their respective responsibilities.
Distributor's basic responsibility is to promote and market Isuzu Products in
the United States and to endeavor to establish a sales network of dealers that
can provide effective sales and service efforts at the retail level. Dealer's
basic responsibility is to actively and effectively promote the retail sale of
Isuzu Products and to provide courteous and efficient
service of Isuzu Products. Distributor and Dealer will endeavor to fulfill
their respective responsibilities through aggressive, sound, ethical selling
practices and through conscientious regard for customer service.
Distributor and Dealer shall refrain from engaging in conduct or activities
which might be detrimental to or reflect adversely upon the reputation of
Distributor, Manufacturer, Dealer or Isuzu Products and shall engage in no
discourteous, deceptive, misleading or unethical practices or activities.
NOW THEREFORE, in consideration of the foregoing and the promises and agreements
herein contained, it is hereby mutually agreed between the parties hereto as
follows:
SECTION 1. APPOINTMENT OF DEALER
Subject to the conditions and provisions set forth in this Agreement,
Distributor hereby:
(1) appoints Dealer as an Authorized Isuzu Dealer;
(2) grants Dealer the non-exclusive right to buy Isuzu Cars, Isuzu Trucks and
Isuzu Parts and Accessories from Distributor for resale at or from Dealer's
Dealership Location; and
(3) grants Dealer a non-exclusive right, subject to and in accordance with the
provisions of this Agreement, to identify itself as an Isuzu Dealer and to
use and to display, in the conduct of its dealership operations, the
various trademarks, tradenames, service marks and other word and design
marks that Distributor uses or will use in connection with the promotion or
sale of or are or will be applied to Isuzu Products.
SECTION 2. ACCEPTANCE BY DEALER
Dealer hereby accepts and grants and acknowledges that:
(1) Except as otherwise provided by applicable laws, Distributor shall have the
absolute right to appoint other persons to conduct dealership operations in
connection with Isuzu Products and to contract with such persons in
connection therewith;
(2) Except as expressly provided in this Agreement or with the prior written
consent of Distributor (which consent shall not be unreasonably withheld),
neither said appointment, said grants nor this Agreement may be
transferred, assigned or sold to any third party, whether separately or in
-2-
connection with any sale of the assets of or ownership interests in Dealer,
by Dealer or its management or owners;
(3) No fee or other monetary consideration has been paid by Dealer to
Distributor for said appointment or grants or as consideration for
Distributor's entering into this Agreement and no property right or
interest, direct or indirect, is sold, conveyed or transferred to Dealer by
this Agreement.
SECTION 3. ASSUMPTION OF RESPONSIBILITY BY DEALER
In consideration of said appointment and grants and subject to the conditions
and provisions of this Agreement, Dealer agrees to:
(1) establish and maintain at Dealer's Dealership Location the Dealership
Facilities described in this Agreement in the manner set forth in this
Agreement;
(2) actively and effectively promote the sale at retail (and, if Dealer elects,
the leasing and rental) of Isuzu Products at and from Dealer's Dealership
Location in accordance with the provisions of this Agreement;
(3) conduct quality service for Isuzu Vehicles in accordance with the
provisions of this Agreement;
(4) perform all additional responsibilities specified in this Agreement;
(5) secure and maintain all licenses required for the conduct of an Isuzu
dealership at and from Dealer's Dealership Location and to furnish
Distributor with written notice of securing such licenses. This Agreement
will not be valid until and unless Dealer shall have furnished Distributor
with written notice specifying the date and the identifying number, if any,
of each such license secured by Dealer. Dealer shall notify Distributor
immediately in writing if Dealer shall fail to secure any such license or
if any such license shall expire and Dealer shall fail to obtain a renewal
thereof or if any such license is suspended or revoked, specifying the
effective date of any such expiration, suspension or revocation.
SECTION 4. OWNERSHIP AND MANAGEMENT
(a) This Agreement has been entered into by Distributor in reliance upon:
-3-
(i) DEALER'S REPRESENTATION AND AGREEMENT THAT THE FOLLOWING NAMED PERSONS
ARE ALL OF THE PERSONS WHO HAVE AN OWNERSHIP INTEREST IN DEALER:
Percentage Interest.
