NISSAN
DEALER TERM SALES AND SERVICE AGREEMENT
THIS AGREEMENT is entered into effective the day last set forth below by and
between the Nissan Division of NISSAN MOTOR CORPORATION IN U.S.A., a California
corporation, hereinafter called "Seller," and the natural persons and entities
identified in the Final Article of this Agreement.
INTRODUCTION
The purpose of this Agreement is to establish Dealer as an authorized dealer of
Nissan Products and to provide for the sale and servicing of Nissan Products in
a manner that will best serve owners, potential owners and purchasers of Nissan
Products as well as the interests of Seller, Dealer and other Authorized Nissan
Dealers. This Agreement sets forth: the rights which Dealer will enjoy as an
Authorized Nissan Dealer; the responsibilities which Dealer assumes in
consideration of its receipt of these rights; and the respective conditions,
rights and obligations of Seller and Dealer that apply to Seller's grant to
Dealer of such rights and Dealer's assumption of such responsibilities. It is
understood that Dealer wishes an opportunity to qualify for a regular Nissan
Dealer Sales and Service Agreement for Nissan Products and understands that for
that purpose Dealer first must fulfill all of Dealer's undertakings hereinafter
described.
This is a personal services Agreement. In entering into this Agreement and
appointing Dealer as provided below, Seller is relying, among other things, upon
the personal qualifications, expertise, reputation, integrity, experience,
ability and representations of the individual named in the Final Article of this
Agreement as Dealer Principal (the "Dealer Principal") and the individual named
in the Final Article of this Agreement as Executive Manager and the
representations of UAG Northeast, Inc., DiFeo Partnership, Inc., UAG and the
Dealer. In addition to Dealer, Seller intends to look to UAG Northeast, Inc.,
DiFeo Partnership, Inc., UAG, the Dealer Principal and the Executive Manager for
the performance of Dealer's obligations hereunder.
Nissan Products are intended for discriminate owners with the expectation that
such owners will be loyal and proud, but also demanding toward Seller and Dealer
with respect to Nissan Products and the manner in which they are sold and
serviced. Owners, potential owners and purchasers of Nissan Products are
expected to want, and are entitled to do business with, dealers who enjoy the
highest reputation in their communities and have well located, attractive and
efficient places of business, courteous personnel and outstanding service and
parts facilities. Nissan Products must be sold by enthusiastic dealers who are
not
interested in short term results only but are willing to look toward long
term goals and whoa re devoted to creating and maintaining a positive total
ownership experience for owners of Nissan Products. Seller's standard of
excellence for Nissan Products must be matched by the dealers who sell them to
the public and who service them during their operative lives.
Achievement of the purposes of this Agreement is premised upon mutual
understanding and cooperation between Seller and Dealer. Dealer has entered into
this Agreement in reliance upon Seller's integrity and expressed intention to
deal fairly with Dealer and the consuming public. Seller has entered into this
Agreement in reliance upon the integrity and ability of the Dealer Principal and
Executive Manager and their expressed intention to deal fairly with the
consuming public and Seller.
It is the responsibility of Seller to market Nissan Products throughout the
Territory. It is the responsibility of Dealer to actively promote the retail
sale of Nissan Products and to provide courteous and efficient service of Nissan
Products. The success of both Seller and Dealer will depend on how well they
each fulfill their respective responsibilities under this Agreement. It is
recognized that: Seller will endeavor to provide motor vehicles of excellent
quality and workmanship and to establish a network of Authorized Nissan Dealers
that can provide an outstanding sales and service effort at the retail level;
and Dealer will endeavor to fulfill its responsibilities through aggressive,
sound, ethical selling practices and through conscientious regard for customer
service in all aspects of its Nissan Dealership Operations.
Seller and Dealer shall refrain from engaging in conduct or activities which
might be detrimental to or reflect adversely upon the reputation of Seller,
Dealer or Nissan Products and shall engage in no discourteous, deceptive,
misleading or unethical practices or activities.
For consistency and clarity, terms which are used frequently in this Agreement
have been defined in Section 1 of the Standard Provisions. All terms used herein
which are defined in the Standard Provisions shall have the meaning stated in
said Standard Provisions. These definitions should be read carefully for a
proper understanding of the provisions in which they appear.
To achieve the purposes referred to above, Seller, UAG Northeast, Inc., DiFeo
Partnership, Inc., Dealer, the Dealer Principal and the Executive Manager agree
as follows:
ARTICLE FIRST: Appointment of Dealer
Subject to the conditions and provisions of this Agreement, Seller:
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(a) appoints Dealer as an Authorized Nissan Dealer and grants Dealer the
non-exclusive right to buy from Seller those Nissan Products specified in
Dealer's current Product Addendum hereto, for resale, rental or lease at or from
the Dealership Locations established and described in accordance with Section 2
of the Standard Provisions; and
(b) grants Dealer a non-exclusive right, subject to and in accordance with
Section 6.K of the Standard Provisions, to identify itself as an Authorized
Nissan Dealer, to display the Nissan Marks in the conduct of its Dealership
Operations and to use the Nissan Marks in the advertising, promotion and sale of
Nissan Products in the manner provided in this Agreement.
ARTICLE SECOND: Assumption of Responsibilities by Dealer
Dealer hereby accepts from Seller its appointment as an Authorized Nissan
Dealer and, in consideration of its appointment and subject to the other
conditions and provisions of this Agreement, hereby assumes the responsibility
for:
(a) establishing and maintaining at the Dealership Location the Dealership
Facilities in accordance with Section 2 of the Standard Provisions;
(b) actively and effectively promoting the sale at retail (and, if Dealer
elects, the leasing and rental) of Nissan Vehicles within Dealer's Primary
Market Area in accordance with Section 3 of the Standard Provisions;
(c) servicing Nissan Vehicles and for selling and servicing Nissan Parts
and Accessories in accordance with Section 5 of the Standard Provisions;
(d) building and maintaining consumer confidence in Dealer and in Nissan
Products in accordance with Section 5 of the Standard Provisions; and
(e) performance of the additional responsibilities set forth in this
Agreement, including those specified in Section 6 of the Standard Provisions.
ARTICLE THIRD: Ownership
(a) Owners. This Agreement has been entered into by Seller in reliance
upon, and in consideration of, among other things, the personal qualifications,
expertise, reputation, integrity, experience, ability and representations with
respect thereto of the Dealer Principal and Executive Manager named in the Final
Article of this Agreement and in reliance upon the representations and
agreements of UAG Northeast, Inc., DiFeo Partnership, Inc., UAG and the Dealer
as follows:
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(i) UAG Northeast, Inc. and DiFeo Partnership, Inc. will at all times
own 100% of the capital stock of Dealer and Dealer will at all times be
maintained as a separate entity.