1. (Name) Fair Cadillac-Oldsmobile Corp.
30(%)
(Residence Address) 100 Federal Road,
Danbury, CT 06813
2. (Name) DiFeo Partnership, Inc.
70%
(Residence Address) 153 East 53 Street,
New York, NY
3. (Name)
%
(Residence Address)
4. (Name)
%
(Residence Address)
5. (Name)
%
(Residence Address)
6. (Name)
%
(Residence Address)
(ii) DEALER'S REPRESENTATION AND AGREEMENT THAT THE FOLLOWING NAMED PERSON,
AND ONLY THE FOLLOWING NAMED PERSON SHALL BE DEALER'S EXECUTIVE MANAGER AND
SHALL HAVE FULL AUTHORITY AND RESPONSIBILITY FOR THE OPERATING MANAGEMENT OF
DEALER IN PERFORMANCE PURSUANT TO THIS AGREEMENT:
(Name) James D. Evans Title: Executive Manager
(Residence Address) 10 Pilgrim's Way, Gaylordville, CT 06755
(b) This Agreement has been entered into by Distributor in reliance upon, and
in consideration of, the personal qualifications and representations with
respect thereto of the above-named persons. In view of the personal
nature of this Agreement and its objectives and purposes, this Agreement
and the rights and privileges conferred on Dealer hereunder are not
assignable, transferable or saleable by Dealer. Dealer agrees that any
change in the ownership or
-4-
operating management of Dealer specified herein requires the prior written
consent of Distributor. Dealer shall give Distributor prior notice of any
proposed change in said ownership or management and immediate notice of the
death or incapacity of any Owner or Executive Manager. No such change, and
no assignment of this Agreement or of any right or interest herein, shall
be effective against Distributor unless and until embodied in an
appropriate amendment to or assignment of this Agreement, as the case may
be, duly executed and delivered by Distributor and by Dealer. Distributor
shall not unreasonably withhold its consent to any such change.
SECTION 5. PROVISIONS
The "ISUZU DEALER SALES AND SERVICE AGREEMENT ADDITIONAL PROVISIONS" are hereby
incorporated herein and made a part of this Agreement with the same force and
effect as if set forth at length herein and the term "this Agreement" as used
herein, includes said "ISUZU DEALER SALES AND SERVICE AGREEMENT ADDITIONAL
PROVISIONS". Dealer agrees to be bound by and comply with the provisions of the
Service Policies and Procedures Manual, the Parts Policies and Procedures Manual
and all other manuals heretofore or hereafter issued by Distributor to Dealer
and all amendments, revisions and supplements thereto, and all bulletins and
instructions heretofore or hereafter issued by Distributor to Dealer.
SECTION 6. ENTIRE AGREEMENT
Unless expressly referred to and incorporated herein, this Agreement cancels,
supersedes and annuls all prior agreements, contracts and understandings between
Distributor and Dealer, and there are no representations, promises, agreements
or understandings except as described herein, all negotiations, representations
and understandings being merged herein.
SECTION 7. WAIVER OR MODIFICATION OF THIS AGREEMENT
(a) The failure of either party at any time to require performance by the other
party of any provisions 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 provisions nor constitute a
waiver of the provision itself.
(b) No waiver, modification or change of any of the terms of this Agreement or
change or erasure of any printed part of this Agreement or addition to it
(except filling of blank
-5-
spaces and lines) will be valid or binding on Distributor unless approved
in writing by the President or the Senior Vice President and General
Manager of Distributor.
SECTION 8. TERM
This Agreement shall have a term commencing on the effective date hereof and
shall continue in effect until terminated in accordance with the provisions of
this Agreement.