(ii) The Executive Committee of Dealer is set forth in attached
Schedule "A".
(iii) The officers of Dealer are as set forth in attached Schedule
"A".
(iv) United Auto Group, Inc. ("UAG") owns 100% of the outstanding
stock of UAG Northeast, Inc. and DiFeo Partnership, Inc., (se Attachment "A"
attached).
(b) Changes in Ownership. In view of the fact that this is a personal
services agreement with the Dealer Principal and Executive Manager and in view
of its objective and purposes, this Agreement and the rights and privileges
conferred on Dealer hereunder are not assignable, transferable or salable by UAG
Northeast, Inc. and DiFeo Partnership, Inc., and no property right or interest
is or shall be deemed to be sold, conveyed or transferred to Dealer, UAG
Northeast, Inc. and DiFeo Partnership, Inc. under this Agreement. Dealer, UAG
Northeast, Inc., DiFeo Partnership, Inc., the Dealer Principal and the executive
Manager agree that any change in the ownership of Dealer, UAG Northeast, Inc. or
DiFeo Partnership, Inc. specified herein requires the prior written consent of
Seller [IF DEALER DESIRES TO REMAIN AN AUTHORIZED NISSAN DEALER] and that
without the prior written consent of Seller:
(i) no sale, pledge, hypothecation or other transfer of any of the
currently outstanding capital stock or partnership interest of Dealer will be
made and no additional shares of capital stock, partnership interest or
securities convertible into shares of capital stock, of Dealer will be issued or
sold.
(ii) no sale, pledge, hypothecation or other transfer of any of the
currently outstanding capital stock of UAG Northeast, Inc. and DiFeo
Partnership, Inc. will be made and no additional shares of capital stock,
partnership interest or securities convertible into shares of capital stock, of
UAG Northeast, Inc. and DiFeo Partnership, Inc. will be issued or sold.
(iii) neither Dealer, UAG Northeast, Inc. nor DiFeo Partnership, Inc.
will be merged with or into, or consolidate with, any other entity and none of
the principal assets necessary for the performance of Dealer's obligations under
this Agreement will be sold, transferred or assigned.
(iv) UAG Northeast, Inc. and DiFeo Partnership, Inc. will not enter
into any transaction, including, without limitation, any sale, pledge,
hypothecation or other transfer of any of the currently outstanding capital
stock of UAG Northeast,
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Inc. and DiFeo Partnership, Inc., the issuance or sale of additional shares of
capital stock, partnership interest or securities convertible into shares of
capital stock, of UAG Northeast, Inc. and DiFeo Partnership, Inc., or the merger
of UAG Northeast, Inc. and DiFeo Partnership, Inc. with or into, or the
consideration of UAG Northeast, Inc. and DiFeo Partnership, Inc. with any other
entity, if as a result of such transaction, the UAG Northeast, Inc. and DiFeo
Partnership, Inc. will cease to own at least 100% of the capital stock or
interest of Dealer.
Any transaction involving the capital stock of UAG Northeast, Inc. and
DiFeo Partnership, Inc. which does not violate subparagraph (iv) above may be
effected without obtaining the prior written consent of Seller and without
triggering a termination event under Section 12.A.(2) of the Standard
Provisions.
Dealer shall give Seller prior notice of any proposed change in said
ownership requiring consent of Seller and immediate notice of the death or
incapacity of any Dealer Principal or Executive Manager. No such change, and no
assignment of this Agreement or of any right or interest herein, shall be
effective against Seller unless and until embodied in an appropriate amendment
to or assignment of this Agreement, as the case may be, duly executed and
delivered by Seller and by Dealer. Seller shall not, however, unreasonably
withhold its consent to any such change, subject to Seller's rights of first
refusal set forth in Article Tenth of this Agreement. Seller shall have no
obligation to transact business with any person who is not named either as a
Dealer Principal or Executive Manager of Dealer hereunder or otherwise to give
effect to any proposed sale or transfer of the ownership, partnership interest
management of Dealer, UAG Northeast, Inc. and DiFeo Partnership, Inc. (other
than changes in the ownership of UAG Northeast, Inc. and DiFeo Partnership, Inc.
which are expressly permitted by the Article Third) prior to having concluded
the evaluation of such a proposal as provided in Section 15 of the Standard
Provisions. Dealer acknowledges Seller's right to require consent to any change
in the ownership of Dealer, UAG Northeast, Inc., and DiFeo Partnership, Inc.
agree that any change or transfer without such consent from Seller is void, and
of no force and effect, and grounds for termination. Dealer, UAG Northeast,
Inc., and DiFeo Partnership, Inc. further agree that either will not challenge,
contest, dispute, or litigate:
(i) any action taken by Seller (including, without limitation,
termination of this Agreement) response to an attempt to transfer ownership of
Dealer (except as provided by this Agreement) without Seller's consent; or
(ii) any decisions by Seller to withhold consent to a proposed change
in ownership of Dealer.
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The stock certificates representing the stock or analogous instrument
demonstrating ownership of Dealer, UAG Northeast, Inc., and DiFeo Partnership,
Inc. will have legends which notify a potential purchaser of such stock of the
limitations on transfer set forth in this Article third. Dealer, UAG Northeast,
Inc., and DiFeo Partnership, Inc. represent and agree that none of UAG
Northeast, Inc. and DiFeo Partnership, Inc. or Dealer will register their
capital stock, or securities convertible into their capital stock for sale or
resale to the public under any state or federal securities laws. UAG Northeast,
inc. and DiFeo Partnership, Inc. agree that no capital stock, or securities
convertible into capital stock, of Dealer will be issued, sold or otherwise
transferred by Dealer, UAG Northeast, Inc. and DiFeo Partnership, Inc., directly
or indirectly, to any automobile manufacturer, automobile distributor, any motor
vehicle dealer, any other person who could reasonably be considered a competitor
or potential competitor of Seller, or any affiliate of any of the foregoing.
However, with the exception of the immediately preceding sentence and the stock
restriction set forth in Exhibit A attached, Nissan does not intend to restrict
the transfer of equity or interests in UAG.