SECTION 9. APPLICABLE LAW
This Agreement shall be deemed to have been made in and shall be governed by and
construed in accordance with the laws of the State of California; provided,
however,
(a) Unless Dealer's Dealership Location is situated in California, Dealer shall
have none of the rights or duties provided for in the California Statutes
regulating the relationship between motor vehicle manufacturers,
distributors and dealers, but shall have the rights and duties provided in
the like laws, if any, of the state in which Dealer's Dealership Location
is situated; and
(b) If performance by either Distributor or Dealer of any provision of this
Agreement contravenes a law of any state or jurisdiction where such
performance is to take place, the performance of such provision shall be in
accordance with the requirements of such law to the extent, and only to the
extent, that such performance contravenes such law and only to the extent
and while such law is deemed or held to be valid and applicable to such
performance.
SECTION 10. EXECUTION OF AGREEMENT
This Agreement, and any addendum or amendment, or notice with respect thereto,
shall be valid and binding on Distributor only when it bears the signature of
either the President or the Senior Vice President and General Manager of
Distributor. This Agreement shall bind Dealer only when signed by a duly
authorized officer of Dealer if a corporation; by one or more of the general
partners of Dealer if a partnership; or by Dealer if an individual.
-6-
IN WITNESS WHEREOF, the parties have executed this Agreement in triplicate as of
the day and year first above written at Whittier, California.
DEALER DISTRIBUTOR
FAIR CADILLAC-OLDSMOBILE-ISUZU AMERICAN ISUZU MOTORS INC
PARTNERHSIP
By /s/ Carl Spielvogel By /s/ J.T. Maloney
--------------------------- --------------------------
Title Chairman & CEO Title Sr. V.P. and Gen Mgr.,
------------------------- Light Vehicles
----------------------
-7-
DEALERSHIP STANDARDS ADDENDUM
FOR
FAIR CADILLAC-OLDSMOBILE-ISUZU PARTNERSHIP
DBA: FAIR ISUZU
EFFECTIVE FROM AND AFTER SEPTEMBER 16, 1996 UNTIL AMENDED
In accordance with Section 5 of our Isuzu Dealer Sales and Service Agreement
with you dated September 16, 1996, and Article III of the Isuzu Dealer Sales and
Service Agreement Additional Provisions thereto, you agree to:
1. Furnish to us, on or before the tenth day of each month, on such forms
or by such means as we may designate, complete and accurate financial
and operating statements reflecting your true financial condition of
the fiscal year then ended.
2. Maintain a satisfactory flooring arrangement with an approved bank or
financial institution providing a minimum flooring line of $600,000
exclusively for the purchase of Isuzu vehicles.
3. Maintain a separate and exclusive Isuzu new vehicle showroom located
at 100 Federal Road, Danbury, CT 06813, solely for the display and
sale of Isuzu vehicles. Said showroom to be a minimum of 1,500 square
feet, and sufficient in design to display at least three (3) Isuzu
vehicles.
4. Install and maintain standard signs as required by us for an Isuzu
dealership, including brand, fascia, exterior service and parts, and
interior parts signs, where allowable under the current local sign
ordinance. In the event the installation of the Isuzu pillar brand
sign is not allowable by local sign ordinance after all reasonable
efforts have been exhausted to obtain a variance, it is agreed the
existing Hyundai brand sign will be refaced equally dividing the area
of the sign for Isuzu and Hyundai.
5. Have your service management and technicians attend specified Isuzu
sponsored service training programs.
6. Have your sales and management personnel attend Isuzu sponsored
product training sessions.
7. Maintain a designated area in the service department located at 100
Federal Road, Danbury, CT 06813 for servicing Isuzu vehicles. this
shall be coordinated
with our designated representative and subject to our approval.
8. Maintain a specified area in the parts department located at 100
Federal Road, Danbury, CT 06813 for storage of Isuzu parts. This
shall be coordinated with our designated representative and subject to
our approval.
9. Maintain net working capital of $94,850 in excess of the combined
current net working capital requirement of other manufacturers you may
also represent or, alternatively, having and maintaining net working
capital in the amount required by Isuzu as determined by any revised
standard working capital formula which we may employ.
10. Maintain and utilize the Isuzu Dealer Communication System for
submission of required monthly financial statements, parts orders,
warranty claims, retail sales reports, and all other functions which
from to time American Isuzu Motors Inc. may deem necessary.
American Isuzu Motors Inc. reserves the right to amend the foregoing Dealership
Standards at any time upon written notice to you.
Fair Cadillac-Oldsmobile-Isuzu Partnership
DBA: Fair Isuzu
100 Federal Road
Danbury, CT 06813
By /s/ Carl Spielvogel
-----------------------------
Its Chairman & CEO
----------------------------
AMERICAN ISUZU MOTORS INC.
By /s/ J.T. Maloney
-----------------------------
J.T. Maloney
Its Sr. Vice President and General Manager,
Light Vehicles
-2-
SUPPLEMENTAL AGREEMENT TO
DEALER SALES AND SERVICE AGREEMENT
(PUBLICLY TRADED COMPANY)
FAIR CADILLAC-OLDSMOBILE-ISUZU PARTNERSHIP
THIS SUPPLEMENTAL AGREEMENT (this "Supplemental Agreement"),
dated as of September 16, 1996, is entered into among Fair Cadillac-Oldsmobile-
Isuzu Partnership ("Dealer"), DiFeo Partnership and Fair Cadillac-Oldsmobile
Corp. ("Owners"), United Auto Group, Inc. ("Public Company") and American Isuzu
Motors Inc. ("Distributor").
WHEREAS, contemporaneously herewith, Distributor and Dealer are
entering into a Dealer Sales and Service Agreement (the "Dealer Agreement")
which authorizes Dealer to conduct dealership operations from the Dealership
Locations identified in the Dealer Agreement;
WHEREAS, the organization and ownership of Dealer is such that
the terms of the Dealer Agreement are not wholly adequate to address the
legitimate business needs and concerns of Distributor and Dealer; and
WHEREAS, Distributor and Dealer have entered into the Dealer
Agreement in consideration for and in reliance upon certain understandings,
assurances and representations which the parties wish to document;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereby agree as follows:
1. LIMITATIONS UPON CHANGE OF EXECUTIVE MANAGER
A. DESIGNATION OF EXECUTIVE MANAGER. As set forth in
Section 4 of the Dealer Agreement, James D. Evans shall be Executive Manager of
Dealer. Dealer and Owners agree that Executive Manager shall have complete and
irrevocable authority to make all decisions, and enter into any and all
necessary business commitments, required in the normal course of conducting
dealership operations on behalf of Dealer. Neither Dealer nor Owners will
revoke, modify or otherwise impose limitations upon such authority without the
prior written consent of Distributor.
B. CHANGE OF EXECUTIVE MANAGER. Without limiting the
restrictions set forth in the Dealer Agreement, the removal or withdrawal of
Executive Manager without Distributor's prior written consent shall constitute
grounds for termination of the Dealer Agreement, subject to applicable law.
2. LIMITATIONS UPON CHANGES IN OWNERSHIP
A. CHANGE IN OWNERSHIP OF DEALER OR OWNERS. Dealer,
Owners and Public Company hereby represent and warrant
that all of the partnership interests of Dealer are owned by Owners, and that
Fair Cadillac-Oldsmobile Corp. is a wholly-owned subsidiary of Public Company.
Any change in ownership of Dealer or of Owners, or any event with respect to
Public Company described in subparagraph B below, shall be considered a change
in ownership of Dealer under the terms of the Dealer Agreement, and all
applicable provisions of the Dealer Agreement will apply to any such change.