ARTICLE FOURTH: Management
(a) This Agreement has been entered into by Seller in reliance upon, and in
consideration of, among other things, the personal qualifications, expertise,
reputation, integrity, experience, ability and representations with respect
thereto of the person named as Dealer Principal in the Final Article of this
Agreement and in reliance on the following representations and agreements of UAG
Northeast, Inc. and DiFeo Partnership, Inc. that:
(i) each of Samuel and Spielvogel will, subject to any other
obligations set forth in this Agreement, devote 100% of their time to the
business and day-to-day operations of the entity for which they are responsible.
(ii) Samuel will devote 100% of his time to the affairs of Dealer.
(b) Dealer. Seller and Dealer agree that the retention by Dealer of
qualified management is of critical importance to the successful operation of
Dealer and to the achievement of the purposes and objectives of this Agreement.
this agreement has been entered into by Seller in reliance upon, and in
consideration of, among other things, the personal qualifications, expertise,
reputation, integrity, experience, ability and representations with respect
thereto of the persons named as Dealer Principal and Executive Manager in the
Final Article of this Agreement and in reliance on the following representations
and agreements of Dealer, and UAG Northeast, Inc. and DiFeo Partnership, Inc.
that:
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(i) Samuel is currently employed as the Executive Manager of Dealer.
As long as Spielvogel is employed by UAG Northeast, Inc. and DiFeo Partnership,
Inc., and Samuel is employed by Dealer, they will have full and complete control
over the Dealership Operations, subject only to the powers of the Board of
Directors of Dealer to manage the business and affairs of Dealer, and they will
at all times be members of the Board of Directors of Dealer. In addition, any
replacements for Spielvogel and Samuel will, so long as such replacements are
employed by any UAG Northeast, Inc. and DiFeo Partnership, Inc. and Dealer, have
full and complete control over the Dealership Operations, subject only to the
powers of the Board of Directors of Dealer to manage the business and affairs of
Dealer, and such replacements will at all times be members of the Board of
Directors of dealer.
(ii) the Board of Directors of Dealer shall delegate the management of
the Dealership Operations to Samuel and Dealer will not amend its Certificate of
Incorporation or By-laws to provide that its Board of Directors provide that its
Board of directors is entitled to exercise any extraordinary powers or interfere
unduly in the Dealership Operations.
(iii) Samuel will, subject to any other obligations set forth in this
Agreement, continually provide his personal services in operating the dealership
and will be physically present at the Dealership Facilities on a full-time
basis.
(c) Changes in Management. In view of the fact that this is a personal
services Agreement with the Dealer principal and Executive Manager and in view
of its objectives and purposes, Dealer, UAG Northeast, Inc. and DiFeo
Partnership, Inc. agree that any change in the Dealer Principal or Executive
Manager from that specified in the Final Article of this Agreement requires the
prior written consent of Seller. In addition, UAG Northeast, Inc. and DiFeo
Partnership, Inc. agree that no chief executive officer, or person performing
services and having responsibilities similar to a chief executive officer, of
UAG Northeast, Inc. or DiFeo Partnership, Inc. will be appointed, directly or
indirectly, without the prior written consent of Seller. Dealer shall give
Seller prior notice of any proposed change in Dealer Principal or Executive
Manager or the appointment of any chief executive or similar officer of UAG
Northeast, Inc. and DiFeo partnership, Inc. and immediate notice of the death or
incapacity of any Dealer Principal or Executive Manager. No change in Dealer
Principal or Executive Manager and no appointment of a chief executive or
similar officer of UAG Northeast, Inc. or DiFeo Partnership, Inc. shall be
effective unless and until embodied in an appropriate amendment to this
Agreement duly executed and delivered by all of the parties hereto. Subject to
the foregoing, Dealer, UAG Northeast, Inc. and DiFeo Partnership, Inc. shall
make their own, independent decisions concerning the hiring and firing of its
employees, including, without limitation, the Dealer Principal and Executive
Manager.
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Dealer shall give Seller prior written notice of any proposed change in
Dealer Principal or Executive Manager and immediate notice of the death or
incapacity of Dealer Principal or Executive Manager. No change in Dealer
Principal or Executive Manager shall be effective unless and until embodies in
an appropriate amendment to this Agreement duly executed and delivered by all of
the parties hereto. Dealer acknowledges Seller's right as set forth herein and
in the Standard Provisions) to require consent to any change in the management
of Dealer, UAG Northeast, Inc. and DiFeo Partnership, Inc. agree that a change
without such consent from Seller is void, of no force and effect, and grounds
for termination. Dealer, UAG Northeast, Inc. and DiFeo Partnership, Inc. further
agree that either will not challenge, contest, dispute, or litigate:
(i) any action taken by Seller (including, without limitation,
termination of this Agreement) in response to an attempt to change the
management of Dealer without Seller's consent; or
(ii) any decision by Seller to withhold consent to a proposed change
in management of Dealer, or
(iii) any decision by Seller to withhold approval of a proposed
management candidate.
To enable Seller to evaluate and respond to Dealer concerning any proposed
change in Dealer Principal or Executive Manager or the appointment of any chief
executive or similar officer of UAG Northeast, Inc. and DiFeo Partnership, Inc.,
Dealer, UAG Northeast, Inc. and DiFeo Partnership, Inc. agree to provide, in the
form requested by Seller and in a timely manner, all applications and
information customarily requested by Seller to evaluate the proposed change.
While Seller shall not unreasonably withhold its consent to any such change, it
is agreed that any successor Dealer Principal, Executive Manager or chief
executive or similar officer of UAG Northeast, Inc. and DiFeo Partnership, Inc.
must possess personal qualifications, expertise, reputation, integrity,
experience and ability which are, in the opinion of Seller, satisfactory. Seller
will determine whether, in its opinion, the proposed change or appointment is
likely to result in a successful dealership cooperation with capable management
that will satisfactorily perform Dealer's obligations under this Agreement.
Seller shall have no obligation to transact business with any person who is not
named as a Dealer principal or Executive Manager of Dealer hereunder prior to
having concluded its evaluation of such person.
Any successor Dealer Principal or Executive Manager and any chief executive
or similar officer of UAG Northeast, Inc. and DiFeo Partnership, Inc. must meet
the following minimum requirements in order to be submitted to Seller for
approval:
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(i) At least three years of experience as a general manager of an
automobile dealer in a major metropolitan area or similar position involving all
aspects of the day-to-day operations of such an automobile dealership
(including, without limitation, new and used vehicles sales, service, parts and
administration); and
(ii) A demonstrated track record of success in his/her prior
automobile dealership activities as measured by the dealerships' performance
under his/her management. The dealership(s) shall have consistently demonstrated
at least the following:
1. An above average level of sales performance when measured
against regional or zone averages and as measured against sales performance
objectives established by the manufacturer; and
2. An above average level of customer satisfaction when measured
against regional or zone averages for the make; and
3. A history of cooperation and good relations with
manufacturer(s) and/or distributor(s).