B. CHANGE IN OWNERSHIP OF PUBLIC COMPANY. Given the
ultimate control Owners have over Dealer, the control of Fair Cadillac-
Oldsmobile Corp. by Public Company, and Distributor's strong interest in
assuring that those who own and control Distributor's dealerships have interests
consistent with those of Distributor, Dealer, Owners and Public Company agree
that if any person or entity hereinafter acquires or controls more than 20% of
the issued and outstanding common stock of Public Company at any time and
Distributor reasonably concludes that such person or entity does not have
interests compatible with those of Distributor or is otherwise not qualified to
have an ownership interest in the dealerships at the Dealership Locations, then
within 90 days of receipt of written notice from Distributor, Dealers and Owners
will: (i) transfer the assets associated with Dealer to a third party
acceptable to the Distributor, (ii) voluntarily terminate the Dealer Agreement,
or (iii) provide evidence to Distributor that such person or entity no longer
has such an ownership interest in Public Company. In the event that Dealer
enters into an agreement to transfer its assets to a third party as set forth in
(i) above, Distributor shall have a right of first refusal to purchase such
assets in accordance with the terms and procedures set forth in subparagraph C
below. Dealer, Owners and Public Company agree that if an ownership interest is
acquired in Public Company by a person or entity which notifies Public Company
via Schedule 13D filed with the Securities and Exchange Commission, Dealer shall
advise Distributor in writing, and attach a copy of that Schedule.
C. EXERCISE OF RIGHT OF FIRST REFUSAL. Prior to
exercising its right of first refusal pursuant to subparagraph B above,
Distributor shall have a reasonable opportunity to inspect the assets, including
real estate, before making its decision. If Dealer has entered into a bona fide
written buy/sell agreement, the purchase price and other terms of sale will be
those set forth in such agreement and any related documents, unless Dealer and
Distributor agree to other terms. Upon Distributor's request, Dealer agrees to
provide all documents relating to the proposed transfer. If Dealer refuses to
provide such documentation or states that such documents do not exist, it will
be presumed that the agreement is not bona fide. In the absence of a bona fide
written buy/sell agreement, the purchase price of the dealership assets will be
determined by good faith negotiations by Dealer and Distributor. If agreement
cannot be reached within a reasonable time, the price and other terms of sale
will be established by arbitration according to the rules of
-2-
the American Arbitration Association. Dealer agrees to transfer the assets by
Warranty Deed where possible, conveying marketable title free and clear of liens
and encumbrances. The Deed will be in proper form for recording and Dealer will
deliver complete possession of the assets when the Deed is delivered. Dealer
will also furnish copies of any easements, licenses or other documents affecting
the property and assign any permits or licenses necessary for the conduct of
Dealer's operations. Distributor's rights under this section may be assigned to
any third party and in connection with any such assignment, Distributor will
guarantee full payment of the purchase price by the assignee.
3. LIMITATIONS UPON NUMBER AND LOCATIONS OF DEALERSHIPS
Dealer, Owners and Public Company agree to be bound by the
provisions of Distributor's standard policies in effect from time to time which
limit the number and locations of Distributor's dealerships which may be owned
by Dealer and/or its parent companies, subsidiary companies and companies under
common control with it. Dealer and Owners shall provide such documentation as
is reasonably requested by Distributor regarding the ownership interests of all
such persons and entities in Distributor's dealerships. In the event that
Dealer, Owners or Public Company shall acquire ownership or control of more than
one of Distributor's dealerships, then Dealer, Owners and/or Public Company
shall obtain separate motor vehicle licenses, and shall maintain separate
financial statements, for each dealership.
4. WORKING CAPITAL REQUIREMENTS
Dealer and Owners agree that Dealer shall maintain, at all times,
sufficient working capital to meet or exceed the minimum net working capital
standards for Dealer as determined from time to time by Distributor consistent
with its standard policies. Dealer and Owners shall provide such documentation
as is reasonably requested by Distributor to assure compliance with this
requirement. Owners agree to submit an annual consolidated balance sheet for
the combined dealership operations of Owners. Public Company agrees, upon
Distributor's request, to provide Distributor with copies of the materials filed
by Public Company with the Securities and Exchange Commission.
5. INDEMNITY
Public Company agrees to indemnify and hold Distributor harmless
from and against any and all claims, liabilities, losses, damages, costs and
expenses arising out of or in connection with the sale of stock in Public
Company. Public Company further agrees to indemnify and hold Distributor
harmless from and against any and all claims of the shareholders of Public
Company, and all liabilities, losses, damages, costs and expenses incurred in
connection therewith, unless a final determination is
-3-
made that Distributor was in fact liable for such claims, liabilities, losses,
damages, costs or expenses.