(d) Evaluation of Management. Dealer and Seller understand and acknowledge
that the personal qualifications, expertise, reputation, integrity, experience
and ability of the Dealer Principal and Executive Manager and their ability to
effectively manage Dealer's day-to-day Dealership Operations is critical to the
success of Dealer in performing its obligation under this Agreement. Seller may
from time to time develop standards and/or procedures for evaluating the
performance of the Dealer Principal and Executive Manager and of Dealer's
personnel generally. Seller may, from time to time, evaluate the performance of
the Dealer Principal and Executive Manager and will advise Dealer, the Dealer
Principal and the Executive Manager of the results of such evaluations and the
way in which any deficiencies affect Dealer's performance of its obligations
under this Agreement.
(e) Compensation of Executive Manager. Samuel will have a substantial
portion of his compensation tied to Dealer's overall performance with respect to
objectives for sales, market penetration and customer service which will be
established at quarterly intervals.
ARTICLE FIFTH: Additional Provisions
The additional provisions set forth in the attached "Nissan Dealer Sales and
Service Agreement Standard Provisions," bearing from number NDA-4S/9-88, as
amended in Article Thirteenth of this Agreement, and excepting only the
provisions contained in Sections 4, 14 and 16, are hereby incorporated in and
made a part of this Agreement. The Notice of Primary Market area, Dealership
Facilities Addendum, Product Addendum, Dealership Identification addendum,
Holding Company Addendum, if applicable, and all guides
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and Standards referred to in this Agreement (including references contained in
the Standard Provisions referred to above) are hereby incorporated in and made a
part of this Agreement. Dealer further agrees to be bound by and comply with:
the Warranty Manual; Seller's Manuals or Instructions heretofore or hereafter
issued by Seller to Dealer; any amendment, revision or supplement to any of the
foregoing; and any other manuals heretofore or hereafter issued by Seller to
Dealer.
ARTICLE SIXTH: Termination of Prior Agreements
This Agreement cancels, supersedes and annuls all prior contracts,
agreements and understandings except as stated herein, all negotiations,
representations and understandings being merged herein. 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 spaces
and lines) will be valid or binding on Seller unless approved in writing by the
President or an authorized Vice President of Seller.
ARTICLE SEVENTH: Term
This Agreement shall have a term commencing on the effective date hereof
and, subject to its earlier termination in accordance with the provisions of
this Agreement, expiring on the expiration date indicate in the Final Article of
this Agreement. Subject to other applicable provisions hereof, this Agreement
shall automatically terminate at the end of such stipulated term without any
action by Dealer, Seller or any of the other parties hereto.
ARTICLE EIGHTH: License of Dealer
If Dealer is required to secure or maintain a license for the conduct of
its business as contemplated by this Agreement in any state or jurisdiction
where any of its Dealership Operations are to be conducted or any of its
Dealership Facilities are located, this Agreement shall not be valid until and
unless Dealer shall have furnished Seller with written notice specifying the
date and number, if any, of such license or licenses issued to Dealer, Dealer
shall notify Seller immediately in writing if Dealer shall fail to secure or
maintain any and all such licenses or renewal thereof or, if such license or
licenses are suspended or revoked, specifying the effective date of any such
suspension or revocation.
ARTICLE NINTH: Additional Representations and Warranties
(a) All of the representations and covenants made to Seller by the other
parties to this Agreement have been made jointly and severally by each of the
parties hereto which has made any such representation or covenant.
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(b) In addition to the representations set forth elsewhere in this
Agreement, Dealer, UAG Northeast, Inc. and DiFeo Partnership, Inc., jointly and
severally, represent to Seller that:
(i) all of the documents and correspondence provided to seller by
Dealer, UAG Northeast, Inc., DiFeo Partnership, Inc., UAG or any of their agents
in connection with the solicitation of Seller's consent to this Agreement are
true and correct copies of such documents.
(c) In addition to the covenants set forth elsewhere in this Agreement,
Dealer, UAG Northeast, Inc. and DiFeo Partnership, Inc., jointly and severally,
agree with Seller that:
(i) Dealer will at times be involved in the operation of the Nissan
dealership currently operated by it and Dealer will not conduct any other type
of business.
(ii) no distributions will be made to the stockholders of partners of
Dealer, UAG Northeast, Inc. and DiFeo Partnership, Inc., if such distributions
would cause Dealer to fail to meet any of the Guides and Standards relating to
the capitalization of Dealer. In particular, UAG Northeast, Inc. and DiFeo
Partnership, Inc. will not be permitted to voluntarily redeem any of its
preferred stock, if prior to and after giving effect to such redemption Dealer
fails to meet any of the Guides and Standards relating to capitalization of
Dealer.
(iii) The UAG Northeast, Inc., DiFeo Partnership, Inc. and Dealer
hereby, jointly and severally, indemnify and hold harmless, Seller, its
officers, directors, affiliates and agents, and each person who controls Seller
within the meaning of the Securities Act of 1933, as amended (the "Act"), from
and against any and all losses, claims, damages or liabilities, to which they or
any of them may become subject under the Act, the Securities Exchange Act of
1934, as amended, or any other federal or state securities law, rule or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities arise out of the sale by the UAG Northeast, Inc., DiFeo
Partnership, Inc. or Dealer of any securities. The indemnification provided for
in this paragraph shall be exclusive of, and in addition to, any indemnification
pursuant to Section 10 of the Standard Provisions.
(iv) One of the conditions to the effectiveness of this Agreement by
Seller is the delivery of an opinion of counsel to all of the parties hereto
(other than Seller) to the effect that this Agreement has been duly executed and
delivered by each of the parties thereto (other than Seller) and is the legal,
valid and binding obligations of each of such parties enforceable in accordance
with its terms.
ARTICLE TENTH:
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A. Seller's right of First Refusal
In addition to its rights under this Agreement, in the event that UAG
Northeast, Inc., DiFeo Partnership, Inc. or Dealer should desire to enter into a
transaction, which if not approved by Seller, would result in a breach of the
covenants set forth in Article Third, Sections (a)(i), (a)(ii), (a)(iii),
(a)(iv) or (b) of this Agreement or in the event that any of the covenants set
forth i the fourth full paragraph of Article Third, Section (b), Article Forth,
Section (a)(vii) or Article Ninth, Section (c)(ii) of this Agreement are
breached, Seller shall have the additional right and option to purchase the
dealership assets or ownership interests pursuant to this Article Tenth.
(a) If Seller chooses to exercise its right of first refusal, it must do so
in its written refusal to consent to the proposed sale or transfer pursuant to
Section 15 of the Standard provisions or, if Section 15 of the Standard
Provisions does not apply, within sixty (60) days of receipt of notification
that an event triggering Seller's right of first refusal hereunder has occurred.
Dealer agrees not to complete any proposed change or sale prior to the
expiration of the period of exercise of Seller's right of first refusal and
without Seller's prior written consent. Such exercise shall be null and void if
Dealer withdraws its proposal within thirty (30) days following Dealer's receipt
of Seller's notice exercising its rights of first refusal.
(b) After being exercised, Seller's right to purchase may be assigned to
any party, and Seller hereby agrees to guarantee the full payment of the
purchase price by such assignee. Seller's rights under this Article Tenth shall
be binding on and enforceable against any assignee or successor in interest of
Dealer or purchaser of Dealer's assets. Seller shall have no obligation to
exercise its rights hereunder.
(c) If Dealer has entered into a bona fide written buy/sell agreement
respecting its Nissan dealership, Seller's right under this Article Tenth shall
be a right of first refusal, enabling Seller to assume the prospective
purchaser's purchase rights and obligations under such buy/sell agreement. The
purchase price and other terms of sale shall be those set forth in such
agreement and any related documents. Seller may request and Dealer agrees to
provide all other documents relating to Dealer and the proposed transfer,
including, but not limited to, those reflecting any other agreements or
understandings between the parties to the buy/sell agreement. If Dealer refuses
either to provide such documentation or to state in writing that no such
document exists, it shall be presumed that the agreement is not bona fide.
(d) If Seller determines pursuant to paragraph (c) above that the buy/sell
agreement is not bona fide, Seller will so notify Dealer. Dealer shall have ten
(10) days from its receipt
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of such notice within which to withdraw its proposal. Seller's exercise of its
rights hereunder shall be null and void if Dealer withdraws its proposal within
such time period. If the proposal is not withdrawn, Seller shall have the
option, but no obligation, under this Article Tenth to purchase the principal
assets, or the ownership interests, of Dealer, shall include the right to lease
the Dealership Facilities. the purchase price shall be at the then fair market
value as determined by an independent appraiser selected by Seller and
reasonably acceptable to UAG Northeast, Inc. and DiFeo Partnership, Inc. and the
other terms of sale shall be those agreed by Seller, Dealer, UAG Northeast, Inc.
and DiFeo Partnerships, Inc.
(e) Dealer shall transfer the affected property free and clear of liens,
claims, mortgages, and encumbrances.
(f) In addition to any other rights Seller may have at law, in equity or
hereunder, any conveyance of the dealership in violation of this right of first
refusal shall be viable by Seller.
(g) In the event that Seller elects not to exercise its right to purchase
the dealership assets or the ownership interests of the Dealer, UAG Northeast,
Inc. and DiFeo Partnership, Inc.
agree that it will offer to sell such assets or interests to the Dealer's then
current management team or to some other entity or persons acceptable to Seller.
If such individuals are not interested in such a transaction and no other entity
or individuals acceptable to Seller can be found then this Agreement will be
terminable at Seller's option, by deliver of written notice to Dealer.
B. Right of First Refusal on Sale or Lease of Property to a Third Party.
a) In addition to its rights under Articles Third and Fourth and Section 15
of the Standard Provisions, Dealer agrees that should Dealer seek to sell or
lease all or substantially all of the Approved Site to a third party for use as
a Nissan New Motor Vehicle Dealership, Seller shall have the additional right
and option, but not the obligation, to purchase or lease the Approved Site
pursuant to Article Thirteenth. A sale or lease for use other than a Nissan New
Motor Vehicle Dealership is void.
b) If Seller chooses to exercise its right of first refusal, it must do so
by written not delivered to Dealer within 60 days of Seller's receipt of notice
of the proposed sale or lease by Dealer. Dealer agrees not to complete any
proposed sale or lease prior to the expiration of the period for exercise of
Seller's right of first refusal and without Seller's prior written consent, and
agrees to allow Seller to perform an environmental study of the property. Such
exercise shall be null
-13-
and void if Dealer withdraw its sale or lease proposal within thirty (30) days
following Dealer's receipt of Seller's notice exercising right of first refusal.
c) After being exercised, Seller's right to purchase or lease may be
assigned to any party, and Seller hereby agrees to guarantee the full payment of
the purchase price or the rental payment by such assignee. Seller's rights under
this Article Thirteenth shall be binding on an and enforceable against any
assignee or successor in interest of Dealer or purchase of Dealer's assets.
Seller shall have no obligation to exercise its rights hereunder, and Seller may
rescind its offer if the property is determined be contaminated pursuant to an
environmental study. Such contamination shall be deemed a breach of this
agreement by dealer.
d) Should Seller actually purchase or lease the facility, Dealer shall also
furnish to Seller copies of any easements, licenses, environmental studies or
other documents affecting the property.
e) Dealer shall transfer the affected property by deed conveying marketable
title free and clear of liens, claims, mortgages, encumbrances, tenancies and
occupancies, or, if applicable, by an assignment of any existing lease. The
Warranty Deed shall be in proper form for recording. Dealer shall deliver
complete possession of the property at the time of delivery of the Deed or lease
assignment. Dealer shall also furnish to Seller copies of any easements,
licenses, or other documents affecting the property and shall assign any permits
or licenses which are necessary for the conduct of the Dealership Operations.
f) In addition to any other rights Seller may have at law, in equity or
hereunder, any sale or lease of the Approved Site in violation of this right of
first refusal shall be voidable by Seller.
C. Exclusivity Provisions.
In order for Dealer to maintain competitive Dealership Facilities to
effectively market Nissan Products, Dealer hereby agrees to abide by and never
challenge the following provisions (hereinafter "Exclusively Provisions"). These
Exclusivity Provisions shall be effective on or before the execution of the
Agreement, and continue in effect thereafter so long as Dealer (or its
principals) are authorized N___ dealers and these provisions shall be binding on
any successors-in-interest, assigns or purchasers of Dealer:
a) The only line-make of new, unused motor vehicles which Dealer shall
display sell at the Approved Site shall be the Nissan line and make of motor
vehicles. Dealer shall not conduct any dealership operations for any other make
or line of vehicles from the Approved Site.