6. MISCELLANEOUS
A. EFFECT OF SUPPLEMENTAL AGREEMENT. The parties agree
that this Supplemental Agreement is intended to supplement the terms of the
Dealer Agreement and not to limit the rights and obligations of the parties
contained therein. This Supplemental Agreement is hereby incorporated into the
Dealer Agreement and made a part thereof. In the event that any of the
provisions of this Supplemental Agreement are in actual conflict with other
provisions of the Dealer Agreement, the provisions contained in this
Supplemental Agreement shall govern. In the event that the policies of
Distributor with regard to the issues addressed herein are hereinafter modified,
the parties agree to review such modifications to determine whether
modifications of this Supplemental Agreement are appropriate.
B. CONSTRUCTION. This Supplemental Agreement shall be
governed by and construed in accordance with the laws of the State of
California. The failure of either party to enforce any of the provisions of
this Supplemental Agreement or the failure to exercise any election provided for
herein shall in no way be considered to be a waiver of such provisions or
elections. All capitalized terms used herein and not defined herein shall have
the meanings set forth in the Dealer Agreement.
C. ALTERNATIVE DISPUTE RESOLUTION. In the event of any
dispute between the parties regarding the Dealer Agreement or this Supplemental
Agreement, Dealer, Owners and Public Company agree to participate in any
alternative dispute resolution procedures specified in the standard policies of
Distributor. Upon final determination through such dispute resolution, each
party shall have recourse to a review de novo by the appropriate state court or
administrative agency consistent with the provisions of state law. The parties
agree that should a party making such appeal lose the issues presented on
appeal, then that party shall pay the reasonable expenses, including reasonable
attorneys' fees, of the other party for the defense of such de novo review.
D. NO THIRD PARTY BENEFICIARIES. Nothing in this
Supplemental Agreement or the Dealer Agreement shall be construed to confer any
rights upon any person not a party hereto or thereto, nor shall it create in any
party an interest as a third party beneficiary of this Supplemental Agreement or
the Dealer Agreement. Dealer and Owners hereby agree to indemnify and hold
harmless Distributor, its affiliates, subsidiaries, directors, officers,
employees, agents and representatives from and against all claims, actions,
liabilities, damages, costs and expenses (including reasonable attorneys' fees)
arising from or in connection with any action by a third party in its capacity
as a stockholder of Public Company other than through a derivative
-4-
stockholder suit authorized by the Board of Directors of Public Company.
E. CONDITION PRECEDENT. Notwithstanding anything to the
contrary contained herein, the parties acknowledge that the provisions of this
Supplemental Agreement shall not be applicable until such time as Public Company
completes a public offering of its stock.
IN WITNESS WHEREOF, the parties have executed this Supplemental
Agreement effective as of the date set forth in the introductory paragraph
hereof.
FAIR CADILLAC-OLDSMOBILE-ISUZU DIFEO PARTNERSHIP
PARTNERSHIP
By: /s/ Carl Spielvogel By: /s/ Carl Spielvogel
-------------------------- ----------------------------
Name: Carl Spielvogel Name: Carl Spielvogel
-------------------------- ----------------------------
Title: Chairman & CEO Title: Chairman & CEO
-------------------------- ----------------------------
FAIR CADILLAC-OLDSMOBILE CORP. UNITED AUTO GROUP, INC.
By:___/s/ Samuel X. DiFeo By: /s/ Carl Spielvogel
-------------------------- ----------------------------
Name: Samuel X. DiFeo Name: Carl Spielvogel
-------------------------- ----------------------------
Title: CEO Title: Chairman & CEO
-------------------------- ----------------------------
AMERICAN ISUZU MOTORS INC.
By: /s/ J.T. Maloney
- -----------------------------
Name: J.T. Maloney
- -----------------------------
Title: Sr. Vice President,
General Manager - LV
- -----------------------------
-5-