-14-
b) Dealer shall sell and maintain a full line of Genuine Nissan Parts and
Accessories at the Approved Site and shall provide a full range of automotive
servicing for Nissan vehicles at the Approved Site pursuant to Section 5 of the
Standard Provisions to the Agreement. Nothing contained herein, however, shall
preclude Dealer from offering parts, accessories or servicing for vehicles of
other line or makes so long as such products or services are incidental to
Dealer's Nissan Dealership Operations;
c) Dealer shall not advertise or promote any make or line of new, unused
vehicles from the Approved Site other than the Nissan line; and
d) Dealer shall not install or maintain any sign at or near the Approved
Site which would tend to lead the public into believing that any line or make of
vehicles other than the Nissan line sold at the Approved Site.
ARTICLE ELEVENTH: Breach By Dealer
In the event (i) that any of the representations and warranties of Dealer,
UAG Northeast, Inc. DiFeo Partnership, Inc., UAG, Spielvogel or Samuel contained
in this Agreement shall prove not to have been true and correct when made or
(ii) of any breach or violation of any of the covenants made by Dealer, UAG
Northeast, Inc. and DiFeo Partnership, Inc., UAG, Spielvogel or Samuel in
Articles Third, Fourth and Ninth of this Agreement or upon the occurrence of any
of the events warranting termination of this Agreement as set forth in Section
12.A of the Standard Provisions, Seller may terminate this Agreement, prior to
the expiration date hereof, by giving Dealer written notice thereof, such
termination to be effective upon the date specified in such notice, or such
latter date as may be required by any applicable statute with the effect set
forth in Section 13 of the Standard Provisions.
ARTICLE TWELFTH: Execution of Agreement
This Agreement, and any Addendum or amendment or notice with respect
thereto, shall be valid and binding on Seller when it bears the signature of
either the President or an authorized Vice President of Seller and, when such
signature is a facsimile, the manual countersignature of an authorized employee
of Seller at the Director level and a duplicate original thereof is delivered
personally or by mail to the Dealership location. This Agreement shall bind
Dealer and the other parties hereto only when it is signed by: a duly authorized
officer or executive of Dealer or such party if a corporation; one of the
general partners of Dealer or such party if a partnership; or Dealer or such
party if an individual.
ARTICLE THIRTEENTH: Amendments to Standard Provisions
-15-
(a) Section 1.0 of the Standard Provisions is hereby amended to read as
follows:
"O. 'Principal Owners(s)' shall mean the persons named as Dealer Principal
in the Final Article of this Agreement upon whose personal qualifications,
expertise, integrity, experience, ability and representations Seller has relied
in entering into this Agreement."
(b) Section 6.I of the Standard Provisions is hereby amended to read as
follows:
"Seller shall have the right, at all reasonable times during regular
business hours, to inspect the Dealership Facilities and to examine, audit and
make and take copies of all records, accounts and supporting data relating to
the sale, sales reporting, service and repair of Nissan Products by Dealer.
Whenever possible, Seller shall attempt to provide Dealer with advance notice of
an audit or examination of Dealer's operations. Seller shall also have the
right, at all reasonable times during regular business hours and upon advance
notice, to examine, audit and make and take copies of all records, accounts and
supporting data of UAG Northeast, Inc. and DiFeo Partnership, Inc. relating to
the business, ownership or operations of Dealer."
(c) Section 12.A(1) of the Standard Provisions is hereby amended to read as
follows:
"(1) Any actual or attempted sale, transfer, assignment or delegation,
whether by operation of law or otherwise, by Dealer, UAG Northeast, Inc. and
DiFeo Partnership, Inc. of any interest in or right, privilege or obligation
under this Agreement, or of the principal assets necessary for the performance
of Dealer's responsibilities under this Agreement, without, in either case, the
prior written consent of Seller having been obtained, which consent shall not be
unreasonably withheld;"
(d) Section 12.A(3) of the Standard Provisions is hereby amended to read as
follows:
"(3) Removal, resignation, withdrawal or elimination from Dealer for any
reason of the Executive Manager, or removal, resignation, withdrawal, or
elimination from Dealer of Spielvogel as President, or removal, resignation,
withdrawal or elimination from Dealer of Samuel as Executive Vice President or
Executive Manager; provided, however, in each case, Seller shall give Dealer a
reasonable period of time within which to replace such person with an individual
satisfactory to Dealer as the case may be, and Seller in accordance with Article
Fourth of this Agreement; or the failure of Dealer to retain an Executive
Manager who, in accordance with Article Fourth of this Agreement, in Seller's
reasonable opinion, is competent, possesses the requisite qualifications for the
position, and who will act in a
-16-
manner consistent with the continued interests of both Seller and Dealer."
(e) Section 12.B(2)(i) of the Standard Provisions is hereby amended to read
as follows:
"(i) any dispute, disagreement or controversy between or among Dealer, UAG
Northeast, Inc., DiFeo Partnership, Inc. or UAG and any third party or between
the owners and management personnel of Dealer relating to the management or
ownership of Dealer, UAG Northeast, Inc., and DiFeo Partnership, Inc. develops
or exists which, in the reasonable judgment of Seller, tends to adversely affect
the conduct of the Dealership Operations or the interests of Dealer or Seller;
or"
(f) Section 12.B(2)(ii) of the Standard Provisions is hereby amended to
read as follows:
"(ii) any other act or activity of Dealer, UAG Northeast, Inc. and
DiFeo Partnership, Inc. or any of their owners or management occurs, which
substantially impairs the reputation or financial standing of Dealer or any
of its management subsequent to the execution of this Agreement:"
(g) Exhibits A and B are hereby incorporated by reference.
-17-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
_____ effective as of the 18th day of October, 1996 at Carson, California.
SELLER:
NISSAN DIVISION
NISSAN MOTOR DIVISION CORPORATION IN USA
By: /s/ Illegible By: /s/ Illegible
--------------------------------- ------------------------------
Its: Vice President Nissan Division Its: Regional Vice President
DIFEO NISSAN PARTNERSHIP
By: /s/ Carl Spielvogel
---------------------------------
Its: Chairman & CEO
UAG NORTHEAST, INC.
By: /s/ Carl Spielvogel
---------------------------------
Its: Chairman & CEO
DIFEO PARTNERSHIP, INC.
By: /s/ Carl Spielvogel
---------------------------------
Its: Chairman & CEO
CARL SPIELVOGEL
/s/ Carl Spielvogel
---------------------------------
SAMUEL X. DIFEO
/s/ Samuel X. DiFeo
---------------------------------
-18-
FINAL ARTICLE
The Dealer is DiFeo Nissan Partnership, a partnership formed under the laws of
the State of New Jersey. Dealer is located in Jersey City, New Jersey.
The other parties to this Agreement are UAG Northeast, Inc., a corporation
incorporated under the laws of the state of Delaware, DiFeo Partnership, Inc., a
corporation incorporated under the laws of the state of Delaware, Carl
Spielvogel ("Spielvogel") and Samuel X. DiFeo ("Samuel").
The Dealer Principal and Executive Manager is Samuel X. DiFeo.
Expiration Date: July 1, 2001
Working Capital Guide Requirement: $ 607,308
Net Worth Guide Requirement: $ 818,791
Flooring Line: $1,798,438
-19-
Attachment "A"
DIFEO NISSAN PARTNERSHIP
Executive Committee See Schedule
Officers "A"
30% Partner 70% Partner
UAG NORTHEAST, INC. DIFEO PARTNERSHIP, INC.
Directors See Schedule Directors See Schedule
Officers "B" Officers "C"
100% Stockholder 100% Stockholder
UNITED AUTO GROUP, INC.
Directors See Schedule
Officers "D"
-20-
Schedule "A"
DiFeo Nissan Partnership - Executive Committee and Officers
Executive Committee
Marshall S. Cogan
Carl Spielvogel
Arthur J. Rawl
Joseph C. DiFeo
Samuel X. DiFeo
Officers
Carl Spielvogel - Chairman and Chief Executive
Officer
Marshall S. Cogan - President
Arthur J. Rawl - Executive Vice President,
Chief Financial Officer and
Treasurer
George G. Lowrance - Secretary
Tambra S. King - Assistant Secretary
Judith Hershon - Assistant Secretary
Principal Owner/Executive Manager
Samuel X. DiFeo
-21-
Schedule "B"
UAG Northeast, Inc. - Directors and Officers
Directors
Marshall S. Cogan
Carl Spielvogel
Robert H. Nelson
Officers
Carl Spielvogel - Chairman and Chief Executive
Officer
Marshall S. Cogan - President
Arthur J. Rawl - Executive Vice President,
Chief Financial Officer and
Treasurer
George G. Lowrance - Secretary
Tambra S. King - Assistant Secretary
Judith Hershon - Assistant Secretary
-22-
Schedule "C"
DiFeo Partnership, Inc. - Directors and Officers
Directors
Marshall S. Cogan
Carl Spielvogel
Robert H. Nelson
Officers
Carl Spielvogel - Chairman and Chief Executive
Officer
Marshall S. Cogan - President
Arthur J. Rawl - Executive Vice President,
Chief Financial Officer and
Treasurer
George G. Lowrance - Secretary
Tambra S. King - Assistant Secretary
Judith Hershon - Assistant Secretary
-23-
Schedule "D"
United Auto Group, Inc. - Directors and Officers
Directors
Marshall S. Cogan
Carl Spielvogel
Robert H. Nelson
Michael R. Eisenson
John J. Hannan
Jules Kroll
John M. Sallay
Richard Sinkfield
Officers
Carl Spielvogel - Chairman and Chief Executive
Officer
Marshall S. Cogan - Vice Chairman
Arthur J. Rawl - Executive Vice President,
and Chief Financial Officer
George G. Lowrance - Executive Vice President,
Secretary and General
Counsel
The Company will provide prior notice of changes to this Schedule; franchisor
consent thereto is not required.
-24-
Exhibit "B"
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT ("Agreement"), made this __th day of
_________________ 19__ between United Auto Group, Inc., a Delaware corporation
the address of which is 375 Park Avenue, New York, New York 10152 ("UAG"), TRACE
INTERNATIONAL HOLDINGS, INC., a Delaware Corporation and principal shareholder
of UAG with an address at 375 Park Avenue, New York, New York 10152 ("Trace")
(UAG and Trace are hereinafter referred to as the "Indemnitors") and Nissan
Motor Corporation in U.S.A., a corporation the address of which is 18501 South
Figueroa Street, P.O. Box 191, Gardena, CA 90248-0191 ("Nissan").
WITNESSETH
WHEREAS, UAG has acquired all of the capital stock of various automobile
dealerships, including DiFeo Partnership Nissan of Jersey City, New Jersey
("DiFeo").
WHEREAS, UAG intends to offer and sell certain of its shares (the "Shares")
in a public offering pursuant to the Securities Act of 1933, as amended (the
"Act");
WHEREAS, UAG intends to use a portion of the proceeds from the public
offering to acquire, among other things, new automobile dealerships, repay debt
and provide cash for working capital and general corporate purposes;
-25-
WHEREAS, Nissan has consented to the transfer of DiFeo, and has agreed to
enter into a Nissan Dealer Sales and Service Agreement (the "Sales and Service
Agreement") with UAG, Carl J. Spielvogel ("Spielvogel") and DiFeo whereby
Spielvogel will serve as Dealer Principal for DiFeo;
WHEREAS, Nissan is not involved in the public offering of the Shares and
has no control over UAG's activities or representations in connection with that
offering or the sale of the Shares; and
WHEREAS, in recognition of Nissan's desire for complete protection against
liability and potential legal action and in order to obtain Nissan's consent to
the transfer of DiFeo and the execution of the Sales and Service Agreement, the
Indemnitors wish to provide in this Agreement for the indemnification of and the
advancing of expenses to Nissan as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
1. INDEMNITY OF NISSAN
The Indemnitors hereby agree to indemnify and hold harmless Nissan from and
against any and all losses, liabilities, judgments, amounts paid in settlement,
claims, damages and expenses whatsoever incurred investigating, preparing or
defending against any litigation, commenced or threatened, to
-26-
which Nissan may become subject under the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the securities laws of any state (the
"Blue Sky Laws"), any other statute or at common law or otherwise under the laws
of any foreign country, arising in connection with the offer and sale of the
Shares, including but not limited to any claim based upon the allegation that
Nissan is a "controlling person" within the meaning of 15 of the Act or 20(a) of
the Exchange Act. In addition, the Indemnitors hereby agree to indemnify and
hold harmless Nissan from any and all claims of the shareholders of UAG with
respect to any matter involving UAG, provided, that if it is ultimately
determined, based upon a final decision of a court, arbitrator or other
authorized panel or a settlement entered into by the parties to the dispute and
consented to by Nissan that Nissan was liable for such Claim in whole or in
part, the indemnification set forth herein shall be of no force or effect, and
Nissan shall immediately reimburse the Indemnitors for any expenses advanced by
the Indemnitors pursuant to paragraph 3 of this Agreement.
2. NOTIFICATION AND DEFENSE OF CLAIM
(a) If any claim is made or any litigation is commenced against Nissan in
respect of which indemnity may be sought pursuant to this Agreement, Nissan
shall promptly notify the Indemnitors in writing of the claim or the
commencement of any such litigation, and the Indemnitors shall then assume the
defense of any such litigation, including the employment and fees
-27-
of counsel (reasonably satisfactory to Nissan) and the payment of all such
expenses. Notwithstanding the foregoing, Nissan agrees to first make demand upon
UAG for indemnification pursuant to this Agreement, unless such demand would be
futile.
(b) Nissan shall have the right, as its own expense, to employ its own
counsel in any such case to oversee the litigation on behalf of Nissan, to
consult with the attorneys engaged by the Indemnitors as to the proper handling
of the litigation and to take such actions in connection with the litigation as
are reasonably necessary to protect Nissan's interests. The Indemnitors,
however, shall pay the reasonable fees and expenses of not more than one
additional firm of attorneys for Nissan if the Indemnitors do not assume defense
of any claim or in the event that a conflict of interest arises between Nissan,
the Indemnitors and/or their counsel. In the event that a conflict arises
between Nissan's attorneys and the Indemnitors or Indemnitors' attorneys, the
Indemnitors agree that the conflict will be resolved in Nissan's favor and that
Nissan shall be permitted to continue to retain Nissan's attorneys.
(c) The Indemnitors agree promptly to notify Nissan of the commencement of
any litigation against UAG in connection with the issue and sale of the Shares.
UAG and Nissan agree to cooperate with each other in the defense of any
litigation.
(d) The Indemnitors shall not be obligated to indemnify or reimburse Nissan
under this Agreement for any amounts paid in settlement of any litigation
effected without prior written
-28-
consent. The Indemnitors shall not, in the defense of any such litigation,
except with Nissan's prior written consent, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to Nissan of a release from
all liability in respect to such litigation. Neither the Indemnitors nor Nissan
shall unreasonably withhold its consent to any proposed settlement.
3. ADVANCEMENT OF EXPENSES
The Indemnitors agree that they will pay any and all expenses incurred by
Nissan in defending any claim, civil or criminal action, suit or proceeding
against Nissan in advance of the time such expenses are due. With respect to
legal fees and disbursements of Nissan's attorneys, the Indemnitors will pay
such attorneys an advance retainer of up to $20,000 and will pay additional fees
and expenses of such attorneys in increments of not more than $20,000
periodically in advance of the dates that such fees and expenses are incurred.
4. ENFORCEMENT
(a) The Indemnitors expressly confirm and agree that they have entered into
this Agreement and assume the obligations imposed on them in order to induce
Nissan to consent to the transfer of DiFeo and to execute the Sales and Service
Agreement and acknowledge that Nissan is relying upon this Agreement, and other
promises, to grant such consent.
-29-
(b) In the event Nissan is required to bring any action to enforce rights
or to collect moneys due under this Agreement and is successful in such action,
the Indemnitors shall reimburse Nissan for all of Nissan's reasonable fees and
expenses in bringing and pursuing such action.
5. SUBROGATION
(a) In the event of payment under this Agreement, the Indemnitors shall be
subrogated to the extent of such payment to all of the rights of recovery of
Nissan, which shall execute all papers required and shall do everything that may
be necessary to secure such rights, including the execution of such documents
necessary to enable the Indemnitors effectively to bring suit to enforce such
rights.
(b) The Indemnitors shall not be liable under this Agreement to make any
payment in connection with any Claim or litigation made against Nissan to the
extent Nissan has otherwise actually received payment (under any insurance
policy or otherwise) of the amounts otherwise indemnifiable hereunder, provided,
that nothing contained in this Agreement shall be deemed to require Nissan to
notify its insurance carriers with respect to any Claim or litigation or to seek
payments from such carriers with respect to such Claim or litigation.
-30-
6. MISCELLANEOUS
(a) This Agreement shall be interpreted and construed in accordance with
the laws of the State of California, without giving effect to the conflict of
law rules.
(b) This Agreement shall be binding upon and inure to the benefit of UAG,
Trace and Nissan and their respective legal representatives, successor and
assigns.
(c) No amendment, modification or termination of this Agreement shall be
effective unless in writing and signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
UNITED AUTO GROUP, INC.
By: /s/ Carl Spielvogel
-------------------------------
President
TRACE INTERNATIONAL HOLDINGS, INC.
By: /s/ Marshall S. Cogan
-------------------------------
Title:
NISSAN MOTOR CORPORATION IN U.S.A.
By: /s/ Michael J. Seergy
-------------------------------
Title: Regional Vice President
-31-
EXHIBIT A
This Exhibit is incorporated by reference in and is a part of the Nissan Dealer
Term Sales and Service Agreement between Dealer and Seller dated October 18,
1996.
Article THIRTEENTH (6)is hereby amended to read as follows:
If any person or entity, after the date of the initial public offering,
acquires more than 20% of UAG's common stock issued and outstanding at any
time and Nissan determines that such person or entity does not have
interests comparable with those of Nissan, or is otherwise not qualified to
have an ownership interest in a Nissan dealership (an "Adverse Person"),
UAG must terminate its dealer agreements with Nissan or transfer the Nissan
dealerships to a third party acceptable to Nissan unless, within 90 days
after Nissan's determination, the Adverse Person's ownership interest is
reduced to less than 20%.
-32-
DEALER:
DiFeo Nissan Partnership
- --------------------------------------------------------------------------------
(Name)
________________________________________________________________________________
(Doing Business As)
By /s/ Samuel X. DiFeo SELLER:
----------------------------- NISSAN DIVISION
(SIGNATURE) NISSAN MOTOR CORPORATION IN U.S.A.
Samuel DiFeo
-----------------------------
(TYPE NAME & TITLE) By /s/legible
---------------------------------
(SIGNATURE)
Jersey City NJ
---------------------------- Vice President Nissan Division
City State -----------------------------------
(TYPE NAME & TITLE)
____________________________
Dealer Code
By /s/ Michael J. Seergy
---------------------------------
(SIGNATURE)
Michael J. Seergy
Regional Vice President
---------------------------------
(TYPE NAME & TITLE)
-33-